Discussion introduced by Judge Joseph E. Gary regarding common law practices for empanelling the jury and the deviance from common law in the case of Illinois vs. August Spies et al. Responses given by Mr. Foster, Mr. Black and Mr. Grinnell.

THE COURT: NOW, GENTLEMEN, THERE IS A MATTER I WANT TO CALL YOUR ATTENTION TO. I AM NOT GOING TO COMMIT MYSELF TO ANYTHING. THE STATUES PROVIDE THAT; "ALL TRIALS FOR CRIMINAL OFFENCES SHALL BE CONDUCTED ACCORDING TO THE COURSE OF COMMON LAW, EXCEPT WHEN IT IS AN ACTION OF A DIFFERENT MODE, AND THE RULES OF EVIDENCE OF THE COMMON LAW SHALL ALSO BE BINDING UPON ALL COURTS AND JURIES IN ALL CRIMINAL CASES EXCEPT AS OTHERWISE PROVIDED BY LAW."

I DO NOT SUPPOSE THAT ANY OF US SUPPOSE THAT WE HAVE BEEN PROCEEDING ACCORDING TO THE COURSE OF THE COMMON LAW IN EMPANELING JURIES IN THIS ROOM EVER; THAT A PRACTICE HAS OBTAINED HERE WHICH NO COMMON LAW EVER KNEW ANY THING ABOUT. NOW, WHETHER WE SHOULD REFER TO THE COMMON LAW EMPANELING A JURY I WILL HEAR FROM EACH.

IT IS NOT IMPUTING ANY NEGLIENCE TO COUNSEL, FOR I SUPPOSE THAT THEY HAVE NOT MADE ANY VERY EXHAUSTIVE STUDY OF THE MANNER OF EMPANELING JURIES AT COMMON LAW, FOR I ACKNOWLEDGE THAT I, WHO HAVE PROBABLY BEEN A GOOD MANY YEARS LONGER AT THE LAW THAN ANY OF YOU, NEVER MYSELF BEFORE THIS TRIAL, CALLED MY ATTENTION TO IT.

I THINK I HAVE BEEN STUDYING IT THIS WEEK WITH CONSIDERABLE ATTENTION; BUT NEVERTHELESS THE GENERAL METHOD OF PROCEEDING AT COMMON LAW MUST BE KNOWN TO US ALL EVEN WITHOUT A CAREFUL STUDY. IF ANY OF YOU HAVE ANY THING TO SAY AS TO WHY WE SHOULD NOT ADOPT AND FOLLOW THE STATUE---NOT WHY WE SHOULD NOT ADOPT IT, BUT WHY WE SHOULD NOT FOLLOW THE STATUE AND PROCEED ACCORDING TO THE METHOD WHICH THE LAW HAS LAID DOWN FOR EMPANELING A JURY, I WOULD LIKE TO HEAR IT.

MR. FOSTER: I DO NOT THINK WE HAVE ANY SUGGESTIONS TO MAKE, YOUR HONOR PLEASE. SO FAR AS I AM PERSONALLY OR INDIVIDUALLY CONCERNED I WOULD NOT HAVE ANY SUGGESTIONS TO MAKE. IF THIS JURY IS NOT EMPANELED ACCORDING TO LAW, WHY, THE DEFENDANTS, IF THEY SHOULD SEE FIT IN THE FUTURE TO TAKE ADVANTAGE OF IT WOULD HAVE A RIGHT TO DO SO, AND WE DESIRE TO WAIVE NO RIGHTS WHICH THEY POSSESS UNDER ANY CIRCUMSTANCES.

THE COURT: THERE HAS BEEN NO IRREGULARITY IN PROCEEDING WITHOUT OBJECTION TO THE SELECTION OF THE THREE WHO HAVE BEEN TAKEN.

MR. BLACK: WE INTRODUCE NO OBJECTION NOW, IF YOUR HONOR PLEASE, TO PRECEEDING AS WE HAVE PROCEEDED AND AS HAS BEEN THE CUSTOM IN THE COURTS OF THIS STATE IMMEMORIALLY WE HAVE NO OBJECTION.

