of the judiciary of the United States, we shall see that the States are divided, for convenience, into circuits and districts by act of Congress. The selection of the jury from the State or district in which the crime is committed is supposed to secure fairness and impartiality on the trial.

§ 5. By our Constitution, a man can not be compelled to testify against himself; and this is in affirmance of a well-settled principle of common law. It is well known that in some countries not only are criminals compelled to give evidence against themselves, but are subjected to the rack or torture in order to procure a confession of guilt; presuming that innocence would vindicate itself by a stout resistance, or that guilt would make open confession: as if a man's innocence were to be tried by the hardness of his constitution, and his guilt by the sensibility of his nerves! 1

1

§ 6. To secure impartiality of trial, and to give a fair opportunity of defense, the accused shall have compulsory process for obtaining witnesses in his favor. Several centuries since, in England, the practice in criminal trials was to deny the accused the liberty of having witnesses to testify in his favor. Afterwards, the rigor of this tyrannical rule was so modified as to allow witnesses to testify in favor of the accused, but not under oath; thus weakening their credibility. The practice now, however, is general to allow the accused to make as full and complete a defense as in his power. Under our Constitution, if the accused is destitute of the means of procuring the attendance of witnesses in his favor, he may have compulsory process for this purpose, even at the expense of the government.

If a

§ 7. He shall be confronted by the witnesses against him. The accused and all witnesses appear face to face in open court. witness is of a corrupt and mercenary disposition, this salutary provision may have a tendency to check his recklessness in giving testimony.

§ 8. The accused shall have the assistance of counsel for his defense. By counsel is meant a professional lawyer, attorney, or advocate. To an American citizen, accustomed to seeing nearly

1 Black. Comm., vol. iv. p. 326.

every cause in court, civil and criminal, in the hands and under the direction of attorneys, it seems almost needless that such a clause as this should be made a constitutional provision. But, in capital cases at common law, the prisoner was denied this right unless some matter of law should arise proper to be debated. He could not have the benefit of professional assistance in the examination of witnesses, or in making his defense before the jury.

§ 9. It was not until the year 1836 that prisoners were allowed to be defended by counsel in England, except in cases of treason, which is the gravest of crimes, and misdemeanors which are among the minor offenses. Under our Constitution, and most of the State Constitutions, if the accused is unable to employ counsel for want of means, counsel is assigned him by the court: so careful is the law in this country of the rights of an American citizen.

66

§ 10. Excessive bail is forbidden. The meaning of the word "bail" here is, to set free, liberate, deliver from arrest, or out of custody, to the keeping of other persons, on their undertaking to be responsible for the appearance, at a certain day and place, of the person bailed. He who becomes surety for the appearance of another at court is supposed to have the custody of that person. The writing given in such cases is called the bail-bond. The person who becomes surety promises in the bond to pay a certain sum of money therein named if the person bailed shall fail to appear as therein specified.

All other crimes, But intriguing, opcountries, required

§ 11. A person accused of a crime punishable by death is not usually bailable: the only cases of this kind where bail is taken are those in which the proof of guilt is slight. except those punishable capitally, are bailable. pressive magistrates have sometimes, in other enormous bail, or bail in excessive and enormous sums. Bail, being merely surety that the accused will appear before the court, and stand his trial and its consequences, should not be excessive; and our Constitution wisely and humanely forbids it.

§ 12. Excessive fines are likewise forbidden. A fine is a pecunfary penalty imposed by a court upon a person for a criminal offense, or breach of law. The fine is imposed after trial and conviction. A malignant and vindictive magistrate might impose cruel and ex

cessive fines, as the history of criminal jurisprudence in other countries proves, were it not for this constitutional prohibition.

§ 13. Nor shall cruel and unusual punishments be inflicted. This needs no comment, except the remark that history shows that despots in the dark ages taxed their fiendish ingenuity to invent punishments the most horrid, cruel, and revolting. And this prohibition is for the purpose of avoiding all possibility of a repetition of such cruelties in this country.

ART. V.-CIVIL ACTIONS.

In suits at common law where the value in controversy shall exceed twenty dollars,

1. The right of trial by jury shall be preserved.

2. No fact tried by a jury shall be otherwise re-examined in any court of the United States than according to the rules of the common law. 89.

