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common law, which had fenced round, and interposed barriers on every side against the approaches of arbitrary (power. It is now incorporated into all our State Constitutions, as a fundamental right; and the Constitution of the United States would have been justly obnoxious to the most conclusive objection, if it had not recognised and confirmed it, in the most solemn terms.
§ 335. The great object of a trial by jury, in criminal cases, is to guard against a spirit of oppression and tyranny, on the part of rulers, and against a spirit of violence and vindictiveness, on the part of the people. Indeed, it is often more important to guard against the latter, than the former. The sympathies of all mankind are enlisted against the revenge and fury of a single despot; and every attempt will be made to screen his victims from punishment. But it is difficult to escape from the vengeance of an indignant people, roused into hatred by unfounded calumnies, or stimulated to cruelty by political enmity, and party jealousy. The appeal for safety, under such circumstances, can scarcely be made by the innocent, in any other manner, than by the strict control of a court of justice, and the firm and impartial verdict of a jury, sworn to do right, and guided solely by legal evidence, and a sense of duty.
§ 386. It is observable, that the trial of all crimes is not only to be by jury, but to be held in the State, where they are committed. The object of this clause is, to secure the party accused from being dragged to a trial in some distant State, far away from his friends, and witnesses, and neighborhood ; and thus subjected to the verdict of mere strangers, who may feel no common sympathy, or who may even cherish animosities, or prejudices, against him. Besides this, a trial in a distant State or Territory might subject the party to the most oppressive expenses, or perhaps even to the inability of procuring the proper witnesses to establish his innocence. There is little danger, indeed, that Cugress would ever exert their power in so oppressive and unjustifiable a manner. But upon a subject, so vital to the security of the citizen, it was fit to leave as little as possible to mere dis
cretion. By the common law, the trial of all crimes is required to be in the county, where they are cominitted. Nay, it originally carried its jealousy still farther, and required, that the jury itself should come from the vicinage of the place, where the crime was alleged to be committed. This was certainly a precaution, which, however justifiable in an early and barbarous state of society, is little commendable in its more advanced stages. It has been justly remarked, that in such cases, to summon a jury, laboring under local prejudices, is laying a snare for their consciences; and, though they should have virtue and vigor of mind sufficient to keep them upright, the parties will grow suspicious, and indulge many doubts of the impartiality of the trial. It was doubtless by analogy to this rule of the common law, that all criminal trials are required to be in the State, where the crimes are committed. But, as crimes may be committed on the high seas, and elsewhere, out of the territorial jurisdiction of a State, it was indispensable, that, in such cases, Congress should be enabled to provide the place of trial. But even here we may perceive, from the language used, that the trial is to be in the place, which Congress may have directed; not in one, which they shall direct after the commission of the offence.
§ 387. In order to secure this great palladium of liberty, the trial by jury, in criminal cases, from all possibility of abuse, certain amendments have since been made to the Constitution, which add greatly to the original constitutional barriers against persecution and oppression. They are as follows : “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. Nor shall any person be subject for the same ofsence to be twice put in jeopardy of life or limb; nor shall be compelled, in any criminal case, to be a witness against himself ; nor be deprived of life, liberty, or property, without due process of law; nor shall private propIn all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury of the State and district, wherein the crime shall have been committed ; < which district shall have been 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 witnesses in his favor; and to have the assistance of counsel for his defence.”
§ 388. Upon the main provisions of these articles, a few remarks only will be made, since they are almost self-evident, and can require few illustrations to establish their utility and importance.
