be deemed guilty of a misdemeanor, and be subject to the same penalties as if such challenge had been given and received within said district. 20 Feb. 1839. Ibid. § 5. 99. Every offender may plead a former conviction or acquittal for the same offence in any state or country; and the same, being established, shall be a bar to any further Former acquittal proceedings against such person under the next preceding section of this act. or conviction. Ibid. 26. testify. 100. Any person offending against the provisions of this act may be a competent witness against any other person offending in the same transaction, and may, at the Parties may be discretion of the court, be compelled to give evidence before any grand jury, or on any compelled to trial in court; but the person so testifying shall not thereafter be liable to prosecution But not to be for the same matter, nor shall the testimony so given be used against him in any case liable also to whatsoever. prosecution. Ibid. § 7. 101. In addition to the oath now prescribed by law to be administered to the grand jury in the District of Columbia, they shall be sworn faithfully and impartially to Oath of grand inquire into, and true presentment make of all offences against this act. X. CRIMINAL PROCEDURE. jurors. 1 Stat. 88. offences to be 102. In cases punishable with death, the trial shall be had in the county where the 24 Sept. 1789 ? 29. offence was committed, or where that cannot be done without great inconvenience, (a) twelve petit jurors at least shall be summoned from thence. And jurors in all cases to Where capital serve in the courts of the United States shall be designated by lot or otherwise in each tried. state respectively according to the mode of forming juries therein now practised, (b) so How jurors to be far as the laws of the same shall render such designation practicable by the courts or designated. marshals of the United States;(c) and the jurors shall have the same qualifications as are Qualifications. requisite for jurors by the laws of the state of which they are citizens, to serve in the highest courts of law of such state; and shall be returned as there shall be occasion for them, from such parts of the district from time to time as the court shall direct, (d) so as shall be most favorable to an impartial trial, and so as not to incur an unnecessary expense, or unduly to burthen the citizens of any part of the district with such services. And Venire facias. writs of venire facias when directed by the court shall issue from the clerk's office, and shall be served and returned by the marshal in his proper person or by his deputy, or in case the marshal or his deputy is not an indifferent person, or is interested in the event of the cause, by such fit person as the court shall specially appoint for that purpose, to whom they shall administer an oath or affirmation that he will truly and impartially serve and return such writ. And when, from challenges or otherwise, there shall not be Tales. a jury to determine any civil or criminal cause, the marshal or his deputy shall, by order of the court where such defect of jurors shall happen, return jurymen de talibus circumstantibus sufficient to complete the panel; and when the marshal or his deputy are disqualified as aforesaid, jurors may be returned by such disinterested person as the court shall appoint. 103. No conviction or judgment for any of the offences aforesaid, shall work corrup- 30 April 1790 2 24. tion of blood, or any forfeiture of estate. 1 Stat. 117. Ibid. 29. In treason, copy of indictment and list of jurors 104. Any person who shall be accused and indicted of treason, shall have a copy of the indictment, (e) and a list of the jury and witnesses, (g) to be produced on the trial for proving the said indictment, mentioning the names and places of abode of such witnesses and jurors, delivered unto him at least three entire days before he shall be tried for the same; and in other capital offences, shall have such copy of the indictment and list of the jury two entire days at least before the trial:(h) And that every person so cases. accused and indicted for any of the crimes aforesaid, shall also be allowed and admitted Defence by to make his full defence by counsel learned in the law; and the court before whom such counsel. person shall be tried, or some judge thereof, shall, and they are hereby authorized and required immediately upon his request to assign to such person such counsel, not exceeding two, as such person shall desire, to whom such counsel shall have free access at all seasonable hours; and every such person or persons accused or indicted of the crimes Witnesses for de aforesaid, shall be allowed and admitted in his said defence to make any proof that he or they can produce, by lawful witness or witnesses, and shall have the like process of (a) The eirenit courts are bound to try all crimes committed within the district, but not to try them in the county where com mitted; that is a matter of which they must judge in the exer cise of their discretion. United States v. Wilson, Bald. 117. United States ". Cornell, 2 Mas. 95-8. United States v. The Insurgents, 3 Dall. 513. (b) This only applied to the states then organized. United States v. Woodruff, 4 McLean, 106. And was restricted to the state laws then in force. United States v Reid, 12 How. 365. (c) See arts 13 May 1800. 