Cregier v. Bunton

dissenting. The object of the appeal is to show that the 9th art. 6th sec. of the State Constitution establishes in South Carolina not merely trial by jury, as a general judicial form, to decide questions of fact, but establishes unalterably jury trial, as restricted, qualified and improved by the statutes of this State, and approved by our own experience.

Every lawyer knows the great difference between determining a case, by twelve men selected by litigants of unequal skill, and determining the same case by twelve good and lawful'inen, “ Omni exceptione majores.” The tribunal so formed constitutes the proper trial by jury — -a tribunal which affords to a simpleton or guileless man, to a stranger, or sojourner in the State, as nearly as possible, equal chance for justice as to the cunning, the wary, or the keen inspector of his neighbor’s ways of thinking or interests.

The first object of inquiry is, therefore, whether the Constitution renders inviolable the trial of facts, by the specific *503and established jury of South Carolina, or only establishes trial by jury generally — and 2d, whether the Act of 1841, 'by allowing two challenges to each litigant, at will, in all civil trials, essentially violates the particular establishment of juries in South Carolina? With very brief comments of my own, I purpose leaving the history, the learning and the variety, as well as the exposition and value of trial by jury, to that comprehensive and eloquent chapter of Sir William Blackstone “on jury trials,” 3 vol. cjr. 23.

In giving my own opinion, I aim at no more than to form a supplement to the^ argument drawn from our statutes, by attempting to separate, into its constituent parts, the 9th Art. 6th sec. of the State Constitution — namely, “the trial by jury, as heretofore used in this State, and the liberty of the press, shall be forever inviolably preserved.”

Such analysis is, of course, intended to see if each part does not point to one particular meaning; and unite in presenting it as the true and peculiar aim of the Constitution.

First, then — what do the terms “the trial by jury” mean? These terms are not trial by jury, but “ the trial by jury.” Is the definite article “the” a casual superfluity, or is it here used in its proper sense — ■i. e. as the index to particularity? “Trial” means the examination of a cause of action, according to law, before a judicial tribunal, having jurisdiction to try and decide the case made by its evidence. — 1st Just. 126; 3 Jacobs, 668.

“Trial,” so defined, admits of different evidence in the judicial examination, and may be before many other tribunals than the Judge and jury — for instance, by witnesses before a single Judge in Equity, or the Ordinary. The trial may be by record or by inspection, &c., or exclusively by the Judge. Hence the necessity of the introduction, into the Constitution, of the terms “trial by jury.” No other manner of trial than that “by jury” is guarded by this constitutional article.

But if jury trial, in some form or other, had been the only object of the Constitution, the definition of this trial would have ended with the terms, “trial by jury.”

*504Look, therefore, at the words that follow, how full of meaning— “The trial by jury, as heretofore used in this State,”' and we there see, as with open eyes, why the sentence began with the definite article — “The trial, as heretofore used.”

These latter terms are either needless and unmeaning expletives — so unlike the exact precision of the rest of the constitution ; or they mean, the trial as practised, and the jury as constituted, by the laws and usages of South Carolina. No other jury pan be meant.

Not the jury formerly impanneled for each several case : not the old jury chosen by the Sheriff;' nor such a jury as a political majority of the State might enact with indefinite challenges by the State, which might end in a selection of men to ensure the conviction of the accused.

Such a possible misuse of the right of challenging ought of itself, to forbid all alterations in challenging jurors, and ought to assure the State against any other jury, but that constituted by forty-eight names drawn from the jury box, by a child ; and from that forty-eight the number twelve again drawn from the whole panel, also by a child.

A jury subject to certain challenges for good cause in four particulars, and for favor ' to a certain extent defined by law, and not otherwise.

A jury, in which the State, in civil actions, can have no advantage of challenging jurors,.over individual litigants ; and in capital felonies, much less advantage, alf settled by express law, for which see the Act of 1731, 3 Stat. 27 p.

it is such laws which give the meaning’of the words, “ as heretofore used in this State.”

