Page:Federal Reporter, 1st Series, Volume 3.djvu/293

 drawn therefrom, in a certain manner, a certain number to compose the grand jury.

Upon full consideration of the subject I feel bound to hold that this provision of this act of congress was not directory, as I was inclined to think at first; and I think no sound view of the subject will warrant any other conclusion than that that provision is mandatory, and I think it is the duty of every court of the United States to regard it and carry it out. But with this qualification, which leads me to say that, as regards the general subject to which I have adverted, and the authorities in relation to which I remarked upon, my conclusion that that statute is mandatory, and must be obeyed as to the substantial provisions in summoning the grand jurors, as well as the petit jurors, and that they be drawn in conformance to its requirements, I think the venire must be issued in conformity to its requirements; I think the jurors drawn, whose names are put into the box, and who are selected and summoned to serve on the grand jury, must have the qualifications prescribed by law. But, on the other hand, I hold that the principles of a special demurrer are not to be applied in such cases; that ail that is required is an honest intention to conform to the statute, and to carry out its provisions in good faith. Beyond that I think the statute has no efficacy; beyond that I think it may be held to be merely directory. I think that any irregularity arising from motives other than those of an evil character—any slight irregularity, such as may arise in any case in spite of the greatest care and caution—is not fatal to the indictment.

Some points made by this plea struck me at first with great force, and it was very difficult to get over them; but, upon full reflection and looking into the authorities, it is sufficient to say that most of them come within the category of the matters in regard to which the law, in my judgment, is clearly directory, and only directory.

The point that gave me most trouble in my examination of the case, and caused me to hesitate for two or three days, was the fact that one of the grand jurors named in the venire was