2 Stat. 82; and 20 July 1840, 5 Stat. 394, as to the qualifications and mode of designating jurors in the federal courts. This provision does not extend to the number of jurors to be summoned, which is left to the discretion of the court, as at common law. United States v. The Insurgents, 2 Dall. 841. See United States v. Price, 3 Hall, L. J. 121. fence. (d) This clause, which provides that jurors shall be drawn from such parts of the district as the court shall direct, is not repealed by the act 20 July 1840, but is still in force. United States v. Stowell, 2 Curt. C. C. 153. (e) The caption is a portion of the indictment, and a copy of it must be furnished to the prisoner. United States v. The Insurgents, 2 Dall. 342. (g) No list of witnesses is required to be furnished except in cases of treason. United States v. Wood, 3 W. C. C. 440. In the list furnished, the place of abode of the jurors and witnesses must be designated. United States v. The Insurgents, 2 Dall. 342. here, means the trying of the cause by arraignment and pleading preparatory to United States v. Curtis, 4 Mas. 232. (h) The word "trial," the jury, and not the such trial by the jury. 30 April 1790. the court where he or they shall be tried, to compel his or their witnesses to appear at his or their trial, as is usually granted to compel witnesses to appear on the prosecution against them. Process for defendants. Ibid. 30. Standing mute, of pleading not guilty. 105. If any person or persons be indicted of treason against the United States, and shall stand mute or refuse to plead, or shall challenge peremptorily above the number to have the effect of thirty-five of the jury; or if any person or persons be indicted of any other of the offences herein before set forth, (a) for which the punishment is declared to be death, if he or they shall also stand mute or will not answer to the indictment, or challenge peremptorily above the number of twenty persons of the jury; the court, in any of the cases aforesaid, shall notwithstanding proceed to the trial of the person or persons so standing mute or challenging, as if he or they had pleaded not guilty, and render judgment thereon accordingly. Ibid. 31. No benefit of clergy. Ibid. 32. Limitation of prosecutions. Exceptions. Ibid. 33. 26 March 1804 23. 2 Stat. 290. Limitation of prosecutions under the revenue laws. 3 March 1825 14. 4 Stat. 118. mute, the trial to proceed. 106. The benefit of clergy shall not be used or allowed, upon conviction of any crime, for which, by any statute of the United States, the punishment is or shall be declared to be death. 107. No person or persons shall be prosecuted, tried or punished for treason or other capital offence aforesaid, wilful murder or forgery excepted, unless the indictment for the same shall be found by a grand jury within three years next after the treason or capital offence aforesaid shall be done or committed; nor shall any person be prosecuted, tried or punished for any offence (b) not capital, nor for any fine or forfeiture under any penal statute, (c) unless the indictment or information for the same shall be found or insti tuted (d) within two years from the time of committing the offence,(e) or incurring the fine or forfeiture aforesaid: Provided, That nothing herein contained shall extend to any person or persons fleeing from justice.(g) 108. The manner of inflicting the punishment of death, shall be by hanging the person convicted, by the neck until dead. 109. Any person or persons guilty of any crime arising under the revenue laws of the United States, or incurring any fine or forfeiture by breaches of the said laws, may be prosecuted, tried and punished, provided the indictment or information be found at any time within five years after committing the offence or incurring the fine or forfeiture, any law or provision to the contrary notwithstanding.(h) 110. If any person, upon his or her arraignment upon any indictment before any court of the United States for any offence, not capital, shall stand mute, or will not answer or If party stands plead to such indictment, the court shall, notwithstanding, proceed to the trial of the person, so standing mute, or refusing to answer or plead, as if he or she had pleaded not guilty, and upon a verdict being returned by the jury, may proceed to render judgment Where offences accordingly. And the trial of all offences which shall be committed upon the high seas or elsewhere, (i) out of the limits of any state or district, shall be in the district where the offender is apprehended, or into which he may be first brought. on the high seas, &c., to be tried. Ibid. 15. 