Opinion
MAY TERM, 1801.
IN this case (which was an action for a libel) the defendant filed a plea to the jurisdiction of the Court, on the ground, that he, as well as the plaintiff, was a citizen of Pennsylvania. Issue being joined on that fact, it was found, by the Jury, that the defendant was not a citizen; and thereupon, in consequence of a previous agreement, a venire issued to ascertain the quantum of damages, which the verdict settled at 600 dollars. After the verdict was given, it appeared that one of the jurors was an alien; and Dallas obtained a rule to show cause, why the verdict should not be set aside for that reason.
On the argument, in support of the rule, it was contended, 1st. That the trial by jury, entire, was anxiously adopted by the United States, as well as by this state; including the right, and causes, of challenge as at common law, in civil and in criminal cases. 1 vol. State Laws, App. 55. s. 9. 11. ( Dall. edit.) Ibid. 58. s. 25. 3 vol. 36. s. 9. 6. 4 vol. Acts Cong. p. 25. art. 8, 9. 1 vol. State Laws, p. 134. s. 4. Dall. edit. 2 vol. 802. s. 2. 3 vol. 606. s. 16. 2 vol. 264. s. 9. 12. 3. 1 vol. Acts Cong. 113. s. 30. Ibid. 68. s. 29.2d. That on principle, as well as on authority; alienage was a cause of challenge to a juror before verdict. 3 State Laws, Const. art. 8. 1 vol. Acts Cong. Const. art. 6. Ibid. 67. s. 29. 1 Roll. Abr. 657. Co. Litt. 156. b. 3 Bl. Com. 362. Gilb. P.C. 94. 1 Dall. Rep. 74. 3d. That if the cause of challenge was unknown when the jury was qualified, it may be used to set aside the verdict, as for a mistrial. 3 Dall. Rep. 515. 11 Mod. 119. 2 Wood. 352. An. Reg. 1790. p. 46. 2 Ld. Raym. 1410. 1 Stra. 640. 1 vol. Acts Cong. 6. s. 17. 2 Stra. 1000. 593.
E. Tilghman and Ingersoll, in opposition to the rule, contended, 1st. That, in Pennsylvania, alienage was not a cause of challenge to a juror. But, 2d. That the objection was too late after the juror was sworn, and the verdict was given.
After a long advisement upon the subject, seemed to think, that alienage might have been a cause of challenge, before the juror was sworn; but, upon an extensive review of the authorities, they decided, that advantage could not be taken of it, after verdict.
Since the discussion of this case, the marshal has been directed not to return aliens upon the panel; and, in many instances, when aliens have been returned, the state, as well as the federal, Courts have discharged them, upon their own application.