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wood and lumber used on the road. Id. There must be a con. 489.
demnation, or an agreement consummated. Id.; Whitman v.
Buston, &c., 3 Allen (Mass.), 133. The condemnation nay be within
the liberal construction of the charter. Fall River, &c., Co. v. Old
Colony, &c., R. R. Co. 5 Allen (Mass.), 221. And see Wadhams r.
Lachawana, &c., R. R. Co., 42 Penn. State R. 303; Vicksburg, &c.,
R. R. Co., 15 La. Ann. 507.

The actual occupant of vacant public lands is entitled to damages, To wnut
even where the land is taken under an act of Congress. California, title does it
&c., R. R. Co. v. Gould, 21 Cal. 254. A statute fixing the minimum extend?
of fees for defending criminals is not taking private property for
public use. Samuels v. Dubuque, 13 Iowa (5 With.), 536.

The law of New York, which forbade the sale of spirituous State the liquors, “ deprired” the owners of their property; and violated this principle guaranty, Wynehamer v. The People, 13 N. Y. R. 395, 396, 397. liquor laws ? When a law annihilates the value of property, and strips it of its attributes, by which, alone, it is distinguished as property, the owner is deprived of it according to tlie plainest interpretation, and certainly within the spirit of the constitutional provision intended expressly to shield private rights from the exercise of power. Wynehamer v. People, 13 N. Y. R. 398. These views do not in. terfere with the license laws, which have been held to be constitutional: nor with the laws which merely affect the value of property, or render its destruction necessary as a means of safety. (Story's Const. § 1790; Radcliff's Executors v. The Mayor of Brooklyn, 4 Comst. 195; 2 Kent, 330; Russel v. The Mayor, &c., of New York, 2 Denio, 461.) Wynehamer v. The People, 13 N. Y. R. 402; Mitchell v. Harmony, 13 How. 115; The License Cases, 5 Howard, 50+; Lorocco v. Geary, 3 Cal. 69; Am, Print Works v. Lawrence, 1 Zabr. 218.

A law prohibiting the indiscriminate traffic in intoxicating What con. liquors, and placing the trade under public regulation to prevent trol has the abuse in their sale and rise, violates no constitutional restraints. It deprives no one of his liberty or property. Metropolitan Board liquor of Excise v. Barrie, 34 N. Y. R. 667.

No one legislature can curtail the power of its successors to Can a make such laws as they may deem proper in matters of police. legislature (Alger v. Weston, 14 Johns. 231 ; People v. Morris, 13 Wend. 329 ; State v. Holmes, 38 New Hamp. 225 : Calder v. Kirby, 5 Gray, 597; Hun v. The State, 1 Ohio, 15; Wynehanier v. The People, 3 Kern. (13 N. Y. R.) 378; License Cases, 5 How. 504; Butler v. Penosylvania, 10 How. 416; Coates v. The Mayor, 7 Cow. 587; 2 Parsons on Cont. 538; 3 Id. 5th ed. 556.) Metropolitan Board v. Barrie, 34 N. Y. R. 668. Some of the dicta in Wynchamer v. The People have misled. Id.

ARTICLE VI. In all criminal prosecutions, the accused shall enjoy What are the right to a speedy and public trial, by an impartial defendants jury of the State and district wherein the crime shall have been committed, which district shall have been 16, 85, 46.

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Over the

trade?

successors ?

the rights of

in criminal cases ?

263.

490, 491.

previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witesses in his favor; and to

have the assistance of counsel for his defense. 259, 263.

260. “THE ACCUSED," here means the “person" presented 12, 212, 243. or indicted. The "him" does not limit the accused to sex. Be.

cause the amendments did not apply to the States, the slaves and free persons of color were often deprived of a trial by jury.

