Mr. Pierrepont.—We join in the demurrer.
The question now before the court was simply one of law and of fact, and whether the facts in the case admitted by all, constituted such a violation of the law as justified and required the setting aside of the array. It would seem that it ought to have been easily settled, and the fact the motion was hotly contested by the defense through a discussion of three days continuance, would seem to indicate that for some reason they had a special desire to have their case tried by that particular jury. The argument was opened by Mr. Merrick for the defense. His argument was first addressed to the construction of the statute, and to the contention that the facts alleged and admitted did not constitute such a violation of the law as would justify the setting aside of the array. And then as there was no statute in regard to the quashing of the panel the question was argued on the principles of the common law, and many decisions were invoked, both in England and in this country, to show that the failure of the officers to comply with the law was not such as would vitiate what they did.
The question was ably discussed on both sides, and ingeniously on the part of the defense, which did not confine itself to the legal discussion of the question, but made it the occasion for manifesting its spirit and attitude toward the government by insinuations and innuendo. Thus, Mr. Merrick said, "I hope the United States is looking for the attainment of justice in this case; I trust nothing may be developed in this case looking towards anything else. I trust the government will tread the high and honorable path which leads to the attainment of simple and, I may add, speedy justice. And entertaining this hope, I suggest to your honor, whether it is probable a jury, against whose qualification nothing is alleged, who were summoned without regard to this case, and before it was anticipated it might be tried, are not better fitted to do justice then another summoned in anticipation of the case,—a case not of an ordinary private nature, but one of great public interest, in which, while the United States as a government, I trust, will tread in the highways I have spoken of, there are individuals occupying offices in the government who may be disposed to tread lower paths which we will have to follow.
"May it please your honor, I shall say no more upon this motion than to add that after the most careful examination I have been able to give to it, the honest conclusion to which I have come is, that the ground, probably, upon which the motion rests, is to be found in the act of 1853, page 160, 10 Statutes at Large, which act provides that where a criminal case is on trial in this court and a jury has been impanelled, and another term begins during the progress of the trial, the cause shall continue; but leaves it exceedingly questionable whether unless the jury is fully impanelled before the end of the term, the cause can be tried. That other term begins Monday next, and unless a jury in this case is impanelled before Saturday night it is questionable whether this case will be tried for many days or many years."
To this sly insinuation that the government felt that it had an elephant on its hands, and that the motion was a dilatory one thus made so early in the case to influence both the jury and public opinion, Judge Pierrepont replied as follows: "They will discover before we proceed much further, that the United States are as zealous, as earnest, and as eager to try this cause as the other side, and they will discover before it is through that the public mind will be set right with regard to a great many subjects about which there have been active, numerous, and unfounded reports. Since I have been here in this city for these past few days, it has been circulated in nearly all the journals of this country that the United States dared not bring forward the diary found upon the murderer of the President, because that diary would prove things they did not want to have known. All these things will be proved to be false, and all the papers, about the suppression of which so much has been said, will be exhibited here on the trial of this case. We are anxious that it should be proceeded with at once. It has likewise been circulated through all the public journals that after the former convictions, when an effort was made to go to the President for pardon, men active here at the seat of government prevented any attempt being made, or the President even being reached for the purpose of seeing whether he would not exercise clemency; whereas, the truth, and the truth of record, which will be presented in this court, is that all this matter was brought before the President and presented to a full cabinet meeting, where it was thoroughly discussed; and after such discussion, condemnation, and execution, received not only the sanction of the President, but that of every member of his cabinet. This, and a thousand other of these false stories, will be all set at rest forever in the progress of this trial; and the gentlemen may feel assured that not only are we ready but that we are desirous of proceeding at once with the case." The insinuation of Mr. Merrick, having been thus bravely and fully met, the defense felt it necessary to shift its ground, and so Mr. Bradley, in the course of his argument, found another reason for the motion of the prosecution to quash the panel, which he artfully put forth in the form of an insinuation as follows: "I think I can see where this thing is drifting. It is not delay that is sought, but they have another motive more powerful than delay. It is to get another jury in the place of this honest jury already summoned. Why, sir, the gentleman talks about the misgivings in the public prints. I do not know that he has seen what I hold in my hand,—an article from this place denouncing this jury because sixteen of them are Catholics, as they say, but there it is—such an article has been written and published in the New York Herald. I know, too, that the same article, published yesterday morning, foreshadows the fact that these gentlemen were to come into court on the day they did, and make the identical motion that they have submitted here."
Mr. Merrick. "And states the ground of the motion?"
Mr. Bradley. "Yes Sir, states the ground of the motion. It looks to me as though it came from very near home."
Mr. Pierrepont. "What does it state as the ground of the motion?"
Mr. Bradley. "There it is, just the same ground precisely as was stated here that it was not a lawful panel."
Mr. Pierrepont. "Oh!" (laughingly.)