37

JANUARY, 1800.

HISTORY OF CONGRESS.

Drawing Juries by Lot.

SENATE.

questions in which the lives or characters of our
citizens, may be concerned-on charges against
them of a political nature, as well as in those en-
tirely of a private nature, in which public questions
are not at all involved.

absence. But, sir. the greatest of all its defects, is the placing it at all in the power of the marshal to exercise his discretion in so important a manner as to select a jury as he pleases. The danger and consequences of this power vested in a minisWith respect to those of a public nature. I must terial officer, appointed by the President, holding his office during his pleasure, and looking up to confess that when I first arrived here, and discoverhim for other and more honorable and lucrative ed the precarious and unsafe tenure on which the appointments, appear to me not only to be one of the citizens of New York, Pennsylvania, Maryland, greatest evils under which a part of the Ameri- Virginia, and I believe New Jersey, held everything can people at present labor, but one which does that freemen ought to consider as most dear-when not seem, before this, to have claimed from them I was informed that on every question respecting or their Government the attention due to its im- character, life, or fortune, the men who were to portance. It is for this reason I have thought it decide were to be picked or selected by a sheriff or my duty to bring it to your view at this time; and a marshal, and not impartially drawn by lot, it was I do not hesitate to confess that I shall even con- difficult for me to find words sufficiently expressive sider it as one of the most fortunate moments of of my astonishment. I could scarcely believe that my life, that I have had an opportunity of first a people so enlightened, and so jealous of their libmoving in a question on which the true freedom erties-a people who have had before their eyes, and happiness of our country so much depends. and in their very neighborhood, such excellent exShould I succeed even partially-should I be the amples, in this respect, as the Eastern and Southmeans of producing only an alteration of the pre-ern States, could have so long neglected a reform sent unjust and oppressive system, and lay a foundation for a complete and perfect one hereafter, it will amply compensate me for all the remarks and odium which the mover in so important a reform must naturally expect.

Viewing, as I do, impartial juries as among the most indispensable ingredients of a free Government, it is my duty to declare, and I solemnly do deliver it as my opinion, that in those States in which the federal marshals have a right to summon jurors as they please, the people are not free; that in those States the impartiality of your judicial tribunals, and the purity of the administration of justice, must depend not on the laws but the integrity and honest independence of a marshal; to him is left the monstrous and dangerous power of summoning proper or improper, fit or unfit, dishonest or upright men-men who may be the friends or enemies to the parties who are on their trial, or who on political questions may be known to be opposed to them, and to hold opinions diametrically contrary to those which are perhaps in the course of the trial to be submitted to them for their decision.

Who can deny that on the wise or oppressive, the unbiassed or corrupt use of this power must depend the decisions of our judiciary, in every case where party spirit runs high, and where it may be an object of great moment to influence the proceedings of a marshal? On a public and political question, any man can tell the danger and impropriety of such a power vested in an individual. But not only on questions of a public or political nature, but even in private cases, where the object in dispute is considerable, and where the parties have extensive concerns, no man ought to possess the power of summoning, as his friendships or hatreds, his caprice or perhaps something worse, may direct him, the jury who are to decide questions on which not only the fortune and happiness of individuals, but the character of some laws, and sometimes the faith of treaties, may depend.

I will for a moment consider this dangerous power in a marshal, as it respects the public, on all

more precious to them than any other they could
adopt. It has been since to me a source of much
surprise that the State Legislatures, in the admin-
istration of justice within their own States, did
not at once perceive and correct a system which,
under a partial or oppressive use of it, places it so
much in the power of an officer to stain the charac-
ter of a nation and violate its most sacred obliga-
tions. This inattention is, however, I trust, now
at an end, the subject is brought to their view, and
the question is fairly before them; they are now
to determine whether their exertions are in future
to have all important questions respecting their
dearest interests depend upon juries, impartially
drawn by lot, under the regulations of laws equally
affecting all, and whose provisions no sheriff or
marshal can violate or interfere with; or to entirely
rest with a sheriff or marshal, on whose integrity,
knowledge, or impartiality, or on whose want of these
essential qualities, is to depend the pure or corrupt
administration of their laws. In a word, with the
State Legislatures it now remains to be determined
whether the citizens of the States I have mentioned
are to be less free and less entitled to the inestima-
ble privilege of trial by a fair and impartial jury,
than their brethren in the Eastern and Southern
States.

By the law of Congress now in force, juries are
to be designated by lot or otherwise, in the man-
ner now in use in the several States. From this
it is to be presumed that whether Congress agree
or not to the general reform I shall introduce, they
will certainly always consent to a law conform-
ing the practice of the several courts to the mode
in use in the States where these federal courts are
held. Hence it becomes highly important to these
States, and their citizens, to insist that the State
Legislatures shall alter their modes as soon as pos-
sible: they should make it an indispensable com-
pact with the persons they elect to represent them;
they should consider it as more dear to them than
any other public act they could attend to. For
how can that Government or that people be free,
where the execution of their laws is to depend upon

SENATE.

Drawing Juries by Lot.

