THE UNITED STATES v. THE INSURGENTS OF PENNSYLVANIA
2 U.S. 335 (1795)

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U.S. Supreme Court

THE UNITED STATES v. THE INSURGENTS OF PENNSYLVANIA, 2 U.S. 335 (1795)

2 U.S. 335 (F.Cas.) 2 Dall. 335

The United States
v.
The Insurgents of Pennsylvania

Circuit Court, Pennsylvania District

April Term, 1795

Several indictments for high treason having been found against persons concerned in the insurrection in the four Western Counties of Pennsylvania, a Venire was issued in each case, for summoning a Jury returnable to the present Term; and to each writ the Marshall returned a separate pannel, containing the names of thirty-six Jurors, from the city of Philadelphia, fifteen from the county of Delaware, nine from the county of Chester and twelve from each county, in which the treason was charged to have been committed, making seventy-two Jurors on each pannel, and one hundred and eight Jurors summoned on the whole.

The act of Congress (1 Vol. p. 112. s. 29) having directed 'that any person who shall be accused and indicted of treason, shall have a copy of the indictment, and a list of the Jury and witnesses to be produced on the trial for proving the said indictment, mentioning the names and places of abodes of such witnesses and jurors, delivered unto him at least three entire days before he shall be tried for the same,' the Attorney of the District had, in due time, delivered to the several prisoners copies of the indictment, of the pannel of jurors, and of the list of witnesses; but he had omitted to deliver a copy of the caption of the indictment, and to specify the occupations, or the places of abode of the jurors and witnesses, otherwise that by mentioning the counties in which the jurors respectively resided.

Page 2 U.S. 335, 336

On this state of facts, Lewis suggested the following exceptions; which, he said, were not so much designed for the existing cases, as to prevent the introduction of precedents, injurious to the rights and safety of posterity. 1st. That the Marshall had returned a greater number of Jurors than the law authorised; and that he had returned a several pannel in each case, instead of one general pannel to try all the issues at this Court. By the act of Congress (1 Vol. p. 67. s. 29.) it is declared, that 'in cases punishable with death, the trial shall be had in the county where the offence is committed, or where that cannot be done, without great inconvenience, twelve pettit Jurors at least shall be summoned from thence. And jurors in all cases to serve in the Courts of the United States shall be designated by lot, or otherwise, in each state respectively, according to the mode of forming Juries therein now practised, so far as the laws of the same shall render such designation practicable by the Courts or Marshalls of the United States; and the Jurors shall have the same qualifications as are requisite for Jurors by the laws of the State of which they are citizens, to serve in the highest Courts of law of such State, and shall be returned as there shall be occasion for them, from such parts of the District, from time to time, as the Court shall direct, so as shall be most favorable to an impartial trial, and so as not to incur an unnecessary expence, or unduly to burthen the citizens of any part of the District with such services.' By the act of Pennsylvania, for the better regulation of Juries (2 Vol. p. 263. s. 4. Dallas's Edit.) it is declared 'that every sheriff, or any officer, to whom the return of Venire Facias Juratores or other process for the trial of causes before the Judges of Oyer & Terminer, general-goal-delivery, and Nisi Prius doth belong, shall, upon return thereof, unless in cases where a special Jury shall be struck by rule of Court, annex a pannel to the said writ containing the christian and sur- names, additions, and places of abode of a competent number of Jurors, the names of the same persons to be inserted in the pannel annexed to every such writ, for the trial of all issues in civil and criminal causes at the said Courts, in each respective county, which number of Jurors, in any County, shall not be less than forty-eight, nor more than sixty, without the direction of the Judge or Judges appointed to go the Circuit, and sit as Judge or Judges of Oyer & Terminer, general-goal-delivery, or Nisi Prius, in such county, who are hereby empowered and required, if he or they see cause, by order, under his hand, or their hands, to direct a greater number, not to exceed eighty, &c.' By the same act, (s. 5.) it is further declared, 'that the sheriff of the county of Philadelphia, or other county where the

