dence here of these men who selected it, and you cannot go behind what they say about it." What would my learned friend say to the argument? Suppose I took his own ingenious and excellent argument and turned it against himself, what would he say to it? Would he think it a good argument if every man who sat there was a negro? Would he not turn me to this statute and say "of the white male citizens," and then turn to your honor and say, " Are these white male citizens, every man of whom is a woolly-headed African? [Laughter.] He cannot meet that suggestion; and the case is precisely parallel to the one at bar. Mr. MERRICK. If my learned friend will allow me to ask him a questionMr. PIERREPONT. Any.

Mr. MERRICK. Does the learned gentleman include in his motion challenging this array any objection to the personal qualification of these jurors? Mr. PIERREPONT. I most assuredly do.

Mr. MERRICK. I was not aware of it.

Mr. PIERREPONT. They are just as much disqualified as though they were negroes. The statute says they shall be "white;" and the statute says they shall be "tax-payers;" and the statute says they shall reside within this District. We find they are not a jury of tax-payers, and they are not a jury of negroes; but they might just as well have been tax-payers and negroes, for on inquiry of my learned friend, the district attorney, I am informed that you have in your District negroes who are tax-payers. If these, then, had been tax-paying negroes, they would have been just as well qualified as white non-tax-payers, and there is no getting rid of it.

Let us see what further the statute says on this subject. I am only in the beginning of it. Those are the men that the law says are to be selected as jurors. I repeat, let us see what further it says. And they may put in "the names of such qualified persons as were on the list the previous year, but who did not serve as jurors; and the lists thus made of the register and clerks aforesaid shall be kept by them respectively and be delivered to their successors in office." These three men shall make their lists of tax-payers who are white in these three districts. What shall they do when they get together? The officers aforesaid shall select from the list of the register of Washington city the names of four hundred persons. That is what these three men are to do. This board, as my learned adversary calls it, and very justly, are to select first from the list of the register of the city of Washington four hundred names. Let us start there. Did they select from the register's list of the city of Washington four hundred names? He tells you that they never selected one name, and that he never had there a list, first or last. When I asked him on the cross-examination here yesterday, after they had brought him here," Did the others even see the rolls of the names that you put into the box?" He said "No." “Did you see any that they put in ?" He said "No." And you will find it so appears on the record.

What was the object of this law? The register of the city of Washington was to bring the list of tax payers whom he deemed qualified. The clerk of the levy court was to bring his list of tax-payers whom he judged to be qualified. The clerk of Georgetown was to bring his list of tax-payers whom he thought to be qualified. And this board, thus together, was to select first from the register's list of the city of Washington the names of four hundred persons, from that of the clerk of Georgetown eighty, and from that of the clerk of the levy court forty. Did these three men select from the list of the register of Washington four hundred? They never selected a man, and that evidence is perfect and complete. Did the three select from the list of the clerk of Georgetown eighty persons? Not a man. Did this board select from the list of the clerk of the levy court forty? Not one. Now, there was some reason for this law, was there not? The object of it was to have a fair jury. This statute was passed by the Congress of the United States for the govern

ment of this District, in which it was known when the statute was passed that there were persons of a variety of views in relation to the great public questions. It was known that in this city there were a great many men who did not sympathize with the government.

There were others who were its bitter enemies. There were others who were zealously in its favor. There were the strongest abolitionists on the one hand, and on the other those who believed in and favored slavery. Every grade and class of political opinion and of moral view and religious notion existed in this city when this statute was passed, as it does to day, and Congress was anxious that jurors should be so selected that when men came to be tried in this District they should feel that they were to have a jury without prejudice, and a jury in the selection of which more than one man had been engaged. That they could have a jury, after the list had been prepared, of the kind of men that the statute required, the strict provisions of which I have just read. Now, I appeal to your honor if, under the evidence before the court on the demurrer which admits it, one single requisite has been complied with. I ask your honor, suppose that these men had selected any sort of men they had pleased, men who were not residents, and, as I before said, men who were negroes, would that have been a good jury? Suppose the clerk of the Senate and the chairman of the Judiciary Committee had met together to select jurors and put their names in the box, and then afterwards the clerk had drawn them out, would that have been a good selection of the jury? It would have been just as good as this. It would have been just as strict a compliance with the law as this is. Why have any law about it? Why not say, Let the register and these men go and do as they please about it." The law was made surely for something.

