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Counsel :-Swear this gentleman. He is the juror we long have sought, and mourned because we found him not.
This is the model juror of the period, made so by the highest tribunals in the land; and any nisi prius judge who holds otherwise will find himself in error.
The recent case of the People v. Spies and others, which was taken to the United States Supreme Court and which is reported in volume 123 of that court, decides expressly that the ruling of the trial court which held that “it is not a test question whether the juror will have the opinion which he has formed from the newspapers changed by the evidence, but whether the verdict will be based only upon the account which may be here given by witnesses under oath” was correct and that such a ruling did not, and such an interpretation of the statute did not deprive the persons accused, of a right to trial by an impartial jury and was not repugnant to either the constitution of this State or the constitution of the United States, and further that carrying into effect a sentence of conviction in accordance with the verdict of the jury, did not deprive the persons of their lives without due process of law.
We have been making law pretty fast during the last few years and if we were to have one more anarchist trial and one more boodler trial, we should without the aid of any posi tive statute arrive at the same goal through the rulings of the courts that New York has reached by legislative enactment.
In its improved condition in England and especially in its improved and varied condition in this country, under the benign influence of an expanded commerce, of enlightened justice, of republican principle, and of sound philosophy, the common law bas become a code of matured ethics and enlarged civil wisdom, admirably adapted to promote and secure the freedom and happiness of social life. It has proved to be a system replete with vigorous and healthy principles, eminently conducive to the growth of civil liberty; and it is in no instance disgraced by such a slavish political maxim as that with which the Institutes of Justinian are introduced. It is the common jurisprudence of the United States, and was brought with
them as colonists from England and established here so far as it was adapted to our institutions and circumstances. It was claimed by the Congress of the united colonies in 1784, as a branch of those indubitable rights and liberties to which the respective colonies were entitled. It fills up every interstice and occupies every wide space which our statute law cannot occupy. Its principles may be compared to the influence of the liberal arts and sciences; and to use the words of De Ronceau “We live in the midst of the common law, we inhale it at every breath, inbibe it at every pore; we meet with it when we wake and when we lay down to sleep, when we travel and when we stay at home, and it is interwoven with the very idiom that we speak. We cannot learn another system of laws without learning at the same time another language.”
As the Supreme Court of the United States say in quito a recent decision, (17 Wallace, 664), “twelve men of the average community, of little education, men of learning and men whose learning consists only of what they have themselves seen and heard, the merchant, the mechanic, the farmer, the laborer, there sit together, consult, apply their separate experience of the affairs of life to the facts proven, and draw a unanimous conclusion.
“This average judgment, thus given, it is the great effort. of the law to obtain. It is assumed that twelve men know more of the common affairs of life than does one man; that they can draw wiser and safer conclusions from admitted facts thus occurring than a single judge.” And in this we agree with them.
“This mode of trial” says Livingston, “diffuses the most valuable information amongst every rank of our citizens. It is a school of which every jury that is impaneled is a separate class; where the dictates of the laws and the consequences of disobedience to them are practically taught. The frequent exercise of these important functions, moreover, gives a sense of dignity and self-respect, not only becoming the character of a free citizen, but which adds to his private happiness.
“Neither party spirit nor power can deprive him of his share in the administration of justice, though they can humble the
pride of every officer and vacate every other place. Everytime he is called to act in this capacity he must feel that though perhaps placed in the humblest station, he is yet the guardian of the life, the liberty and reputation of his fellow citizens against justice and oppression; and that his plain understanding has been found the best refuge for innocence, and his incorruptible integrity is relied upon as a sure pledge that guilt will not escape.
A State whose most obscure citizens are thus individually elevated to perform those august functions—who are alternately the defenders of the injured, the dread of the guilty, the vigilant guardians of the constitution—without whose consent no punishment can be inflicted, no disgrace incurred—who can by their voice arrest the blow of oppression and direct the hand of justice where to strike—such a State can never sink into slavery or easily submit to oppression. Corrupt rulers may pervert the constitution, and vicious demagogues may violate its precepts, foreign influence may control its operation; but while the people enjoy the trial by jury taken by lot from among themselves, they cannot cease to be free.
“The information it spreads, the sense of dignity and independence it inspires, the courage it creates, will always give them an energy of resistance that can grapple with encroachment and a renovating spirit that will make arbitrary power despair.”
Can we too religiously guard this sanctuary, into which liberty may retire in times when corruption may pervert and faction overturn every other institution framed for its protection?
SUFFRAGE IN. WASHINGTON TERRITORY.
The validity of the law defining the qualifications of voters of Washington Territory approved Jan. 18, 1888, was questioned by Judge Nash, of the Fourth Judicial District, in the case of Nevada M. Bloomer v. John Todd, et al. He decided against the law, but filed no written opinion. The case was appealed to the Supreme Court of the Territory, and the judgment was affirmed. This statute is essentially the same as that of 1886, which was annulled by the Supreme Court on account of defects in its title. It makes the essential qualifications for voters, citizenship or a declaration of citizenship, without repect to sex, as it recites that "all citizens of the United States, male and female, ahove the age of 21 years having a residence of six months previous to the day of election in the Territory," etc., “shall be entitled to vote.” The opponents of the law admit that the legislature had ' ll power to enfranchise all citizens and all persons who had declared their intentions to become citizens, provided that they were adult males. They insist that the word “male” must be interpolated in the law, because at the time the Organic Act was passed (1853] women were not considered entitled to the right of suffrage, and were not properly included in the term "citizens of the United States." They contend that the term "citizens of the United States," so far as suffrage was concerned, was intended to mean only male citizens.
The points involved are as follows:
1. The legislative power conferred upon the legislature of the Territory of Washington.
2. The meaning of the term "citizens of the United States." 3. The political rights of a citizen of the United States. 4. The effect of the Fourteenth Amendment.
5. The effect of the revision of the Statutes of the United States.
6. The true rule of interpretation.
THE LEGISLATIVE POWER CONFERRED UPON THE TERRITORY OF WASHINGTON.—The legislative power conferred by the Organic Act, extended “to all rightful subjects of legislation.”--(Sec. 6, Act of March 2, 1853.)
In Sec. 5, the qualifications for electors at the first election were prescribed, and it was also enacted: “but the qualifications of voters and of holding office shall be such as shall be prescribed by the legislative assembly: Provided, That the right of suffrage and of holding office shall be exercised only by citizens of the United States above the age of twenty-one years,” etc. There was no limitation as to sex.
This was the law up to Dec., 1873, when the Revised Statutes of the United States were adopted.
The first part of Sec. 5, which had ceased to be operative as to Washington Territory, was revised for territories thereafter to be organized. The latter part of the section is now Section 1860, R. S. U. S., which reads:
“The right of suffrage and of holding office shall be exercised only by citizens of the United States above the age of twentyone years, and by those above that age who have declared on oath, before a competent court of record, their intention to become such, and have taken an oath to support the constitution and government of the United States," etc.
This grant of legislative power over suffrage is subject only to the limitations imposed by Sec. 1860. What Congress has not forbidden, is a valid exercise of legislative power. This clause of the Organic Act is similar to that of Wisconsin, except that under that, only citizens of the United States could vote.
Under that provision of the Organic Act of Wisconsin, the territorial legislature defined the qualifications for voters for the constitutional convention. The Enabling Act passed by Congress, August 6, 1846, contained no restriction as to the