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with the state laws; that the great object was to preserve to suitors in the courts of the United States, as far as was practicable, the invaluable right of having the jurors elected by ballot, and that this was by no means impracticable; that in every clerk's office in the state, there was a book containing the names of the freeholders in the county qualified to serve on juries; that the judge might have directed from what county the jury should have been summoned that the marshal might have applied to the clerk of that county for a copy of his list of freeholders; from that list he might have made his ballots, and he might have balloted for the panel in the presence of the judge or the clerk of this court, which would have been a very near approximation to the mode of electing jurors for the state courts; or the marshal, with the assistance of his deputies, might have made a list of freeholders in any part of the district that the court might have designated, and then there would have been no difficulty in making the ballot. But at any rate, no sufficient reason had been offered for the neglect of part of the act which requires the court to direct from what place the jury should be taken. The terms of the law of congress left discretion with the court in this
respect. The words of the statute are not that the court may, but that the court shall direct from what part of the district the jurors shall be returned. That it was absurd to say, that the defendant in such cause was to apply for the direction of the court because jurors were summoned to try all the causes which might be brought on at a sittings; and if such an application was to be attended to from each defendant there might be as many panels returned as there were causes. That the defendant might not have had an opportunity of making such an application; for that the process to summon the jury might have been issued and executed before he received notice that his cause was to be tried. Besides, that it was a general principle, that the plaintiff must take care that the jurors that appeared, as well in respect to the manner of their being chosen as to their qualifications, were proper to try his cause, and if they were not, the defendant might take advantage of it, as was every day's practice for defendant to do. As to the former practice of the
court, the defendant's counsel observed, that that ought to have no influence on his honour's decision, because it was well known that until very lately the causes which were submitted to a jury in this court were very few and comparatively of very little consequence, and were seldom of a nature to excite any fears that the jury might have a bias to the one side or the other. That therefore the manner in which jurors had been selected had never excited any attention; but at this time the case was very different, for it was not an exaggeration to say that there were now millions depending on the event of suits which had been instituted for breaches of the embargo laws. That it was well known that libels were now upon the records of the court which proceed upon the ground that the president's proclamation of the 19th April last opening the intercourse with Great Britain was an illegal act, that he had no authority to issue it, that therefore it was a mere nullity, and that of course, the nonintercourse act of the 1st of March, with all its denunciations of penalties and forfeitures, had always been in full force. That if the courts were to be of this opinion, there was hardly a merchant in the United States who was not at the mercy of the executive officers of the government, who might not have their property seized, and who might not be prosecuted in suits of this nature for enormous penalties. It became therefore now of the utmost importance to see that all the cautions which the laws had provided for an impartial selection of jurors should be observed. That the questions between the government and the citizens which were to be decided in this court under the embargo laws it was well known had greatly excited the public mind. It would hardly be denied that many might be found in the district who were so blinded by their political prejudices and by their passions, that they would never acquit a political opponent accused of a breach of the embargo laws, which were so dear to those who favour them; at the same time it was not meant to be denied, but that men might also be found as prejudiced against convicting.
If then a marshal might run from one end of his district to the other to select just whom he pleased for trials of this na
ture, it was in fact putting it in the power of an individual to determine who should be convicted, and who acquitted in the courts of the United States.
The counsel of the defendant called the attention of the court to the constitution of the United States and its amendments. The first provided that the trial of all crimes shall be by jury. But it being feared that this inestimable right was not sufficiently guarded by this simple provision, the seventh article of the amendments provides, that in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury. The counsel then asked whether it was possible to suppose, that the framers of the constitution or of its amendments could have imagined, that notwithstanding the provisions, a citizen might be subject to trial for his life, even by a jury selected at the mere will of a marshal who might be his prejudiced political opponent or his bitterest enemy. Had a defendant, the counsel asked, any security for an impartial jury in cases like this, where the jurors may be selected at the mere will of an officer holding his commission at the pleasure of the officer of the government, at whose instigation the suit is instituted, and who has an eventual pecuniary interest in the conviction of the defendant; for if the penalties which are demanded in these cases are to be levied on execution, the marshal's share of them will be no inconsiderable fortune. The counsel for the defendant both declared, that the attempt they made in this case was merely with a view to secure to suitors in this court the benefits of those provisions of the state laws which were so well calculated to guard against corruption and partiality, and which perhaps was a greater improvement in jurisprudence, than the institution of trial by jury itself. That in what they had said respecting the marshal and jurors, they referred entirely to what might be, without intending any insinuation as to what was or had been. That as to the present marshal, they had never heard any thing to his prejudice, and they did not know any thing of the jurors, from a distant part of the district, who were on the panel.
When the United States' attorney had said a few words in reply to the arguments of the defendant's counsel, the judge told him it was unnecessary for him to proceed, as the court was satisfied on the subject.
We shall not attempt to detail the reasons his honour gave for his decision, for fear of mistakes. He however exactly agreed with the attorney of the United States in all points. He thought it was wholly impracticable to have any ballot or to conform in any respect to the state laws. That it was discretionary with the court to give or not, at its pleasure, any direction as to the summoning the jury; and that if a defendant was desirous that a direction should be given, it was his business to apply for it. And the judge ordered the clerk to enter on the minutes the demurrer of the attorney of the United States, and that upon hearing counsel thereupon, the court gave judgment in favour of the United States.
So that, according to the decision, the marshal of the Uni. ted States in all cases, whether civil or criminal, whether the life or property of a defendant is concerned, or whether the defendant be his friend or enemy, has an uncontrollable power of selecting whom he pleases for jurors.
It would really seem a little difficult to reconcile the entries which appear on the records of the court with the provisions of the constitution and laws of the United States. The laws require that the jurors shall be selected as far as is practicable by ballot, and that they shall be taken from a part of the district designated by the court. The defendant alleges by his challenge, that neither of these provisions have been complied with. The attorney of the United States by his demurrer ad. mits these allegations to be true, and yet the judgment of the court is that the jury have been legally summoned.
District Court. Maryland District.
United States versus Barney.
WINCHESTER, J. The indictment in this case, which
charges the defendant with having wilfully obstructed the passage of the public mail at Susquehanna' river, is founded on the act of congress of March 1799.
The defendant sets up as a defence and justification of this obstruction of the mail, that he had fed the horses employed in carrying the mail for a considerable time, and that a sum of money was due to him for food furnished at and before the time of their arrest and detention.
On this state of the facts, two questions have been agitated.
1st, Whether the right of an innkeeper to detain a horse for his food extends to horses owned by individuals and employed in the transportation of the public mail. And,
2d, Whether such right extends to horses belonging to the United States, employed in that service.
The first question involves the consideration of principles of some extent, and to decide correctly on the second, it may be necessary to state them generally.
Lien is generally defined to be a tie, hold or security upon goods or other things which a man has in his custody, till he is paid what is due to him. From this definition it is apparent that there can be no lien where the property is annihilated, or the possession parted with voluntarily and without fraud. 2 Vern. 117. 1 Atk. 234.
The claim of a lien otherwise well founded cannot be supported, if there is
1st, A particular agreement made and relied on. Sayer's Rep. 224. 2 R. A. 92. Or,