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

Mr.. Chitty, in his Criminal Law, p. 532
says, As soon rs each juror is sworn
hC is set apart in the jurycbox;" and
note on the same page reads, according
10 Hargrave's State Trials, 723, each
Juror is sworn when called and not chal'
lenged,"
Archibald, in his Criminal Pleadings
and Evidence, lst vol, p. 1872, says, In
treason and felony, the names Of the ju-
rors are then separately called over by the
clerk of arroigns or clerk Of the peace,
and the crieg of the court administers the
oath to each of them thus; you shall
well and truly try" &c.
And to mark difference, this writer
Immediately adds, but in misdemeanors,
the jury are at once sworn, usGslly four
Jurors at time"
These authorities, suppose, are sutfi-
cient, to show that before our constitution,
jurors were at common law, always
sworn Scrcrallg in capital cases, and never
jointly and Sevcraly; and such, it is believ-
ed, has been the uniform practice under
our constitution, and in our sister States
Then our constitution must bo read as
enjoining this mode Of swearing. Judge
ynn tells us ii was not observed on the
trial Of the present plaintiff in error. As
to the reasons assigned for not observing
it, ! shall have something to say hereaf-
ter. But for the present, | wish only to
rivet attention to the fact that The prison
er'S constitutional right Of trial by jury,
as the same prevailed from time immem.
orial, vas not conceded to him in the
form and manner of swearing thejurors.
And it is material to notice, that it was
withheld by the mere action OF the court,
without any sanction whatever OF the
legislature. Many statutes have been
passed, regulating trial by jury, one of the
last OF which was our very recent code OF
criminal procedure, adopted March 81,
1860 And a constitutional question has
Just arisen under the thirty-sevanth sec
tion Of that enactment, which gives 10
The Commonwealth four peremptory chal
lengos in all criminal cases. That was an
innovation on the common law trial of
feonies, for at common Law the Crown
was allowed no peremptory challenges,
and trenched hard on the constitutional
provision under consideration but | ac-
quesce in the opinion Of my brother
Thompson, delivered this term, in the
case Of The Commonwealth VS.. Warren,
from the Oyer and Terminer Of Berks
county, sustaining the validity of the en- =
sctment. The constitution protects the
trial by jury, and attn willing to say that
the rtQk does not commence till the jury
are called and challenged. All statutes,
therefore, that relate to 6ummoning, cal
ling and challenging jurors and ,oh:ch do
0timpaT tie right Qfa fair trial, | agree, are
not unconstitutional ; and that, | think,
is very clearly shown in Judge Thomp-
sons opinion. But this is rs far as | am
willing to 90. The swearing OF the jurors
is q very important part OF the trial
Blackstone, in the place riready cited,
saws, when the trial is called, the jurors
are TO be sworn as they appear" And in
Peifcr's Case, II. 470, Judge Gibson
said, A Juror is c. arged with a prisoner
as soon as he has locked upon him and
taken the oath ; for he cannot be with.
drawn. Tho tr al has commenced, and
the prisoner stands before him as one OF
his judges" With the mode Of swearing
them, the legislature could not, pre-
sumo, constitutionally interfere; and in
the recent enactment alluded 10, careful
ly prepared by competent coditiers, 1t is
worthy of remark that there was no at
tempt to change it. They eft the admin
istratiou of the oath to the common law,
where the constitution leaves it. If
the legislature have not changed it. and
could not change it, how could the Court
Of Over and Terminer of ClearfGld county
change it? There has been no attempt
TO answer this question, whilst the fact is
patent that that court did substitute for
the ancien. practice, the every day usages
of the Quarter sessions and the Common
Pleas.
come nov to consider the reasons as
signed ty the judge for the change.
admire the frankneSs with which Judge
Linn has spread the facts before US, in
order" as he says, THAT If an error has
been committed, the prisoner may not
be deprived of the benefit ofit;" but
dissent totally from the reasons assigned
for what he did.
The first is, that he feared the panel
might be exhausted before the box was
full. and that the cause would have to be
continued The result shows that the
fear was grouEdless but even fthe panel
had been exhausted ard taLesman could
not have been obtoned, it was no excuse
for this unheard of innovation. The
prisoners constitutional rights were sus>
pended on no such slender thread OF
convenience. lie was entitled to have
his Jury sworn according to the law Of
the land. Until they were so sworn OF
affirmed, the court had no jurisdiction to
try him, nor the goverGmentlo 10 hang him.
The next reason is, that 1.-The jury were
BY this mode, severally placed under the
obligations of the oath, just as ettectually,
to all rtents and purposes, as though 1t
had been administered TO each one in
succession"
The reply to this is non constat. know
not what animated the sages of the COM
mon law to settle the form OF the oath in
capital cases, in the manner they did but
every observant spectator of criminal
trials must have been impressed with the
solemnity of the ceremony. A juror, in
dividuated and separated from the sym
pathies of coRpanionship, is called TO
confront the accused whom he is TO have
I in charge, and then, alone, on his respo
sibilities as man--with an eve single 70