111. In every case where any criminal convicted of any offence against the United Convicts may be States shall be sentenced to imprisonment and confinement to hard labor, it shall be sentenced to the lawful for the court by which the sentence is passed, to order the same to be executed in state prisons. any state prison, or penitentiary within the district where such court is holden; the use of which prison or penitentiary may be allowed or granted by the legislature of such state for such purposes; and the expenses attendant upon the execution of such sentence shall be paid by the United States. 2 March 1833 26. 4 Stat. 634. When marshal to provide a prison. 112. In any state where the jails are not allowed to be used for the imprisonment of persons arrested or committed under the laws of the United States, or where houses are not allowed to be so used, it shall and may be lawful for any marshal, under the direction of the judge of the United States for the proper district, to use other convenient (a) Where a subsequent statute creates a capital offence, the prisoner is entitled to thirty-five peremptory challenges, that being the number of challenges allowed at common law, in capital cases. United States v. Johns, 1 W. C. C. 363. The right of challenge by the prisoner recognised by this act, does not necessarily draw along with it the qualified right, existing at common law, on the part of the government, to set aside a juror until the panel was exhausted. The practice in this respect should conform to the state law. United States v. Shackleford, 18 How. 590. (b) This applies to offences under subsequent statutes. Johnson v. United States, 3 McLean. 89. Adams v. Woods, 2 Cr. 342. United States v. Ballard, 3 McLean, 469. United States r. White, 5 Cr. C. C. 73. And to common law offences in the District of Columbia. United States r. Slacum, 1 Cr. C. C. 485. United States v. Porter, 2 Ibid. 60. United States v. Watkins. 3 Ibid. 442. (c) A qui tam action on the act prohibiting the slave trade is within the limitation. Adams v. Woods, 2 Cr. 336. So is an action for a penalty under the consular act of 1803. Parsons v. Hunter, 2 Sumn. 419. The two years' limitation of suits for penal ties is repealed by implication by act 28 February 1839, which extends the time to five years. Stimpson v. Pond, 2 Curt. C. C. 502. See tit."Fines, Penalties and Forfeitures," 11. (d) The finding of an informal presentment is not sufficient to take the case out of the statute. United States v. Slacum, 1 Cr. C. C. 485. Nor will a former indictment on which a nolle prosequi (i) This does not embrace offences committed in the Indian ter ritory. United States v. Alberty, Hemp. 446-7. places, within the limits of said state, and to make such other provision as he may deem 2 March 1833. expedient and necessary for that purpose. 4 Stat 777. to be entered for 113. Whenever any person indicted for any offence against the United States, whether 3 March 1835 2 4, capital or otherwise, shall upon his arraignment stand mute, or will not plead or answer thereto, it shall be the duty of the court to enter the plea of not guilty on his behalf, in Plea of not guilty the same manner as if he had pleaded not guilty thereto. And when the party shall party standing inute. plead not guilty, or such plea shall be entered as aforesaid, the cause shall be deemed at Plea of not guilty issue, and shall, without further form or ceremony, be tried by a jury. And in all trials in to be an issue. capital cases, if the party indicted shall peremptorily challenge above the number of Excessive chaljurors allowed by law, such excess of challenges shall be disallowed by the court, and the allowed and trial to proceed. cause shall proceed for trial in the same manner as if the same challenges had not been made. lenges to be dis 9 Stat. 72. ments to the dis trial. 114. Whenever the district attorney shall deem it necessary, it shall be lawful for any 8 Aug. 1846 2. circuit court, in session, by order entered on its minutes, to remit to the next term or session of the district court of the same district any indictment pending in the said Circuit courts circuit court, when the offence or offences therein charged may be cognisable by the may remind said district court; and in like manner it shall be lawful for any district court to remit trict courts for to the next term or session of the circuit court of the same district any indictment pend- And district ing in the said district court; (a) and such remission shall carry with it all recogni- courts to the cir sances, processes and proceedings pending in the case in the court from which the remission is made; and the court to which such remission is made shall, after the order Effect thereof. of remission is filed therein, act and proceed in the case as if the indictment and all other proceedings in the same had been originated in said court. cuit courts. Ibid. 23. Jurisdiction of be remitted to may be remitted. 