MR. GRINNELL: THAT BEING SO, WE BETTER PROCEED AS WE HAVE BEEN PROCEEDING.

MR. FOSTER: BUT WE WAIVE NO RIGHTS WHICH WE MAY AFTERWARDS ASCERTAIN.

MR. BLACK: WE MAKE NO OBJECTION, DON'T EXPECT TO.

THE COURT: WELL, IF BOTH SIDES DESIRE IT I WILL PROCEED AS HAS BEEN THE USUAL CUSTOM HERE.

MR. GRINNELL: I DO NOT SEE ANY OTHER WAY FOR US TO DO.

THE COURT: IF WE WERE TO PROCEED ACCORDING TO THE COMMON LAW, EXCEPT SO FAR AS MODIFIED BY STATUE, NO OATH NOULD BE ADMINISTERED TO A PROPOSED JUROR UNTIL SOME OBJECTIONS WERE MADE TO HIM---I MEAN NO OATH AS TO HIS QUALIFICATION. A CHALLENGE FOR SOME REASON, EITHER FOR PRINCIPAL CAUSE FOR FOR FAVORITION WOULD

FIRST HAVE TO BE MADE; SO THAT AFTER ALL THERE IS NO VERY WIDE DISTINCTION, TO SAY THEY ARE TREATED TOGETHER. THE CHALLENGE WOULD HAVE TO BE MADE TO THE INDIVIDUAL JUROR BEFORE HE WOULD BE SWORN TO ANSWER ANY QUESTION AS TO HIS SUFFICIENY OR COMPETENCY.

MR. BLACK: SUPPOSE THAT TO BE TURE THEN THE JUROR IS CALLED BACK UPON THE VOIR DOIR ONLY, IN THE EVENT OF SOME CHALLENGE OR QUESTION UPON THE REQUEST OF THE PARTY---I SAY, SUPPOSE IT TO BE TRUE THAT THE JUROR IS PUT AGAIN ON HIS VOIR DOIR AT THE COMMON LAW CALL, WHEN THAT IS CALLED FOR, IT HAS BEEN CUSTOMARY AND IT WOULD SIMPLY AMOUNT TO THIS---THAT WHEN WE HAD A JUROR UNDER EXAMINATION WE WOULD THEN ASK TO HAVE HIM SWORM, AND THE PRESENT PROCESS MIGHT SO FAR AS WE ARE CONCERNED JUST AS WELL BE GONE ON WITH. WE HAVE RAISED AND WILL RAISE NO OBJECTION.

THE COURT: THE EFFECT IS THAT THE CHALLENGE OF THE JUROR MUST BE BASED UPON SOME SPECIAL GROUND AND THEN THE EXAMINTATION OF THE JUROR IS CONFINED TO THAT GROUND.

MR. BLACK: WE THINK WE MIGHT AS WELL GO FORWARD ACCORDING TO THE COURSE WE HAVE BEEN PURSUING. WE INTERPOSE NO OBJECTION, AND ACCORDING TO THE PRACTICE OF THIS COURT AND AS OBTAINING IN THIS STATE.

THE COURT: WELL, IF BOTH SIDES ARE PERFECTLY WILLING, GO ON.

MR. FOSTER: WELL, WE DO NOT SAY WE PREFER IT. WE DO NOT WISH THE COURT TO SAY THAT WE CONCUR IN IT OR WE DESIRE IT. WE SIMPLY SAY WE INTERPOSE NO OBJECTION. WE LEAVE IT WITH THE COURT. WE HAVE NOT AND DO NOT INTEND TO CONCEDE ANYTHING.

AT LEAST THAT IS MY POSITION, AND I UNDERSTAND IT IS CONCURRED IN BY MY ASSOCIATES.

THE COURT: WHAT HAS THE STATE TO SAY ABOUT IT?

MR. GRINNELL: I THINK WE HAD BETTER PROCEED AS WE ARE NOW, IF WE CAN POSSIBLY.

THE COURT: THEN LET THE LAST NINE STAND UP AND BE SWORN.