The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1873-01-23
CONsT1TUTIoNAL1TY OF THE NEW
JURY LAW.

Importan mt Argument Before the Supreme
Court, General Term-A Case Involving
n Point Of Deep Interest In Connection
with Trials Under the New Jury Law
Right OF Challenges In Criminal Cases.
Asa general thing the proceedings in the SUI
preme Court, General Term, are OF the dulest
imaginable character. They were yesterday, how
ever, OF an exceptional character, and the court
room not only was crowded, but the Judges on the
bench-Judges Ingraham Brady and Larned-
showed that they too were keenly alive to the
gravity OF the new and important legal point about
to be argued before them. This point was as to
the constutionaty Of the act passed by the Legis-
lature last Winter entitled can act in relation to
challenges jurors in criminal cases." The effect
of the judicial determination, and particularly
should it be against the constitutonaty OF the new
Jury law, requires no explanation, except that such
decision would at once give a new trial to Stokes
criminal Offenders now serving out sentences in
the state Prison, to say nothing OF possibly up
trial. The case upon which this point is now raised
Tor the iirst time does not belong to the causes
cete6res bnS as test case possesses all the ele-
ments requisite Tor judicial decision.
THE CASE IN POINT.
Some time during the night OF August IL, 1872
Wm J. Barclay, as alleged broke into room Of the
Grand Central Hotel and stole $500 in money and
some jewelry belonging to guest. The robbery
was traced to him, and upon this ensued his arrest,
trial and conviction before Recorder Hackett it being
shown that he was no novice In crime, he having
previously undergone imprisonment for robbery,
the Recorder sentenced him to State Prison for
eight years. Mr.. William F. Howe, his counsel, ex-
cepted to one Of the jurors. He challenged this
man Tor principal cause. The following were some
of the questions put by Mr. Howe to the juror and
his answers
to the guilt OF the prisoner A. Yes, sir.
O. That impression remains with you nowG 4.
O. you were sworn you would render q verdict
OF guiltyY A. Yes, sir.
The Court-He is competent
has appealed from the verdict that ensued to the SUI
preme Court, General Term
ARGUMENT OF MIR. HOWE.
Several minor points In error were first argued
by Mr.. Howe, but the bulk OF his argument had
reference to the constitutionality OF the present
Jury law He insisted that the act referred to
above is unconstitutional and void and the rule Of
the common law, as to challenges OF jurors for
constitution, he urged, provides that mo person
shall be deprived of lile liberty or property with
discuss what is due process Of law as provided in
the constitution. He cited the discussion in the,
case OF Taylor VS.. Roster, which says that "the
no member OF the State shall be disiran-
chised or deprived OF any Of his rights or
privileges, unless the matter shall be adjudged
against him. upon trial had according to the
course OF the common law" He next cited tho
decision in The Court p Of appeals in the Of
446), where the Court In speaking OF this clause,
say:-'if this Interpretation is correct, and 1t is
sustdlucu rs well ny nlsbOIy Wy JuulClil duInOr-
ity the clause in question was intended to secure
to every citizen the benefit OF those rules OF the
common law by which judicial trials are regulated,
and to place them beyond the reach of legislative
suDversion. They are indeed virtually incorpo-
rated into the constitution ITSELF and made
thereby part OF the paramount law. Trials,
therefore, at least such as are criminal,
are to be regulated and conducted in their
essential features, not by statutes but py
common law. This the constitution Guarantees.
Precisely how far the Legislature may 60 in chang
Ing the modes and forms OF judicial proceedings I
Of hut haUa
ton In saying that they cannot subvert that fun
damental rule OF justice which holds that every
man shall be presumed innocent until he is proved
guilty. THIS rule WIZ be found specifically incor.