_The Court_: I doubt whether that is a question that would be proper.
_Mr. Larocque_: This is a very peculiar case, as your honor is well aware. It is a case of first impression in the courts of the United States. It is a case in which, probably, there will be very little difference between the prosecution and the defendants as to the mere facts which are charged in this indictment, and it is a case in which jurors who present themselves to be sworn, if they have any bias or prejudice whatever, have it rather in reference to the character of the acts than as to the acts themselves having been committed or not having been committed. Now, we all know, if your honor please, that in all criminal trials a great deal of discussion has always taken place with reference to the jurisdiction of the jury over questions of law. The Courts have held that they are bound to receive their instructions on the law from the Court; but, at the same time, if they do not act in pursuance of the instructions which they receive, it is a matter between them and their own consciences, and it is a matter which no form of review in these Courts will reach. Now, one of my a.s.sociates has handed to me an authority upon this subject from 1st Baldwin"s Reports--that on the trial of Handy, in 1832, for treason, Judge Grier held that a juror who had formed an opinion that the riots in question did not amount to treason, was incompetent; and, in the case of the United States _v._ Wilson, it was held that a juror was incompetent who stated, on being challenged, that he had read the newspaper account of the facts at the time, and had come to his own conclusion, and had made up his mind that the offence was treason, although he had not expressed that opinion, nor formed or expressed an opinion that the defendant was or was not engaged in the offence. It seems to me that these authorities cover precisely the case before the Court, the only difference being that this is a charge of piracy, and the other a charge of treason.
_Judge Nelson_: The only difference is that there the question was put to the juror as to the crime, after it appeared he had read the account of the transaction, which involved both the law and the facts--involved the whole case; but as we understand your question, you put a pure question of law, which we do not think belongs to the juror.
_Mr. Larocque_: I understand your honor to rule the question is not admissible.
_Judge Nelson_: Yes.
Defendants" Counsel took exception.
_Mr. Larocque_: Permit me to put the question in two forms.
_Q._ Have you formed or expressed the opinion that the acts charged, if proved, const.i.tute the offence of piracy?
_The Court_: That question is admissible.
_A._ I have not expressed the opinion, and I can hardly say I have formed an opinion, because I am not sufficiently informed on the law to do so.
Challenge withdrawn. _Juror sworn._
_The Court_: Then the other form of the question is withdrawn?
_Mr. Larocque_: Yes, sir; we are satisfied with the form of the question the Court allows us to put.
_James Ca.s.sidy_ called. Challenged for princ.i.p.al cause, by Mr.
Larocque, for the defendants.
_Q._ Did you read the account of the capture of the Savannah privateer?
_A._ I believe I did.
_Q._ Have you formed or expressed any opinion upon the guilt or innocence of these prisoners?
_A._ I believe not, sir. I may have made some mention of it at the time of reading the transaction, but not to express any opinion.
_Q._ Have you formed or expressed an opinion whether the facts, if proved, const.i.tute the offence of piracy?
_A._ No, sir.
_By Mr. Smith_:
_Q._ Have you any conscientious scruples on the subject of capital punishment that would interfere with your rendering a verdict of guilty, if the evidence proved the prisoners to be guilty?
_A._ No, sir.
Challenge withdrawn. _Juror sworn._
_Joel W. Poor_ called. Challenged for princ.i.p.al cause by Mr. Smith:
_Q._ Have you any opinion on the subject of capital punishment which would prevent your rendering a verdict of guilty, if the evidence was such as to satisfy you?
_A._ No, sir.
_By Mr. Larocque_, for the prisoners:
_Q._ Have you read the account of the capture of the Savannah privateers?
_A._ I have.
_Q._ Have you formed or expressed any opinion as to the guilt or innocence of the prisoners?
_A._ I think not, sir.
_Q._ Have you formed or expressed any opinion whether the facts charged, if proved, const.i.tute the offence of piracy?
_A._ I have not.
_Q._ Have you never conversed on this subject?
_A._ I do not think I have.
_Q._ Have you no recollection of having conversed upon it at all?
_A._ I may have talked about it something at the time, but I do not recollect.
_Q._ Are you a stockholder, or connected with any marine insurance company?
_A._ No, sir.
_Q._ Have you been engaged in Northern trade?
_A._ No, sir.
_Challenged peremptorily_, by prisoners.
_Thomas Dugan_ called. Challenged for princ.i.p.al cause, by Mr. Smith:
_Q._ Have you any conscientious scruples that would interfere with your rendering a verdict of guilty, if you deemed the prisoners guilty upon the evidence?
_A._ I have strong conscientious scruples.
_Mr. Smith_ asked that the juror stand aside.
Defendants" Counsel objected to the question, as not proper in form.
Objection sustained.