Every word points to the one definite aim look at the emphatic, “this State.” It would.seem as if the constitutional statesman was still guarding the judieiabexpounder against any vague general expositions &f this well weighed, comprehensive, but precise context.

Lastly, the concluding word® come heme to the same-particular object and definite aim — what are the -words?' Shall be preserved 'l No. Shall be always preserved t Not so. But “the trial by jury, as heretofore used in this; *505State, shall be forever inviolably preserved.” This fervid conclusion is in appropriate keeping with the deeply felt and definite constitutional aim.

This impressive sentence ends the six brief sections qf the bill of rights of South Carolina, each of which stands, as a volume of unerring experience, resolved into its quintessence, by sagacious patriots, to guard their posterity.

The venerable Edmond Plowden, in a note to the case of Eyston v. Studd, 2 vol. p. 465, says that “ it is not the words of the law, but the internal sense, that makes the law ; and our law, like all others, consists of two parts, viz : of body and soul — the letter of the law is the body, and the sense and reason is the soul of the law — quia ratio legis est anima legist

I have heretofore confined the argument chiefly to what Plowden calls the body or letter of the law, and have followed the rule laid down by him ; i. e. “ it is never to be intended, that words are put in statutes in vain.” — 1st. vol. p. 80.

This rule applies emphatically and imperatively, To the constitution and fundamental law of the State.

I purpose hereafter, to attend more to what he calls the. soul — i. e. the spirit of the constitution,

A strong conception of its true spirit, is as important, to-the right adjudication of the present question, as its letter..

The jealous caution of the framers of the State Constitution, reminds us that they were recently from a. great struggle for independence ; and more recently from the, then, perilous compromises of the federal constitution.

These master spirits had come home with their jealousy of power wrought up. Such jealousy was not cooled by the situation of South Carolina. The growing upper and lower country, stood before them as rivals for future power. The weaker held the staff.

Hence arise the many compromises, set forth in our constitution.

For instance, the fixed local legislative representation : the division of certain State officers,, between upper and lower country. Their election, down to Sheriff, must be *506by the Legislature; and. the Judges .must adjourn from Columbia to Charleston, and so on.

May it not have been, that this wholesome conservative spirit, is at the bottom of this 6th section of our bill of rights 'l If so, it plaiuly points to the conclusion, that the trial by jury, means, juries as heretofore used in this State, and no other, “ shall be forever inviolably preserved.”

■ I am not in love with interpretations, exclusively literal, of the great principles of the constitution. But when the letter ex vi termini unites with the body and spirit, ex vis ceribus, and these with the arguments ab inconvenienli, hereafter to be seen, such interpretation is convincing.

This brings us to the second question. Does the Act of 1841 violate, .in any essential matter, the established jury law of the State, by allowing to each litigant the right of challenge, at will, for any or no reason, t.wo jurors of the twelve impanelled, in addition to the challenges, allowed by law, at the adoption of the constitution 1 These challenges were in 1791, as they stood at common law, and as set forth in the 23d ch., vol. 3d, of Blackstone. — See Act 1731, sec. 26th.

Let me here remark, in passing, that I have never considered the Act of 1841 as in any way inexpedient, except when I view it as a precedent to further infractions of the constitutional system of jury trial inviolably fixed in our judicial system. Further, that I perceive no essential infraction of the constitutional establishment of juries (as before used,) either in the alteration of the jurors’ qualifications, or in the paying them, or fining them, or in the manner of summoning them, or the like, as made by successive Acts, before and since the adoption of the Constitution.

Such alterations are matters of mere convenience, and are common every where ; they belong to the regulating and police, or behaviour, not to the constitution of that tribunal of justice. For such alterations see 6th Statute Geo. 4th, ch. 50, in England.

