formed that the grand and petit jurors for the next stated term of the circuit court had been just drawn, which greatly surprised him, as he had received no notice from the clerk, Daniel Horlbeck, esq., or any other person, of the intended drawing of the jurors that day by the clerk, and consequently was not present during any part of the time of the drawing of said jurors, as the law requires.

The affidavit of General Deputy Marshal Edw. P. Butts shows that on the 2d day of August, while he was in his office in Charleston, he was notified by the clerk of the court that he was about to draw the jurors for the next term of the court to be held in Columbia, and that he went into the room where Daniel Horlbeck, esq., the clerk of the court, had the jury-box, which he, Horlbeck, unlocked and opened in his presence, and a small boy being called in was instructed by the clerk to draw from the jury-box the ballots, and that the boy commenced drawing the ballots; that he, Butts, was called away after he had drawn a few, and left Mr. J. H. Shriner, a bailiff of the court, to take his place. Deputy Butts deposes that the marshal was not present during the time of the drawing.

John H. Shriner deposes that he was a bailiff of the court at the time named, and was present, as asserted in the foregoing affidavits; that his honor Judge Bryan and the clerk, Daniel Horlbeck, were present, and Deputy Marshal Butts was present a part of the time, and that the jury-box was brought into the court-room and opened in the presence of all the parties, a small colored boy being employed to draw the ballots. The remainder of Mr. Shriner's affidavit corroborates those given above as to the absence of Marshal Johnson.

The district attorney supported his grounds that the jury had not been drawn in accordance with law governing the same, as follows:

He said that he did not attempt to impute, either to the clerk or any other person, any designed evasion or non-compliance with the law. He supposed that the fact that the jury was drawn by a small child was attributable to an old custom sanctioned previously by this State, but long since abolished. That custom, however, had been continued by the clerk of this court, he having been for a long time clerk of the State court while the custom obtained there. He added that the order required the drawing to be done by the clerk or marshal, and nobody else, and in the presence of both the clerk and marshal. The deputy was not mentioned in the order; and where a special trust has been confided to draw a jury, counsel presumed there could be no question that the trust must be discharged personally. He added that he was prepared to submit authorities if the court desired them.

The Hon. Reverdy Johnson, in opposition to the challenge by the district attorney, said that he had asked Mr. Corbin what he designed to accomplish if he succeeded in getting the array dismissed, but had received no answer, except that the object was to get another jury. Mr. Johnson understood, by a portion of the order of the court, that the jury had to be selected from every part of the State, and not from the vicinage, and, therefore, if this jury was discharged, these trials must be postponed, and the whole proceeding of drawing a jury gone over again.

As he resumed his seat Mr. Johnson said, speaking for himself, that if the counsel for the Government entertained any fears that the judgments in these cases, passed on the verdicts of this jury, might be set aside for irregularity in drawing, he would waive all objections to the manner in which the jury was drawn.

Mr. Corbin, in reply, stated that he had made this motion in view of a very important decision made in the State of Maryland, in the case of Clair vs. The State, in which an irregularity in drawing the jury was taken advantage of, either during or after the trial. The question went to the Supreme Court; the renire was set aside, and a new trial was ordered on account of this irregularity-i. e., that no two of the judges met together and made up the panel of jurors for the city of Baltimore, as required by the act.

The district attorney, after referring to the particulars and quoting from the case above mentioned, said, further, that these same questions arose in the Surratt case, and went on to state where the two cases were analogous, and that in both cases decisions had been rendered that the juries had been illegally drawn, and consequently by passing over these objections much inconvenience had afterward arisen on account of the trials being set aside and new juries being ordered after the cases had been carried up.

The district attorney doubted very much whether it was in the power of the defense, if this jury should be held irregular, to say, "We waive every objection of this kind." That every person has the right to demand trial by a lawful jury, and each prisoner must personally waive the irregularity in such cases.

Mr. Johnson replied to the effect that in the Clair case, cited by the district attorney, the decision was based upon an act which differed very materially from the order of court under which this question arises. The difference, in substance, being that in the former case a judicial duty was required of the judges, while under this order the duty required of the marshal and clerk is merely ministerial, and can be performed by his deputy.

