Charles Evans Hughes

“ It does not rise to the dignity of an argument to be addressed to the power of Congress to provide a reasonable scheme with respect to the qualifications of jurors. It belongs in the category of 'theoretic or imaginary' interests-' remote' and 'insignificant' as described in the Massachusetts case above cited.
Nor are we impressed with the contention that the qualification of governmental employees for jury service in criminal cases in the District of Columbia will impair the public respect in which the processes of the law should be held. ”

“ All the resources of appropriate judicial inquiry remain available in this instance as in others to ascertain whether a prospective juror, although not exempted from service, has any bias in fact which would prevent his serving as an impartial juror. In dealing with an employee of the government, the court would properly by solicitous to discover whether in view of the nature or circumstances of his employment, or of the relation of the particular governmental activity to the matters involved in the prosecution, or otherwise, he had actual bias, and, if he had, to disqualify him. ”

“ And what appears to be so obviously true in this case of larceny would be true also in criminal prosecutions in general, running the gamut of offences from murder, burglary, and robbery to cheats and disturbances of the peace. We think that the imputation of bias simply by virtue of governmental employment, without regard to any actual partiality growing out of the nature and circumstances of particular cases, rests on an assumption without any rational foundation. ”

“ Although aliens are within the protection of the Sixth Amendment, the ancient rule under which an alien might have a trial by jury de medietate linguae, 'one half denizens and the other aliens'-in order to insure impartiality-no longer obtains. ”

“ Counsel for the government say that the practice in the colonies prior to the adoption, of the Federal Constitution 'apparently cannot be ascertained.' They say that they have searched 'the available reports and authorities without finding anything of relevance.' The researches of respondent's counsel have not supplied the lack. They urge that, to make the exception applicable, the government must affirmatively show that the colonists recognized the exception in favor of the King's servants at the time the Sixth Amendment was formulated. ”

“ The government has presented the result of elaborate research to show that throughout the long period from the development of the jury system to modern times, the English common law permitted a servant of the King to serve as a juror in crown cases, provided he had no actual bias. ”

“ The question here is as to implied bias, a bias attributable in law to the prospective juror regardless of actual partiality. The contention of the defendant is that there must be read into the constitutional requirement an absolute disqualification in criminal cases of a person employed by the government, a disqualification which Congress is powerless to remove or modify. ”

“ We think that his omission to mention the case of crown servants cannot be regarded as a sufficient basis for holding, in the absence of other evidence, that the common-law rule was different in the colonies from that in England, much less that the Congress which proposed the Sixth Amendment, or the state Legislatures which ratified it, undertook to establish an absolute disqualification of all governmental employees beyond the control of the congressional power. ”

“ Impartiality is not a technical conception. It is a state of mind. For the ascertainment of this mental attitude of appropriate indifference, the Constitution lays down no particular tests and procedure is not chained to any ancient and artificial formula. State courts enforcing similar requirements of state constitutions as to trial by jury have held that legislatures enjoy a reasonable freedom in establishing qualifications for jury service, although these involve a departure from common law rules. This principle was thus stated by the Court of Appeals of New York in Stokes v. ”

“ To correct this, Congress extended the list of eligibles to include employees of the United States and of the District of Columbia, officers and enlisted men of the National Guard and of the Military, Naval, Marine, and Coast Guard Reserve Corps, notaries public, postmasters, and recipients of pensions and gratuities from the United States or the District, as well as those having contracts with the United States or the District ”

“ We give in the margin the analysis presented by respondent's counsel. [4] Their re sume is as follows: 'From the above it seems that nineteen authorities hold that there is no principal cause of challenge against a Crown Servant; that twelve authorities hold that there is not even any challenge for favor. Fitzherbert, Coke, and Rex v. Hampden, 9 St.Tr. 1054, 1057, 1061, allow challenges for favor in respect of menial servants. Actual malice as distinguished from favor was allowed as a challenge by: Staunforde, Lord Hale, Duncombe, Hawkins, Matthew Bacon, Year Book 19 Ass. ”

“ People v. McLean, 2 Johns. (N.Y.) 381; Thompson & Merriam on Juries, §§ 16, 17, and cases and statutes there cited.↑ Chitty, op. cit. I, 541; Coke, op. cit. 157a; 3 Bl.Com. 363.↑ See, for example, the provisions of state codes or general laws in Alabama, Code 1923, § 8610; Arkansas, Crawford & Moses' Dig. § 6334; Florida, Comp.Gen.Laws 1927, § 4359; Indiana, Burns' Ann.St.1933, § 9-1504, subd. 4; Louisiana, Code Prac. art. ”