Challenges at common law, in all civil actions, are for good cause ; this forms their foundation ; challenges there*507fore without cause, changes that essential characteristic ; so too, any power to challenge at will, strikes at the impartiality of the jury. 1st. Because it is calculated to pervade the mind of the substituted juror, that he is depended on by the party challenging, in contract to the original displaced juror ; 2d. It explicitly alters the impartial draught of jurors made by the child according to the Act of 1731 ; 3d. It puts power into the hands of litigants of unequal skill, in the direction of that power. Litigation is often as warfare — fancy in this respect the difference in managing such a power between a stranger and a native resident of skill and popular tack. The law ought not to increase the unavoiduable disadvantage of strangers to the people, and this alone would justify the jealous caution of the constitution. Finally it enables every litigant to relieve two jurors from immediate duty, if whimsically disposed, and to put it on two others ; ought he to be allowed to do this, without showing some cause? *

For these reasons, the conclusion of my judgment is, that the Act of 1841, impairs the particular constitution of juries as established in South Carolina in two essential objects of that establishment; 1st. In introducing the right of challenging jurors in civil actions without showing any cause, and when too, the cause for challenges had been settled, definitely and immemoriaily, by law, without.the smallest alteration, until the Act in question. The established doctrine of challenges was never tampered with before, either in England or this country.

2d. It violates the jury establishment of this State, byintro-ducing a new way of constituting the jury, very different from the impartial draught directed by the Act of 1731, 3d Stat. at Large, p. 274, and so long practiced and approved in South Carolina.

I would apply to this first dangerous invasion of our jury establishment, the conservative principle of í( obsta prin-cipies

Resist such innovation in its earliest stage, and thus underwrite the guaranty of the venerated and sagacious con-*508veution of 1791, the gnaraty “of the trial by jury as heretofore used in this State.”

Do this, and having thus done our part, we might well say with Sir Edward Coke and Sir Wm. Blackstone, of the trial by jury, “ esto perpetua."

For such a jury as that established by our Constitution they made this earnest ejaculation, and such a jury, and the liberty of the press, our great fundamental law has declared “shall be forever, inviolably preserved.”

delivered the opinion of the Court.

