Evening star., 1867-06-12

witness hlm break the seal and draw the names
OF tne jury required for the present term o.
this court, as provided for In the fifth section
OF the Act, the clerk of Georgetown city a.
the same time, though in the presence Of the
clerk OF the court and the other OH GERS, pro.
ceeded to draw from the box the names Of this
present panel. to which challenge is now
made IhIs was also a most reprehensible
dlsregard Of the plain provisions of the act
Ihese are the facts upon which this applica
ton 10 qu"sh the array is grounded. The
question presented by the law and the facts,
(Which are all admitted by the demurrer,) tor
the decision of the Court, is two-fold In it's
character. 1st Does the law Of Congress re.
quire that the judgment of all three Of the Of
fcers named therein shoufd either unitedly or
severaHy pas upon the entire $40 names re-
| quired 10 20 into the box in making this Sc.
lection from the three lists or does it oHly re-
quire that the Clerk of Georgetown only
should pass Judgment in selecting the 50 names
from that city; the Clerk OF the Levy Court,
upon the 40 to be chosen from the rural por
tton Of this District; and the Register Of Wash
ington to select alone the 400 to be taken from
this city. Secondly Whether IL the act OF
Congress does require the judgment of all three
OF these officers to be exercised In the selection
OF the entire $50 names to be placed in the box,
the placing them there in the manner de.
scribed by MIR. Douglass in his afidavit is
cause OF principal challenge to the array.
am clear in my conviction that the law
requires the united judgment OF the three
OH GERS named in the act In the selection OF tha
entire number OF names to be placed In the
box, for the reasons that have already men
toned. =
Is, then, the several action of each of these
officers in selecting exclusively from his 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
admitted by the counsei for the prisoner, a
ground In law upon which to set aside the
arrayl -
1t is argued by the counsel for the prisoner
that it is not; that nothing except q defect in
the summoning Of jury by the sheriff is
principal cause of challenge to the array in
England, by the common law, which we have
Is the law in this District by which we are to
be governed in the decision of this question;
and the case OF the @ Queen against O'Conneli
and others has been cited by the counsel for
question in this case. ~
i confess that my venera,ion for the com.
mon law Of England may sometimes even run
into weakness, but the day is long passed
with me, and should be with everybody
when decisions OF courts and mere arbitrary
utterances OF text writers, however hoary
with age, or exalted in position, are to be ac-
cepted as procustian beds, on which other
courts and other people are bound to fit them.
selves, with or without reason With me no
decision is Of weight that lacks of reason for
Its solid foundation, unless it be the decision
OF superior court that holds mastery over
me, whose mandates, right or wrong, reason.
able or unreasonable, am compelled by law
to obey.
The grand object of jury trials in this coun.
try or in England is or ought to be, and is
supposed to be a fair and impartial in yestipa-
tion OF the subject In controversy by honest
and upright men, who are entirely Indifferent
between the parties to the suit. It was to sub.
serve this view that challenges were per-
mitted to be made either to the array or
10 the poll, and either by principle or by
favor, some persons entertain the idea that
challenges and many other advantages are
given by the common law to the prisoner ex-
q 9cl1sively and nothing to the State Tsss
formuefes M 1snH 81 the common ns law We're anu in
vented simply for the purpose Of preventing
the public from obtaining its Just demands
upon thee guilty offender against society. 1t
is as though such formularies were a mere
means and ceremony by which the accused is
to derive every advantage and have every
means to assist In setting him at large without
respect to the rights of an offended commu-
nifty. entertain different opinion. 1 concur
in the case of the Commonwealth VS.. Joliffe,
7th Watts, 5S5, in which he says: Total i'm.
punity was not the end proposed by
to be desired by the philanthropist II
is not easy to discover a conclusive
reason why the punishment of the felon ought
to move our tenderest sympathies, or why the
laws ought to be defectiveIy constructed, on
purpose that he might elude them. To rob the
executioner Of his victim. when the laws are
sangninary, it might be an ACHE vement to
boast OF; but we are told at the mitigation of
our penal code that the certainty of con viz ton
to be expected from mildness OF punishment
voulo more than compensate, in its effects, the
want wan. Of IT. thar severity which was thought to
ther ind ulged, a shorter and certainly cheaper
way of obtaining its end would be to have no
prosecutions at all. Butt is one which would
scarce be found to answer in the s.ate of the
times. Why, then, should the prisoner have
more than serves" speaking Of challengers)
"to give him fair trial, and his twenty Pc
ana having secured to him all he had a right
to require, It must have occurred to the legis-
iature that the Commonwealth must have a
fair trial, too"
Let us now see whether the case of O'Con.
mel and the Z ueen, tried in 1874 is one which
we ought, according to the counsel of the pri-
soner at the bar, to accept as conclusive upon
the question now before us. In that case by
Sd and 4th William 4th, chapter 81, and by 4th
and 5th William 4th, chapter Sth, certain pro-
visions were made regulating the mode in
which certain books should be prepared, from
which the sheriff was required to make q
selection of juries
In the preparation OF one or more OF the
lists from which these Jury books were
fled as jurors was omitted. A chal-
leDge to the array was made in this
case on the ground of the omission
and it was held that such omission in one of
the preliminary Ii SITS was not sufic cient cause
Of challenge to the array. But that is by no
means the present case. To make the case at
bar similar to that Of O'Conneil, and bring It
within the ruling in that case, it would be
necessary that Congress should, in the law for
summoning juries, have incorporated a pro.
vision requiring that the three off GERS who
stand in the place of the sheriff should have
prepared their respective lists from the lists OF
the assessors or some other officers and that in
making the lists of said other officers some
negligent or fraudulent omission should
have occurred 1t may be admitted,
without any prejudice to the motion in
this case that the omission by such as.
SCISSORS or other officers to make q com
plete list, from which the list or iury
book, if we may so term it, used by
the Register and clerks in order to inform
them as to who all the persons legally qualified
as jurors in their respective Jurisdictions were,
would not have been sufficient ground of itself
to set up this motion. And yet am tree to
say that in my opinion 1t ought to be su1fi cient
But admitting it were not, it is a very different
case from the one before us. Here Congress
requires that we combine the Judgment OF three
ofhcers in selecting the persons OF whom the
juries are to be composed. Each of these
OIL icers is to be guard over the other two, to
prevent him from perpetratinga q wrong against
individuals or the community BY putting in
the box from which jurors for whole year are
TO be taken In all the courts, the names Of per.
sons who are disqualified, either from want OF
mental capacity, neral rectitude, purity Of
blood, want OF proper age, or tai x.paying qual.
II one of these officers, as Mr.. Douglass did
on the occasion Of filing the Jury box in Feb
ruary last, should exercise an exclusive judg.
ment in the selection Of 400 out Of the $40
names put into the box, the safeguard which
Congress sought by the act TO throw around
the selection of iurore in not WoFth a 1vl av,A