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Let us see what further provisions they made to guard against any fraud or any partiality in relation to the selection of a jury. "The names selected from said lists shall be written on separate and similar pieces of paper, which shall be so folded or rolled up that the names cannot be seen, and placed in a box." Were the names written on these pieces of paper taken from those lists? Not a name selected by this board was taken from these lists; but these three different persons selected, and neither ever let the other know, as the evidence shows, what he had selected. Not a man knew any except such as were his own; and the register of this city did not even know his own, for his own clerk, as he says himself, rolled up the names and put them in. "And they shall be placed in the box to be provided by the register and the clerks aforesaid, which box shall be sealed, and after being thoroughly shaken shall be delivered to the clerk of the circuit court of Washington county for safe keeping." Let us see whether that part of the law, under this evidence, was complied with. The box was not sealed, as the evidence shows. It was not sealed or delivered to the clerk. That is a very important provision. If the box was delivered to the clerk unsealed, why, your honor knows, there might be a clerk dishonest-I do not wish to be understood as making any such suggestion here, on the contrary, very far from it—but there might be a clerk or a deputy clerk, or some one connected with the office, who might see fit to stuff that box with other names for other motives; and, therefore, to provide against this, it is enacted that this box, by these men who compose this board, shall be sealed and thoroughly shaken, and after it is thus sealed and thoroughly shaken it shall be delivered to the clerk of the circuit court. The evidence is that when this box was delivered to the clerk of the circuit court it was unsealed. Can it be said and urged to your honor that these men, intrusted with the performance of this high duty, can properly disregard every one of these requirements? I submit to your honor, and will prove by this evidence before I am through, that from the first step they took to the last they did so disregard them. Not one single act did they do that was not in violation of the statute.

Next, "that the said register and clerks and the clerk of the circuit court

shall, at least ten days before the commencement of each term of the circuit or of the criminal court, meet at the City Hall of Washington city, and then and there the clerk of the circuit court shall publicly break the seal of said box, and proceed to draw therefrom the names of so many persons as are required."

There is another requisition: That these men, that this board of three, should thus select the jurors and put their names in a box, seal it up and deliver it to the clerk, shaken and sealed; and a very important provision it is, as your honor will see. Suppose, for any bad motive-no such motive do I attribute in this case, but make the supposition simply as an illustration of the point of law that I wish to bring to the attention of the court-suppose, from any motive of partiality or interest, one of these gentlemen forming the board saw fit, in drawing from the box, to draw names which were in his hand instead of the names in the box. The law provides that he shall not have that opportunity; that he shall not draw them, but that the clerk of this court shall draw the names. Now, what is the evidence? It is that one of this board, the clerk of Georgetown, drew the names, and not the clerk of this court. The clerk of Georgetown had no more right to draw these names than my learned friend, the district attorney; and drawing them, he was doing that which made it an illegal draft of this jury, directly contrary to the law. Law is not supposed to be made in folly, or in nonsense. Congress makes this solemn provision that these names shall be drawn by the clerk, who is not one of the board, but a totally different man, after the box containing the names shall have been delivered to him, shaken and sealed; yet one of this board draws the jury. That is the evidence before us, and uncontradicted.