Page 2 U.S. 335, 337

Supreme Court of judicature shall be holden, or other officer to whom the return of the Venire Facias Juratores, or other process for the trial of causes at bar before the Justices of the Supreme Court, doth belong, shall, upon return thereof, unless in cases where a special Jury shall be struck by rule of Court, annex a pannel to the said writ, containing the christian and surnames, additions, and places of abode, of a competent number of Jurors, the names of the same persons to be inserted in the pannel annexed to every such writ, for the trial of all issues to be tried at the bar of the said Court during the ensuing Term, which number of Jurors shall not be less than forty-eight, nor more than sixty, &c.' The laws of the State being thus made the rule for the Federal Courts, Lewis contended, that, in no case, could the Marshall be authorised to return more than 80 Jurors; that the power of extending the pannel to that number does not vest in the Circuit Court, fitting in its ordinary character, as the act only vests it in the Courts of Oyer & Terminer, general-goal- delivery, and Nisi Prius; but that, in the present instance, even that number, and without the order of the Court, had been far exceeded, since 12 Jurors had been summoned from each of the four counties, in which the charges were laid, and 60 had been summoned from other parts of the State, making in the whole 108, which he considered as an unnecessary as well as an expensive and oppressive call on the citizens. He insisted, that, as different charges were laid in the four counties, 48 jurors should have been summoned from them, and only the number necessary to compleat the pannel of 60, or, in case of a special order, the pannel of 80, might be summoned from any other part of the State. In England the power of summoning Jurors is limitted to 48, unless by the special order of the Justices of Oyer & Terminer and general-goal-delivery. Keyl. 16. The act of Congress does not direct, that the 12 Jurors, to be brought from the county where the offence was committed, shall be over and beyond the 60 Jurors, directed by the State law to be summoned; nor does it permit the Marshall to summon the Jurors whence he pleases, without the express order of the Court. The return of several pannels for the trial of each issue, Lewis deemed to be equally inconsistent with the terms and policy of the Pennsylvania law, which the law of Congress had likewise adopted. Great inconveniency had been experienced from such a practice; and the State Legislature, as a reformation in the system of jurisprudence that previously prevailed, expressly enacted, that the pannel annexed to every writ of Venire Facias Juratores, should be 'for the trial of all issues to be tried at the bar of the said Court, during the said Term.' 2nd. That a copy of the caption of the indictments, as well as

Page 2 U.S. 335, 338

a copy of the indictments themselves, had not been delivered to the respective prisoners. The caption is material, for it must state the Judges before whom, the Grand Jury by whom, the time when, and the place where, the indictment was presented. For, if the Judges sit without a commission, or the commission has expired; if the Grand-Jury was composed of a number less than twelve, or the members of it were not qualified according to law; if the indictment was found at a place where the Court was not authorised to sit, or at a time when, in fact, it was not sitting, the prisoner is entitled to take advantage of the defect, and he cannot have the opportunity of doing so, unless he is furnished with the caption of his indictment. On the same principle Foster contends for the same privilege; and delcares it to be founded on the constant practice, though the act only mentions a copy of the indictment. Fost. Cro. L. 229. And Blackstone, as well as Foster, shews that it is of importance that the prisoner should receive the copy before arraignment, 'for then is his time to take exceptions to the indictment by way of plea, or demurer.' 2 Hawk. c. 25. s. 118. In reason, and in effect, the caption is a part of the indictment. Whenever it becomes necessary to exemplify the indictment, the caption must accompany it; and no inferences drawn from the practice respecting indictments for other offences (where the caption is not supplied, as it is said, till the record is finally made up) can be applicable to the present question, since in no other case, but treason, is the delivery of a copy of the indictment prescribed as a preliminary to the trial. Nor is their any essential distinction between this Court, and the Courts to which the cited authorities relate: For, although the jurisdiction of the Court is ascertained and known, the constitutionalty of the commissions of the Judges who compose it; the legality of the number and qualification of the Grand-Jury, who attend it; the place of its sessions &c. will still afford ample materials for investigation and just objection. 3rd. The lists furnished to the respective prisoners, do not contain a sufficient specification of the addition and places of abode of the Jurors and witnesses. By the acts of Congress (1 Vol. p. 67. s. 29. s. 28.) as well as the act of Pennsylvania (2 Vol. p. 263.) the specification of the place of abode of the Jurors, is prescribed; and the Pennsylvania act (which is adopted by the other) calls likewise for the additions of the Jurors. It is true, that in the copy of the pannel the county is mentioned, from which the Jurors respectively are summoned; but as the sheriff could not in a case arising under the State jurisdiction, summon any citizens as jurors, who were not inhabitants of the proper county, the act, when it requires a specification of the place of abode, cannot

