Year: 1866

The recent references to the trial of Mr.
Davis have called public attention to this
subject, which very naturally In a large de-
gree interests the public mind The indict-
ment, IN the usual form for treason has
been found by she grand jury, in the United
States Circuit Court at Norfolk Mr.. Davis
is indicted under the act of 1870 under
which the penalty, on conviction, Is death.
He could have been indicted under the act
of July 81, 1861, for a sedition conspiracy
the punishment Of which is fine, not over
S., ,000, and Imprisonment, with or without
hard labor, not over six years One of the
most Important points is the drawing of the
petit jury who are charged with the trial of
the prisoner. The jury is to be drawn ac-
cOrdiRg to lot or otherwise, according to the
mode practieed IN the State for selecting
iuTies 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 Is, 1862, repeaIs so
much of the act of 1TS9 as requires IN cases
punishable with death that twelve petit
Jurors be summoned from the county where
the OAense was committed Under the act
OfJune II, 1852, no person is allowed to sit
on the jury who was in any degree of COM
plicity with the rebellion This is an act
of controlling Importance, because it insures
that the trial shall be before a lovai Jury.
Mr.. Davis cannot be tried by any Of his con-.
federates. His fate viii rest entirely with
his political opponents. The jury must be
unanimous, or there can be no verdict.
This Is the invariable rule of the common
law, and has existed time whereof the memo
ry of man runneth not to the contrary The
presiding Judge can rule aUthoritatively on
questions of evidence as they may arise in
the progress of the trial; but as the Jury
a olyE~nvT eos
verdict Of guilty or not guilty, they are prac-
tlcally the judges Of the law as well as the
fact, and there IS no appeal from their de-
cision There has never been any excep-
ton to this principle in the common law.
except that in cases of libel it had freuuent~
" been determined by the Court of the
Kings Bench that the only question for the
consideration of the jury in criminal prose
cutiOns for libel was the fact of publication
and the truth of the einnuendOes, and that the
Court alone was competent to determine
whether the subject of the publication was
or was not a libel And it was for 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 test by the memorable act Of
Parliament 81, George HI, known as Mr.
Foxs act which determined the law against
Lord Mansfeld's judgment, by expressly
recognizing the right Of the jury to determine
the facts and the law of the case by gem
eral verdict of guilty or not guilty


The trial can only end in one of three
ways: I. By verdict of guilty. 2 By YER
dict of not guilty. 3. By the inability of
the jury to agree.


In the event of this third alternative aris-
ing the first question which will arise is
whether Mr. Davis viii be entitled to bail.
"a
inal prosecutions the accused shall enjoy
the right TO a speedy and public trial In
determining whether Mr. Davis after more
than a years close imprisonment would be
entitled, in the event of the disagreement
of the jury, to be discharged on bail, would
be a question Of legal discretion, to be de-
termined by the judge. BY the celebrated
habeas corpus act of 81 Charles H. it was
provided sixth, (" that every person com
mitted for treason or felony, shall, if he re-
quire 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 ses-
sion, Or else admitted to bail, unless the
king s witnesses cannot be produced; and
if not indicted and tried in the second term
or session, be shall be discharged from his
imprisonment for such imputed ofense"


1t is not likely our judges would take
less favorable view of the prisoners appli-



statute The serious question would be,
how many terms of the court have passed
since the prisoner was first arrested2 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 pris-
| oner-that one which sets forth as follows:
Nor shall any person be subject for the
same ofense TO be twice put in jeopardy Of
life or limb The meaning Of the rule is,
that a defendant is in legal jeopardy the
moment petit jury is charged with the
decision of the case. But though there
has been some difference Of opinion, on the
| point, it may be assumed then when the
| jury was discharged from the further and
| final decision Of the case, because of their
inability to agree the prisoner may be held
to be tried anew. At one time In England
where the jury could not agree on capital
case the Judge instead Of discharging them
at the end of the term, had esm carted
round 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 be out of prison On
| bail