In reply to the remarks of the district attorney relative to the right of counsel to waive objections affecting final judgment, Mr. Johnson said that parties have a right to be tried by twelve men, and cannot be forced to trial without twelve men. If tried by eleven men, against their protest, the judgment is annulled; but they, or their counsel, may waive that right-there is no right which they may not waive, unless there be some constitutional prohibition. He was at a loss to conceive how the counsel for the Government could possibly

imagine that these prisoners would be able to object to the trial, if tried by this jury, upon the ground that the jury was not properly drawn, if, before trial, their counsel, with their consent, agreed to waive the objection and stand the hazard of the die.

His honor Judge Bond asked if the court understood Mr. Johnson to say that it is out of their power, if this venire is set aside, to summon a jury de circumstantibus?

Mr. Johnson replied that he was far from saying anything of the kind. He took it for granted that there would be no jury summoned from the vicinage, as such a proceeding would be in direct violation of the jury order; but, he continued, he understood the district attorney as saying there would be no delay; that another jury could be drawn. Mr. Johnson supposed the district attorney meant from the box.

Mr. Corbin said his meaning was that they should be summoned by the marshal.

By direction of the court, section 8 of the jury law was then read.

After the reading of this, Mr. Johnson said, if the objection of the district attorney is valid, we are without a jury, and if there is no jury, the only way in which a jury can be obtained is by summoning them according to the provisions of the order.

when,

The district attorney was at a loss to understand the position taken by his distinguished opponent in reference to his challenge to the array. The words of the statute are, by reason of challenge, or otherwise," the panel shall be exhausted, &c.; now, a challenge to the array is one of the recognized modes of getting rid of a jury; you simply do in the aggregate what an individual challenge does to an individual juror, and the result is the same. In support of this challenge Mr. Corbin referred to 1 Surratt's Trials, p. 55.

Mr. Johnson said the objection in the Surratt trial was made on the ground that the drawing had been done in secret; but such was not the case here.

After some further discussion between counsel concerning minor points, the court announced that, as the panel of grand jurors was not complete, they would adjourn the court until 11 o'clock Tuesday, and hold the matter under consideration.

SECOND DAY'S PROCEEDINGS.

NOVEMBER 29.

The court met pursuant to adjournment. United States Circuit Judge Bond and District Judge Bryan present, Judge Bond presiding.

Eight grand jurors and twenty-two petit jurors answered to their names.

Mr. Corbin presented a commission from the Department of Justice, associating Attorney General D. H. Chamberlain as counsel for the prosecution, and Mr. Chamberlain took the oath.

Mr. Corbin, the district attorney, presented an order withdrawing his challenge to the array made Monday, and one for taking jurors from the body of the district.

Mr. Johnson, representing the defendants generally, and in opposition to the order presented by Mr. Corbin, said:

The district attorney proposes that there shall be a venire to summon thirteen grand jurors, or so many as may be necessary to fill up the panel. I rise merely for the purpose of saying that by the act of Congress-I think of 1824, but I am not sure that I am correct as to the date of the act-the State of South Carolina is divided into two districts, one called the eastern and one called the western; and the offenses which are alleged to have been committed were all, I understand, committed in some of the counties within the western district. The sixth article of the amendments to the Constitution expressly provides, for the security of the citizen who may be indicted, that the jury which is to try him shall be summoned from the district where the offense was alleged to have been committed. I cannot be mistaken as to the purport of that amendment.

“If, therefore, the act of 1824 has not been repealed—I mean the act of Congress-and there has been no change at all in that respect in any legal way, then we feel that if the jury which is now to be summoned is taken from the eastern district, it would be an error which I would not be at liberty to waive-could not waive, because the Constitution secures to a party the right to be tried-to be presented by a grand jury taken from the vicinage of the district where the offense was committed, and to be tried by a petit jury selected from the same locality.

"The order which was passed by the chief justice and associate justice before your honors yesterday evidently seems to contemplate but one district in the State; but if, in fact, the division of the State into districts can only be done by the legislative department of the government, and if that department of the government has divided South Carolina into two districts, then it was not within the power of the court, by any order of its own, to change the act of Congress in that particular, and, consequently, not in the power of the court to deprive the accused of the right to have a jury selected from the locality where the offense is alleged to have been committed.

