The Anderson intelligencer. [volume] (Anderson Court House, S.C.) 1860-1914, 1879-04-24

Oath Administered.
The United States Circuit Court was
convened at 10 o'clock Monday morning,
18th inst, Judges Bond and Bryan on
the bench. Judge Bond delivered his
opinion upon the motion to quash the
array.
GENTLEMEN OF THE BAR: In respect
to the motion before the court, which
was argued on Wednesday last, l have
come to the conclusion that the motion to
auash should be overruled. IL is mo-
ton founded not upon any allegation of
fraud or bad faith on the part of the off.
GERS who executed the ffty-frst rule of
court. No impropriety of conduct is
charged against them, but it is simply
urged that these officers have mistaken
their powers under the rule and have not
followed it strictly.
The Office that these commissioners
execute is purely ministerial office,
and although it has been argued that as
they are required to select men of intel
ligence and good moral character, &c,
they thereby acquire quasi judicial
power, yet hold that their duty is pure
fy minioterial. For instance: The Office
of marshal is purely ministerial, and yet
every cenire requires him to summon
good and lawful men of his district on
the Jury" Now it is manifest that there
was an irregularity in the selection of
these jurors, but the irregularity is pure
ly technical, and the rule of the United
States Courts has always been that where
substantial justice could be done, where
the rule has been substantially complied
with, and where it was not shown that
manifest injustice would result to the
parties to be tried by reason of the irreg-
ularity, the courts have always refused TO
set aside the array.
Judge Bryan then delivered the fol-
lowing dissenting opinion:
After careful consideration of the
rules and the authorities presented by
counsel on either side, I am constrained
to differ with my associate.
am compelled to conclude that all
three Of the commissioners are necessary
for the lawful selection of the juries; that
the absence of one of them involves
fatal defect in the administration of the
rule, and hence the part assigned Com
missioner Blythe, of precise locality
and for a special object, could not be
performed by any other person. The
rule makes no provision for any deputy,
and he himself made no attempt to ap-
point such deputy or assign his position
to any other person. The rule clearly,
by inevitable implication, negatives the
idea that any other person, unless pro-
vided for by the rule and with like euali-
fcation, could perform his function. He
is distinguished from the other commits
sioners by his locality, and cannot be
confounded with them. His participa-
ton in the initial action of the three
commissioners in the selection of the FIVE
hundred citizens of good intelligence and
character, and also as an adviser in their
final action when it is to be determined
what names are to be placed on the list
"with the approval of a majority of the
commissioners" is equally necessary.
! cannot, therefore, accept the jury so
drawn rs one selected according to the
requirement and sound theory of the
rule, or which satisfies the order of the
court.
And it is not permissible for the court
now to modify or set aside the rule of
the court, and adopt jury not selected
according to the rule of court. That
rule has the force, dignity and obligation
of statute. 1t is in place of statute
and rests upon the authority OF statute,
which gives the courts OF the United
States power to make all necessary rules
and regulations for conforming the desig-
nation and impaneling of juries in SUBJ
stance to the laws and usages now in
force III such State; and further, shall
have power by rule or order, from time
to time, to conform the same to any
change in these respects which may here
after be adopted by the Legislatures of
the respective States for the State courts.
This rule and the others coupled with
it were, on the deliberate judgment Of
the court, providing in advance for all
cases deemed necessary to secure juries
enlightened, impartial and upright, and
they cannot be set aside without abrO-
eating legislation and incurring the i'm
putatiou of the injustice, odium and
cruelty of &c post tacto law. The citizen
and the government alike for their pro-
lection have right to insist upon the
maintenance and enforcement of the
standard created by the law itself, and
that the citizen and the government shall
have the benefit of the juries demanded
by the law.
1t is better SHOULD such consequence
ensue) that there should be failure of a
court or postponement of trial than that
there should be failure ofjustice.
And here in order that we may prop
erly measure the inconvenience arising
from g failure of an officer to do his
duty, and consequent failure of term
of the court, it is in place to observe that
no such event las occurred since the re-
organization of the courts of the United
States of the State, now in the thirteenth
year of their administration.
The clerk then proceeded to call the
names of the petit jurors from the list in
alphabetical order, and as the jurors took
their seats Assistant United States Dis
trict Attorney Mackey placed them upon
their coir dire and applied the following
oath, familiarly known as "the test
oath: :"
"You do solcmnly swear Tor affirm)
that you VIII support tne CoHstiluSiou VI
the United States of America; that you
have not, without duress or constraint,
taken up arms or joined any insurrection
or rebellion against the United States
that you have not adhered to any insur.
rcclion or rebellion, giving it aid and
comfort; that you have not, directly or
Indirectly, given any assistance in money
or any other thing to any person or per.
sons whom you know, or had good ground
to believe, to have joined, or to be about
to join, said insurrection or rebellion; or
to have resisted, or to be about to resist,
with force of arms, the execution of the
laws of the United States; and that you
have not couuselled or advised any per-
son to Join any irsurrection or rebellion
against, or to resist with force of arms,
the laws OF the United States"