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adopted by recognition, or by express legislation, in the several States.

Suspension of the Writ.

The privilege of the writ consists in this that, when one complains that he is unlawfully imprisoned or deprived of his liberty, he shall be brought without delay before the proper court or magistrate for an examination into the cause of his detention, and shall be discharged if the detention is found to be unwarranted. The suspension of the privilege consists in taking away this right to an immediate hearing and discharge, and in authorizing arrests and detentions without regular process of law. Such suspension has been many times declared in Great Britain, or in some section of the British empire, within the present century; sometimes in view of threatened invasion, and sometimes when risings among the people had taken place or were feared, and when persons whose fidelity to the government was suspected, and whose influence for evil might be powerful, had as yet committed no overt act of which the law could take cognizance. It has been well said that the suspension of the habeas corpus is a suspension of Magna Charta,1 and nothing but a great national emergency could justify or excuse it. The Constitution limits it within narrower bounds than do the legislative precedents in Great Britain.

The power to suspend this privilege is a legislative power, and the President cannot exercise it except as authorized by law." The suspension does not legalize what is done while it continues; it merely suspends for the time this particular remedy. All other remedies for illegal arrests remain, and may be pursued against the parties mak

1 May, Const. Hist., ch. 11.

2 Ex parte Merryman, 9 Am. Law Reg. 524; S. C., 14 Law Rep. N. S. 78; Taney, 246; McCall v. McDowell, 1 Abb. U. S. 212; Ex parte Field, 5 Blatch. 63.

ing or continuing them. It is customary, after the writ has been suspended in Great Britain, to pass acts of indemnity for the protection of those in authority, who, in the performance of their duties to the State, felt themselves warranted in arresting suspected persons while the suspension continued. Something similar has been done in this country by provisions in state constitutions;1 but as a right of action arising under the principles of the common law is property as much as are tangible things, it is not believed the right could be destroyed by statute.2

State Suspensions. Nothing in this provision hinders the States from suspending the privilege of this writ issuing from their own courts, and the declaration of martial law in the State has the effect of suspending it.3

SECTION IV. - ACCUSATIONS OF CRIME.

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Grand Jury. Among the other provisions which by the fifth amendment are made for the protection of persons accused of crimes is this, that "No person shall be held to answer for a capital or otherwise infamous crime unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia when in actual service in time of war or public danger." A grand jury is a tribunal consisting of not less than twelve nor more than twenty-three men, taken from the body of the community, and sworn to inquire into and make presentment of offences committed within their jurisdiction, and twelve of whom at least must unite in any presentment. The security to accused persons consists in the popular character of the tribunal, in the fact

1 See Drehman v. Stifel, 8 Wall. 595; Hess v. Johnson, 3 W. Va. 645.

2 Griffin v. Wilcox, 21 Ind. 370; Johnson v. Jones, 44 Ill. 142. See Milligan v. Hovey, 3 Biss. 1.

3 Luther v. Borden, 7 How. 1.

that they meet, receive, and sift the evidence independently of the prosecuting authorities, and in their own way, and are therefore not likely to be swayed or influenced by the passions, desires, or interests of those in authority, or of malignant prosecutors.

An infamous offence is one involving moral turpitude in the offender, or infamy in the punishment, or both. It is probable that in this amendment the punishment was in view as the badge of infamy rather than any element in the offence itself, and that provision for the punishment of minor offences otherwise than on indictment, even though they be degrading in their nature, would not be held unconstitutional, provided the punishment imposed was not greater than that usually permitted to be inflicted by magistrates proceeding in a summary way. But the punishment of the penitentiary must always be deemed infamous, and so must any punishment that involves the loss of civil or political privileges.

The exceptional cases mentioned in the amendment are such as come under the cognizance of military or martial law, and are punished by military tribunals.

SECTION V. - BAIL.

The Constitution. The eighth amendment forbids requiring excessive bail. The bail here intended is that which is given by persons who are accused of crime, and awaiting trial or final judgment, or who are held for security to keep the peace.

Bail is usually allowed in all cases except those in which the offence charged is punished capitally or by life imprisonment, and even then it may be taken in the discretion of the court.1 That reasonable bail shall be accepted is an admonition addressed to the judgment and

1 United States v. Hamilton, 3 Dall. 17; United States v. Jones, 3 Wash. C. C. 224.

conscience of the court or magistrate empowered to fix the amount: it is impossible that a definite rule shall be established by law for particular cases. The principle, however, is this: that any bail is excessive which is greater than is needful to secure satisfactorily the attendance of the accused for trial or sentence, or the performance of such other obligation as may have been required of him.

SECTION VI. - INCIDENTS OF THE TRIAL AND PUN

ISHMENT.

Venue. One of the most valuable protections which the common law gave to accused persons was found in the principle that the trial should take place within the county where the alleged offence was committed. This protected the accused against being dragged away from his home and his friends for trial in such distant and perhaps hostile locality as his prosecutors might select, and it gave him the benefit on his trial of a good reputation if he had maintained one among his neighbors, and also rendered more probable the attendance of his witnesses, who would usually be found in his vicinity. A further principle, to which the people were even more greatly attached, was that the trial should be by jury. Both these were provided for by the original Constitution, which declared that "the trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the State where the said crimes shall have been committed; but when not committed within any State, the trial shall be at such place or places as the Congress may by law have directed."1 The sixth amendment made the right more specific, and corrected a defect as regards the venue: "In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State

1 Const., Art. III. § 2, cl. 3.

and district wherein the crime shall have been committed, which district shall have been previously ascertained by law." The important differences in these provisions are, that the earlier did not require the trial to take place in the district of the crime, when the State was divided into two districts, nor did it in terms make it necessary that the jury should be summoned from the vicinage, though doubtless that was to be understood. The amendment says nothing about crimes committed out of the limits of States, and has no application to them.1

Speedy Trial. A speedy trial cannot be defined more accurately than this, that it is a trial brought on as speedily as the prosecution can reasonably be expected or required to be ready for it.2 A public trial is not of necessity one to which the whole public is admitted, but it is one so far open to all as that the prisoner's friends, and others who may be inclined to watch the proceedings, in order to see if justice is intelligently and impartially administered, may have opportunity to do so. There may be and often is justifiable occasion to exclude from a trial those who are inclined to attend from idle or morbid curiosity only, and especially in cases involving loathsome or disgusting details.

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The Jury. By jury in the Constitution is meant a common-law jury. This is a tribunal of twelve persons, impartially selected for the purposes of the trial in accordance with rules of law previously established, and who are to sit together, hear and consider the evidence in the case, and render their verdict upon the facts as they find them. The jury cannot consist of less than twelve, and a trial by less than that number, even by consent, is a mis-trial.3

1 United States v. Dawson, 15 How. 467.

2 See Ex parte Stanley, 4 Nev. 113.

8 Work v. State, 2 Ohio, N. S. 296; Cancemi v. People, 18 N. Y. 128; Brown v. State, 8 Blackf. (Ind.) 561.

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