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

ne is set apart in the jury box" and
note on the same page reads, "accordin
to Hargrave's State Trials, 723. eacI
Juror is sworn when called and not chal
lenged."
Archibald, in his Criminal Pleading
and Evidence, lst vol, F. l62, says, al
treason and felony, the names of the ju
rors are then separately called over by tn,
clerk of arraigns or clerk of the peace
and the crler of the court administers tn,
oath to each of them thus; you shal
well and truly try" &c.
And 10 mark difference, this writer
immediately adds, e" but in misdsmeanor,
the jury are at once sworn, usuallw four
Jurors at time,"
These authorities, | suppose, are suffi-
cient, to show that before our constitution
Jurors were, at common law, always
sworn Sereral5 in capital cases, and never
Jo.htiy and SeveralLy; and such, it is believ-
ed, has been the uniform practice under
our constitution, and in our sister States
Then our constitution must be read as
enJolning this mode of sweating. Judge
lynn tells us ii was not observed on the
trial o! the present plaintiff in error. As
to the reasons assigned for not observing
IT. shall have something to say hereaf-
teI, But for the present, wish only to
ryct attention TO the fact that :he 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 the Jurors.
And it is material to notice, that it was
withheld by the mere action of the court,
without any sanction whateysr 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.seventh sec
tion of that enactment which gives TO
the Commonwealth four peremptory chal
lenges in all criminal cases. That was an
innovation on the common law trial of
telonies, for at common law the Crown
was allowed no pei cmptory challenges,
and trenched hard on the constitutional
provision under consideration but | ac-
quiesce 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-,
actment. The constitution protects the
trial by jury, and am willing to say that
the riaL does not commence till the jury
are called and challenged. All statutes,
therefore, that relate to summoning, cal
ling and challenging jurors,aad wh:ch do
not impair The right ofd. fair trial, agree, are
not unconstitutional and that, | think,
is very clearly shown in Judge Thomp-
sons opinion. Bat this is as far as am
willing TO go. The swearing OF the Jurors
is very important part OF tho trial
Blackstone, in the place p,ready cited,
says, when the "triaIis called, the jurors
are TO be sworn as they appear" Aud in
PeifferS Case, 3 H. 470, Judge Gibson
said, :" A juror is CT arged with a prisoner
as soon as he has looked upon him and
takeE the oath for he cannot be with.
drawn. Tho trail has commenced, and
the prisoner stands before him rs one OF
his judges" With the mode of swearing
them, the legislature could not, pre-
sumo, constitutionally interfere and in
the recent enactment alluded TO, careful>
ly prepared 10y competent coditiers, IL is
worthy of remark that there was no at
tempt to change it. They eft tue admin
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 Oyer 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 ana the Common
Pleas.
come nov to consider the reasons as
signed Ly the judge for the change. l
admire the frankness with which Judge
LINN has spread the facts before u, in
order" as he says, "that if an error has
been committed, the prisoner may not
he deprived of the benefit ofit;" but |
dissent totally from the reasons assigned
for what he did.
The first is, that he feared the parel
might be exhausted before the box was
full. and that the cause would have to be
The result shows that the
fear was grourdless but even if the panel
had been exhausted ard taleSman could
not have been obtoined, it was no excuse
for This unheard of innovation. The
prisoners constitutional Fights were sus>
pended on no such slender thread Of
lie was entitled to have
his jury sworn according to the law of
the land. Until they were so sworn or
affirmed the court had no jurisdiction to
try him, nor the government to hang him.
The next reason is. that the jury were
by this mode, seyerally placed under the
obligations Of the oath, just as etiectually.
to all irtents and purposes, as though it
had been administered to each one in
succession"
The reply to this is non constdt. | 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
solemnty of the ceremony. A Juror IN
dividuated and separated from the sym
pa,hies of cJmpanionship, is called to
confront the accused whom he is to have
in charge, and then, alone, on his resp'n
sibilities as anan-with an eye single to