"I mention this now merely for the purpose of bringing it to the attention of the court, that, so far as I am concerned, we are satisfied with any judgment which the court may pronounce; but, at the same time, think, if the court should be of the opinion that the jury should be selected from the eastern district, it would be my duty, should I represent the

102 S C

parties in the Supreme Court of the United States, to make that a ground of objection should the judgment be adverse to my clients."

District Attorney Corbin replied:

"If the court please, the State of South Carolina is divided into two districts for the purpose of the district court; those districts are called eastern and western. The western district consists of the counties of Lancaster, Chester, York, Union, Spartanburgh, Greenville, Pendleton, (since divided by the legislature,) Abbeville, Edgefield, Newberry, Laurens, and Fairfield. The remainder of the State constitutes the eastern district.

"For the purposes of the circuit court, the State of South Carolina in toto constitutes a district; and these parties being on trial in the circuit court, it seems to me that the true and proper construction is that the jury should be drawn from the body of the district, which is the State.

'The constitutional point made is undoubtedly true; but what constitutes the district? that is the only question. In 1 Brightly's Digest, p. 844, we find, 'The sixth circuit court of the United States for the district of South Carolina, (since changed to the fourth,) which is required by law to be holden on the second Monday in December, annually, shall hereafter be holden on the fourth Monday in November, annually;' that is, the time of holding the court originally in this State has been changed to the present fourth Monday in November. The court will notice that the State is spoken of as the district of South Carolina, and this court is holden for that district..

Now, in reference to the order which I presented to the court, by an act of the 3d of March, 1865, (2 Brightly, p. 107,) it is provided that 'every grand jury impaneled before any district or circuit court of the United States to inquire into any presentment made of public offenses against the United States, committed or triable within the district for which the circuit court is holden, shall consist of not less than sixteen, and not exceeding twentythree persons. If, of the persons summoned, less than sixteen attend, they shall be placed on the grand jury, and the court shall order the marshal to summon, either immediately or for a day fixed, from the body of the district;' that is, the district for which the court is holden. If the district court, from that district; and if the circuit court, from the district in which the circuit court is holden. 'And whenever a challenge to an individual grand juror is allowed, and there are not other jurors in attendance sufficient to complete the grand jury, the court shall make a like order to the marshal to summon a sufficient number of persons for that purpose.. No indictment shall be found, nor shall any presentment be made, without the concurrence of at least twelve grand jurors.'

"I think, may it please the court, there can be no mistake about this matter. The position of the gentleman would be entirely correct if we were in the district court; but when we come to a court that comprehends the whole State in its jurisdiction, then the juries should be drawn from that district."

Mr. Johnson said:

May it please your honors, the constitutional provision was evidently intended for the security of the citizens, not for the benefit of the Government; or, rather, it is especially intended for the security of the one, and has no reference to the security of the other. The common-law rule, which, as your honors know, is supposed to be very materially for the security of the subject, required the jury to be taken from the vicinage where the offense was perpetrated. The provision is to be construed liberally; nothing is more true than this principle. Now, the learned counsel alleged that if a criminal cause was instituted in a district court, and not in the circuit court of the United States, the jury would only be summoned from that district; but he maintains that, inasmuch as the jurisdiction of the circuit court extends over the whole State, there is no necessity at all for enforcing the provision of the Constitution-or, rather, for applying the provision of the Constitution to a case in that condition. It seems to me that the learned gentleman is incorrect.

"It is true that the circuit court has jurisdiction, as a court, over the entire district of South Carolina; but when we come to inquire how the jury is to be collected, we must then look to the act which makes two districts in the State of South Carolina, and apply the constitutional provision, that the jury shall be selected from that district in which the offense was committed. I submit, however, that I am perfectly willing, so far as I am individually concerned, to abide by any ruling, only repeating that, if the ruling should be adverse, I would deem it my duty to make an objection in the Supreme Court of the United States, should I represent any of these cases there."

Judge BOND. Mr. Corbin, have you the act of Congress that establishes the fourth judicial

circuit?

Mr. CORBIN. The act of 1862, if the court please, establishes the circuit: "Hereafter the districts of Maryland, Delaware, Virginia, and North Carolina shall constitute the fourth circuit; the districts of South Carolina, Georgia, Alabama, Mississippi, and Florida shall constitute the fifth circuit." If the court please, in an act still later, which puts South Carolina in the fourth circuit, it is spoken of as the district of South Carolina.

