The record-union., 1891-12-14
THE SUPREME COURT DECISION.

pies underlying free government. and
the safeguards to life and porperty and
their enjoyments, have entertained any
doubt as to what the final decision con-
corning the legality of the San Francisco
Grand Jury must be.
Sensible men know that the essential
question is not one of Doodle, the
punishment of evil doers, or the breaking
up of vicious rings; these desirable ends
are but incidental to the vital question
involved, which is one lying at the very
root of liberty. 1t is infinitely better
that ten thousand rascals deserving the
halter go unhanged, than that principle
which underlaid the American revolu-
ton, and that is substructiuna of the
Declaration of Independence, shall be up
rooted.
We fought it out with England on the
proposition that the people have the
right to choose their own Assessors, tax
gatherers, Sheriffs. Judges and other
officers invested with functions that in
volve the enjoyment Of life and property.
If the people do not choose wisely, but
select administrators who subvert the
law and defeat justice, the remedy is
with them, and they are responsible to
themselves only.
When the plain letter of the statute,
made by the people in their sovereign
capacity, directs method of procedure for
obtaining juries to accuse or to try any
member of organized society, there can
not be arbitrary departure from that line
OF direction and mandate, no matter how
high and holy the end aimed at, without
Justifying similar departure and perver-
sion where venal officers have in view
vicious ends and the destruction of the
liberties of the people. That, we take it,
is the root and essence of the whole ques-
ton.
The Supreme Court states the facts very
simply. A competent court in San Fran
cisco ordered twenty-five names to be
drawn for Grand Jurors from box con-
tanning IA names that had been regularly
selected from citizens of the jurisdiction
by its twelve Superior Judges.
The Sheriff, who is by the law nomi-
mated to that duty, summoned eighteen of
the twenty-five, all who could be found.
Eight of these, for good cause. were ex-
cused. More than 100 names then re-
manned in the box. The court then or
dered that, as but ten Grand Jurors had
been drawn and accepted, forthwith
nine good and lawful men be summoned
by an etfSoT, appointed by the court here.
for that purpose to serve as Grand
Jurors
The court then appointed an eHsor. who
selected nine men from the county and
summoned them, and they were accepted
and sworn as jurors. No reason was
given by the court for not drawing from
the names in the box nor for not direct
ing the venire to the Sheriff, the officer of
the people; nor was it shown or charged
that the Sheriff was disqualified or par
tial. In the words of the Supreme Court,
'the record shows that the Sheriff was
discarded and the eLiSor appointed SIM
ply because the court chose to do So"
1t would appear to be sufficient to stop
right here and submit to fair common
sense the whole question upon this un-
challenged agreed statement of facts. To
nc hiatt lo
cient to show that power was assumed
by the court, no matter how good and
pure its motives, which, if conceded,
strikes at the very root of free govern
ment and puts in peril every liberty en-
joyed by the people,
The Supreme Court, however, goes over
the whole ground of defense of the pro-
ceedings. 1t recites the law directing the
selection of names, preparation of slips or
ballots, placing them in the box, and all
the details of drawing the slips in open
court and the summoning of the persons
drawn, by the Sheriff of the county.
But Section 226 of the code-which the
court thinks refers rather to trial than
Grand Jurors, but valves the point-pro-
vides that when a sufficient number of
jurors are not drawn or summoned. or do
not appear, the court may order the
needed number to be forthwith drawn
and summoned, and ''may direct the
Sheriff OF an eliSor chosen by the court to
summon so many good and lawful menu
to serve, etc.
Upon the construction of this section
the whole matter hinges. In constituting
it the Supreme Court comedies to the
Judge below good motive, but adds:
II he has the power claimed, then such
power must be conceded to every other person
VINO may at any time occupy similar Judi
cial position. Under such power a court could
easily procure the indictment and perhaps
the conviction of any person whom it deemed
TO be an offender, by simply appointing a per-
with similar bias. In time of great public
excitement-political or otherwiSe-a citizen
who has incurred censure in certain quarters
would have scarcely a remnant left of that
protection which is afforded by q fair trial be-
fore an impartial jury; and to say that such
unlimited power can be safely lodged with all
the men who may happen TO be Judges would
be to ignore human history and the principles
of human nature 1t must be remembered
that unauthorized power may be used for bad
as Wen as Tor good purposes. A spectator
might, for the moment, look in safety and
with complaisance upon the barbaric tumult
of mob If ne happen TO be in sympathy with
Its present design; but let the fury of another
mob be directed against him, or those whom
he knows or believes to be innocent and he
will appreciate at once the value of legal pro-
lection. SO, also, he may look lightly upon
the spectacle of Jury packed for the purpose
of prosecuting one whom he believes 10 be
guilty; but if such course were pursued to-
hp mil how .1a