Studies in Civics Part 36

This, as well as the preceding provision, recognizes the maxim, "A man's house is his castle." It prevents the issuance of general warrants.

ARTICLE V.

SECURITY TO LIFE, LIBERTY AND PROPERTY.

_No person shall be held to answer for a capital or otherwise infamous crime unless on a presentment or indictment of a grand jury,[1] 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;[2] nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb;[3] nor shall be compelled in any criminal case to be a witness against himself,[4] nor be deprived of life, liberty, or property, without due process of law;[5] nor shall private property be taken for public use without just compensation.[6]

[1] For information in regard to the method of conducting criminal trials, see Division I.

[2] The necessity here for prompt and exact obedience to orders is so urgent, that summary methods of trial must be permitted.

For information regarding trial by court martial, see appendix, page 338.

[3] That is, when a jury has rendered its verdict and judgment has been p.r.o.nounced, the accused cannot be compelled to submit to another trial on the same charge. But if the jury disagrees and fails to bring in a verdict, he may be tried again.

[4] Accused persons used to be tortured for the purpose of extorting from them a confession of guilt.

[5] In a despotism, the lives, liberty and property of the people are at the command of the ruler, subject to his whim. [6] For an ill.u.s.tration of the method of securing private property for public use, see page 18.

ARTICLE VI.

RIGHTS OF ACCUSED PERSONS.

_In all criminal prosecutions the accused shall enjoy the right to a speedy[1] and public[2] trial by an impartial jury[3] of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law,[4] and to be informed of the nature and cause of the accusation;[5] to be confronted with the witnesses against him;[6] to have compulsory process for obtaining witnesses in his favor;[7] and to have the a.s.sistance of counsel for his defense.[8]_

The importance of this provision is likely to be underestimated. Says Montesquieu, "Liberty consists in security. This security is never more attacked than in public and private accusations. It is, therefore, upon the excellence of the criminal laws that chiefly the liberty of the citizen depends." And Lieber, in his very able work on Civil Liberty and Self-Government, says, "A sound penal trial is invariably one of the last fruits of political civilization, partly because it is one of the most difficult of subjects to elaborate, and because it requires long experience to find the proper mean between a due protection of the indicted person and an equally due protection of society.... It is one of the most difficult things in all spheres of action to induce irritated power to limit itself."

Besides the guarantees of the const.i.tution, Lieber mentions the following as characteristic of a sound penal trial: the person to be tried must be present (and, of course, living); every man must be held innocent until proved otherwise; the indictment must be definite, and the prisoner must be allowed reasonable time to prepare his defense; the trial must be oral; there must be well-considered law of evidence, which must exclude hearsay evidence; the judge must refrain from cross-examining witnesses; the verdict must be upon the evidence alone, and it must be _guilty_ or _not guilty;_ [Footnote: In some countries the verdict may leave a stigma upon an accused person, against whom guilt cannot be proven. Of this nature was the old verdict, "_not proven._"] the punishment must be in proportion to the offense, and in accordance with common sense and justice; and there must be no injudicious pardoning power, which is a direct interference with the true government of law.

Most, if not all but the last, of the points mentioned by Dr. Lieber are covered by that rich inheritance which we have from England, that unwritten const.i.tution, the common law. The question of how best to regulate the pardoning power is still unsettled.

[1] He may have his trial at the next term of court, which is never very remote. But the accused may, at his own request, have his trial postponed.

[2] Publicity is secured by the keeping of official records to which all may have access, by having an oral trial, by the admission of spectators to the court room, and by publication of the proceedings in the newspapers.

[3] For the mode of securing the "impartial jury," see page 63.

[4] It is provided in the body of the const.i.tution (III., 2, 3,) that criminal trial shall be by jury, and in the state where the crime was committed. This amendment makes the further limitation that the trial shall be in the _district_ where the crime was committed, so a person accused of crime cannot be put to the trouble and expense of transporting witnesses a great distance.

[5] The nature of the accusation is specified in the _warrant_ and in the indictment, both of which, or certified copies of them, the accused has a right to see.

