Notes on Senate Debates
Mar. 11. the jury bill before the Senate. mr Read says that if from any circumstances of inaptitude the Marshall cannot appoint a jury analogously with the state juries, the common law steps in & he may name them according to that. and Mar. 12. same bill. mr Chipman speaking of the case of Vermont where a particular mode of naming jurors was in force under a former law of that state, when the law of the US. passed declaring that juries shall be appointed in their courts in the several states in the mode ‘now’ in use in the same state. Vermont has since altered their mode of naming them mr Chipman admits the federal courts cannot adopt the new mode, but in that case he says their marshal may name them according to the rules of the Common law. now observe that that is a part of the common law which Vermont had never adopted, but on the contrary had made a law of their own, better suited to their circumstances.
MS (DLC: TJ Papers, 108:18559); entirely in TJ’s hand; on same sheet as Notes on Conversations with Abigail Adams and Edward Dowse, 11 Mch. 1800.
Jury bill before the senate: on 11 Mch., the same day Pinckney’s bill for selecting jurors by lot was postponed, a motion was made to consider amendments to the Judiciary Act of 1789, specifically the provision for summoning jurors to serve in the federal courts. The next day the Senate appointed a committee, chaired by the Vermont Federalist Nathaniel Chipman, to bring in a bill. TJ recorded the progress of the legislation from its first reading on 8 Apr., through its recommitment on 16 Apr., with Wilson Cary Nicholas heading a new committee and reporting amendments on 28 Apr., to its passage by the Senate two days later. The House concurred with the bill on 12 May. The law called for jurors in U.S. courts to be chosen by the same method as that used to select jurors in the highest court of each state (“A Bill To amend an act entitled An act to establish the Judicial Courts of the United States,” in DNA: RG 46, Senate Records, 6th Cong., 1st sess.; U.S. Statutes at Large description begins Richard Peters, ed., The Public Statutes at Large of the United States … 1789 to March 3, 1845, Boston, 1855–56, 8 vols. description ends , 1:88; 2:82; JS description begins Journal of the Senate of the United States, Washington, D.C., 1820–21, 5 vols. description ends , 3:46–7, 69, 72, 74, 81–3, 94–6; JHR description begins Journal of the House of Representatives of the United States, Washington, D.C., 1826, 9 vols. description ends , 3:714; TJ to Thomas Mann Randolph, 2 Feb. 1800). For a comparison of the bill reported on 8 Apr. with the amended version of 28 Apr., see DHSC description begins Maeva Marcus and others, eds., The Documentary History of the Supreme Court of the United States 1789–1800, New York, 1985–2007, 8 vols. description ends , 4:282–4. See also Notes on Senate Debate, 29 Apr. 1800.
Federal courts cannot adopt the new mode: Section 29 of the Judiciary Act of 1789 called for jurors in the federal courts to be selected “according to the mode of forming juries therein now practised” in the respective states. Only in New Hampshire, Massachusetts, Connecticut, Georgia, and South Carolina were jurors selected by lot in 1789 and consequently they were the only states where that method could be practised in the federal courts in 1800. According to rules of the common law, the state court could issue a writ of venire facias, calling upon the sheriff to summon and choose jurors. In the federal courts jurors were chosen by the federal marshals, who, according to the Republicans, rigged the juries (U.S. Statutes at Large description begins Richard Peters, ed., The Public Statutes at Large of the United States … 1789 to March 3, 1845, Boston, 1855–56, 8 vols. description ends , 1:88; DHSC description begins Maeva Marcus and others, eds., The Documentary History of the Supreme Court of the United States 1789–1800, New York, 1985–2007, 8 vols. description ends , 4:271).