Note C.
On page [59] it is noticed that the venire issued to the marshal commanding him to return 108 jurors for the term of the treason trial included a provision that twelve were to be summoned and returned from Lancaster County. This was in conformity with the Act of September 24, 1789, known as the Federal Judicial Procedure Act, to the effect that “in cases punishable with death, the trial shall be had in the county where the offense was committed, or where that cannot be done without great inconvenience, twelve petit jurors at least shall be summoned from thence.”
In a recent notable address before the American Bar Association at Boston on August 30, 1911, Ex-Justice of the United States Supreme Court Henry E. Brown called attention to the fact that the provision of this act which required the trial for a capital offense to be held in the county where it occurred had never been observed. It seems to have escaped his notice that the statutory direction as to the venue was not unqualifiedly imperative and that this act had been the subject of repeated judicial construction, e. g., in the following cases:
“The Circuit Courts are bound to try all crimes committed within the district, but not to try them in the County where committed; that is a matter of which they must judge in the exercise of their discretion.” U. S. v. Wilson, Bald. 117; U. S. v. Cornell 2 Mason 95-8; U. S. v. Insurgents (Fries), 3 Dall. (Pa.) 513. In U. S. v. Cornell the Court holds that the third Section of the Act of March, 1793, Chapter 22, operates as a material modification of the Act of 1789 and leaves the place of the trial in the district to the sound discretion of the judge. The Act of 1793, Chapter 22, directs that special sessions for the trial of criminal cases shall be held at any convenient place within the district nearer to the place where the offenses may be said to be committed, than the place appointed by the law for ordinary sessions.