On the trial of this case, the plaintiff claimed the right, Under the Act of 1841, to challenge one of the jurors. To this the defendant objected, that the Act of 1841, allowing the challenge, was unconstitutional. The objection was overruled, and the question submitted to this Court is, whether that decision was right. By the Act of 1841, (11 Stat. 154,) it was enacted that “hereafter, in all cases in which a jury shall be impanneled, before they shall be charged with the trial of any issue, each party shall have the right to challenge, without cause shown, two of the jury so impanneled.” The rest of the clause gives a similar right to the defendant in the Court of Sessions, in all cases of misdemeanor. The 6th section, 9th Art. of the Constitution of this State, which is supposed to be violated by the Act of 1841, is in these words: “The trial by jury, as heretofore used in this State, and the liberty of the press, shall be forever inviolably preserved.” In Coke on Littleton, by Thomas, (3 vol. page 405, sec. 8,) trial is defined to be, “ to find out, by due examination, the truth of the points in issue between the parties. As the questions are two-fold, so is the trial thereof; for either it is questio jure vel questio facte. In the 9th chap., p. 457, it is said “ the trial of the fact is in various sorts, but of these the trial' by 12 men is the most frequent and common.” Accord*491ing to these definitions, it would seem that the trial by jury may be defined to be the finding out the truth of the facts iu issue, by the verdict, vere dictum, of twelve men. By the common law, whenever there was an issue joined between the parties, a venire facias was issued to the Sheriff to summon twelve free and lawful men, liberos et legales homines, of the body of his County, by whom the truth of the matter-might be better known. These jurors, according to Coke,, should be free; that is, “they should not be bound, but also> of such freedom of mind as they stand indifferent, as they stand unsworn. A juror should be legalis, and by law ought to have three properties. 1. 'He should be de viceneto; 2. He ought to be most sufficient both for understanding and; competency of estate. And third, he should be indifferent.”' With these qualifications, “he is accounted liben et legalis: homo; otherwise, he may be challenged,, and not suffered to. be sworn.” In England, the number of those who, were summoned and the property qualifications of those from whom the Sheriff was to select, have varied at different times. At one time the Sheriff summoned a separate jury for each particular case; but now, by the statute of Geo. 2, he summons a certain number (72) to attend the Court, out of which a pannel for each case is drawn. At one time, of those returned to serve, six were required to be de-viceneto, at another time a less number, and now I believe it is sufficient to make the return from the body of the County. The pecuniary qualification has also been the subject of frequent change — sometimes it has been ten pounds; at other times this sum has been reduced to twenty shillings. So also in criminal cases, where the right of peremptory challenge has always been allowed, at one time it extended to 35, but was afterwards reduced to (20) twenty. The mode of selection, the property qualifications, and the right of challenge, seem to be mere rules suggested by experience and prescribed by law, to be observed as most likely to secure the greatest amount, of intelligence, integrity and impartiality to the trial by jury, and of course have been at all times subject to those modifications and changes which grow out of the constant changes which eivil *492society is undergoing. Thus, in looking through our statutes, I find, from 1731 to 1783, the Legislature arbitrarily prescribing jury lists from which all juries were to be selected. In 1783 (4 Stat. 549) the Legislature, in ordei that “ alien friends residing among us, should enjoy the security and protection of our laws, on principles of justice and impartiality,” enacted, that on the trial of all cases wherein the subjects of foreign nations may be parties, a venire facias de medietate linguae should issue to the Sheriff, to summon 18 subjects of the nation of such alien, if so many could be found, out of whom 6 should be drawn, who, with 6 citizens, should form a jury to sit on such trial.— This Act was repealed within a few years, either because the reasons which required it had ceased to exist, or it was found in practice inconvenient or unwise. The Circuit Court Act of 1768, (7 Stat. 203,) contains a provision for the trial of certain cases, by a special jury, to be formed by each party delivering in the names of 30 persons to be summoned, and out of those who attended, 12 are directed to be drawn for the trial pi the case; but, by an Act passed in 1792, the mode of forming special juries was entirely changed. (7 Stat. 271.) From these facts, it would seem that the mode of selecting juries, their property qualifications, and persons who were liable to serve, have at all times been considered the proper subjects of legislative enactment. They are merely the accessaries, and do not enter essentially into the idea of a jury trial. The verdict of a jury, composed of 6 aliens and 6 citizens, or of a special jury organized according to the Act of 1767 or 1791, was as much a trial by jury, as if the jury had been organized according to the ordinary forms. But it is argued that the words in this section of the constitution, i! as heretofore used,” are prohibitory of all alterations in the jury law then existing, at least, so far as the alteration made in the right of challenge by the Act of 1841. In order to present the subject fully, it is necessary to ascertain with some degree of precision, what was the law in relation to juries at the adoption of the constitution, and what alterations have been made in it since 1731. It appears, from *493the preamble to the Act of 1731, (3 Stat. 274,) that the practice of selecting those who were to be summoned to sit on juries by ballot, had prevailed in the colony for many years, but I do not find any published statute authorizing this departure from the common law mode of selection by the Sheriff. The-section of that Act directs that the chief justice shall cause to be written on paper or parchment, the names of all persons appointed by/ the Act to serve as jurymen, and cause them to be put in a box containing- six divisions ; the names of the persons, in the list of grand jurors to be put in division No. 1, the names of the petit jurors to be put in No. 3, and the names of the special jury in No. 5. The section directs that there shall be drawn, by a child under ten years of age, from division No. 1, thirty names to serve as grand jurors, and in like manner, there shall be drawn from division No. 3, forty-eight persons to serve as petit jurors. The 6 section directs that, if more than 23 of the grand jurors attend, their names shall be put in a separate box or glass, and 23 shall be drawn out to serve as grand jurors. The 7 and 8 sections direct that, out of those who attend of the 48, twelve shall be drawn to serve as petit jurors. The 9 and 10 sections direct that, out of division No. 3, there shall be drawn 30 names to serve as common pleas jurors, and out of those summoned, who shall appear, 12 shall be drawn to serve as jurors of the Court of Common Pleas, The 22d section authorizes the chief justices, at the end of every three years, (if the General Assembly shall not appoint new jury lists,) to make and appoint new jury lists as follows : the names of all persons who shall have paid a tax of twenty shillings, current money, for the last preceding year, shall be transcribed, and out of those who had paid a tax of five pounds, a list of grand jurors should be formed and put in division No. 1 — the grand jurors in number not to exceed half the petit jurors ; the names of all which remain after the grand jurors are selected, to be put in division No. 3 ; and all who have paid the'tax aforesaid, who shall be inhabitants of St. Philips, Charleston, shall be put in division No. 5, to serve as jurymen at spe*494cial Courts, and to supply any deficiency arising from the* non-attendance of other jurors. Whether jury lists were ever formed in pursuance of this clause, 1 have no means-of ascertaining, but 1 think it likely none ever were, as it appears from the Statutes at Large, that new jury lists were’ prescribed by law in the years 1740, 1744, 1751,1757 and 1707. The Act for establishing Circuit Courts, passed in 1768, (7 Stat. 203,) directs jurors to be drawn for each district, from the lists annexed to the Act, and that jury lists should be formed by the Judges, from which jurors-were to be drawn according to law. But the Legislature still continued to prescribe jury lists down to 1783. From-this review of the jury law, as it stood in 1790, it appears-—1st. That the jury lists were either prescribed by an Act of the General Assembly or made by- the judges according to the Act of 1731 ; 2. The grand jury list was-composed of different, persons from the list from which the petits and common pleas jurors were drawn ; 3d. That the-number drawn as grand jurors was 30, for petit jurors 48, and for common pleas jurors 30; and 4th. That the petit and common pleas, were seperate and distinet. Let us-now see what alterations have been made since that time. In 1791, (7 Stat. 271,) it was enacted that, from a list of all persons entitled by the constitution to vote, the Court should select those best qualified to serve as grand jurors-,, from amongst those who had paid a fax of fifteen shillings-for the preceding year, and should select the petit jurors from those who had paid a tax of five shillings. The* number of grand jurors not to exceed half the petit jurors-. The Act of 1798, (7 Stat. 286,) directs jury lists to- be< made out, by selecting for grand jurors those who had-paid a tax of three dollars, and the list of petit jurors to-consist of those who had paid a tax of one dollar and upwards. From these, twenty-four were to be drawn for grand jurors, and forty-eight for petit and common pleas jurors. The Act of 1799. (7 Stat. 290,) which is the law at this day, directs the names of all (persons entitled to vote tinder the constitution, to be put in division No. 1 of the jury box; and from these, 24 should be drawn as *495grand jurors, and 48 for petit and common pleas jurors.— It appears from this, that since 1790, when the constitution was adopted, the following changes have been made — 1st. That the number of persons competent to serve, has been greatly increased, by reducing the property qualification to that prescribed for voters, to wit: a freehold of fifty ■acres of land, a town lot or the payment of three shillings tax ; 2d. That the distinction between the lists of grand and petit jurors has been abolished — the names of all are :put in the same box, and all are liable and qualified to serve on either jury, on which they may be drawn ; 3d. That the same persons compose the petit and common pleas, who now try all cases, whether in the sessions or common pleas ; 4th. That these alterations commenced the very next year after the adoption of the constitution, and’ were all consummated within the next nine years.

