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

Required TO Disqualify Himself :-The
Oath Administered.
The United States Circuit Court was
convened at 10 o'clock Monday morning
lIth 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, | have
quash should be overruled. 1t is a mo-
zion founded not upon any allegation of
fraud or bad faith on the part of the otIi
GERS who executed the fifty first rule of
court. No improperly 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 a purely ministerial office.
and although it has been argued that MS
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.
ly ministerial. For instance The office
OF marshal is purely ministerial, and vet
every renire requires hin to Summon
good and lawful men OF his district ON
the jury" Now it is manifest that there
was an irrcgularity in the selection of
these jurors, but the irregularity is pure
~ 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
WIN, ana where 1t was not shown that
manifest Injustice would result to the
parties to be tried by reason Of the irreg-
ularlty, 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, am constrained
to differ with my associate.
am compelled to conclude that all
thrcc Of the commissioners are necessary
Tor the lawful selection of the jurics that
the absence Of one of them involves a
fatal defect i'll the administration of the
rule, and hence the part assigned Com
missioner Blythe, of precise locality
and for 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 h, position
to any other person. The rue clearly.
by inevitable implication, negatives the
idea that any other person, unless pro-
yidcd for by the rule and with like quail
ication, could perform his function. He
is distinguished from the other commits
sioners by his locality, and cannot be
coniounded with them. His particpa.
ton in the initial action of the three
commissioners in the selection of the five
hundred citizens OF good intelligence and
characte,, 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 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 1t is not permissible for the court
now to modify or set aside the rule of
tic court, and adopt jury not selected
according to the rule of court. That
rule has the force, dignity and obligation
"i statute. 1t is in place of IL 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 impaneing of juries in sub
stance to the laws and usages now in
iiorce III such State; and further, shall
have power by rule or order, from time
to time, to conform the same 70 any
change In these respects which may here
alter be adopted by the Legislatures of
tho rpSnppfiva of F,,r
This rule and the others coupled with
it were, on the deliberate judgment of
the court, providing in advance for ull
cases deemed necessary to secure iuries
enlightened, impartial and upright. and
they cannot be set aside without ubro
eating legislation and incurring the i'm
putation of the injustice, odium and
cruelty of &C post facto 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
cnsue) that there should be failure Of q
court or postponement of trial than that
There should be n failure of Justice.
ana here In order that we may prom
criy measure the Inconvenience arising
from failure of an officer TO do his
duty, and consequent failure of n term
OF the court, it is in place to observe that
no such event has occurred since the re-
organization of the courts of the United
states OF tie State, now iii The thirteenth
year of their administration.
X \
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
trct Attorney Mackey placed them upon
their roir dire and applied the following
oath, familiarly known rs "the test
oath :"
"You do solcmnly swear Tor affirm)
that you will support the constitution of
the United States of America; that YOU
have not, without duress or constraint.
taken up arms or Joined any insurrecton
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-
= i, whom you know, or had good ground
=" ocic'c, 10 nave Joincd, or 10 he about
10 JON, sad insurrcction 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 couhselled or advised any per-
son t" join any insurrection or rebellion
against, or to resist with force of arms,
the laws of the United States"
Mr.. Edward .IcCrady here objected to
Applying this oath, on the grounds, first,
liht section $50 was not of force nnd