cited authorities relate: For although the jurisdiction of the court is ascertained and known, the constitutionality 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.

3d. 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 act of Congress (1 vol. p. 67, § 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 addition of the jurors. It is true, that in the copy of the panel of 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 surely be satisfied by 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, Mr. Bradford (the attorney general of the United States) and Mr. Rawle (the attorney of the district) premised, that they were also impressed with the propriety and necessity of establishing sound 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 panels, 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 panel, 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 a 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 economical ob

ject in view, when it limited the number of jurors to sixty, as a compensation was originally allowed for their attendance, though 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 authorized sixty jurors to be summoned; and in addition to the twelve from the proper county, the Marshal has accordingly summoned sixty from the State at large. To each venire there are no more than seventytwo jurors returned.

The return of a separate panel 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 panel; 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 Marshal has a legal direction 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 panels 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 complete the panel of seventy-two, are returned to all the cases. But the adverse doctrine would require the jurors to be brought from every county in which the 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.

2d. 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 show, what it is incumbent on the prosecutor to show. 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. II. ; 2 Hawk. c. 25, § 126.

[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.]

3d. 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 controlled by the provision of the State act, which is in that respect different; but must be deemed substantive and independent.

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 panels, 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 controlled 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 economical 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 panel 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 panel 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.

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 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 insured. In the present instance, the precept requires the Marshal to return at least forty-eight

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 twelve 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 panel returned, in conformity to every writ.

Thus, likewise, the act of Congress and the State act have been reconciled, and both put into operation; twelve jurors being returned in pursuance of the former, and sixty 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.

THE UNITED STATES vs. STEWART.

THE SAME vs. WRIGHT.

These prisoners being brought to the bar, on separate charges of High Treason, Mr. Lewis read their depositions, stating the absence of material witnesses in both cases, and moved to postpone the trials till an opportunity was given to procure the attendance of those witnesses from the western counties. He urged the general inconveniency of a commitment and trial at so great a distance from the scene of the criminal transaction; the friendless situation of the prisoners, and the poverty

of the witnesses; and he alleged, that, under such circumstances, an immediate trial would be merely an ex-parte proceeding. To show the lenity with which persons thus charged have always been treated, he cited Fost. c. 1. 1, and to account for the delay in procuring the witnesses, he observed, that as the act of Congress (1 vol. p. 67, § 29) declared, that "in cases punishable with death, the trial shall be had in the county where the offence was committed," if it could be done without great inconvenience, the prisoners might reasonably have expected that indulgence, until the motion for a Special Court had been refused, on account of the peculiar difficulties of the case, in opposition to the general inclination of the judges. Nor could there be any preparation for trial until the charge was known, and the names of the witnesses who were to prove the indictments. By the practice under the Constitution and laws of Pennsylvania, (and the case is the same here,) a defendant cannot have compulsory process to bring in his witnesses, before he has sworn that they are material; and he cannot so swear till he knows the charge and the witnesses that support it. It is essential to the administration of justice, and to the feelings of humanity, that the defendants should have time to investigate the characters of witnesses, and to bring proofs in contradiction to the accusation. Hence, even in England, where the counties are generally smaller than in this country, a period of ten days is allowed between the time of furnishing lists of the witnesses and jurors, and the time of trial. 7 Ann. c. 21; 4 Bl. Com. 345; and, although the act of Congress (1 vol. p. 112, § 29) only says, that copies of the indictment and a list of the jury and witnesses shall be delivered to the prisoner, "at least three entire days before he shall be tried," yet it must certainly be the intention of the legislature to afford an opportunity to canvass the characters of the witnesses, or the provision would be nugatory; that opportunity cannot be deemed to commence till he knows their names, and it cannot be deemed to be complete, unless he has had time to send for information to the places in which they reside. The Court will, therefore, exercise a discretion as to the length of time to be allowed, in proportion to the distance, and conformably to the case in Fost. 1; the time so allowed for preparation, will be subsequent to the delivery of the copy of the indictment, and the lists of witnesses.

Mr. Rawle (attorney for the district) premised, that an acquiescence in the present motion would, probably, put off the trial for the term. He urged, that the prisoners must long ago have known the nature of the charge, and the proofs necessary to their defence; and ought to have made an earlier application for the aid of the court to procure their witnesses. Due diligence has not been used, nor, indeed, is it so stated in the affidavits; and it is not only necessary to satisfy the court that the witnesses are material; but also that the party applying has been guilty of no laches, or neglect, in omitting to apply to them and endeavouring to procure their attendance. (3. Burr 1513.) Ever since the 20th of April, there has been an opportunity to make this motion; which was not the case in Fost. 1, as that arose before a special court, acting under a special commission, for special purposes. Nor can there be a just reason to object to the trials coming on, because of the place at which the court is held. On the motion for a special court sufficient