The court will allow me to make one suggestion. If the construction of the distinguished counsel on the other side is correct, we shall be put in this very anomalous condition, that if we are to look to the districts constituted for the purpose of the district courts, when we get a man from the western district to try we must get a grand jury from that

district to present a bill; when we get a prisoner from the eastern district we must get a grand jury into this court from that district. Now, how, if the court please, are we ever to get along with this business if that construction is to prevail? Is it to be presumed that the business is to be utterly blocked by such a construction? And if we look into the Constitution, there is nothing said in the section referred to in the amendment as to what a district shall be; it simply says this: "In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by an impartial jury of the State and district wherein the crime shall have been committed"-the State and district. Now, if the State constitutes a district of itself, then State and district are synonymous, "which district shall have been previously ascertained by law." The State of South Carolina has been fixed by law as a district for the purposes of a circuit court, to be held at Columbia and at Charleston.

At the conclusion of the argument Judge Bond announced as the opinion of the court that, so far as the circuit court is concerned, there is but one district in South Carolina. This was the circuit court for the district of South Carolina, and the marshal was entitled to summon a jury from the body of the district.

Mr. Johnson reserved the point made, in his argument.

Judge Bond then asked the marshal how much time was necessary to summon the jurors, who replied that forty-eight hours would be required.

The court then adjourned until Friday, at 11 a. m.

THIRD DAY'S PROCEEDINGS.

DECEMBER 1.

The court convened at 11 o'clock a. m., United States Circuit Judge Bond presiding, District Judge George S. Bryan, associate justice.

The grand and petit jury, including those summoned since adjournment, were called. Several made application to be excused, among them E. M. Stoeber, on the ground that he was clerk of the joint special legislative committee of South Carolina. He was not excused.

The court appointed Mr. B. F. Jackson as foreman of the grand jury. The foreman and the jury were then sworn.

Mr. Stoeber addressed the court, stating his mind was prejudiced, and he objected to serving on conscientious scruples. The court excused him, after some few remarks by counsel, stating that, as he was the same gentleman who made application to be excused on the ground that he was a clerk of the special committee, he would be excused, considering that had much more to do with the matter than any prejudices he might entertain, as thus far no case had been presented. The marshal was directed not to summon him any

more.

Judge Bond then said:

"Gentlemen of the jury: The act of Congress of April 20, 1871, in the fifth section, requires that every juror shall, before entering upon any such inquiry-investigating cases arising under this act-before entering upon any such inquiry, hearing, or trial, take and subscribe on oath, in open court, that he has never, directly or indirectly, counseled, advised, or voluntarily aided any such combination or conspiracy; and each and every person who shall take this oath, and shall therein swear falsely, shall be guilty of perjury, and shall be subject to the pains and penalties declared against that crime.

"The conspiracy to which that section refers is in the second section of the act: "That if two or more persons within any State or Territory of the United States shall conspire together to overthrow or to put down or to destroy by force the Government of the United States, or to levy war against the United States, or to oppose by force the authority of the Government of the United States, or by force, intimidation, or threat to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof, or by force, intimidation, or threat to prevent any person from accepting or holding any office or trust or place of confidence under the United States, or from discharging the duties thereof, or by force, intimidation, or threat to induce any officer of the United States to leave any State, district, or place where his duties as such officer might lawfully be performed, or to injure him in his person or property on account of his lawful discharge of the duties of his office, or to injure his person while engaged in the lawful discharge of his duties, or to injure his property so as to molest, hinder, or impede him in the official discharge of his duty, or by force, intimidation, or threat to deter any party or witness in any court of the United States from attending such court, fully, freely, and truthfully, or to injure any such party or witness in his personal property on account of his having to testify, or by force, intimidation, or threat to influence the verdict, or presentment, or indictment, of any juror or grand juror, in any court of the United States, or to injure such juror in his person or property on account of his being or having been such juror, or shall conspire together, or go in disguise upon any public highway, or upon the premises of another for the purpose, either directly or indirectly, of depriving any person or any class of persons of the equal protection of the laws, or of equal privileges or immunities under the laws, or for the purpose of preventing or hindering the constituted authorities

of any State from giving or securing to all persons within such State the protection of the laws, or shall conspire together for the purpose of in any manner impeding, hindering, obstructing, or defeating the course of justice, in any State or Territory, with intent to deny to any citizen of the United States the due and equal protection of the laws, or to injure any person in his person or his property for lawfully enforcing the right of any person or class of persons to the equal protection of the laws, or by force, intimidation, or threat to prevent any citizen of the United States lawfully entitled to vote from giving his support or advocacy in a lawful manner toward or in favor of the election of any lawfully qualified person as an elector of President or Vice-President of the United States, or as a member of the Congress of the United States, or to injure any such citizen in his person or property on account of such support or advocacy, each and every person so offending shall be deemed guilty of a high crime.' that you

