Notes on Senate Debates
Apr. 29. Jury bill under considn.
Mr. Dexter & Hillhouse & mr Read1 insisted in the fullest & most explicit terms that the common law of England is in force in these states and may be the rule of adjudication in all cases where the laws of the US. have made no provision.
Mr. Livermore seemed to urge the same, tho’ he2 seemed to think that in criminal cases it might be necessary to adopt by an express law.
Mr. Tracy was more reserved on this occasion. he only said that Congress might by a law adopt the provisions of the Common law on any subject, by a reference to that, without detailing the particulars: as in this bill it was proposed that the Marshals should summon juries ‘accdg to the practice of the Common law.’
MS (DLC: TJ Papers, 107: 18272); entirely in TJ’s hand.
For the progress of the Jury bill, see note to TJ to Thomas Mann Randolph, 2 Feb. 1800. Accdg to the practice of the common law: the committee report brought in on 28 Apr. recommended the addition of a second section to the bill allowing that when it was not practicable for U.S. courts to follow state practices in the selection of juries, jurors “shall be designated and returned pursuant to the rules and practices of the common law, as nearly as the constitution of said courts will permit.” On a printed copy of the committee report an emendation to that section, in TJ’s hand, reads: “Provided that the several courts of the US. shall continue to have all the discretionary powers vested in those courts by the 29th. section of the act to establish the Judicial courts of the US.” Finally the entire section was canceled. TJ wrote “agreed” adjacent to the modifications to the first section of the bill, which became the wording of the legislation as it was passed (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 , 2:82).
1. Interlined: “& mr Read.”
2. Canceled: “spoke more particularly.”