Daily Ohio statesman. [volume] (Columbus, Ohio) 1855-1870, 1866-05-29
O6lo Statesman,
jeff DaYiE-The Points Of Law
.s.. InVOIVed In his Trial. .r "a.


.ar.a InNOlVed In his Trial. "a.
tFrom the Washington Intelligencer, Nays
The recent references to the trial of Mr..
Davis have called public attention to this
subject, which very naturally in large
degree interests the public mind. The in
dictment in the usual form for treason. has
been found by the Grand Jury, in the Unit
ed States Circuit Court, at Norfolk. Mr..
Davis is indicted under the act of 1890, un-
der which the penalty. on conviction, is
death. He could have been indicted under
the act of July 81 1861, for q seditiOus con-
spiracy, the punishment of which is fine,
not over $4,000, and imprisonment, with or
without hard labor not over six years.
One OF the most important points Is the
drawing on the petitjury who are charged
with the trial of the prisoner. Thejury is
to be drawn according to lot or otherwise,
according to the mode practiced in the
State for selecting iuries for the highest
courts of law. The number of jurors to be
summoned is left to the discretion of the
Court, as at common law. The act of July
l6, 1862, repeals so much of the act of l1S9
as requires in cases punishable with death
that twelve petit jurors be summoned from
the county where the otfense was COM
mitted. Under the act of June IL, 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, because it inSures that the trial
shall be before a loyal jury. Mr.. Davis eau
not 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 COM
mon law, and has existed time whereof the
/ nnnutOry nf man rIInDpI the pOutra-
ry. The presiding judge can rule authori-
tatively on questions of evidence as they
may arise in the progress of the trial; but as
the jury always in criminal cases, return
general 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 libel was the fact Of pub
lication and the truth of the inuendoes, and
the Court alone was competent to deter
mine whether the subject of the publica-
| tiOn was or was not a libel. And 1t was
tor this ruling of Lord Mansfield that the
celebrated Junius so bitterly attacked Lord
Mansfield. Lord Camden, the friend of
liberty, differed from Lord Mansfield,
and the matter was finally put to rest by
the memorable actOf Parliament 81, George
Ill, known as Mr.. FoX's act, which de-
termined the law against Lord Mansield'S
| Judgment, by expressly recognizing the
right of the jury to determine the facts
and law of the case by general verdict of
guilty or not guilty.
The trial can only end in one of three
ways:-l. By verdict of guilty. 2. By ver-
dict of not guilty. 3. By the inability of
the jury to agree.
Ina tho 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 sin
all criminal prosecutions the accused shall
enjoy the right to a speedy aud public
trial" In determining whether Mr.. Da-
Wis, after more than years close impris-
onment, would be entitled, in the event of
the disagreement of the jury, to be dis
charged on bail, would be a question of le-
gal discretion, to be determined by the
Judge. By the celebrated Hdbeds Corpus
act of 81 Charles Ill, it was provided, sixth,
"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 adj
United 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 offense."
1t is net likely our Judges would take a
less favorable view of the prisoners appli-
cation than in the rule furnished by this
statute. The serious question would be,
| of hn haUn N
since the prisoner was first arrested? His
counsel would in all probability contend
that by intendment of law 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 so. A
further provision of the Constitution might
perhaps ALSO in the event of disagreement
of the Jury, be invoked in behalf of the
prisoner-that one which sets forth as fol-
lows: "Nor shall any person be subject,
for the same Otfense, to be twice put in
Jeopardy of life or limb" The meaning OF
this rule Is, that defendant is in legal
Jeopardy the moment 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 from the further
and final decision of the case, because Of
their inabilityto agree, the prisoner may be
held to be tried anew. AT one time in
England, where the jury could not agree
on a capital case, the judge, instead of dis
charging them at the end OF the term, had
them carted around the circuit 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 fact alone, would be the right to
| he ont of DrisOn on bail,