The constitution is the great fundamental law of the State, to which the Acts of every department of the government must conform, but in our efforts to find out the meaning of it, we must resort to the same rules as are applied in the construction of other laws. When, therefore, we find that an interpretation has been put upon this clause by those who lived at the same time, and probably by many of those who were members of the convention, and that this construction has never been called in question for a long time, more than half a century in this case ; it is a very strong argument in favor of its correctness, and may be and ought to be adopted, unless it is palpably wiong.— But it may be said that the peremptory right of challenge, given by the Act of 1841, is a more essential feature of the trial by jury, than those which have been enumerated.— To secure the benefit of this mode of trial, the law requires the jurors to possess a certain amount of .property, which, I suppose, originated in the idea that such persons were more likely to be educated and intelligent than those who possed none. But it is equally, if not more important, ■that the jurors should be of good character, and impartial •between the parties. It is to secure these qualities in the *496jury, that the challenge is allowed. If a juror has been ■convicted of crime which implies moral turpitude, he may be challenged propter delictum ; if he be near of kia to one of the parties, he may be challenged because the Jaw presumes he will favor his kinsman rather than a ■stranger. But the causes of favor are infinite, and as one who challenges a juror propter affectione, must be prepared with proof to make good his challenge, it may often happen that a litigant has to submit to the almost certain 'chance of defeat, with his own secret personal enemy, or ■the intimate friend of his adversary, the leading man of ■that jury, whose verdict is to determine his rights. All who are conversant with the human mind, know how we ■are influenced by our passions and feelings — how much >even an upright and virtuous man is influenced by his love for one party, or his dislike of the other. Hence, it was thought by many wise and discreet persons, that the old mode of selecting a jury, which gave no remedy for this ■evil, was unwise. I have often seen in Court, efforts made by the parties to have a case come to a particular jury, •and to avoid a trial before another, in order to have the benefit of a friendly influence in one, and to avoid the influence of an enemy in the other jury. It was to correct ■this impediment to the impartiality of the jury trial, that ■the Act of 1841, I presume, was passed.

