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was arraigned at their bar was almost certain to meet a virulent prosecutor, a judge hardly distinguishable from the prosecutor except by his ermine, and a passive, pusillanimous jury. Those who are acquainted only with our modern decent and dignified procedure, can form little conception of the irregularity of ancient trials; the perpetual interrogation of the prisoner, which gives most of us so much offense at this day in the tribunals of a neighboring kingdom; and the want of all evidence except written, perhaps unattested, examinations or confessions.'' • And again: "There was, indeed, good reason to distrust the course of justice. Never were our tribunals so disgraced by the brutal manners and iniquitous partiality of the bench as in the latter years of this (Cha. II) reign. The State Trials, none of which appear to have been published by the prisoners' friends, bear abundant testimony to the turpitude of the judges. They explained away and softened the palpable contradictions of the witnesses for the crown, insulted and threatened those of the accused, checked all cross-examination, assumed the truth of the charge throughout the whole of every trial."

§ 8. Struggle in England for just procedure.-From Magna Charta to the Revolution of 1688, and, indeed, long subsequent thereto, the English people were engaged in an unremitting struggle for the establishment of a just and humane judicial procedure and the independence of their judges. "The whole fabric of English liberty rose step by step, through much toil and many sacrifices, each generation adding some new security to the work, and trusting that posterity would perfect the labor as well as enjoy the reward." 8 But not until very recent times were the iniquities of the judicial procedure of that country fully and finally swept away."

§ 9. Same-In American Colonies.-This struggle for a just and humane judicial procedure was not confined to the realm of England, but was vigorously prosecuted by the American

6 Hallam's Const. Hist. England, 138.

7 Hallam's Const. Hist. land, 471.

Eng

8 Hallam's Middle Ages, chap. VIII, and especially p. 546; and see, generally, Hallam's Const.

Hist. England; May's Const. Hist.
Eng. chap. XI.

9 Bl. Com. Bk. IV, chap. XXVII; Stat. 7 William III, C. 3; Stat. 6 & 7 William IV, C. 114; Stat. 20 George II, C. 30.

colonies, who claimed that they were entitled to the rights, liberties and immunities of free and natural-born subjects. within the realm of England, to the principles of the English constitution and the several charters, to the common law of England and especially to trial by a jury of the vicinage, to the benefit of such English statutes as existed at the time of their colonization and which they had found by experience applicable to their local and other circumstances, and likewise entitled to all the immunities and privileges granted and confirmed to them by royal charters or secured by their several codes of provincial laws.10

At the beginning of the period of colonial legislation in this country (which is usually reckoned to be the fourth year of James I, A. D. 1607), the following had been established as principles of the English constitution, viz.: (1) "No man could be committed to prison but by a legal warrant specifying the offense; and, by a usage nearly tantamount to constitutional right, he must be speedily brought to trial by means of regular sessions of jail-delivery. (2) The fact of guilt or innocence on a criminal charge was determined in a public court, and in the county where the offense was alleged to have occurred, by a jury of twelve men, from whose unanimous verdict no appeal could be made. Civil rights, so far as they depended on questions of fact, were subject to the same decision. (3) The officers and servants of the crown, violating the personal liberty or other right of the subject, might be sued in an action for damages, to be assessed by a jury, or, in some cases, were liable to criminal process; nor could they plead any warrant or command in their justification, not even the direct order of the king."11 But, as will be shown in a subsequent chapter, these principles were constantly violated in England and in the colonies until about the time of the American Revolution; and these abuses were, in part, the justification of that Revolution.12

§ 10. Federal procedure established by constitutional provision. The founders of this government, learning wisdom. from the history of the English people and the American col

10 Declaration of Rights (1774) 1 Pitk. Hist. 344; Declaration of Independence.

11 Hallam's Const. Hist. Eng. 14. 12 Declaration of Independence.

onies, to make secure the fruits of the Revolution, established the great outlines of the judicial procedure to be pursued in the courts of the United States by constitutional provisions; this end was secured in part by some provisions contained in the constitution as originally adopted, but more fully by the amendments soon thereafter adopted; 13 and additional limitations were by the later amendments imposed upon the state governments. These constitutional provisions do not prescribe the details of procedure, but they do, by limitations at least, establish the great principles of that beneficent system of procedure which is the common right of mankind, and which should be the heritage of all civil society.