This is only to be intended of those crimes which, by our former laws and customs, had been tried by jury. United States v. Duane, (Penn.) Wall. 106. The conspirators who assassinated the President of the United States, while the country was in a state of war, and while the city of Washington was under martial law, were triable by military commission under the act of Congress, and not entitled to a trial by jury. The Trial of the Conspirators. Any person charged with a crime in the courts of the United States, has a right, before as well as after indictinent, to the process of the court to compel the attendance of his witnesses. 1 Burr's Trial,

179-80. 212, 251-259.

This section compared with Art. III., Sec. II., clause 3, and the third, fourth, and fifth amendments. Ex parte Milligan, + Wallace,

119, 120, 139. The history of these guaranties. Id. What is the The Constitution of the United States is a law for rulers and Constitution people, equally in war and in peace, and covers with the shield of of the United States ?

its protection all classes of men, at all times and under ali circum

stances. Ex parte Milligan, 4 Wallace, 120, 121. But see the war What is the power discussed. Id. 138, 139. A military commission could everpower of a

cise uo judicial power over a citizen of Indiana during the rebellion. military Id. The laws and usages of war could not be applied to citizens commis.

in States which have upheld the authority of the government, and To whom is

where the courts are open and their process unobstructed. jury trial parte Milligan, Id. 121. This right of trial by jury is preserved to

every one accused of crime, who is not attached to the army or 251. 253, 254.

navy, or militia in actual service. Id. See dissentient opinion, p. 139. The fifth amendment recognizes the necessity of an indiet. ment or presentment, before any one cau be held to answer for high crimes, with the exception therein stated; by which it was meant to limit the right of trial by jury, in this sixth amendmeni,

to those persons wlio were subject to indictment or preseutment What are

in the fifth. Ei purte Milligan, 4 Wallace, 123. Those connected the excep

with military or naval service are amenable to the jurisdiction which Congress has created for their government, and, while thus sery. ing, they surrender their right to be tried by the civil courts. ld.

All other persons, citizens of States where the courts are open, if the citizens charged with crime, are guarantied trial by jury. Id. Civil liberty

and martial law (at the will of the commander) cannot endure together; the antagonism is irreconcilable. Id. Neither Congress

nor the President can disturb one of these guarauties of liberty, 140, 141. except the one concerning the writ of habeas corpus. Id.

But

2, S, 117.

son

Becured?

tions!

254.

llow are

to be tried ? What of martial luis!

233.

the suspension of the writ and of investigation does not give the What is power of trial otherwise than by the course of the common law, the effect of İd. 125, 126. Martial law cannot arise from threatened invasion. the habeas The necessity must be actual and present; the invasion real, such corpus ? as effectually closes the courts and deposes the civil administration.

257. Id. 127. Then it may exist, until the restoration of civil authority, fies martial but no longer. Id. Why martial law cannot be tolerated. (Mc- law? Connell y. Hampden, 12 Johns. 257; Smith v. Shaw. Id. 234.) Ex parte Milligan, 4 Wallace, 129. The case of Luther v. Borden, 7 Howard, 1, explained. Id. It was not a case arising under the federal Constitution. Id. 129, 130. As the applicant was a citizen Can a of the United States residing in Indiana, he could not be treated citizen be as a prisoner of war. Id. 131, 134. Chief-Justice Chase and treated as a

prisoner of Justices Wayne, Swayne, and Miller concurred in the judgment of, war? but disagreed as to the powers of Congress over the subjects of MILITARY LAW, which they divided into the articles of war for the What is the government of the national forces, military government supersed- inilitary ing, as far as may be deemed expedient, the local law, and exer-low cised by the military commander under the direction of the Presi- divided ? dent; and MARTIAL LAW PROPER, which is called into action by Congress, or temporarily, when the action of Congress cannot be invoked, and in the case of justifying or excusing peril, by the 118, 119. President, in times of insurrection or invasion, or of civil or foreign war, within districts or localities where ordinary law no longer adequately secures public safety and private rights.