The right of challenge, as an incident to the trial by .jury, and as means of securing its impartiality, has been ■allowed from the earliest times, and so important has it been considered, that we find in many of the Acts of the Colonial Legislature on the subject of juries, an express reservation of the right. According to the laws of Great Britain, in Coke Litt, 3 vol. 468, it is said, the word challenge, is derived “from calior or chalior, which, in one signification, is to care for or foresee. And for that to challenge jurors is the means to care for or foresee that an indifferent trial be had.’* It is to except against those who are returned to be jurors, and forasmuch as men’s lives, fame, lands and goods are-to be tried by jurors, it is most necessary that they be omni exceptione majores. The *497right' of challenge in some form has always existed both in civil and criminal cases; but until the Act of 1841, it was confined in civil cases to challenge for cause shewn,' The Act does not introduce anything new and unknown before. It merely extends a well known right to a new class of cases, in the selection of those who are to compose the jury. The trial by jury, is the determining of the truth of the issue by a tribunal called a jury. The trial does not begin until the jury are sworn and charged with the case. All that precedes, is preliminary to the trial. It relates to the manner in which the jury is to be constituted ; it is no part of the trial. So far as I can ascertain, by the law as it existed prior to 1790, the petit jury was formed of the first twelve who were drawn from a list of those who attended; and the Common Pleas jury was in like manner formed from the list of those who had been drawn and summoned as jurors of the Court of Common Pleas; but now, in practice regulated by a rule of Court, two juries are formed, by putting the name of the juror first drawn on jury, No. 1, the second on jury No. 2, and this is done alternately until both juries are completed. Is not a trial, by a jury thus organized, as much a trial by jury as it would have been if the old mode of selection had been used 1 Would not a trial by a special jury, organized under the Act of 1791, whereby each party had a right to have six of his own selection on the jury, be a trial by jury, as much as if the jury had been selected in any other way V All the rules which have been adopted as preliminary to the trial, have been framed with reference to the perfection of the trial, by securing to it the libaros et le-gales homines — the men who were omni exceptions major es — spoken of in the old writers on the common law'; of this description is the law which selects the jury from the tax-payers, on account of their supposed greater intelligence ; and the law which requires the jurors to be drawn by ballot; and the law which authorizes the parties to the suit to except to a certain number with or without cause, in order to secure, as far as practicable, a trial by an indifferent and impartial jury. With these qualities of intellL *498gence and impartiality, the jury trial, in my judgment, is the wisest and best mode of deciding the disputed facts of a case, which the wisdom of man has ever yet devised ; hut without them, it is a mere mockery and delusion.— These incidents oí the jury trial, if I may so call them, have at all times been subject to such modifications and alterations as the ever-varying circumstances of society may require, or the wisdom derived from experience might suggest ; and these have, therefore, always been regarded as the proper subjects of legislation. It is true, that until 1841, the legislative power had never extended the peremptory challenge to civil cases, but it does not follow from that, that it might not be done. If the trial by jury, in all its details, was intended to be preserved inviolably in all time to come, how can the jury list be diminished by taking from it the names of all those who have been exempted by various Acts of the Legislature, passed almost annually, from the adoption of the constitution to the present time? By what authority is any man’s name put into the jury-box who does not pay a tax of twenty shillings ? Do not all these alterations make a very great change in the persons who compose the jury, and yet in the last fifty years, no one has supposed the Constitution has been violated by these alterations in the jury law. If the Legislature were to add to the list of disqualifications, by declaring those incapable of sitting on juries, who were convicted of trading with slaves, or receiving stolen goods, or fighting a duel, or any other crime which policy required to be punished with the utmost rigor, this would be an enlargement of the right of challenge propter delictum. This, 1 suppose, might well be done, and it seems to me, the power given by the Act of 1841, is of the same character. It is an enlargement of the right of challenge, by extending it to civil cases and misdemeanors.