§ 1. The common law includes those principles, usages, and rules of action, applicable to the government and security of person and property, which do not rest for their authority upon any express and positive declaration of the will of the legislature. It grew into use among our English ancestry by gradual adoption; receiving from time to time the sanction of the courts of justice, without any legislative act or interference. It was the application of the dictates of natural justice and of cultivated reason to particular cases.

A statute law is the will of the legislature in writing.1

§ 2. In paragraph 68 of the Constitution, provision is made for the trial of criminal cases by jury; but nothing is said there or elsewhere in that instrument, as it came from the hands of its authors, about trial by jury in civil cases. Those who assailed the Constitution when it was before the people for ratification claimed that this omission was intended to and did abolish trial by jury in civil cases. Hence this amendment was adopted at an early day, which put the matter at rest. This amendment, however, refers only to cases in the common-law courts, not to courts of admiralty

1 Kent's Comm., Lect. 21.

and maritime jurisdiction, nor to cases of equity, in which the courts determine both the law and the fact. If the matter in controversy be less than twenty dollars, a jury trial can not be claimed, being a matter of too little importance to warrant the expense of a jury trial.

§ 3. When a matter in controversy has once been fairly adjudicated, that adjudication is a bar to any further judicial examination or proceedings, except according to the forms and usages of the common law. There must be an end somewhere to human controversy, and that end must be determined by legal principles and usage. The rules of common law here spoken of, under which matters of fact may be re-examined, refer to a continuation of the investigation by a successful motion for a new trial, on cause shown, or by writ of error, or by an appeal to another and higher tribunal. The parties have the right to exhaust all legal remedies before the controversy is to be considered as judicially settled; but these remedies must be pursued according to common-law usage.

1st. In levying war against them; or,

2d. In adhering to their enemies, giving them aid and comfort.

2. CONVICTION.

unless,

No person shall be convicted of treason

1st. On the testimony of two witnesses to the same overt act; or,

2d. On confession in open court. 69.

§ 1. Under the common law of England, and under an old English statute as far back as the time of Edward III., there were seven distinct crimes that came under the head of treason. To imagine the king's death, to counterfeit the king's seal, or to counterfeit the king's coin, was treason. The English jurists were sometimes puzzled to determine precisely what was treason.

§ 2. The Constitution of the United States, therefore, wisely gives a concise definition of this crime as against the General Gov

ernment. Our Constitution recognizes no such offense as constructive treason, as was the case with the ancient common law of England. There are but two ways that treason can be committed against the United States, and these are defined with such precision as to leave no room for cavil or, doubt. Levying war against the United States, or adhering to their enemies, giving them aid and comfort, is treason.

§ 3. Very early in our history, the Supreme Court of the United States had occasion to define what is to be understood by the phrase, "levying war." On that occasion, the court said, "However flagitious may be the crime of conspiring to subvert by force the government of our country, such conspiracy is not treason. To conspire to levy war, and actually to levy war, are distinct offenses. first (levying war) must be brought into open action by the assemblage of men for a purpose treasonable in itself, or the fact of levying war can not have been committed.

The

§ 4. "It is not the intention of the court to say that no individual can be guilty of this crime who has not appeared in arms against his country. On the contrary, if war be actually levied, that is, if a body of men be actually assembled for the purpose of effecting by force a treasonable purpose, all those who perform any part, however minute, or however remote from the scene of action, and who are actually leagued in the general conspiracy, are to be considered as traitors; but there must be an actual assembling of men for the treasonable purpose to constitute a levying of war."

§ 5. The Constitution is humane to the accused, in requiring the strictest proof for the establishment of his guilt. There must be two witnesses, at least, to the same overt act, unless the prisoner make confession in open court. Confessions out of court, though testified to by any number of witnesses, are not sufficient. Confessions (out of court) are said to be the weakest and most suspicious of all testimony; ever liable to be obtained by artifice, false hopes, promises of favor, or menaces; seldom remembered accurately or reported with due precision, and incapable in their nature of being disproved by other negative evidence.1 There must, as there should,

1 Black. Comm., 4 v., 357.