The Abbeville press and banner. [volume] (Abbeville, S.C.) 1869-1924, 1886-02-03

discussing what is included in this right un-
der the terms of the Fundamental law uses the
following language, "The matter of trial by
Jury Is everywhere spoken OF III all the Con
stiiutIons as u right and this right which
they declare shall be preserved, has reference
TO that form OF trial known as such at the
features of such trials fecognized by and prac:
ticed under that law" page 772. This doc:
| trine he supports by cuses cited from New
York, Kansas. Michigan and Nevaln. After
National Cons!i ion which secures to the
accused "the right 10 speedy and public tri-
al by an Impartial Jury of the State anu dis
trct where The crime shall have beeu com:
that any of the legal incidents and belong
ings of this right, as known to the Common
Law, be specially mentioned In the Constitu.
ton order to 6e gronshtt t. wthin the p"e OF
for this purpose that the right to trial by
Jury he guaranteed In general terms" He
cites Swart.v. KimbaH, A Mich. 443.
learned arr ed writer r says. "Whether express men:
tion Is or Is not made In the written law, that
in criminal prosecutions the accused shall
have the rgh to be tried ~ uy of the H IN
the right to jury trial when such right Is Sc.
cured in general terms. The right to II jury Of
the vicinuge imports that not only the trt
indicilng him. shall be Of the Vicinage or
neighborhood. The word district" and the
word "counly" are nvertibfe terms when
ton. Bnt this right is mere personal privi
lege which tho party may insist upon or
waive, at his option. He cannot be deprived
of 1t in any case, save by his own consent,
given In open Court And where there Is q
show that the prisoner applied for such
change. or that he expressly consented there
to, and should show reason therefor. A
change in The application Of the prosecution,
and against the defendants consent, cannot,
OH principle, ever be granted. Such Il chaITge
would amount to an abandonment Of the case
support OF every statement he makes and In
Il note he cites the cases from New York, Tex
us and Minnesota, to which I have already
referred. With this doctrine IN view. lei us
to the citizen. In the Bill of Rights, Article
I. Sec XII, 1t says, "The right OF trial by jury
sha Il remain invlolate." l have endeavored
to show your Honor Gy abundant authority
of its most important incidents and dearest
requisites the right to Jury of ones county.
This right maintain the citizen can not be
dlvcsted of but by q constitutional amend
ment. But granting for the sake Of argument
that II statute can divert the citizen to this
right Of jury OF the vicinage, let us see If the
statute reli ID on by the State does expressly
take this right away.
Article V, Sec II, Of the Slate Constitution
provides: ut shall be the duty OF the General
Assembly 10 pass the necessary laws for the
change Of Venue If all cases, civil and criini-
nal, over which the Circuit Courts have origi-
nal jurisdicti@n, upon proper showing sup.
ported by affidavit, that @ fair and impartial
trial cannot be had in the county where such
trial or prosecution was commenced"
Sec. 21li of the General Statutes carries out
tthe provision of the Constitution. 1t is clear
from title Of the Act An Act to empower Cir
cult Judges to change the venue for the trial
of actions" ii Stat. 81, that nothing new WAS
intended; no innovation upon the Common
Law rights Of the citizen was suggested; the
sole purpose was TO empower the Judges OF
the newly created COnstItusiunal Circuit
Courts to do what the Judges Of the Courts of
Common Pleas had done before the Consttu-
tion of 1868 was adopted 1t never has been
doubted that the plaintiff or defendant In a
civil cause can move for change OF venue up
! cd that the accused In criminal case can 40
so upon proper atlidavits. There is not case
in our reports prior to 1868 where the State
the Constitution and Statutes OF 1868 confer
no new rights upon the State, take no Conn
mon Law rights from the citizen and simply
perpetuate In the civil and criminal Cnnrts
the rights exercised under the Common Law
| | would cite without comment the following
authorities on the cit!zens Constitutional
right to q Jury OF the vieinage: 6 Grim. Law
Mag. 422, Wharton Grim. Pr and p: Ed. CO.;
| Bish. Grim. Proc. Sections 80 and o..
| leone now your Honor to consider the law
which guides Courts in the construction OF
statutes. Let US see If the statutes relied on
| Dy the SLuLo uepTlNC JOull TcISlSpu VI Hie
right to be tried by a. jury Of his county.
| When statute diveStS Il right it must be
strictly construed. Hare V. Blecse, ). G.. 10,
ut has long been settled maxim that neither
! The provisions Of the Common or Statute Law
are abrogatcd but by the express words of an
act of Parllam ent," etc. This Is quoted from
an Eng ish case by Chief Justice Moses In
Hand V. Savannah Il. X: Co., s S. c. 233.
fers the right upon the State 70 move Tor
change Of venue and thereby divest the accus.
ed siS! Q! his Constitutional and Common Law
In Cohen " Hof, Treadway, 6T, our Court
held that where an Act is manifested repus-
nant to the Constitution 1t becomes duty to
declare 1t null and void" Our Constitution
says the right OF trial by jury shall remain
words deprived the citizen OF his right to q
! jury OF his county, 1t would be the duty OF
this Court to declare 1t null and void as repug-
pant to the Constitution.
Statutes in derrogation of the Common Law
must be strictly construed. Garaty Y. DuRose
S. C. 5OO "The ancient rule of our law often
construed strictly" Sedswick on Stat. and
An Act passed in Michigan providing that
trials for trespass on the public lands should
be had only in the county where the State
capitol was situated. WIS pronounced by the
Supreme Court Of Michigan "tyrannical, op.
preSsive, unconstitutional and void" .Swart
v. Klmbal, 44 Mich. ALB. A similar doctrine
WuS OONA ll 1Ahh StotS1 Oe'e"SAA1
Your Honor knows that the doctrine of con-
structiOn OF statutes permits resort 10 tne u
tie Of an act In aid OF It's Stae
Bailey, 33l; Hand V. Savannah r. r. Co, $.
G. 233.
The title of the Texas Act already referred
to is as follows: IAN Act to provide for the
change of venue by the State In criminal
cases.'' In clearing contrast to that, the Title
of the,Act in which the State relies In this
motion says nothing ABOUT, providing for the
change Of venue by the State.
| Applying these principles and rules to the
construction Of our Constitution and statute,
can it be seriously argued that 1t was III the
mind Of the General Assembly Of lSCS to con.
fer upon the State q power never dreamed OF
before and to deprive the citizen defendant In
the criminal court of right secured to him
| from n time whereof the memory Of man rum
meth not to the contrary.
preme Court hold that this Section q does
give the State the right to move for change
of venue, let us pause for moment ana con-
template the consequences to ths cit!Iens I1,s ol
ain not arguing alone for John ferguson;
Standing here and contending for the right OF
trial by a jury Of ones peers and of ones own
OF South Carolina. This State has ever been
the champion of the rights and liberties OF
the citizen, and her Courts has jealousy
guarded them. Among the nations Of the
earth England has not been more conspicr-
GUS as a champion anu guardian of indtvid-
ual liberty than has South Carolina among
the States of this Union.
| But should 1t be held that In a criminal
prosecution the State can apply for change
of venue, think of the fearful possibilities
wrapped up in such doctrine suppose that
in the whirligig of time which brings about
It's revenges the Democratic government OF
law ana Intelligence should be 0verthrown in
this State and there should come again the
rule Of the ignorant and the corrupt: suppose,
and 1t is not impossible, that the rule OF the