_Q._ In a capital case, where the evidence is sufficient to satisfy your mind of the prisoner's guilt, have you any conscientious scruples that would prevent your finding a verdict of guilty?

_A._ If I may explain, I would endeavor to find a verdict; but I believe my sympathy would control my judgment to that extent that I would not be able to do my duty between the people and the prisoner. I have been on a jury before, and I doubt that my judgment would be controlled by my sympathy.

_Mr. Larocque_: The witness has not said his sympathies would be of that strength that would prevent his finding a verdict of guilty, if the evidence was satisfactory. A juror that has doubts of himself is the most honest and reliable, according to all experience in criminal trials.

_The Court_: Examine him on that point.

_By Mr. Larocque_:

_Q._ Suppose that upon this trial the facts charged in this indictment were proved by clear and satisfactory evidence, and the Court should instruct you, upon that evidence, that those facts const.i.tute the offence of piracy, would your conscientious scruples be so strong as to prevent your finding a verdict of guilty in such a case as that?

_A._ There must be not a shadow of doubt. It must be strong and conclusive in my mind before a verdict is rendered.

_Q._ But where there was strong, conclusive evidence, you would render a verdict of guilty?

_A._ Yes, sir.

_Mr. Evarts_: It is pretty apparent that the juror does not regard himself as in a position to deal impartially with this question, which involves human life. The intention of this cause of challenge is, that the juror should be in a position to yield to the evidence that just a.s.sent which its character is ent.i.tled to call for, unimpeded by his repugnance to the result when fatal to human life. Still, if your honor should not think that upon this ground he ought to be excluded absolutely, certainly it would be consistent with the course of practice, and with the just feeling of the juror, that he should stand aside until the panel be made up.

_Mr. Brady_: That practice I understand not to prevail any longer, since it has been provided that the empanneling of jurors in the United States Courts shall be the same as in the State Courts, and we do not consent to any such principle as the gentleman proposes. Your honor has decided that a juror, to disqualify him from serving in a capital case, must say that his conscientious scruples are of such a character that, though the evidence be clear and conclusive under the law, as stated by the Court, they would prevent his doing his duty and giving a verdict of guilty. To my mind, nothing can be more clear and satisfactory than the statement of the juror himself, which exhibits a state of mind that should be possessed by every juror; that is, that he must be satisfied beyond all reasonable doubt of the guilt of the accused before rendering a verdict of guilty; and when be speaks of his sympathy on behalf of human life, it is only that sympathy which the law recognizes where it gives the prisoner the benefit of every doubt. It is true he does use the expression that there must not be the shadow of a doubt; but when the Court comes to expound the law, he will be instructed that it must be a reasonable doubt. I do not see anything against the juror on the ground of conscientious scruples. Your honor knows that the prosecution have no peremptory challenge in cases of piracy or treason, and the old practice of setting aside jurors until the panel is exhausted, and then, if not able to make up twelve without the rejected jurors, requiring their acceptance, has pa.s.sed. That is decided in the case of Shackleford, in 18 Howard's Reports.

_The Court_ (to the Juror): We do not exactly comprehend the views you entertain upon this question; therefore we desire, for our own satisfaction, to put some questions to you, to ascertain, if we can, the state of your mind and opinions upon these questions, and see whether you are a competent juryman or not in a capital case. It is a very high duty, and a common duty, devolving upon every respectable citizen. The question is this--and we desire that there may be no delusion or misapprehension on your mind in respect to it--in a capital case, if the proof on behalf of the Government should be such as to satisfy your mind that the prisoner was guilty of the capital offence, whether or not you have any conscientious scruples as respects capital punishment, that would prevent your rendering a verdict of guilty?

_A._ In answer to that I would say that this is what troubles me: I want to do my duty; I want to render a verdict fairly and squarely as between the prisoner and the people; but I have this to contend with--I have read that people have been convicted upon the clearest testimony, and afterwards found to be innocent; and before I would have such feelings I would as soon go to the scaffold as send a person there who was not guilty. Therefore my sympathy is so strong that I am afraid to trust myself. I did serve on a former occasion, and I do not know that even then I did my duty.

_Q._ What do you mean by being afraid to trust yourself? Is it a conscientious feeling and opinion against the penalty of capital punishment?

_A._ Yes, sir, it is. I have a great abhorrence of it, if I may so express myself. Yet I should like to render a verdict, and do what is right; but I believe my feelings are too great to trust myself.

_The Court_: We think we are bound to set the juror aside.

_Mr. Larocque_: Permit me to put one question.

_Q._ It strikes me that you are a little at fault as to what the purport of this question is. It is not whether you have an abhorrence of convicting a prisoner of a capital offence. The question is, whether you have such conscientious scruples against capital punishment as would prevent your finding the prisoner guilty, if the facts were proved, and the Court instructed you that those facts const.i.tuted the offence?

_A._ I answered before. It places me in rather a peculiar position. As I said, I want it understood distinctly, I desire to do my duty; but there is a struggle between that and my sympathy, and I am afraid to trust myself.

_Q._ But you can draw a distinction between your sympathy and any conscientious scruples against the punishment of death, can you not?

_A._ Well, sir, where it comes to the point----

_Q._ Allow me to put the question in another way: If you are entirely satisfied, upon the evidence and instructions of the Court, that the prisoner was guilty, your conscience would not trouble you in finding him guilty?

_A._ Well, sir, there would be this: I would feel that persons, under the strongest kind of testimony, have been found guilty, wrongfully, and it would operate on me--the fear that I had judged wrong on the facts, and committed murder. That feeling is very strong.

_Q._ If the evidence satisfied you that the prisoner was guilty, would your conscience prevent your saying so?

_A._ It would not now. It might in the jury-room. When it comes to the point, and I feel that I hold the life of a human being, it is pretty hard to know what I would do then.

_Q._ Your conscience would only trouble you if you doubted that your judgment was right?

_A._ Yes, sir.

_Mr. Larocque_: I submit that the juror is competent.

_Juror_: You must take your chances if you take me. I still think I am not fit to sit on a jury to represent the people.

_The Court_: I think we must take the opinion of the juror as against himself.

Set aside. [Defendants took exception.]

_John Fife_ called, and challenged for princ.i.p.al cause:

_Q._ In a capital case, where the evidence is sufficient to convince you of the guilt of the prisoner, have you any conscientious scruples that would prevent your finding a verdict of guilty?

_A._ No, sir.

_By Mr. Larocque_, for the prisoners:

_Q._ Did you read the account of the capture of the privateer Savannah?

_A._ I did.

_Q._ Have you formed or expressed an opinion as to the guilt or innocence of the prisoners?

_A._ I believe not, sir.

_Q._ Have you formed or expressed an opinion whether the facts charged, if proved, const.i.tute the offence of piracy?

_A._ I have not, sir.

_Q._ You think you have no bias or prejudice in this case?

_A._ No, sir.

Challenge withdrawn. _Juror sworn._

_Thomas Costello_ called. Challenged for princ.i.p.al cause.

_By Mr. Smith_:

_Q._ In a capital case, where the evidence is sufficient to convince you of the guilt of the prisoner, have you any conscientious scruples that would prevent your finding a verdict of guilty?

_A._ No, sir.

_By Mr. Larocque_, for the prisoners: