Rouse rs. The State of Georgia.

tried upon a new one rectifying the mistake. 1 East, P. C. 181. 2 Ib. 651. 1 Hale, 572. 2 Hawkins, B. 2, C. 25, § 71. 2 Leach, 578. 3 Campb. 265, note. A fortiori will the indictment not stand when a wrong person is named in it as the one to whom the money was passed and the right person is fully disclosed by the proof. Upon another indictment for passing counterfeit money to Johnson, could Autrefois acquit or Autrefois conrict be pleaded in bar? Clearly not.

[4.] Are Grand Jurors-not those who find the bill of indictment, but those whose names are in the Grand Jury box-competent to try criminal causes? In the opinion delivered by this Court in Warren J. Boon's case, (1 Kelly, 631,) it was pretty strongly intimated that there was no statute of the State which would authorize it. The correctness of this conclusion has been questioned, and the 38th section of the Judiciary Act of 1799, (Prince, 428,) is cited to show that all persons are capable to try criminal causes who are qualified to vote at elections for members of the Legislature.

It is conceded that the language of this section is broad enough to include Grand as well as Petit Jurors. It enacts-"That the Clerks of the Superior Courts of the respective counties, shall pre.cure from the Tax-Collector of such county, and furnish to the Court, (within two months,) a list of all persons liable and qualified to serve as Grand and Petit Jurors, agreeably to the qualifications hereinafter prescribed; and all free male white citizens, above the age of twenty-one years and under sixty years, are declared to be qualified and liable to serve as Petit Jurors for the trial of all civil causes-for the recovery of debts or damages, to any amount whatsoever-but no person shall be capable to be of a jury for the trial of treason, felony, breaches of the peace, or any other cause of a criminal nature, or of any estate of freehold, or of the right to title or any lands or tenements, in any court of record within this State, who shall not be qualified to vote at elections for members of the Legislature; and if any person not qualified as aforesaid, shall be returned on any jury, he shall be discharged on the challenge and proof thereof of either of the parties to such suit, or on his own oath of the truth thereof; provided that no exception against any juror on account of his qualification shall be allowed after he is sworn." I quote the entire section. Marbury and Crawford, 303.

Rouse vs. The State of Georgia.

Are Grand Jurors embraced in this section? It would seem not from several considerations. It purports to treat of Petit Jurors and to define their qualifications. If it includes Grand! Jurors, then no one of this body is capable to try criminal causes, or titles to lands, who shall not be qualified also to vote for members of the Legislature. Has it been the practice to apply this test to members of that body? The ensuing sections treat of Grand Jurors-their qualifications-mode of summoning, &c. It would appear, therefore, that they were not contemplated in the' previous section.

But this construction does not depend upon inference. By referring to sections 39 and 40 in Marbury and Crawford's Digest, p. 303, and which are omitted'in Prince on account of their being superseded by the Act of 1805, the true intent and meaning of the Legislature in section 38 is placed beyond controversy. Section 39 provides "That the Clerks of the several Courts are required, in the presence and under the direction of the Judge or Judges of such Court, to regulate and correct the several jury lists annu-ally, by particularly specifying, in distinct columns, the persons most able, discreet and qualified, as herein before mentioned, to serve as Grand Jurors, which list so corrected shall be committed' to the safe keeping of the Clerks of such Courts respectively; and the Clerks of such Courts shall, immediately after receiving such lists, fairly enter the same in a book for that purpose,. to be provided by such Clerk, (at his own expense,) distinguishing' in separate columns the persons selected to serve as Grand Jurors, and those for the trial of civil and criminal causes as aforesaid, (that is, Petit Jurors as designated in the 38th section,) and the names of the persons so selected shall be written on separate' pieces of paper and put into the different apartments of a jury box, to be provided by the Clerk at the public expense, in the construction and manner hereinafter prescribed, to wit: There' shall be an apartment in the said jury box marked No. 1, in which shall be placed the names of all the persons selected to serve as Grand Jurors; and another apartment marked No. 2, in which shall be placed the names of all the persons selected for the trial of civil and criminal causes as aforesaid," (namely, Petit Jurors, referring again to section 38.)

Section 40: "And be it further enacted—that the Judge and Justices and Clerk of the Court, or person having custody of

Rouse rs. The State of Georgia.

the key, shall, previous to the adjournment of any Superior Court, or at least two months prior to the sitting of the next Court, cause to be drawn out of the apartment of said box marked No. 1, not less than twenty-three nor more than thirty-six names as Grand Jurors, and out of the apartment marked No. 2, not less than forty-eight, or more than seventy-two names as petit jurors, for the trial of civil and criminal causes as aforesaid," &c.

These sections refer constantly to Section 38, and identify the petit jury as the jury intended by that section, for the trial of criminal causes, and that its true interpretation is, that while all Petit Jurors are competent for the trial of all civil causes, for recovery of debts or damages, to any amount whatever, no Petit Juror shall be capable to try criminal causes, or those involving the title to lands, unless qualified to vote for members of the Legislature.