115. It shall be lawful for the grand juries impannelled and sworn in any district court to take cognisance of all crimes and offences within the jurisdiction of the said circuit and district courts, and every indictment for a capital offence presented to the grand juries. district court shall, by order entered on the minutes of the court, be remitted to the next Capital cases to term and session of the circuit court, together with all recognisances taken therein; and the circuit court. on filing such order and indictment with the clerk of said circuit court, that court shall thereafter proceed thereupon, the same as if the indictment had been originally found and presented in said court; and the said district court may, moreover, in like manner, remit to the circuit court any indictment pending in said district court, (b) when, in the When other cases opinion of the court, difficult and important questions of law are involved in the case; and the proceedings thereupon shall thereafter be the same in the circuit court as if such indictment had been originally found and presented therein. That no grand jury shall No grand jury to hereafter be summoned to attend any circuit or district court of the United States, unless unless by order the judge of such district court or one of the judges of such circuit court, shall, in his of a judge. own discretion, or upon a notification by the district attorney that such jury will be needed, order a venire to be issued therefor: Provided, That nothing herein shall prevent May be sumeither of said courts in term from directing a grand jury to be summoned and impannelled, whenever, in its judgment, it may be proper to do so, and at such time as it may direct: And provided further, That nothing herein shall operate to extend beyond what Imprisonment the law now permits, the imprisonment before indictment found of an individual accused be extended. of a crime or offence, or the time during which an individual thus accused may be held under recoguisance before indictment found. be summoned moned in term before trial not to Ibid. 11. defendant's wit 116. Whenever any indictment shall be pending in any court of the United States, and any defendant thereto shall make an affidavit setting forth that there are witnesses whose When process for evidence is material to his defence, and that he cannot safely go to trial without them, nesses may be what he expects to prove by each of them, that they are within the district in which the ordered. court is held, or within one hundred miles of the place of trial, and that he is not possessed of sufficient means, and is actually unable to pay the fees of such witnesses, the court in term, or any judge thereof in vacation, may, if it appear proper to do so, order that such witnesses be subpoenaed, if found within the limits aforesaid; and in such case Payment of costs. the costs incurred by such process and the fees of such witnesses shall be paid in the same manner that similar costs and fees are paid in case of witnesses subpoenaed in behalf of the United States. 10 Stat. 162, 117. Whenever there are or shall be several charges against any person or persons for 26 Feb. 1853 ? 1. the same act or transaction, or for two or more acts or transactions connected together, or for two or more acts or transactions of the same class of crimes or offences which may Joinder of offenbe properly joined, instead of having several indictments, the whole may be joined in ment. one indictment in separate counts; and if two or more indictments shall be found in such cases, the court may order them consolidated.(c) (a) These provisions have no application to civil cases; they apply to indictments. and to cases in which the circuit and district courts have concurrent jurisdiction. Campbell v. Kirkpatrik. 5 McLean, 177. (b) Such order may be made at a term subsequent to that to ces in one indict which the indictment is returned, and after the defendant has pleaded, and some proceedings have been had. United States v. Morris, 1 Curt. C. C. 23. (c) United States v. O'Callahan, 6 McLean, 596, 118. The several circuit and district courts of the United States, the district courts of the territories, and the criminal court of the District of Columbia, shall have the power to discharge the grand juries of the respective courts whenever they shall be of opinion that the public interests will not be subserved by a further continuance of the session of said grand jury. 10 May 1852 1. 10 Stat. 5. Terms of the courts. 14 June 1856 1. 11 Stat. 22. I. CIRCUIT AND DISTRICT courts. 1. The courts of the United States, in and for the district of Delaware, shall hereafter be held [at New Castle,] in the said district, and there shall be two regular terms of the circuit court of the United States for the said district, which shall commence on the third Tuesday in June, and the third Tuesday in October, in this and every year hereafter; and four regular terms of the district court of the United States for said district, which shall commence on the second Tuesday in April, the second Tuesday in June, the second Tuesday in September, and the second Tuesday in January hereafter. 