Page 2 U.S. 335, 339

surely be satisfied by merely mentioning the county. The express relation between the State and Federal laws on the subject, demands an analogous conclusion, in a case arising under the jurisdiction of the general Government; and the general reasons for furnishing such information to prisoners, acquire great additional force, from a consideration of the distance between the place of trial, and the place where the offence is charged to have been committed. In answer to these exceptions Bradford ( the attorney general of the United States) and Rawle (the attorney of the district) premised, that they were also impressed with the propriety and necessity of establishing, found and permanent principles on this first discussion of the doctrine of treason, as it applied to the existing constitution of the United States: But they contended, 1st. That the exception to the number of jurors returned, and to the mode of returning separate pannels, ought not to be allowed. They observed, that the leading question on this point, called for a decision, whether, when a Federal Court was referred by an act of Congress to State regulations for its government, the State law, in its strict words, or in the practice under it, should furnish the rule? But, even from the context of the judicial act of Congress, an intention cannot reasonably be inferred, to incorporate all the provisions of the Pennsylvania act relating to jurors, into the practice of the Federal Courts. The reference to the State laws respects only the mode of designating the Jury by lot, or otherwise, and the qualification of the jurors: it does not respect the number to be returned on the pannel, which is still left (under the power of framing writs suited to the exigency of every case 1 Vol. p. 58) in the discretion of the Court, to be prescribed by Venire, or at common law. But the Pennsylvania act, without admitting such a distinction, must produce the greatest embarrassment; for it prescribes a different number of jurors to be returned to different Courts, and there is nothing in the act of Congress to determine which number shall be adopted here. The act of Pennsylvania, however, had obviously an oeconomical object in view, when it limited the number of jurors to sixty, as a compensation was originally allowed for their attendance, the gh it has since been repealed; 2 Vol. Dall. Edit. p. 268; and the practice of the Supreme Court, it is believed, changed in consequence of the repeal. But even taking the act of Pennsylvania as an indispensable rule, it is substantially complied with. The act of Congress introduced a particular regulation for the trial of offenders, which required that twelve jurors should be taken from the county where the offence is charged to have been committed; and this is done. The act of Pennsylvania authorised sixty jurors to be summoned; and in addition to the twelve from the proper county, the Marshall

Page 2 U.S. 335, 340

has, accordingly, summoned sixty from the State at large. To each Venure there are no more than seventy-two jurors returned. The return of a separate pannel in each case is, likewise, perfectly consistent with law, practice, and public conveniency. The indictments depending are all separate; none of them are joint. The exception, however, if it is at all available, goes to the venire, and not to the pannel; for the latter is in strict conformity to the former. After the Court has prescribed that twelve of the jurors shall be brought from the proper County, the Marshall has a legal discretion to bring the rest from any part of the District that he pleases. The Court will not, and cannot, interfere with the exercise of that power, unless it becomes necessary, in order to obtain an impartial jury. There must be as many pannels, as there are Counties, in which offences are charged to have been committed; and if twelve jurors are taken from the proper county for each case, there can be no legal ground to object that the same sixty, to compleat the pannel of 72, are returned to all the cases. But the adverse doctrine would require the jurors to be brought from every County in which an offence is charged. Suppose, therefore, five Counties involved, sixty jurors would, of course, be returned from them; and if the Court (as it has been contended) cannot increase that number, then a pirate, or any other felon, charged with an offence committed out of those Counties, could not be brought to trial at the same term.

2nd. That it is not necessary, nor is it material, to furnish the prisoner with a copy of the caption, as well as of the indictment. The act of Congress must be presumed to have been passed with a full knowledge of the State law; and by the State law, evinced and supported by a constant practice, nothing more than a copy of the indictment was required. 1 Dall. Rep. 33. Sufficient appears on the indictment to shew, what it is incumbent on the prosecutor to shew. [340-Continued]

The case referred to in Fost. p. 229, was that of a special Court, where a caption is undoubtedly necessary; and the distinction is expressly so taken. Fost. 11. 2 Hawk. c. 25. s. 126. *

3rd. That the addition of the jurors and witnesses as to the place of abode, is sufficient; but if the Court think otherwise, time will be allowed to amend it. The act of Congress, however, does not require a specification of the occupation of the jurors and witnesses, but only of their names and places of abode; and it cannot be controuled by the provision of the State act, which is in that respect different; but must be deemed substantive and independent.

* Patterson, Justice. The cases of Special Courts, or of inferior Courts held by charter, &c. can furnish no analogy for this Court, which is a Court of original and permanent jurisdiction. The proceedings in the King's Bench can alone be applicable.

