of chal

It was held by the circuit court for the district of CHAP. 4. Virginia, that a person under accusation, whose case The right is to be submitted to a grand jury, has the same right lenge. to challenge for cause, before the jurors are sworn, as he would have if about to be put upon his trial by a petit jury: and it appearing that the marshal, after completing his panel of twenty-four jurors and summoning them, upon ascertaining that two of the number would be unable to attend, summoned two other persons in their stead, he was held to have acted without legal authority. Having once chosen and summoned the full umber, he became, pro hac vice, functus officio. The two supernumeraries were accordingly set aside, and the deficiency was supplied from the bystanders. In that case the persons to compose the grand jury had been selected ad libitum, by the marshal. Had they been designated by lot the objection would have been more forcible still.

1

Whether the act of July

In the State of New York the grounds of challenge, (or objection, as it is denominated in the. statute,) are specified and fixed by law; and they are very limited, being, 1. that the juror objected to is the prosecutor, or complainant upon any charge against the accused; 2, that he is a witness on the part of the prosecution, and has been subpenaed or been bound in a recognizance, as such. 20, 1840, requiring that "jurors to serve in the courts of the United States, in each state respectively, shall have the like qualifications," &c., "as jurors of the highest court of law of such state," is to be considered as embracing this limitation, has not, to my knowledge, been decided. Doubtless congress had reference mainly to qualifications of a more general nature, relating to citizenship, property, age, &c. But con'Burr's Trial, vol. 1, p. 31.

PART 4. sidering the spirit and policy of the act, there is strong ground for holding the state law operative. Be this as it may, however, although the New York statute expressly forbids the allowance "of any other challenge to the array of grand jurors, or to any person summoned to serve as a grand juror" than those above specified, it can hardly be supposed that it was intended to exclude irregularities in the drawing and summoning of the persons composing the array.

Special causes of

new oath.

But a late act of congress prescribes other causes challenge, of challenge, and an additional oath. This act is the offspring of extraordinary circumstances, which it is to be hoped will be of short duration; but it will doubtless remain to meet the possible exigencies of the future. It is too important to be omitted, and does not admit of analytical abbreviation. It is as follows:

"An act defining additional causes of challenge, and prescribing an additional oath for grand and petit jurors in the United States courts.

Be it enacted, That in addition to the existing causes of disqualification and challenge of grand and petit jurors in the courts of the United States, the following are hereby declared and established, namely: without duress and coercion to have taken up arms, or to have joined any insurrection and rebellion, against the United States; to have adhered to any rebellion, giving it aid and comfort; to have given, directly or indirectly, any assistance in money, arms, horses, clothes, or anything whatever, to or for the use or benefit of any person or persons whom the person giving such assistance knew to have joined, or to be about to join, any insurrection or rebellion; or to have resisted, or to be about to resist, with force of arms, the execution of the laws of the United States, or whom he had good ground to believe had joined, or was about to join, any insurrection or rebellion; or had resisted, or was about to resist, with force of arms, the execution of the laws of the United States; or to have counseled or ad

vised any person or persons to join any insurrection or rebel- CHAP. 4. lion; or to resist, with force of arms, the laws of the United States.

"SEC. 2. And be it further enacted, That at each and every term of any court of the United States, the district attorney or other person acting for and on behalf of the United States in said court, may move, and the court, in their discretion, may require the clerk to tender to each and every person who may be summoned to serve as a grand or petit juror, or venireman or talesman, in said court, the following oath or affirmation, viz.: You do solemnly swear (or affirm, as the case may be) that you will support the constitution of the United States of America; that you have not, without duress and constraint, taken up arms, or joined any insurrection or rebellion against the United States; that you have not adhered to any insurrection or rebellion, giving it aid or comfort; that you have not directly or indirectly, given any assistance in money, or any other thing, to any person or persons whom you knew, or had good ground to believe, had joined, or was about to join, said insurrection and rebellion, or had resisted, or was about to resist, with force of arms, the execution of the laws of the United States; and that you have not counseled or advised any person or persons to join any rebellion against, or to resist, with force of arms, the laws of the United States.' Any person or persons declining to take said oath shall be discharged by the court from serving on the grand or petit jury, or venire, to which he may have been summoned.

"SEC. 3. And be it further enacted, That each and every person who shall take the oath herein prescribed, and who shall swear falsely as to any matter of fact embraced by it, shall be held to have committed the crime of perjury, and shall be subject to the pains and penalties declared against that crime."

This act is one of a series of laws passed by congress in consequence of the existence of a formidable insurrection and civil war still raging against the national government. The primary object of the 1 Act of June 17, 1862, ch. 103: 12 Stat. at Large, p. 430.

PART 4. second section seems to be to secure impartiality on the part of jurors in causes civil and criminal, to which the United States are parties, it being only on motion of the district attorney or his substitute that the prescribed oath can be required of persons summoned to serve as jurors. The right of the district attorney or his representative to make this motion, however, is not confined to such cases.

Foreman

not autho

minister

oaths.

The first section, making disloyalty a disqualification and lawful ground of challenge, with respect as well to petit as grand jurors, is general and unqalified. Most of the acts described, it will be seen, are treasonable.

In the State of New York, and in some other rized to ad- states, the foreman of a grand jury is by statute empowered to administer oaths to witnesses who appear before such jury to give evidence. But he has no such power at common law, and congress have not thought proper to pass any law for the purpose of conferring it. In the courts of the United States, it is indispensable, therefore, that witnesses to testify before a grand jury should, as is done in England, be sworn in open court. The fact of their having been so sworn is to be made known to the grand jury by a certificate furnished to the witness by the clerk.

Evidence.] Though it was formerly held that the grand jury ought to find a bill if probable evidence were adduced in support of it, because it is only an accusation, against which the accused will afterwards have an opportunity to defend himself, the just and true rule unquestionably is, that to warrant a grand jury in finding a bill, the evidence must be such as to convince them of the guilt of the accused. 1 Chit. Cr. Law, 318.

With respect to the kind of evidence which a grand jury may receive, it is to be remarked that it should

in general be such only as is usually denominated CHAP. 4. legal evidence. It must in its nature be the best of which the case admits, and must be given on oath. A grand jury cannot, therefore, for example, receive in evidence the written examination of a witness in lieu of his parol testimony. A mere office copy of a written document cannot be received instead of the original. And evidence of what third persons have said is inadmissible. Id. In the case of The United States v. Coolridge (2 Gallis., 364), a witness who professed to have conscientious scruples against taking an oath, but who was not a Quaker, was allowed by the grand jury to give his testimony as a witness without being sworn, and the indictment was quashed on this ground.1

Right of the accused to process to compel the attendance of witnesses in his behalf.] By the act of April 30, 1790, it is enacted that "every person or persons accused or indicted of the crimes aforesaid, shall be allowed and admitted, in his defense, to make any proof that he or they can produce, by lawful witness or witnesses, and shall have the like process of the court where he or they shall be tried, to compel his, her or their witnesses to appear at his or their trial, as is usually granted to compel witnesses to appear on the prosecution against them."2

In the case The United States v. Aaron Burr, the question arose whether Burr, being then under recognizance to appear and answer to an indictment to be preferred against him for a misdemeanor, was entitled to the process of subpoena to summon witnesses, before indictment found, to testify in his behalf

'The motion to quash was founded on the affidavit of the witness himself to the fact of his not having been sworn; but the court required also the affidavit of the defendant of his belief of the fact.

'Ch. 9, § 29: 1 Stat. at Large, p. 118.