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549. Right to a Speedy Trial, Etc.-In former times the postponement or denial of trial in criminal cases was a great abuse. Innocent men were often imprisoned, and then denied an opportunity to vindicate themselves. Their trials were often secret, and at a distance from the prisoner's residence, thus cutting him off from the public knowledge and the sympathy of his friends. Such abuses of power are precluded by the above provisions.
550. The Grand Jury.—There are two juries known to the law, the grand jury and the petit jury. The first indicts the accused, the second tries him. A grand jury consists of any number of men, from fifteen to twenty-three. On the empaneling of a grand jury, the judge charges it to inquire into all offenses against the laws of the United States committed in the district, and to report its findings. It sits in secret, and twelve members must concur in any presentment or indictment that it finds. It must first decide that a crime has been committed, and then that there is or is not sufficient testimony against the accused to justify a formal trial. Manifestly, this deliberate mode of procedure applied to cases arising in the army and navy in times of war and public danger, would be destructive of military discipline, and so the Constitution here leaves the way open for the more summary processes of military courts.
551. Presentment and Indictment.--A presentment is an accusation by a grand jury charging an offense based upon their own knowledge, or upon evidence before them, and is not made at the suit of the Government. An indictment is formally drawn up by a prosecuting officer of the Government and laid before the jury with the evidence. If the members of the jury think the evidence such as to warrant a prosecution of the case, they endorse on the back of the paper “a true bill,” or “found”; but if they think the accusation groundless, they throw the bill out, or endorse it "not a true bill,” or “not found.” If the jury presents a person, he must then be regularly indicted before he can be put on trial. If a bill is not found, the accused goes free, but he may be indicted by a second grand jury. judges and the usages of political bodies; the statute law, in formal acts of Parliament. The common law was introduced into the English Colonies at their planting, and is now in force in all of the States save where it has been modified or set aside by legislation. The expression “suits at common law" is used in opposition to suits in equity or in maritime jurisdiction. When any fact once tried by a jury is re-examined in any court of the United States, the rules of the common law shall be observed. Re-examination means a new trial. The court that tried the case máy grant-such trial, or the case may be carried to a higher court on a writ of error or by an appeal. A writ of error removes the cause for re-examination as respects the law, but not the fact; an appeal removes it for examination in both particulars. The common law in unknown in Louisiana.
552. Jeopardy of Life or Limb.--This is a commonlaw phrase meaning put on trial for some criminal offense. A person once tried for an offense and acquitted, cannot be put on trial for the same offense the second time. This is one of the great bulwarks of personal liberty. Without it, the Government might subject the citizen or subject to constant persecution, or a man's enemies might subject him to constant annoyance.
553. No Man Compelled to be a Witness Against Himself. This is also one of the great legal bulwarks of English liberty. In former times, it was common to convict criminals, and especially slaves or other despicable persons, on their own testimony, extorted by some brutal mode of examination. Men were racked, or otherwise put to the torture, and confession was thus forced from them. In justification of this method, it was held that a man conscious of guilt would make a plain confession. says Justice Story, “a man's innocence were to be tried by the hardness of his constitution, and his guilt by the sensibility of his nerves." In some countries accused persons are still compelled to give evidence against themselves.
554. Taking Private Property for Public Use.The justice of the rule in regard to this subject is too obvious for extended remarks. If the Government wants land for a custom house or an arsenal, it can have it; what is called eniment domain, or the right of the public to use private property for public use, gives it power to take it; but it must pay a just compensation. If the Government and the owner of the property cannot agree upon a price, the Government condemns the land, and a jury is empanneled to assess the damages.
555. The Common Law.–The Common Law of England consists of the old legal customs of the country. It is called the unwritten law (lex non scripta) in contra-distinction to the statute or written law (lex scripta). The common law originated in the decisions of
556. Due Process of Law.-Amendment V. assumes such process in respect to the National judiciary; Amendment XIV. imposes it upon all the States, and besides the same rule is found in the State constitutions. The Supreme Court has said it “is intended as an additional security against the arbitrary spoliation of property."
The words “due process" are incapable of close definition. They mean, according to the Supreme Court, a process “which, following the forms of law, is appropriate to the case, and just to the parties to be affected. The clause in question means, therefore, that there can be no proceeding against life, liberty, or property which may result in the deprivation of either, without the observance of those rules established in our system of jurisprudence for the security of private rights."1 Judge Cooley says “life, liberty, and property are representative terms, and are intended, and must be understood to cover every right to which a member of the body politic is entitled under the law." 2
557. Amendment VIII.—This article is copied from the English Bill of Rights of 1688. Its provisions were incorporated in that celebrated document to protect the citizen against the oppression of government, and they were made a part of the American Bill of Rights for the same reason.
558. Limitations of the Foregoing Provisions. With a single exception, all the constitutional provisions treated in this chapter relate exclusively to the courts of the United States. Whether, under State laws, capital crimes shall be tried by juries, whether an accused person shall be twice put in jeopardy of life or limb, whether bail shall be excessive or punishments cruel or unusual,—it is for the States to say. The single exception is the clause quoted from the Fourteenth Amendment. This is the only instance in which the National Constitution has attempted directly to regulate the State judiciaries. The State constitutions, however, contain similar limitations upon State judicial power.
1 Harlan v. Rec. Dist, No. 108, III U. S. 707. ? Story on the Constitution, ở 1948–1950 (4th edition).
559. The Crime of Treason.-Treason aims at the overthrow of the established government. It tends to unsettle and destroy the very foundations of civil society. It is a crime of which only a person owing allegiance to a government can be guilty. A man cannot be a traitor to a foreign country, unless he enlists in its army or becomes naturalized. Hence treason is regarded as the highest of crimes, and a traitor as the most odious of criminals.
The common law of England recognizes two kinds of treason. It is petit treason for a wife to kill her sband, or for a servant to kill his master; but high treason relates to the state, and includes attempting the life of the sovereign as well as waging war against him.
560. Abuses of the Punishment of Treason.Tyrannical governments have taken advantage of the universal sentiment against treason to accomplish their own selfish purposes. In England, for example, the common law contained no definition of treason, and left large discretion to the courts to declare what acts were treasonable. The judges, who held their offices at the favor of the Crown, sometimes proved themselves only too ready to serve the power upon which they were dependent. They invented constructive treasons; that is, by arbitrary construction of the law and by distorting facts, they made treason of offenses that were not so in reality. To put an end to such abuses required the vigorous interposition of