2. The courts of the United States in and for the district of Delaware shall hereafter be held at the city of Wilmington, in the said district, and the offices of the clerks of Where courts to the circuit and district court for said district, and the records of said courts, shall be kept in the said city of Wilmington. be held. 2 March 1799 29. 1 Stat. 633. Ports of entry and delivery. 2 March 1831 4 Stat. 476. II. COLLECTION DISTRICTS. 3. The state of Delaware shall be one district, and the borough of Wilmington shall be the only port of entry, to which shall be annexed New Castle and Port Penn, as ports of delivery only; and a collector for the district shall be appointed, to reside at the said port of Wilmington. 3. 4. Delaware City, in the district of Delaware, shall be a port of delivery; and a surshall be appointed, who shall reside at said city. 30 Aug. 1856 2 1. 11 Stat. 150. veyor III. ELECTIONS TO CONGRESS. 5. The first Tuesday after the first Monday in November in the present year, and the first Tuesday after the first Monday in November in every second year hereafter, shall Time of electing be and the same is hereby appointed and established for holding elections in the state of Delaware for a representative of said state in the congress of the United States of America: Provided, That the said elections shall be conducted in such manner and held at such places as are or may be prescribed by the laws of the said state of Delaware. member of congress. 1. Clerks and officers to be sworn. Departments. [See CLERKS.] 2. In case of death, absence, &c., president to authorize person to perform duties of head of department, &c. 3. In case of vacancy, president to make temporary appointment. 4. Agents to be appointed for purchasing supplies, &c., by president and senate. President may appoint agents during the recess of the senate. 5. To give bonds. To make monthly returns. 6. Heads of departments, &c., to report expenditures from the contingent funds. 7. How estimates to be made to congress. 8. Messengers, &c. Newspapers, &c. 8 March 1791 2. 1 Stat. 215. 9. Stationery and printing to be procured by contract. Adver tisements. When proposals to be opened. To whom contract to be awarded. Liability in case of failure. 10. Proposals to be filed. 11. What books, &c., may be purchased out of the contingent funds. 12. New estimates, &c., to be accompanied by explanations. When to be accompanied by plans. How subsequent estimates to be made. 13. Reports to the president or heads of departments not to be printed. 14. Bonds of special agents. 15. Act 17 June 1844, to be strictly complied with. 1. Each and every clerk and other officer already appointed in any of the departments of the United States, (and who have not, since their appointment, taken the oath or cers to be sworn. affirmation hereafter mentioned), shall, within fifteen days after the passing of this act, 3 March 1791. and those who shall hereafter be appointed, shall, before they enter upon the duties of Clerks and offisuch appointment, take an oath or affirmation before one of the justices of the supreme court, or one of the judges of a district court of the United States, to support the constitution of the United States, and also an oath or affirmation, well and faithfully to execute the trust committed to him, which oaths or affirmations, subscribed by such clerk, and certified by the person administering the same, shall be filed in the office of the person employing such clerk. 1 Stat. 281. absence, &c., 2. In case of the death, absence from the seat of government, or sickness of the secre- 8 May 1792 § 8. tary of state, secretary of the treasury, or of the secretary of the war department, or of any officer of either of the said departments whose appointment is not in the head In case of death, thereof, whereby they cannot perform the duties of their said respective offices, it shall president to be lawful for the president of the United States, in case he shall think it necessary, to to perform duties authorize any person or persons, at his discretion, to perform the duties of the said of head of department, &c. respective offices until a successor be appointed, or until such absence or inability by sickness shall cease. (a) authorize person 1 Stat. 415. cy, president to 3. In case of vacancy in the office of secretary of state, secretary of the treasury, or 13 Feb. 1795 § 1. of the secretary of the department of war, or of any officer of either of the said departments, whose appointment is not in the head thereof, whereby they cannot perform the In case of vacanduties of their said respective offices, it shall be lawful for the president of the United make temporary States, in case he shall think it necessary, to authorize any person or persons, at his dis- appointment. cretion, to perform the duties of the said respective offices until a successor be appointed or such vacancy be filled: Provided, That no one vacancy shall be supplied, in manner aforesaid, for a longer term than six months. 2 Stat. 536. and senate. 