[6] Not only do the witnesses give their evidence in the presence of the accused, but he has also the right to cross-examine them.

[7] But for this "compulsory process" (_called a subpoena_), persons entirely guiltless might be unable to produce evidence in their own behalf. The natural desire of people to "keep out of trouble" would keep some knowing the circ.u.mstances of the case from giving their testimony, and others would be afraid to speak up for one under a cloud and with all the power of the government arrayed against him.

[8] The accused may plead his own cause, or he may engage a lawyer to do it for him. If he is too poor to employ counsel, the judge appoints a lawyer to defend him, whose services are paid for out of the public treasury.

From the foregoing, it will be seen that great care is exercised to give a person accused of crime full opportunity to defend himself. And it must be remembered in this connection that it is a principle of our jurisprudence that _the burden of proof lies upon the government_. That is, the accused is to be deemed innocent until he is _proved_ guilty. We prefer that a number of guilty persons should escape punishment rather than that one innocent person should suffer.

ARTICLE VII.

JURY TRIAL IN COMMON LAW SUITS.

_In suits at common law,[1] where the amount 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 common law.[2]_

[1] The meaning of this expression is difficult of explanation, but it covers most ordinary lawsuits. From the fact that a jury in criminal cases has already been guaranteed (III., 2, 3, and Am. VI.), it may be a.s.sumed that this provision is intended to cover civil suits.

[2] Among the "rules of common law" are these: 1. All suits are tried before a judge and a jury, the jury determining the _facts_ in the case and the judge applying the _law_. 2. The facts tried by a jury can be re-examined only by means of a new trial before the same court or one of the same jurisdiction.

The purpose of this provision is to preserve the jury trial as a real defense against governmental oppression. In the Supreme Court there is no jury; the trials are by the court. If questions of _fact_ could be reviewed or re-examined by such a court on appeal the protection now given by the jury would be nullified.

ARTICLE VIII.

EXCESSIVE BAILS, FINES AND PUNISHMENTS FORBIDDEN.

_Excessive bail shall not he required, nor excessive fines imposed, nor cruel and unusual punishments inflicted._

Having enjoyed the protection of this and similar provisions for so many years, we can hardly appreciate their value. It must be borne in mind that those who "ordained and established" the const.i.tution had been abused in just these ways, and that in this provision they provided against a real danger.

ARTICLE IX.

UNSPECIFIED PERSONAL RIGHTS PRESERVED.

_The enumeration in the const.i.tution of certain rights shall not be construed to deny or disparage others retained by the people._

Certain rights which governments are p.r.o.ne to trample on have been mentioned in the preceding provisions. But not all of the personal rights could be enumerated. Hence this provision covering those unnamed.

ARTICLE X.

THE UNITED STATES GOVERNMENT ONE OF LIMITED POWERS.

_The powers not delegated to the United States by the const.i.tution, nor prohibited by it to the states, are reserved to the states respectively, or to the people._

This provision gives a rule for interpreting the const.i.tution. "It is important as a security against two opposite tendencies of opinion, each of which is equally subversive of the true import of the const.i.tution. The one is to _imply_ all powers, which may be useful to the national government, which are not _expressly prohibited;_ and the other is, to _deny_ all powers to the national government which are not _expressly granted_." [Footnote: Story] The United States is "a government of limited powers," and has only such implied powers as are necessary to carry out the express powers. On the other hand, a state has all powers not denied to it by the state or federal const.i.tutions.

_Pertinent Questions._

What is the general purpose of the first ten amendments? Do they restrict the general government or the state governments, or both? When and how were these amendments proposed? When and how ratified? What three limitations to the power of amendment does the const.i.tution contain?

Is there any "established" or state church in the United States? How do you suppose that this came about? Are we as a people indifferent to religion? Can a person say what he pleases? Can he publish whatever opinions he pleases? What is _slander?_ _Libel?_ Why should these last two questions be asked here? Pet.i.tion whom? What's the good of pet.i.tioning?

What pet.i.tions did you learn about at the beginning of this study? Can soldiers in the regular army pet.i.tion? Why? Has the "right of pet.i.tion"