The Charleston daily news. [volume] (Charleston, S.C.) 1865-1873, 1866-05-30
JcHerson Davfs.-Tho Points OF Law In
=. volvcd In his Trial.
IFrom The Washington Intelligencer, Nay 25l

lf'o" Ste buSnNfyton Intcfhgcncer nay 20
Tho recent references to the trial OF Mr.. Davis
hevc called public attention to this subject, which
very naturally in largo degree interests tho
pubic mind; Tho indictment, i'll tho usual form
ior treason, has been found by tho Grand Jury,
IN the United States Circuit Court ut Norfolk. Mr..
Davis is indicted under tho act of 1880, under
cnd %,Hh neo ,ne penalty penn, ON vG,on, is desth he
lS6l, for sediti conspiracy, the punishment
OF which is Il fino not over $4,000, and imprison-
ment, with or without hard labor, not ovor six
years. One OF the most important points is tho
drawing of tho petit jury who aro charged with
tho trial Of the prisoner The jury is TO be drawn
mode prnctised in tho State for selecting urics
for tho highest courts Of law. Tho number of
jurors to bo summoned is left to the discretion of
tho Court, as at common law. Tho act of July
16 1862, repeats so much Of the act of 1889 as re-
quires, in cases punishable with death, that
twelve petit jurors be summoned from the county
where tho offence was committed. Under the act
OF june IT, 1862, no person is allowed to sit tho
jury who was in any degree of completely with tho
tance, because it insures that the trial shall DO
before a loyal jury. Mr.. Davis cannot be tried by
any of his confederates. HE fato will rest entire
y with his political opponents. Tho Jury must
De unanimous or there can bo no verdict.
This is tho invariablo rule of the common law
and has existed time whereof the memory # man
runneth not to the contrary. The presiding Judge
can rulo authoritatively on questions of evidence
us thoy may arise in the progress of the trial but
as tho jury always in criminal cases, return n
practically the judges of tho law as well as the
fact and thero is no appeal from their decision
There has never been any exception to this prin-
cipio in the common law, except that i'll cases of
libel 1t had frequently been determined by the
Court of Kings Bench that the only question for
the consideration Of the jury in criminal prosecu-
tiOns for libel the fact of publication and til 1T
Of the innuendoes, and that the Court alone WAS
competent to determine whether the subject of
the publication was or was not libel. And it was
for this ruling Of Lord Mansfield that the cele-
brated Junius 80 bitterly attacked Lord Mansfield.
Lord Camden, the friend OF liberty, differed from
Lord Mansfield, aud the matter was finally put to
rest by tho memorable act of Parliament 80
George Ill, known as Mr.. FoX's act, which de-
termined the law against Lord Mansfield's juds-
ment by expressly recognizing the ri Int of tho
jury to determine the facts and law of the case
by general verdict of guilty or not guilty.
Tho trial can only end in one OF three ways: /.
8. By the inability of tho jury to agree.
In tho event of this third alternative arising tho
first question which will arise is whether Mr.. Da-
Wis will be entitled to bail. Tho Constitution pro-
yides that sin all criminal prosecutions the accu-
sed shall enjoy the right to speedy and public
trial" In determining whether Mr.. Davis after
entitled, in tho event of the disagreement of the
jury, to be discharged on bail, would be n ques-
ton or legal discretion, to be determined by tho
Judge. By the celebrated Habeas Corpus Act of
81 Charles H., it was provided, SIXTH "that every
person committed for treason or felony, shall, il
he require it, the first week OF the next term, or
miner, be indicted in that term or session, else
admitted to bail, unless tho kings witnesses can
not be pr )duoed and il not indicted and tried in
the second term session, he shall be discharged
from his imprisonment for such imputed offence.
1t is not likely our judges would take a less
favorable view OF the prisoners application than
in the rule furnished by this statute. The seri-
GUS question would be, how many terms of the
court have passed since the prisoner was first ar
| rested His counsel would, in all probability,
contend that by intendment of law the United
States courts were holding their regular terms
for the last twelve months in the State of Vir-
ginia, or at least might have done 80. further
provision, Of the Constitution might, perhaps,
also, in the event OF disagreement Of tho jury,
be invoked in behalf Of the prisoner-that one
which sets forth al follows: "Nor shall any per-
son be subject, for the same offence to be twice
put i'll jeopardy of life or limb" Tho meaning o
this rule is, that defendant is in legal jeopardy
the moment petit jury is charged with the deci
sion of his case. But, though there has been
some difference OF opinion on the point, 1t may be
| assumed that when the jury are discharged from
the further and final decision OF the case, because
of their inability to agree, the prisoner may bt
| held to be tried anew. At one time in England
where the jury could not agree on capital case
the judge, instead Of discharging them at the enc
| of the term, had them csrted around the circui
with him. This practice, however, is exploded
In case, then of the inability of the jury to agree
| the utmost the prisoner could ask, from that fac
alone, would be the right to be out OF prison OF
| bail.