Let us see what further provisions are made in relation to this matter. It was evidently anticipated by the Congress which passed this law that a contingency might arise in which it might become necessary to set aside the array and order a new panel, and, in order to meet that contingency, they have made provision for it in the section which I will now read; and I will just say that my learned friend, in reading from this case in England, read what the learned judge there said in relation to their law; that their law did not allow them to go behind the sheriff in relation to the matter, and he gave as one good reason why the sheriff's selection should not be set aside, that there was no other earthly mode prepared in England by which they could proceed to the trial of any case. My learned friend read it from the report, some portions of which I shall have occasion, in a moment or two, to cite to your honor.

Mr. BRADLEY. Will you be kind enough to repeat the remark just made? I was otherwise engaged at the moment, and did not hear it.

Mr. PIERREPONT. I say that one of the reasons that the Lord Chief Justice Tindal gave as a good reason for setting aside the selection of jurors in England. was, that if that motion were granted, there would be no mode by which they could get a jury to proceed with the trial of causes.

Mr. BRADLEY. Oh, yes; I now understand you.

Mr. PIERREPONT. Now, in our case no such reason can be assigned. The statute does contemplate just such an emergency, and has made a provision for it. It provides, in section five, that "if a jury be required for the circuit court, the twenty-six persons whose names shall first be drawn shall constitute the jury for that term; and the names of the persons drawn as aforesaid shall not be again placed in such box for a period of two years. If any person whose name is so drawn shall have died, or has removed from the District, or has become otherwise disabled from serving as a juror, the said register and clerks shall draw from the box the name of another person who shall serve instead; and after the requisite number of jurors shall have been so drawn, the said box shall be again sealed and delivered to the clerk of the circuit court, as aforesaid."

Immediately following that provision is section 7th, which says that "in case either of the officers whose duty it is to make out the lists aforesaid shall ne

glect or refuse to act, or in case either of them shall be interested in any action or proceeding pending in the said circuit or criminal court, the chief judge of the circuit court shall appoint a fit and proper person to discharge the jury instead; and if the persons selected as jurors do not attend, the court may order the marshal to summon other respectable tax payers, possessing the other legal qualifications, to supply the deficiency; but if at any time there should not be, by reason of challenge or otherwise, a sufficient number of jurors to make up the panel, the court shall order the marshal to summon as many talesmen as are necessary for that purpose."

Now, if the persons selected as jurors do not attend, the court may order the marshal to summon other respectable-what? "Other respectable tax-payers, possessing the other legal qualifications, to supply the deficiency." In the first section it states what the legal qualifications are" to be tax-payers, and to possess the other qualifications." The seventh section provides that, in case of failure from any cause, the court shall direct the marshal to summon as talesmen other respectable tax-payers, possessing the other legal requisites; and the marshal, under the direction of the court, shall thus prepare the list of other respectable tax-payers, &c. Congress seemed, therefore, determined that in no event should justice fail, and that no such reason could be given by your honor as was given by Chief Justice Tindal, that there could be no other mode of proceeding.

The thing is complete; there is no difficulty whatever in the matter. Congress has provided, first, that it shall be done in a particular way; that a particular kind of persons, and those only, shall be the jurors, and that they shall be selected in a certain manner and drawn in a certain manner; and then, to avoid the possibility of a failure of justice, they say that, if from challenging or from any other cause, a sufficient number may not be had, the court shall order the marshal to make the selections from the proper persons having the legal qualifications, so that all these questions will lie quite outside of this case, and power in the court is complete. There is no cause or reason for delay; it may be done now and forthwith, and the sooner it is done the better. I take it for granted that my learned friends want it to be done soon. They want to go on with the case. We are as anxious as they to go on with it.

