Daily union and American. [volume] (Nashville, Tenn.) 1865-1866, 1866-05-30
INDICTMENT AND TRIAL OF MIR.
DAVIS.
From the National IntelIigencer.l

DAVIS.
From the National Intelligencer.l
The recent references to the trial of Mr..
Davis have called public attention to this
subject, which, very naturally, in a large de-
gree interests the public mind.
The indictment in the usual form for trea-
son has been found by the grand jury, in the
United States Circuit Court, at Norfolk.
Mr.. Davis is indicted under the act OF
1890, under which the penalty, on convic-
ton, is death.
He could have been indicted under the
act of July 81, 1861, for a seditious conspi-
racy, the punishment of which is fine, not
over $1,000, and Imprisonment, with or
without hard labor, not over six years.
One of the most important points Is the
drawing fthe petit jury, who are charged
with the trial of the prisoner.
The jury is to be drawn according to LOT,
or otherwise, according TO the mode prac-
ticeG in the State for selecting juries for the
highest courts of law. The number ofjurors
TO be summoned il left to the discretion of
the court, as at common law.
The act of July 10, 1862. repeats so much
of the act of 1889 as requires, in case, pun
ishable with death, twelve petit jurors be
summoned from the county where the Otiense
was committed.
Under the act of June II, 1862, no person
is allowed to sit on the jury who was in any
degree of completely with the rebellion.
This is an act Of controlling importance, be-
cause it insures that the trial shall be before
a loyal jury.
Mr.. Davis cannot be tried by any Of his
confederates. His fate will rest entirely
with his political opponents.
The jury must be unanimous, or there can
be no verdict This is the invariable rule
of the common law, and has existed time
whereof the memory Of man runneth not to
the contrary.
The presiding judge can rule authorize
lively on questions of evidence as they may
arise in the progress of the trial, but as the
jury always in criminal cases, return gen.
eral verdict of guilty or not guilty, they are
practically the Judges of the law as well as
the fact, and there is no appeal from their
decision.
There has never been any exception to
this principle in the common law, except
that in cases of libel it had frequently been
determined by the Court OF Kings Bench
that the only question for the consideration
of the jury, in criminal prosecutions for Ii
bel, was the fact of publication andthe truth
of the inuendoes, 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 celebrated Junlus 50 BIT
terly attacked him. Lord Camden, the
friend of liberty, differed from Lord Mans
field, and the matter was finally put TO rest
by the memorable act of Parliament of 81
George III, known as Mr.. Fox's act, which
determined the law against Lord Manstield's
judgment, by expressly recognizing the right
of the jury to determine the facts and law Of
the case by a general verdict of guilty or
not guilty.
The trial can only end in one of three
ways:
l. By verdict of guilty.
, BY verdict of not guilty.
3. BY the inability of the jury to agree.
In the event of this third alternative
arising, the first question which will arise
is, whether Mr.. Davis will be entitled to
bail.
The Constitution provides that " in all
criminal prosecutions the accused shall en-
Joy the right to a speedy and public trial"
In determining whether Mr.. Davis, after
more than a years close imprisonment
would be considered, in the event Of the dis
agreement of the jury, to be discharged on
bail, would be question of legal discretion,
to be determined by the judge.
By the celebrated ha6edS corpus act of 81
Charles IL, it was provided, e, that every
person committed for treason or felony shall,
if he require it, the first week of the next
term, or the first day of the next session of
oyer and terminer, be indicted in that term
or session, or else admitted to bail, unless
the Kings witnesses cannot be produced;
and if not indicted and tried in the second
term or session, he shall be discharged from
his Imprisonment for such imputed oflense."
1t is not likely our judges would take
less favorable view of the prisoners applica-
ton than in the rule furnished by this
statute.
The serious question would be, how many
terms of the court have passed since the
prisoner was first arrested His counsel
would in all probability contend that by in
tendment of law United States courts were
holding their regular terms fort the last twelve
months in the State of Virginia, or at least
might have done so.
\ further provision of the Constitution
might perhaps also, in the event of dis
agreement of the jury he invoked i'll behalf
Oh Ille pTlSOneT-JndI one Wulch sets 1Ortn
as follows: "Nor shall any person be subject,
for the same offence, to be twice put in jeop-
ardy of life or limb"
The meaning of this rule is, that a de-
PENDANT is in legal jeopardy the moment a
petit jury is charged with the decision of
his case. But though there has been some
difference of opinion on the point it may be
assumed that when the jury are discharged
Al. ,f ba
case, because of their inability to agree, the
prisoner may be held to be tried anew. At
one time in England, where the jury could
not agree on 4 capital case, the judge, in
stead of discharging them at the end of the
term, had them carted round the cir
cult with him. This practice, however, is
exploded.
In case, then, of the inability of the jury
to agree, the utmost that the prisoner could
ask, from that fact alone, would be the right
to be out of prison on bail.