The Act of 1805, (Prince, 433,) passed for the better selection and drawing Grand Juries, &c., and which is supposed by the compiler to have superseded the 39th and 40th Sections of the Act of 1799, still retains the distinction which I have attempted to point out. I will cite a single clause only: "And the clerks of said courts shall, immediately after receiving such lists, fairly enter the same in a book for that purpose, to be provided at his own expense, distinguishing in separate columns, the persons liable to serve as Grand Jurors, and those for the trial of civil and criminal cases, as pointed out by law," that is, by the 38th Sec tion of the Judiciary Act of 1799. Can it be doubted that this par agraph refers to Petit Jurors?

Section 41, provides for the organization of the Grand Jury.

Section 42, declares that "the Clerk of the Court shall annex a pannel of the jury, containing the names of the persons drawn to serve on the grand inquest, exactly transcribed from the minute book to the precept for summoning such Grand Jury; and shall also annex another pannel containing the names of the persons drawn as Petit Jurors, for the trial of civil and criminal cases," &c.

Section 43, contains the form of the summons, which is as follows: "By virtue of the precept to me directed, you are hereby commanded to appear before the Judge of the Superior Court at the next Superior Court, to be held at the Court-House, in and for the county of on the day of

at ten o'clock in the forenoon of that day, to be sworn on the Grand Jury (or as a Juror for the trial of civil and

Rouse vs. The State of Georgia.

criminal causes, then and there depending, as the case may be.")

This section shows, as did those preceding it, that the Petit Jury is usually designated by no other name than as a "jury for the trial of civil and criminal cases."

Section 44, provides for the punishment, by fine, of defaulting Jurors-twenty dollars being the maximum for a Petit, and forty for Grand Juror-and then says: "And when from challenge or otherwise, there shall not be a sufficient number of Jurors to determine any civil or criminal cause, the Court may order the Sheriff or his deputy to summon bystanders or others, qualified as hereinbefore required, for the trial of such cause or causes, sufficient to complete the panel," &c., viz: obviously Grand Jurors to make up the requisite number by law to compose that body, and Petit Jurors to complete the Petit Jury list-the latter being above the age of twenty-one and under sixty-to try civil causes for the recovery of debts and damages, and qualified to vote for members of the Legislature, in order to be capable as tales Petit Jurors to try criminal causes and land titles.

This we believe to be a fair analysis of the statutes of the State, as to the persons intended to try criminal causes. And in corroboration of the soundness of this exposition, we might refer to the oaths administered to Jurors. We have the form of the oaths prescribed for Grand and Special Juries, and for Petit Juries, in civil and criminal cases. Prince, 430, 661. But nowhere do you find an oath to be administered to a Grand Juror in a criminal case. If Grand Jurors are competent, then, to try criminal causes, it is apparent that it must be by authority derived from some other source than our own State legislation. In other words, it must be upon the principles of Magna Charta and the Common Law, as guaranteed by the Constitution.

By the 5th section and 4th article of that instrument, it is declared that "Freedom of the press and trial by jury, as heretofore used in this State, shall remain inviolate."

What was the trial by jury, as used in this State in 1798, the time when the Constitution was adopted? For the answer to this enquiry we must refer to Judge Blackstone, whose commentaries constituted the law of this State, before and since the Revolution, and whose very language the authors of the Constitution have adopted in the clause which I have quoted. I will transcribe the 19

VOL. IV.

Rouse vs. The State of Georgia.

whole section, although the law of this, as well as any other question as to the qualifications of Jurors in criminal causes, is comprised in a single sentence..

"The trial by jury or the country, per patriam, is also that trial by the peers of evey Englishman, which as the grand bulwark of his liberties, is secured to him by the great charter, (9 Hen. III. C, 29,) nullus liber homo capiatur vel inprisonetur, aut exulet, aut aliquo alio modo destruatur, nisi per legale judicium parium suorum vel per legum terræ."

"The antiquity and excellence of this trial for settling of civil property, has before been explained at large. See Book III, p.579.. And it will hold much stronger in criminal cases, since in times of difficulty and danger, more is to be apprehended from the violence and partiality of Judges appointed by the crown, in suits between the king and the subject, than in disputes between one individual and another-to settle the metes and boundaries of private property. Our law has therefore wisely placed this strong and twofold barrier-a presentment and a trial by jury-between the liberties of the people and the prerogative of the crown. It was necessary for preserving the admirable balance of our Constitution—to vest the executive power of the laws in the Prince-and yet this power might be dangerous and destructive to that very Constitution, if exerted without check or control by justices of Oyer and Terminer occasionally named by the crown, who might then, as in France or Turkey,. imprison,, despatch or exile any man that was obnoxious to the government, by an instant declaration that such is their will and pleasure. But the founders of the English Law have, with excellent forecast, contrived that no man should be called to answer to the king for any capital' crime, unless upon the preparatory accusation of twelve or more of his fellow subjects, the Grand Jury; and that the truth of any accusation, whether preferred in the shape of indictment, information or appeal, should afterwards be confirmed by the unanimous suffrage of twelve of his equals and neighbors, indifferently chosen and superior to all suspicion. So that the liberties of England cannot but subsist, so long as this palladium remains sacred and inviolate; not only from all open attacks (which none will be so hardy as to make) but also from all secret machinations which may sap or undermine it; by introducing new and arbitrary methods of trial by Justices of the Peace, Commissioners of the Revenue and Courts of Conscience.