There is one argument which was made by the gentleman in the early part of his remarks to which I desire to call to the attention of the court, and that is this, that if this jury is an illegal jury, why, then, other men have been convicted here illegally. He urged it with much earnestness, that that was a reason, if you had been going on in an illegal way, why you should continue to do so. I think that, on reflection, my learned friend will not consider that argument sound. If you have been doing illegal or immoral or any other wrong acts, the time to stop is when you first make the discovery, and not to say, "We will continue it, because we have always done it." Your honor knows when we made some attempt to civilize the Indians, and an Indian chief was reproved for murdering his enemies, and was told that it was unchristian and wrong, he said he had always killed his enemies, and insisted that, therefore, he should still kill them. An immoral woman of the Sandwich islands, too, whom our missionaries attempted to convert to virtue after marriage, urged as a reason for continuing her mode of life, that she had always been so doing as she was then. My learned friend read from page 247, of Clark & Finnelly's Reports. Let us see what that case was. The question came up for this judge to answer; and the answer he gave to the sixth question was-in England they have a statute upon the subject it seems

Mr BRADLEY. I beg your pardon.

Mr. PIERREPONT. They have a statute in England to which he alludes. I am coming to that in a moment.

Mr. MERRICK. I thought you stated that there was a statute in regard to the grounds upon which a challenge would be allowed.

Mr. PIERREPONT. Oh, no, sir; the statute upon which this was based. The answer of the learned judge was: "the only ground upon which the array is allowed by the English law is the unindifferency or default of the sheriff. But no want of indifference in the sheriff, nor any default in him or his officers, was assigned for the cause of the challenge upon this occasion."

That was the end of the case. It ought to have been the end of the case. This word “unindifferency," which I see the learned judge uses here, is certainly a new word to me-I never saw it before. I suppose, however, it is a good one.

Mr. MERRICK. It is habitually used in that connection throughout the law. Mr. PIERREPONT. I say I suppose it is a good word; but it is not one that I am accustomed to. Of course, we understand what it means. Now, the only ground to the challenge of the array that is allowed by the English law is the "unindifferency or default of the sheriff." That being so, it does not need Inach comment. The only ground upon which the law allowed a challenge was not pretended to exist, as the learned judge said. Therefore there was no necessity for spending a great deal of time upon a case like that. Of course, that would end the case. It did not need so much learning or argument as the learned judge and the lord chancellor seem to have given to it; but from the notoriety of the case, and from the magnitude of the subject involved, which was then made a political affair, they saw fit to give it a great deal of consideration, and gave as reasons why they should not undertake to set aside this panel the fact that they had no possible way of having justice administered, no other mode of getting a jury. It was not pretended in the challenge, as the judge said, that the legal ground and the only legal ground upon which there could be any complaint predicated existed. Therefore, of course, the motion was denied. And in this case, if there is no ground for it, of course the motion will be denied. If there is ground for it, I take it the motion will be granted. In this case, we act under the laws of the United States directly-under a statute. It is a principle of the common law, well known and understood by all lawyers and all men, perhaps, that it lies in the discretion of the judge to construe the law; it is not only in his discretion but his duty to see that the law over which he is called to preside is properly administered. Your honor is placed in your high position in this court for the purpose of giving construction to this statute; for the purpose of seeing that the laws of Congress relating to this District and this court over which you preside are executed. This is not an unmeaning statute. The reasons of it are apparent upon its face, and when Congress passed it it was understood that this statute was to be obeyed, and that when a man was to be tried for his life, or when he was to be tried for any felony, or any lesser crime or misdemeanor, or for anything else, the jurors who were to try him were to be selected by law, and that no irregularity, informality, or defect in that se lection should be passed lightly over by the judge who presides. But it is his duty to see that the law is administered, if it be called to his notice; and if the statute has never before been called to your notice, of course your honor has not passed upon it. As I learn from my associate, the district attorney, and as I infer from what the learned counsel on the other side have said, this question has never here arisen before. Of course, therefore, it is no man's fault; it has not been thought of. These men proceeded in their own way. They thought they would take their way to get a jury, instead of the way of the law. They chose to tread in their own path; to be a law unto themselves; to say," We will fix up a jury as we please," reckless of the law. It is your honor's duty to see that a jury is selected in the way that the law directs, and that is all we ask. We are ready now to proceed to trial; we are desirous that the trial shall be