Page 2 U.S. 335, 341

On the 18th of May the Judges of the Court delivered their opinions to the following effect.

Peters, Justice: I have considered the objections made to the pannels, and do not conceive these objections relevant. Although in ordinary cases it would be well to accommodate our practice with that of the State, yet the Judiciary of the United States should not be fettered and controuled in its operations by a strict adherence to State regulations and practice. But I see not that in a liberal view and construction of the laws of the United States, on this subject, a rigid adherence to all the local and oeconomical regulations of the State, is directed or necessary. It should seem, that the most pointed reference was had to the designation and qualification of jurors, and not to the exact numbers of which the pannel should consist. The Legislature of a State have in their consideration a variety of local arrangements, which cannot be adapted to the more expanded policy of the nation. It never could have been in the contemplation of Congress, by any reference to State regulations, to defeat the operation of the national laws. Now, there are cases, which have been stated, in which some of the criminal laws of the United States may be rendered impracticable, by an adherence to the rule of numbers prescribed as to jurors, in criminal cases, by the State law; and especially if there must be but one pannel, as has been contended. Yet, the most substantial requisites, to wit, the qualifications of jurors and mode of selection, may be adhered to. As to the clause in the law of the United States, directing, that 'the laws of the States (with great exceptions) shall be regarded as rules of decision, in trials at common law in the Courts of the United States,' I do not think it applies to the case before us.

All the arguments founded on the inconveniences to the defendants, if in this case particularly any such exist (of which I much doubt) weigh lightly when set against the delays and obstructions which the objection would throw in the way of the execution of the laws of the nation. [341-Continued]

Patterson, Justice:

The objections that have been suggested on this occasion, are principally founded on the 29th section of the judicial act of Congress, which refers the Federal Courts to the State laws, for certain regulations respecting juries. But the words of this reference are clearly restricted to the mode of designating the jury, by lot, or otherwise; and to the qualifications which are requisite for jurors; according to the laws and practice of the respective States. Since, therefore, the act of Congress does not itself fix the number of jurors; nor expressly adopt any State rule for the purpose, it is a necessary consequence that the subject must depend on the common law; and, by the common law, the Court may direct any number

Page 2 U.S. 335, 342

of jurors to be summoned, on a consideration of all the circumstances under which the venire is issued. There are instances, indeed, where five juries have been summoned upon a trial for High Treason, in order that, after the allowance of the legal challenges, a competent number might still be ensured. In the present instance, the precept requires the Marshall to return at least 48 jurors; and he has not, in my opinion, been guilty of any excess, in the exercise of that discretion for returning a greater number, with which he is legally invested. Neither is the mode of making his return justly exceptionable. As the act of Congress directs that 12 jurors shall be summoned from the County, in which the offence was committed, I cannot conceive any more proper, or more legal, way of proceeding, than by issuing a venire in each case; and then there must, of course, be a separate pannel returned, in conformity to every writ. Thus, likewise, the act of Congress and the State act have been reconciled, and both put into operation; 12 jurors being returned in pursuance of the former, and 60 jurors being returned in pursuance of the latter, law. With respect to the objection, that a copy of the caption of the indictment has not been furnished to the prisoners, it may be observed, that, although the practice of Pennsylvania has been different, yet, the caption and the indictment seem naturally to form but one instrument; and copies of both should, therefore, be delivered under the provisions of the act of Congress. There can be little inconveniency in adopting this rule; and it is calculated to avoid much difficulty and controversy. The objection, that the place of abode of the jurors and witnesses, has not been sufficiently designated, in the lists furnished to the prisoners, is, likewise, in our opinion, a valid one. The object of the law was to enable the party accused to prepare for his defence, and to identify the jurors who were to try, and the witnesses who were to prove, the indictment against him. It is contrary to the spirit and intent of such a provision, that the whole range of the State, or of a County, should be allowed, as descriptive of a place of abode; and it is the duty of the Judges so to mould the practice and construction of statutes, as to render them reasonable and just. With regard to the place, therefore, we think the townships in which the jurors and witnesses respectively reside, should be specified; but the act of Congress does not require a specification of their occupations, and the niceties of the State act, are not, in that respect, incorporated into the Federal system. In consequence of this decision, the trials were suspended, in order to give the Attorney of the District the three days required by the act of Congress, for delivering to the prisoners, amended copies of the caption and indictment, and of the lists of jurors and witnesses.

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