There is certainly a very obvious difference between a jury after it is organized, and the persons who have been summoned to serve on the jury, until the jury are sworn and charged with the case ; they cannot try it until this is done. The persons who are summoned are the elements merely, *499out of which the jury is to be formed, by the observance of certain forms of law. We speak familiarly of a Court of Magistrates, and Freeholders, and of Courts Martial, but the individuals who have been summoned are not a Court until they are organized according to law. To have a cor rect idea of the trial by jury, we must keep in mind the proper distinction between the jury itself and the persons who have been summoned to serve. The Constitution no doubt intended to preserve invariably the trial by jury as an institution, as a tribunal for the trial of issués of fact, but that the framers of it intended to prohibit all changes in the mode of selecting the jury I do not see any reason to believe.

I do not propose to attempt to show what is the precise meaning of the article of the Constitution under c,on: sideration. It would be improper to travel out of the case to give my construction for the governing of other cases, but I will take occasion to say in illustration of my interpretation, that all our cases- which have been decided seem to point to this, that the great object of the Constitution was to preserve the several forms of trial then in use. By the 7th article all laws, of force at the passing of this Constitution shall continue until repealed. By the 2 section 9 article, “No freeman of this State shall be taken or imprisoned or disseized of his freehold, liberty or privileges, or outlawed or exiled, or in any manner destroyed or deprived of his life, liberty or property,, but by the judgment of his peers or the law of the land;” and by the 6th section 9th article, “the trial by jury, as heretofore used in this State, shall be forever inviolably preserved.” At the time of the adoption of the Constitution there existed-various tribunals, some of them having very'extensive jurisdiction, and deciding without a jury the most important civil fights. Of this character was the Court of Equity, the Court of Ordinary, Justices of the Peace, the Courts for the trial of slaves and free negroes, and the Commissioners of roads and cuts. The existence and jurisdiction of all tlmse tribunals seem to be recognized by the words law of' the land in the 2d section 9th article, which is copied from one of the articles *500of magna charla. See Coleman v. Maxcy and others, 1 McMul.; White v. Kendrick, 1 Brev. 476, in note.

It was to preserve, in perpetuity, this form of trial, in the ■cases wherein it had been used before' that time, that the •6th section 9th article, provided that the trial by jury, as heretofore used in this State, shall be forever inviolably preserved.

dissenting.

Mr. Justice Blackstone intimates that an inquiry into the orign of the trial by jury is comparatively unimportant, and that it is a fruitless waste of time to bestow encomiums on it; that its highest encomium will arise from a dissection and examination of the method of trial by jury in all its parts, and that upon maintaining this in its legal force •depends the property, liberty and life, of the citizens. 3d Bl. Com. 350.