4. Exclusively of the [purveyor of public supplies,] (b) paymasters of the army, 3 March 1809 ₫ 3. pursers of the navy, [military agents,] (c) and other officers already authorized by law, no other permanent agents shall be appointed either for the purpose of making contracts, Agents to be appointed for pur or for the purchase of supplies, or for the disbursement in any other manner, of moneys chasing supplies, for the use of the military establishment, or of the navy of the United States, but such &c., by president as shall be appointed by the president of the United States, with the advice and consent of the senate:(d) Provided, That the president may, and he is hereby authorized, in the President may recess of the senate, to appoint all or any of such agents, which appointments shall be in the ret during the recess submitted to the senate at their next session, for their advice and consent, (e) and the of the senate. president of the United States is hereby authorized, until otherwise provided by law, to fix the number and compensation of such agents: Provided, That the compensation allowed to either shall not exceed one per centum on the public moneys disbursed by him, nor in any instance the compensation allowed by law to the purveyor of public supplies.(g) 5. Every such agent as may be appointed by virtue of the next preceding section, and every purser of the navy, shall give bond with one or more sufficient sureties, in such sums as the president of the United States may direct, for the faithful discharge of the trust reposed in him; and the paymaster of the army, [the military agents, the purveyor of public supplies,] the pursers of the navy, and the agents appointed by virtue of the preceding section, [shall, whenever practicable, keep the public moneys in their hands, in some incorporated bank, (h) to be designated for the purpose by the president of the United States,] and shall make monthly returns in such form as may be prescribed by To make monthly the treasury department, of the moneys received and expended during the preceding returns. month, and of the unexpended balance in their hands. Ibid. 24. To give bonds. 5 Stat. 25. Hends of departments, &c., to re 6. It shall be the duties of the secretaries of state, of the treasury, of the war and 9 May 1836 § 2. navy departments, and of the postmaster-general, and the secretary of the senate, and clerk of the house of representatives, to lay before congress, in lieu of the statement now required by law, during the first week in each annual session of congress, a statement port expendiof the expenditures made by them respectively from the contingent funds of their respec- contingent tive departments and offices; that of the secretary of state to include all the contingent funds. (a) A person authorized temporarily to perform the duties of head of a department. is, it seems, entitled to receive the same salary as the heads of departments whilst so acting. Dickins v. United States, Dev. C. C. 82. (b) This office was abolished by net 28 March 1812. 2 Stat. 697. (c) Office abolished by act 28 March 1812. 2 Stat. 698. (4) It is under this act, that the president is authorized, by and with the advice and consent of the senate, to appoint navy agents. There is no such distinct office as that of navy pension agent; and it is competent for the secretary of the navy to require the navy agents to pay such pensions. And having done so, the sureties of the navy agent are responsible for the faithful performance of that service. United States v. Cutter, 2 Curt. C. C. 617. Browne . United States, 1 Ibid. 18. A permanent agent is one appointed by the president, with the advice and consent of the senate, in contradistinction to one specially appointed, by the head of a department, for some particular service, and on terms agreed on. In this act. there is no distinction between foreign and domestic agents, either as to the mode of appointment, the tenure and per15 tures from the manency of their offices, or the terms on which they may receive them. Armstrong v. United States, Gilp. 399. (e) The appointment of a navy agent during the recess of the senate, made in the case of a vacancy occurring during the recess, is in the exercise of the constitutional power of the president, and not by force of this act; and the constitutional limit of such appointment is to the end of the succeeding session of congress. 2 Opin. 333. And see 2 Ibid. 320. 4 Ibid. 353. (9) This was fixed at $2000 per annum, by act 23 February 1795. 1 Stat. 419. By act 3 March 1855, navy agents are to be allowed two per cent. commission on the first $100,000, or under, disbursed by them; and one per cent. on every succeeding $100,000, or under. until the compensation reaches the sum of $3000, which is to be the maximum of compensation allowed. This allowance to be in lieu of all extra compensation for services of every nature and description, rendered by order of the navy department. But not to be construed to reduce the salary to which any navy agent is entitled under existing laws. 10 Stat. 676. See 8 Opin. 92. (h) See the sub-treasury act, tit. "Treasury Department," X. |