Mr. Clark, of New Hampshire, called up a bill, reported by the Judiciary Committee, “in relation to the qualifications of jurors and to writs of error in certain cases.” The first section removed the objection to jurors serving in certain cases by reason of having formed or expressed an opinion founded upon common notoriety, public rumor, or statements in public journals. The other section provided a writ of error on questions of law, where the punishment was death.
Mr. Sumner remarked:—
I see no objection to the second section. Here I agree with the Senator from New Hampshire. I am not so sure about the first section. There seem to me two objections to it. Whether they are sufficiently strong to justify the rejection of the bill will be for the Senate to determine. I simply call attention to them.
The first is, that it positively sets aside what, down to this day, on the ruling of the highest magistrate of our country, has been the law in impanelling juries. To this the Senator aptly replies, that it is important to obtain uniformity of practice in the United States courts. There I agree with him. If the proposition involved nothing else, I should not venture even a suggestion with regard to it; but it reaches further. It sets aside what my friend, the learned Senator from Maryland [Mr. Johnson] knows well was the decision of Chief Justice Marshall, and what has been also the practice in many States of the Union. It is the practice in my own State. It is the practice also in the District of Columbia. Against that practice I can venture only with a certain hesitation.
Then comes another consideration of greater importance. So far as I comprehend the special bearing of this provision, it is to meet an actual case of unprecedented historical importance; it is to prepare the way for the trial of that grandest criminal in the world’s history, now in the custody of the National Government. Sir, that trial should be approached carefully, most discreetly, and I humbly submit, unless reasons to the contrary are found of the strongest character, with absolute reference to the existing law of the land. I shrink from any change in the law to meet an individual case, even though of transcendent importance, like that to which I refer. Indeed, the very importance of the case, and especially its political character, puts us on our guard.
I would also ask whether there is not in the proposition something of an ex post facto character. I am not going to argue against the power of Congress to make changes in modes of procedure and of trial after the crime has been perpetrated; but I cannot doubt, that, in view of the positive limitation of the Constitution, it is a very doubtful course to enter upon.
Mr. Davis, of Kentucky, who was not disposed to agree with Mr. Sumner, said: “I certainly very heartily approve of the opinions and sentiments expressed by the Senator from Massachusetts.”
The bill was postponed, and allowed to drop.