JANUARY, 1800.

the will of an individual? How can any man important part of their Government comes to be, whose political opinions differ from a marshal, be as it will hereafter, perfectly understood, that in safely tried for any political offence touching his emigrations to this country, the enlightened forlife, his character, or his fortune, while the politi-eigner will prefer living in States having imparcal character of the jury, who are to try him, depends upon the selection of a marshal? Suppose for instance, a man is charged with a libel against the President of the United States; that this libel charges the President with acts of so important a nature and so injurious to the welfare of the Union, that, unless they can be removed or the writer convicted of a libel and punished, the President would be likely to lose the confidence of the people, and consequently his re-election to office; that the marshal of the district knows this; that the President's feelings are alive to the decision; that he feels his public character, the affections of the people in his principles, and his re-election to office all at stake: that, in short, it is of the utmost consequence to him, this person should be convicted and humbled. Under these circumstances, is it not expecting more than we have generally a right to expect from him, or natural to suppose, that the marshal will feel himself entirely unmoved; that he will carefully select moderate men, who are not attached particularly to party, and who will really compose so impartial a jury as to give the defendant a fair chance of having justice done him? Or is it not more correct to suppose, that in such a case a marshal will recollect that it was from the President he received his office; that he holds it at his pleasure; that if in a case so important to the President and where his feelings are so much alive, the marshal should be lukewarm or make a selection of men not approved, he would probably lose his office; but that if he should exert himself, array a decided jury, whose opinions on politics were not to be shaken, and procure a conviction, that the President would not be unmindful of his zeal, and that amongst the numerous lucrative appointments in his gift the marshal would not be forgotten? I ask if this is not the proper mode to reason a question of this sort? I allude not to particular cases. On general subjects where I conceive it my duty to act, I condescend not to mention anything that may have happened. I am endeavoring to regulate for the future. I thank Heaven that in the State to which I belong, juries are on the best establishment. I wish, for the honor of the United States, and the character of their judiciary, that the same purity and impartiality in the administration of justice should pervade the whole; that equal laws, and not the opinions or wishes of individuals, should govern in their decisions, and that the principles which were among the leading objects of the American Revolution, should forever obtain and be insured to our citizens: until they do, it is in vain for the people of those States to think that while their juries are summoned at will by a marshal, they are free-or that the citizens of the other States, having impartial juries, will ever think of removing to reside among them, or trust themselves or their fortunes under laws whose administration is so unsafe and precarious. Nor can there be a doubt, that when the difference in this

tial juries, to those in which, in every act and almost word of his life, he is to be at the mercy of a marshal, holding his office at the will of a President. This difference between Pennsylvania, Virginia, and the other States I have mentioned, and Southern ones, places the former in so unequal not to say degrading a situation with respect to the administration of justice, that I will not for a moment suppose they will any longer submit to so improper a system. I can never believe that when the subject has been fairly brought to their view, that States so enlightened, and so distinguished by their love of republican liberty, will feel themselves easy until they have obliged the State Legislatures to adopt the mode of drawing juries by lot. It is in vain to think of repealing sedition laws, or asserting the liberty of the press, as secured by the Constitution, until this reform takes place. This power in a marshal, is a more complete and severe check on the press, and the right of the people to remark on public affairs, than ten thousand sedition laws, because here the power to select and by that means govern the opinion of juries, is continual, always increasing, and in a great degree subject on every trial to the wishes and directions of a President. In times of party, when opinions run high, and contending factions oppose each other with violence, it is then truly dreadful. Justice, which has been represented and ought forever to be blind to the political opinions of men, becomes or these occasions as keen-eyed as the eagle, it pounces into every recess and corner of a State, drags forth the avowed and political enemies of the accuser, and arrays them on his jury. I will hope, for the freedom of our country, this has not yet taken place; but that it may, and that it should be guarded against, no man will deny. Let us, by adopting the model recommend, or something like it, give to our citizens the comfort of reflecting that amidst the storms and conflicts which may attend a republican form, they will, on every question respecting their lives, characters, or fortunes, be always entitled to a fair and impartial trial by jury, secured by equal laws, the impartial election of which no man however elevated or no officer however willing can dare to control or interfere with. It is our duty to give to our citizens this valuable reform. They have a right, from the nature of our Government, to expect it; amidst all the fluctuations of parties and changes of men and measures, it will be to them a solid consolation to reflect that their private rights are secure, and that, with respect to these, their Government is indeed a Government of laws. Under this sacred guard the honest and the innocent may safely come to trial, nor will advocates be afraid to defend them, nor consider it as hopeless to attempt it. The people will revere your tribunalsthey will then have no reason to fear that faction or corruption may curb your bench of justice, fill the seats of your jurors, or stain the annals of your judiciary with innocent blood sacrificed at the shrine

Mr. TRACY, from the committee to whom was sentatives of the United States was read the secreferred the bill, sent from the House of Represent-sideration thereof be postponed until tomorrow. ond time; and it was agreed that the further conatives, entitled "An act to suspend in part an act, entitled An act to augment the Army of the United States, and for other purposes," reported amendments; which were read.

“SEC. 2. And be it further enacted, That the provisions of this act shall not be construed to prevent the President from employing any officer or officers in recruiting for the four first regiments of infantry, and the two regiments of artillerists and engineers: and the Mr. TRACY, from the committee to whom was President is hereby authorized to employ any officer or referred the bill, sent from the House of Representofficers in the recruiting service for the aforesaid regi-atives, entitled "An act to discharge Robert Sturments, on the terms prescribed by law, and until the geon from his imprisonment," reported amendfull complement of men are procured, pursuant to the ments:. first section of the act for the better organizing the troops of the United States, and for other purposes; any provision in the said section or act to the contrary notwithstanding."

YEAS-Messrs. Anderson, Baldwin, Bingham, BloodThe Senate resumed the consideration of the worth, Brown, Cocke. Dexter, Foster, Franklin, Good-motion made the 10th instant, to alter and amend hue, Greene, Gunn, Hillhouse, Howard, Langdon, Livermore, Marshall, Mason, Nicholas, Paine, Pinckney. NAYS-Messrs. Chipman, Latimer, Laurance, Lloyd, Reed, Ross, Schureman, Tracy, Watson, and Wells. So it was Resolved, That this bill pass.