This was intended as a constitutional safeguard in the trial of What was those cases for which it was stipulated that the courts shall remain the inten; open, and wherein a party shall have his remedy by due course of

guaranty? law. (Beekman v. Saratoga & Schenectady Railroad Company, 3 Paige, 45; Bonaparte v. C. & A. Railway, Bald. C.C. R. 205; Bloodgood v. M. & H. Railway, 14 Wend. 51; S. C. 18 Wend. 9; Stevens v. Middlesex Canal, 12 Mass. 466 ; Wheelock v. Young, 4 Wend. 650; Stowel v. Flagg. 11 Mass. 364; Mason v. Kennebec & Portland Railroad Company, 31 Maine, 215; Aldrich v. The Cheshire Railroad Company, 1 Foster, N. H. 350.) B. B., Brazos & C. R. R. Co. v. Ferris. 26 Tex. 599; Paschal's Annotated Dig. note 166.

These decisions are generally made upon similar provisions in the 276, 277. State Constitutions. This provision of the Constitution of the United States applies only to the general government, and not to the States. Withers v. Buckley, 20 How. 84. ** THE ACCUSATION" means a copy of the presentment or indict- 258.

All of these rights have been regulated by acts of Congress. St. 88; 1 Brightly's Dig. 221–224, and exhaustive notes thereon.

tion of this

257.

ment.

261. "COMPULSORY PROCESS," means forcible process, such as What is the attachment. The principle grew out of the oppressive one which meaning of denied witnesses to the accused. See 4 Black. Com. 359, 360;

* compul.

sory pro Pawle's Const. ch. 10, pp. 128, 129; 3 Wilson's Law Lect. 170, 171; cess Hawk. P. C. ch. 46, § 160; 2 Hale P. C. 283. Upon atfidavit of inability, the accused can have his witnesses at the expense of the United States. 9 St. 72, S 11; 1 Brightly's Dig. 223, § 116.

Counsel.

Trinls in civil cases ?

492, 193.

What are suits at cominon law!

262. “ ASSISTANCE OF COUNSEL."—When this was adopted the accused were not allowed the assistance of counsel in England. That defect has been cured by an act in 1836. 4 Black. Com. 355, 356, note 9; Story's Const. $ 1793–1795.

For the power of the court to assign counsel in cases of treason, see act of 30th April, 1790, 1 St. 117, § 29; 1 Brightly's Dig. 221, $ 104,

ARTICLE VII. In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved ; and 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.

263. This includes not merely the modes of proceeding known to the common law, but all suits not of equity or admiralty juris. dictiou, in which legal rights are settled and deiermined. Parsons v. Bedford, 3 Pet. 433; United States v. La Vengeance, 3 Dall. 297; Webster v. Reid, 11 How.437; Bains v. The Schooner James & Catherine, Bald. 544; Smith's Const. 552, 554; ? Graham & Waterman, 30. It does not apply to an examination as to the claim for services under the fugitive slave law. Miller v. McQuerry, 5 McLean, 469: In the matter of Martin, 2 Paine, 348. Nor to a motion for summary relief. Banning v. Taylor, 12 Harr. 289.

The phrase "co NON LAW," as used in this section, is used in contradistinction to equity, and admiralty, and maritiine jurispru. dence. Parsons v. Bedford, 3 Pet. 446; Story's Const. g 1709; Sinith's Coust. 552. It is reconcilable with the 3d article, and the several acts oi Congress about jury trials. Id. 446. Neither this article, nor the act of 1824, gives to the Supreme Court the right to revise the verdict of the jury upon the fuets. I. 446, 447. The common law, or lex non scripta, means those immemorial customs of England, wheroof the memory of man runneth not to the contrary. Bi. Com. 62.