That is the conspiracy-which the oath which will now be put to you meanshave never never engaged in, advised, or counseled. Let them be sworn."

The grand jurors then took and subscribed the following oath :

We, the undersigned, do solemnly swear that we have never, directly or indirectly, counseled, advised, or voluntarily aided any such combination or conspiracy as set forth and described in an act of Congress entitled 'An act to enforce the provisions of the fourteenth amendment to the Constitution of the United States, and for other purposes,' approved April 20, A. D. 1871."

The grand jury, as impaneled, is as follows-six of the twenty-one present being white, and the majority being about equally divided between black men and mulattoes:

Richard Blackney, William Wingate, Dug Hariis, R. A. Desverney, James B. Williams, F. M. Johnstone, Thomas J. Thackman, Adam Branch, W. B. Mitchell, Henry Jones, Sandy Tucker, B. F. Jackson, James C. Bonsall, James W. Heyward, James G. Graham, C. Barnum, Le Grand Singleton, Lewis Prior, Jacob Thompson, H. Chambioin, and Frank J. Lawrence.

There were but five of the above who were not able to write their names.

CHARGE TO THE GRAND JURY.

Judge Bond then charged the grand jury as follows:

"Gentlemen of the grand jury: Your duty has been sufficiently intimated to you by the words of the oath you have just taken. The court will say to you that in the investigation of the cases that will be brought before you, it is necessary you should exercise great patience. Many of the witnesses are laboring under a great deal of unusual excitement; many of them are ignorant people, not accustomed to appearing in courts, and it is absolutely necessary that you should bear with them patiently.

"You yourselves are not to admit the excitement outside to have any entrance into the grand jury room. You are to find your presentment upon the testimony of the witnesses that come before you, and not upon outside statements. You will exercise your own best judgment, and assume the great responsibility the law casts upon you, and do your duty with impartiality and fairness, but with firmness.

You

may now retire into your room and examine such witnesses as the United States may send before you."

The panel of petit jurors was then called, and the oath previously administered to the grand jury was administered to and signed by them.

The following is the panel as they were sworn and signed:

Philip Salters, James C. Holloway, J. F. Riley, John Freeman, Adam Jackson, Alfred Agerton, E. Johnson, James M. Johnson, James C. Magill, E. C. Rainey, Alexander Allsbrook, J. B. Witherspoon, John Gordon, Adam Cook, William Mooney, D. Lynch Pringle, (absent-excused till Monday,) Andrew W. Burnett, W. H. De Berry, Jos. Keene, Henry Fordham, Andrew W. Curtis, John Nott, C. H. Bankhead, John T. Wilson, Henry Daniel, Gabriel Cooper, N. E. Edwards, F. T. McMaken, Isaac Black, January Simpson, Peter.B. Glass, Edward Reid, W. Smith, Joseph Smith, C. Smith, John Lee, W. H. Jackson, Charles Minort, Addison Richardson, John Pugh, John Dunn, J. Felder Meyers, John Gilmore, W. David Leahey, Cyrus Allston, H. W. Purvis, W. H. Dover, John Welburn.

No cases having been reported by the grand jury, the petit jury was discharged until tomorrow, and the court then gave attention to petitions and other business.

FOURTH DAY'S PROCEEDINGS.

DECEMBER 2.

The court met pursuant to adjournment, United States Circuit Judge H. L. Bond presiding; United States District Judge George S. Bryan, associate justice.

William H. Reed, a grand juror, was sworn. The clerk called the roll of jurors.

The district attorney submitted a motion that bench-warrants be issued for Allen Crosby, Sherod Childers, alias Bank Childers, Banks Kell, Evans Murphy, Ibezekiah Porter, Sylvanus Hemphill, and William Montgomery, against whom true bills were returned by the grand jury on Friday.