The right of challenge and the mode in which it shall be exercised is considered and explained by him as a principal and most important element in the constitution of the jury — challenge is to the array or to the polls. The grounds of each, as well established, are then discussed, and the commentator concludes his observations in relation to the subject of challenge by admiring “ how scrupulously delicate and impartially just, the law approves itself in the constitution and frame of a tribunal thus excellently contrived for the test and investigation of truth ; which appears most remarkably, says he; 1st. In the avoiding fraud and secret management by electing the. twelve jurors out of the pan-nel by lot; 2d. In its caution against all partiality and-bias, by quashing the whole pannel or array if the returning officer is suspected of being other than indifferent, and repelling particular jurors if probable cause be shown of malice or favor to either party.”

Such was the law of England, and such the law and usage of South Carolina at the period of the adoption of the constitution of 1790.

The 9th article of the constitution is termed a declara*501tion of rights, and is a restriction on the legislative as well as judicial authority. By the 6th section, it is declared that “the trial by jury, as heretofore used in this State, and the liberty of therpress, shall be forever inviolably preserved.” The name of trial by jury was nothing, but the mode of ■constituting the.tribunal was of fundamental importance.

The Act of 1841 affirms the right of the Legislature to alter and regulate the mode of challenge, both in civil and criminal cases. The power is thereby exercised of purging the panel by a new method unknown to the law, and not sanctioned by any usage in existence at the adoption of the Constitution. It is urged that the declared object of the Act is to enlarge the right of challenge, and thereby extend the liberty of the citizen. Our ancestors thought that for the purpose of testing and investigating the truth, which is the great object in civil cases, the existing usage was admirably contrived, and they did not wish it to be altered. But if the Legislature may regulate the right of challenge, they may restrict as well as^nlarge it, and in criminal as well as in civil causes — in suits between man and man for the right of property, and in prosecutions between the State and the citizen, where life and liberty are also at stake. The Legislature have the authority to define and punish treason. Cap they by the same law provide the mode in which the jury shall be constituted who are to pass on the offence? that the right of peremptory challenge in such case shall not be allowed to the accused? — and more, that the Attorney General (contrary to all precedent,) shall have the right of peremptory ■challenge? or that no person shall sit on the jury, known to entertain opinions inconsistent with the safety of the State— that is, with the views of the dominant party ? It may be said that no such abuse of power on the part of the Legislature can be apprehended, and I readily concede it. But the object of the Constitution was, to protect the minority, and for that purpose, to keep the majority from temptation.

Treason against the United States is defined by the Federal Constitution, and Congress is authorized to declare the punishment of treason. But it is also provided that the trial *502of all crimes, except in cases of impeachment, shall be by jury. By the Act of 1789, Congress has prescribed the mode in which jurors shall be drawn, summoned and impanneled r-would it be in the power of Congress to regulate the right of challenge? Where would be the security of the citizen? What would be-the value of the trial by jury if the law creating the offence may also provide the mode in which the jury shall be constituted, and thus introduce a most odious mode of packing juries, a practice so justly denounced ?

In adverting to the history of the legislation on this subject, prior to the adoption of the Constitution, several Acts were brought to the notice of the Court, in which scrupulous provision was made for the preservation of the right of challenge, as it was exercised by existing laws and usages. For more than fifty years after the adoption of the Constitution no attempt was made by the Legislature to change in any manner the right of challenge to the Array or to the Poll, according to the usage of the country at the adoption of the Constitution. The change recently introduced may or may not be beneficial. About this, a difference of opinion exists-.1among those who are charged with administering the law. Expediency is not the test. But the precedent is dangerous. The power thus assumed may, in other times, render valueless the inhibition of the Constitution, and when bad men rule, convert into a solemn mockery the boasted injunction that “ the trial by jury, as heretofore used, and the liberty of the press, should forever hereafter be inviolably preserved.”