The national Republican. [volume] (Washington City [D.C.]) 1866-1870, 1867-06-13

OF Washington city at tho time Of the selection,
made In January or February last, Of tho names
from which the present panel Of Jurors 10 taken,
shows: 1st That neither the clerk Of George.
town or Of the Levy Court raw one single name
on his list, much less aided or oo-opsrated with
him In selecting the 400 which the law requires
that those three officers Aforesaid" should
\ select, and that he did not 500 . single name
upon the list Of either Of tho others, or 90
operate In selecting from their lists. On the
contrary, II shows that each OF these three on.
GERS put into the box tho number Of names
specified In the act for their respective jurisdo-
lions, each independently Of the other, and with.
out the slightest regard TO tho judgment or con.
sent Of either Of the other two.
The affidavit further shows that after the
selection Of the names to DO put In the boz had
been thus made, Ia utter disregard Of the re-
quiroments Of the act Of Congressi In that behalf,
| instead Of sealing up the box and thoroughly
shaking ii, and then depOsiting II with tho clerk
Of the Supreme Court, as required by tho fourth
section, and then meeting afterwards In the
Office Of the clerk Of tho court to witness him
break the soal and draw the names Of the jury
required for the present term Of this court, as
provided for In the ffth section OF the act, the
clerk Of Georgetown city at tho same time,
though 10 the presence Of the clerk Of the court
and the other oficofs, proceeded to draw from
tho box the names Of this present panel, to
which challenge Is now made. This was also o
most reprehensible disregard Of tho plain provi.
sions Of the act. .'...
These arc tho facts upon which this appliea.
cation TO quash tho array 10 grounded. The
question presented BY the law and the facts,
(which are all admitted by the demurrer for tbs
decisi on Of the court 10 twofold In It's cbaracter
LIST. Does the law Of Congress require that the
judgment Of all three Of tho officers named
therein should either unitedly or severally pass
upon thu entire $50 rimkE required to 20 into
tho box In making this sslsction from the three
lists, or does It only require that the olerR Of
Georgetown only should pass judgment in select
ing the 80 names from that city the clerk Of the
Lcvy Court upon the 40 to be chosen from the
rural portion Of this Districts and the register Of
/ Washington TO select alone the 400 10 DO taken
from this oity1 Secondly. Whether II the act Of
Congress does require the Judgment Of all three
Of these officers to be exercised in the selection Of
| placing them there In the manner described by
Mr. Douglass In his affidavit Is cause Of principal
| challenge to the array
am clear in my conviction that the law re.
quires tho united judgment Of the three officers
named 10 the act In the selection Of the entire
number Of names to be placed In the box. for tho
| reasons that have already mentioned.
Is, then, the several action Of each Of these
officers In selecting exclusively from bis own
list, and not even looking at the lists Of either
Of the Others or even knowing any Of the
names taken from those lists, to be placed In
the box, as sworn to by Mr.. Douglass, and ad.
mitted by the counsel for the prisoner, ground
In law upon which 10 set aside the array
II Is argued by the counsel for the prisoner
that 1t Is mott that nothing except defect In the
summouing Of n jury by the sheriff Is principal
cause Of challenge to the array In England, by
the common law, which we have inherited from
our British ancestors, and which Is the law in
this District by which we are to be governed 10
the decision Of this question: and the case Of III,
Queen against o. Connel and others has been cited
by the counsel for the prisoner ut the bar as con
elusive Of the question in this case ..
/ confess that my yeneration for tho common
law Of England may sometimes even run into {
weakness, but the day Is long passed with me
and should be with everybody, when decisions o.
courts aud mere arbitrary utterances Of tex
writers, however hoary with age or exalted IL
position, are to be accepted as procustian beds
on which other courts and other people are bound
to ct themselves, with or without reason. With
me no decision is Of weight that lacks Of reason
for its solid foundation, unless II be the decision
Of superior court that holds q mastery over me
whose mandates, right or wrong, reasonable OF
unreasonable, am compelled by law to obey.
Tho grand object Of jury trials in this country
or in England Is or ought to be, and is supposed
to be fair and impartial investigation Of the
. subject In controversy by honest and upright
men, who are entirely Indifferent between the
parties TO the suit. 1t was to subserve this viou
that challenges were permitted to be made eithe
to the array or-to the poll, aud either by princi
pie or by favor, some persons entertain tho ide'
that challenges and many other advantages ar
D given by tho common law TO the prisoner OK
clusiyely, and nothing to tho State. This 10 a
II we should say that all the provisions and for
, mularies Of tho common law wero invented
5 simply for the purpose Of preventing tho publ
from obtaining its just demands upon tho guilt,
} offender against society. 1t Is as though suel
formularies were q mere means and ceremony b.
Lg.LA ~. s.l Iawtu al nj ar
and have every means to assist IN setting him a
large without respect to the rights Of an ohende
i community. / entertain different opinion.
, concur with Chief Justice Gibson, Of Psnnsyiya
/ mia, in the case of Commonwealth vs. Jolif'
; 7th Watts, 5S5, in which he says Total la
Q punity was not the end proposed by the Legi'
Q lature, nor ought II, perhaps, to be desired b
8 tho philanthropist. It Is not easy To discover
o conclusive reason why the punishment Of th
, felon ought TO move our tenderest sympathie
+ or why tho laws ought to be dsfectively col
. structed, on purpose that he might elude then
! To rob the executioner Of bis victim, whom tt
, laws arc sanguinary, II might be an achieyemer
8 to boast Of but wo are told at the mitigation
o our penal code that the certainty Of oonyictio
9 to be expected from mildness Of punishment
n would more than compensate, In Its eheots, tn
o want of that severity which was thought to dets
lby It's terrors. 4 If 1t DO furthc
INDUCED, q shorter and certainly a cheaper wa
y of obtaining its end would be to have no prose
, BUTTONS at all. But It Is ono which would scare
0 | be found to answer in the state Of the time'
o Why thon, should the prisoner have more tina
II serves speaking Of ohallengers) ito give hiI
n fair trial and his twenty peremptory ohal
n lenges certainly gives him that and havin
It secured to him all he had n right to require
10 must have occurred to the legislature that u
T. Commonwealth must have fair trial too"
Is Let US now see whether tho ease Of O'Conns
and the Queen, tried in 1874, Is one which "
70 ought, according to the counsel Of the prison'
20 at the bar to accept conclusive upon the que
ID ton now before us In that case by Sd and II
y. William 4tb, chapter 81, and BY 4th and OF
d William 4tb, chapter 9Th, certain provisions We
O. made regulating the mode In which certa
at books should be prepared, from which the sher
Z. was required to make a selection Of juries.
Ii In the preparation of one or more Of the lis
os from which these jury books were made, nur
o. Der Of names Of persons qualified as jurors vi
III omitted. A challenge to the array was made
ly this case on the ground Of the commission, and
is was held that such omission In one OF the pr
IN liminary lists was not sufficient cause OF cha
no lenge to the array But that Is by no means u
TX present case. To make the case at bar siml
nd to that Of 0'Connell, and bring 1t within u
ia ruling In that case, II would be necessary tn
he Congress should, in the law for summoning jure
Of have incorporated provision requiring that u
three officers who stand In the place Of the sher
no should have prepared their re'pectiye lists fro
the lists Of the assessors some other ocers aI
II. that in making the lists of said other office
BIO some negligent or fraudulent omission shou
nv have occurred. 1t may be admitted, witho
or any prejudice to tho motion In this case that u
on omission by such assessors or other officers
10, make a complete list, from which the list
aAd hu