The right to trial by jury is for the benefit of the parties litigating, and may be waived by them. Uniter States v. Rathbone, 2 Paine, 578. But the circuit courts have no power to order a peremptory nonsuit against the will of the plaintitt. Elmore v. Grymes, 1 Pet. 469; D'Wolf' v. Rabaud, Id. 476; Crane v. Lessee of Morris, 6 Id. 598; Thomps. n v. Campbell, Hemp 8. The common law here alluded to, is not the common law of any individual State, but tlie common law of England; according to which, facis once tried by a jury are never re-examined, unless a new trial be granted, in the discretion of the court before which the suit is depending, for good cause shown; or unless the judgment of sucli court be reversed by a superior tribunal on a writ of error, and a venire fac as de ruto awarded. United States v. Wonson, 1 Gall. 20. The government is as much bound by this provision as any other party who may desire to collect a debt. 9 Op. 200.

What is the conimon law ?

For whose benefit is the trial by jury?

It has been well settled, that the amendments to the Constitution 277-279 of the United States were never intended to control the proceedings of the State courts. (Wood v. Wood, 2 Cowen, 819, nite; Murphy 493. v. The People, 2 Cowen, 815; Livingston v. Mayor of New York, 8 Wend. 85, :00; Warren v. Mayor of Baltimore, 7 Peters, 250 : Livingston 1. Moore, 7 Peters, 551; Colt v. Evers. 12 Conn. 243; In the matter of Smith, 10 Wend. Rep. 419; Lea v. Tillotson, 24 Wend. 337.) ? Graham & Waterman's New Trials, p. 31, note.

261. AND NO FACT TRIED BY JURY SHALL BE RE-EXAMINED, &c.—See a discussion on the original Constitution (prior to this amendment), which gave appellate jurisdiction both as to law and faci." Siory's Const. § 1763–1770, and notes to third edit on; Federalist, No: 81, 8%. And see 1 Elliot's Debates, 121, 122 ; 2 Id. 346, 380-410: Id. 413-427; 3 Ellioi's Debates, 139-157; 2 American Mus 425, 534, 540, 548, 553; 3 Id. 318, 347, 419, 420.

The amendment struck down the objection; and lias secured the 211 trial by jury in civil cases in the fullest latitude of the common law. (1 Tucker's Bl. Com. App. 351: Rawle's Const. ch. 10, p. 135; Bank of Hamilton v. Dudley, 2 Pet. 492, 525.) Story's Const. $ 1568.

This is a prohibition to the courts of the United States to re-examine any facts tried by a jury, in any other mauner. (Parsons v. Bedford, 3 Pet. 447.) Story's Const. § 1770. It is denied that the judiciary act of 1789, ch. 20, $ 17, 22, 24; or the act of 1824, has given the right to the Supreme Court to grant a new trial, on the mere facts. It was intimated that if Congress had attempted to confer such power, the act would be unconstitutional. Id.

265, RE-EXAMINED AFTER VERDICT.-Sec. 5 of the act of 3d 264 March, 1863 (13 St. 756), so far as it authorizes the removal of certain causes after verdict, and a trial and determination of the facts and the law, is in violation of this amendment.

(14 Mass. 412.) Patrie v. Murray, 29 How. Pr. R. 312; S. C. 43 Barb. 323 ; Benjamin v. Murray, 23 How. N. Y. R. 193. And see The People v. Jurray, 6 Park. Cr. 577.

And see Spencer v. Lapsley, 20 How. 267; Martin Insurance Co. v. Hodgson, 6 Cr. 206; Sims v. Hundley, 6 How. 1.

ments?

ARTICLE VIII. Excessive bail shall not be required, nor excessive What is the fines imposed, nor cruel and unusual punishments in-ball, fines,

and punishflicted.

266. “EXCESSIVE BAIL."--Bail is a delivery from custody on What is security. Burrill's Law Dic., BAIL. The meaning is, that the sum required shall not be too large. Bail should not be fixed in criminal cases at a sum so large as purposely to prevent the prisoner from giving bail. United States v. Lawrence, 4 Cr. 518.

267. “ NOR EXCESSIVE FINES, IMPOSED.”—The offense charged was the keeping and maintaining, without license, a tenement for

bail?

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