Clearfield Republican. [volume] (Clearfield, Pa.) 1851-1937, 1861-02-20

h. shall have in charge, and true ver-
dict to give according 10 the evidence" "
What in human affairs, is better calculg-
ted to impress the conscience and ava.
! ken all proper scnsibil;ties? An oath,
! duly considered is q dreadful thing, un-
der any circumstances, but owing 20 its
commOnness, ii has come to be very
slightly regarded and when administer.
ed to group of men in a jury box, is 80
much matter of course, that il is liable
to pass as an idle form, and not TO pene~
trate the conscience. Bot when il IS laid
upon each man before he passes into the
box, and while he stands in the immed,
ate presence of the court and the prison
er, il must have power, or TO say the
least Of it, it may have n power altogcth-
er peculiar to itself, with which no court
has q right to dispense. Obligations as
sumed Oy a multitude never press Oh
each individual with that distinctness
and weight as when individually assuN
med
These appear to me to be reasons in ia
vor OF the ancient mode of swearing ju.
rors, but if they are motif | am mista'
ken in Supposing there was good. reason
from the beginning for the several oath
| reply, vel be it so; but there is the mode
plainly prescribed, and if we cannot dis
cern the eas )ns for it, no judge has a
right to set it aside upon the gratuitons-
assumption that another less solemn
mode will do as we'll. Whether the leg
islature could reform 1t and substitute
something else, is not the question, for
the legislature have not attempted it, but
that Judge cannot break away from long
established modes Of procedure in GRIM
inal case involving the highest interests
of the citizen, and violate constitutional
rights which the people have decreed
shall be inviolate, is a proposition that
ought to need no argument Tor its sup
port.
The next and final reason of the court
is, that the objection, being matter of
form, should have been made at the time
the Jury was sworn, and that il was an ir-
regularity, VIII .ch must be considered as
waived.
! cannot agree that it was matter of
form. For the reasons have ventured to
suggest, | think it was matter of sub
stance, but whether form or substance. it
was a constitutional right of the accused,
and therefore should have been conceded
10 him without question or denial. His
failure TO except at the time does not
conclude him. If. on the other hand, he
had expressly agreed and assented to the
irregularity, rs the prisoner did in Mills
Case, II. $50, and Peitier's Case, 3 H..
40. would be Obliged to say as Ch. j..
Gibson did in the last of these cases, 81
think no consent Of a prisoner in the ex-
r l.; ,ooI t,,h hind him ~
or as Ch. J. Abbott did in Rex V. Wolf, l
Chitty's K. 4Ol, that "a prisoner ought
not to be asked to consent TO an irregu-
larlty.' If express consent would not
have bound MIN, much less his silence.
To have put him to objecting and excep-
ting to orders of the court intended for
the convenience of jnrors, would have
compelled him 10 prejudice his triers,
and imperi bis life at the threshold of
trial. 1t was the business Of the court,
and not of the prisoner, TO direc: the
forms Of the proceeding, and if a mistake
were made to his prejudice, he is entitled
to the benefit of it.
| have now shown that the prisoner was
deprived of a constitutional right, for rea-
sons that were wholly inadeqate, If indeed
any reasons could Justify court ir with>
holding n constitutional right from an ac-
cused citizen, and | come now to the
question, why should he not have redress
in this court?
! The single reason assigned by the mas
iority, is that the matter complained OF
does not appear anon the record. They
read in the docket entries that the jurors
were duly empanelled, sworn or Affirm
ed, and applying the maxim that all
things are to be presumed to have teen
correctly done, they conclude that the
Jurors were sworn in the manner they
should have been The statement of
Judge Lynn, which ! have quoted in full,
as showing how he jury we sworn, is said
TO be no part Of the record, and that it
has been often held that the record can
rot be corrected by such statements
Even If it could, it is said the same opiu-
ion shows that no objection was made to
the manner in which the oath or affirma-
tion was administered.
The majority do not attempt to justify
Judge Linn's departure from the forms of
the common law, nor do they express any
doubt of the accuracy of the statement of
4 facts he has sent TO us, but the judicial
/ conscience CdllnOb hHUN ludl HG Olun~
dered because the prisoner did not except
at the time, and thus bring the blunder
within the narrow compass of that which
is called "He record"
! have two specific ground of dissent
from this conclusion, which now proceed
to state.
First. The matter complained oftouches
the Jurisdiction of the court, and therefore
may be pleaded though it do not appear
OF record.
That the Court of Oyer and Terminer OF
Clearfeld county had jurisdiction of the
case, is not TO be doubted; but jurisdc'
ton is the right to try and decide a case
according to law. 1t must not only at
tach legally, but it must be proceeded in
according TO those rules of the Consiitu-
ton and laws which define The courts
powers. | do not mean that every Judicial
mistake Gusts the jurisdiction of hejudge,
but mean that wherein his powers and
preroratives have been defined By law,
he must keep himself within them, or else
what he does is null The jurisdiction OF