§ 389. The first clause requires the interposition of a grand jury, by way of presentment or indictment, before the party accused can be required to answer to any capital and infamous crime, charged against him. And this is regularly true at the common law, of all offences, above the grade of common misdemeanors. A grand jury, it is well known, are selected in the manner prescribed by law, and duly sworn to make inquiry, and present all offences committed against the authority of the State government, within the body of the county, for which they are impannelled. In the National courts, they are sworn to inquire, and present all offences committed against the authority of the National Government, within the State or district, for which they are impannelled, or elsewhere within the jurisdiction of the National Government. The grand jury may consist of any number, not less than twelve, nor more than twenty-three ; and twelve at least must concur in every accusation. They sit in secret, and examine the evidence laid before them by themselves. A presentment, properly speaking, is an accusation, made by a grand jury of their own mere motion, of an offence upon their own observation and knowledge, or upon evidence before them, and without any bill of indictment laid before them at the suit of the government. An indictment is a written accusation of an offence preferred to, and presented, upon oath, as true, by a grand jury, at the suit of
of the court must frame an indictment, before the party accused can be put to answer it. But an indictment is usually, in the first instance, framed by the officers of the government, and laid before the grand jury. When the grand jury have heard the evidence, if they are of opinion, that the indictment is groundless, or not supported by evidence, they used formerly to endorse on the back of the bill, "ignoramus," or we know nothing of it, whence the bill was said to be ignored. But now, they assert, in plain English, “not a true bill,” or, which is a better way, “not found ;” and then the party is entitled to be discharged, if in custody, without further answer. But a fresh bill may be preferred against him by another grand jury. If the grand jury are satisfied of the truth of the accusation, then they write on the back of the bill, “a true bill,” (or anciently, “billa vera.") The bill is then said to be found, and is publicly returned into court; the party stands indicted, and may then be required to answer the matters charged against him.
§ 390. From this summary statement, it is obvious, that the grand jury perform most important public functions ; and are a great security to the citizens against vindictive prosecutions, either by the government, or by political partisans, or by private enemies. Nor is this all : the indictment must charge the time, and place, and nature, and circumstances, of the offence, with clearness and certainty ; so that the party may have full notice of the charge, and be able to make his defence with all reasonable knowledge and ability.
§ 391. Another clause declares, that no person shall be subject, “ for the same offence, to be twice put in jeopardy of life and limb.” This, again, is another great privilege secured by the common law. The meaning of it is, that a party shall not be tried a second time, for the same offence, after he has once been convicted, or acquitted of the offence charged, by the verdict of a jury, and judgement has passed thereon for or against him. But it does not mean, that he shall not be tried for the offence a second time, if the jury have been discharged without ment has been arrested upon it, or a new trial has been granted in his favor ; for, in such a case, his life or limnb cannot judicially be said to have been put in jeopardy.
§ 392. The next clause prohibits any person from being compelled, in any criminal case, to be a witness against himself, or from being deprived of life, liberty, or property, without due process of law. This also is but an affirmance of a common-law privilege. But it is of inestimable value. It is well known, that in some countries, not only are criminals compelled to give evidence against themselves; but they are subjected to the rack or torture, in order to procure a confession of guilt. And what is worse, it has been (as if in mockery or scorn) attempted to excuse or justify it, upon the score of mercy and humanity to the accused. It has been contrived, (it is pretended,) that innocence should manifest itself by a stout resistance, or guilt by a plain 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 ! Cicero, many ages ago, although he lived in a state, wherein it was usual to put slaves to the torture, in order to furnish evidence, has denounced the absurdity and wickedness of the measure in terms of glowing eloquence, as striking, as they are brief. They are conceived in the spirit of Tacitus, and breathe all his pregnant and indignant sarcasm. Ulpian, also, at a still later period in Roman jurisprudence, stamped the practice with severe reproof.
§ 393. The other part of the clause is but an enlargement of the language of Magna Charta ; “ Neither will we pass upon him, or condemn him, but by the lawful judgement of his peers, or by the law of the land.” Lord Coke says, that these latter words, “by the law of the land,” mean, by due process of law ; that is, without due presentment or indictment, and being brought in to answer thereto by due process of the common law. So that this clause, in effect, affirms the right of trial, according to the process and proceedings of the common law.
§ 394. The concluding clause is, that private property shall not be taken for public use without just compensation. This is an affirmance of a great doctrine established