16

§ 11. Same. The constitution extends the judicial power of the United States to three classes of cases, namely: (1) Cases in law, (2) cases in equity, and (3) cases of admiralty and maratime jurisdiction; i5 and in "suits at common law" (which is the same thing as "cases in law") the right of trial by jury is preserved. This classification which is found in the constitution itself, and which is written in the language of the common law, and which was taken from the English judicial system, was, in itself, the adoption of the English common law, chancery, and admiralty systems of judicial procedure, with their known differences and distinctions.17

§ 12. The study of federal procedure should begin with the constitution.-Inasmuch as the foundation of judicial procedure in the courts of the United States is laid in the constitution and its amendments, all intelligent and philosophical study of the subject must begin by an examination of the provisions of that instrument which lie at the base of the fabric, and the examination should be extended to those provisions which have a collateral bearing on the matters under investigation.

§ 13. Same-Intimate relation between criminal and civil procedure. On account of the broad application of those provisions of the constitution which protect persons against unreasonable searches and seizures and self-accusation, it is

13 U. S. Const. art. I, sec. 9, clause 3 and sec. 10 (last clause), art. III, sec. 2, clauses 1, 3, sec. I, and Amend. IV-VIII inclusive.

14 U. S. Const. Amend: XIV, sec. 1.

15 U. S. Const. art. III, sec. 2. 16 U. S. Const. Amend. VII.

17 Parsons v. Bedford, 3 Pet. 433.

impossible to enter into an examination of civil procedure without entering also into an examination of criminal procedure. As illustrating this point, it will be shown in subsequent sections that the provisions of the constitution just referred to protect not only persons charged with crimes, but also witnesses. and parties in civil suits from disclosures which may subject them to a criminal accusation or prosecution or to any penalty or punishment or forfeiture or which may convict them of any crime, or which may tend to such a result, or which may lead to other evidence that could be used for that purpose.18

§ 14. Same-Further necessity for the examination of the constitution in the study of federal procedure. In addition to the reasons above given for an examination of the provisions of the federal constitution affecting the administration of justice in the federal courts, as a basis for the procedure in those courts, the following appear to be of great weight, namely: (1) The jurisdiction of those courts is special and limited and derived alone from the constitution and laws of the United States,19 19 and a large class of the cases over which they have jurisdiction arises under the provisions of the constitution,20 and the jurisdiction of the cause often arises under some provision bearing directly upon procedure,21 so that questions of procedure are intimately connected with questions of jurisdiction throughout the whole system of federal jurisprudence. (2) By statute the federal courts have adopted state procedure in cases in law, "as near as may be, "22 and it may and does frequently happen that some provision of state procedure is in conflict with some provision of the constitution upon the subject of procedure or which constitutes one of the guaranties of life, liberty or property.23 It must be apparent that the subject of procedure in the federal courts is intimately connected and interlaced with many of the provisions of the constitution, and that a complete understanding of the one cannot be attained without careful examination of the other.

18 Boyd v. United States, 116 U. S. 616-641.

19 Fishback v. Western Union Telephone Co., 161 U. S. 96.

20 U. S. Const. art. III, sec. 2.

21 Stone v. Farmers' Loan & Trust Co., 116 U. S. 307.

22 U. S. R. S. sec. 914.

23 Ex parte Fisk, 113 U. S. 713;. Scott v. Neely, 140 U. S. 106, 117 (35:358); Pennoyer v. Neff, 95 U. S. 714, 748 (24:565).

§ 15. Same-A general view of the government requisite.— The judicial department is a co-ordinate branch of the government, and through it is exercised that judicial sovereignity which is inherent in every state or nation. Judicial power is sovereign power. Judicial power is one of the foundationstones of all civil society and all political institutions. In all modern governments, the judiciary is created and established by, and its powers and its relations to the other branches of the government are defined in the organic law; it is an integral part of the fabric of government, operating directly upon all persons and property within the territorial jurisdiction of the sovereignity of which it is a part; and it, therefore, follows that no just and correct conception of the powers, jurisdiction and modes of procedure of the courts of judicature can be reached except by and through a consideration and view of all the powers of government and their relations to each other, and this is especially true in this country under our dual system of governments, federal and state, with their courts exercising jurisdiction in the same territory.25

24 Georgia v. Stanton, 6 Wall. 50; Federalist, Nos. 46, 47, 48, 49, 50; Federal Const. and Consts. of the several states.

24

25 Ableman v. Booth, 21 How. 516 United States v. Tarble, 13 Wall. 397.

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