could exercise no jurisdiction. That decision has, however, been since overruled, and it is asserted by the Supreme Court, that without any limitation of powers by an act of Congress, it must possess all the jurisdiction which the Constitution assigns it. The appellate powers of the Supreme Court are given by the Constitution, and not by the judicial act. But they are regulated and limited by that act.

§ 382. There are certain incidental powers which are attached to all courts without the necessity of an enact

ment.

The functions of the judges are strictly judicial. They cannot be called upon to advise the President, or to give extra-judicial opinions, or to act as commissioners, or other like matters.

Thus also the courts have power over their own officers, and the power to protect them and their members from being disturbed in the exercise of their functions. All courts have the power to attach for contempts, and by means of this they can protect themselves.

§ 383. 3d clause. 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.

§ 384. In connexion with this must be taken the amendments on the same subject, as follows:

Amendment 5th. 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 offence, to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness 16 Cranch, 307, 313.

against himself; nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.

§ 385. Amendment 6th. In 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;

§ 386. The right to a trial by jury is of very ancient date. It was firmly established, however, in the Magna Charta, granted at Runneymede. In that instrument it is declared, that no freeman shall be injured in person or property except by the judgment of his peers, or the law of the land. From that time to this it has descended unimpaired through the governments of England and this country. It is esteemed, and correctly, the most precious right of freemen; for it enables them to appeal from the arbitrary judgments of either governments or individuals, to the disinterested verdicts of their equals. The term peers means equals, and a judgment by his peers is one by his equals. The verdict, then, is given by those who are not only neighbors, but taken from the same rank and circumstances of life, and influenced by all the sentiments of justice or humanity which may be supposed to actuate persons placed in similar situations, and liable to the same contingencies.

§ 387. The trial of all crimes must also be in the state where it is committed. This is to avoid the difficulty, expense, and oppression which might happen from being carried into other states, and before foreign tribunals.2

Before a person can be tried for a crime, he must first be charged by a Grand Jury with the offence. This charge is in the form of a presentment, or indictment. A Grand Jury is a number of men, not less than twelve, 13 Blackstone, 350. 23 Story's Comm. 655,

nor more than twenty-three, of whom twelve must agree in the charge, selected in the manner of other juries, from the body of the people within the county where they are summoned. They are sworn to make diligent inquiry of all offences committed against the authority of the government, and the peace of the state within the body of their county. In the United States Courts they are sworn to inquire and present all offences against the national government, and within its jurisdiction. When the grand jury are assembled, the proper officer, commonly the District Attorney for the state, lays before them all the offences of which he has any knowledge, and the evidence by which the charges against the prisoners are supported. They examine this carefully, and, if they find the testimony probable, and sufficient to induce a rational belief in the charges, they find what is called a bill, or an indictment, and indorse on it A true bill. This bill or indictment is a formal charge of the offence against the prisoner, usually drawn up by the attorney for the state. If the grand jury do not find the bill true, they indorse on it "Not a true bill,” and the prisoner is discharged; but a new bill may be found by a new jury.2 The indictment must charge person, time, place, and nature of the offence with clearness and certainty; otherwise it will be void for uncertainty.

§ 388. It is also provided, that no person shall be twice put in jeopardy of life or limb for the same offence. The meaning is, that no person shall be twice tried for the same offence: it is also added, that this can only be pleaded when there has been an actual verdict and judgment, and not when the jury have been dismissed for want of agreement, or a new trial granted.3

§ 389. No person can be compelled to be a witness against himself, or be deprived of life, liberty, or property, without process of law. This is merely an affirm1 4 Blackstone, 302. 23 Story's Comm. 658.

3 Id. 659.

ance of the Common Law, as is also the former provision. In fact nearly the whole of these amendments in relation to trial by juries, were common law privileges, but inserted, no doubt, for more absolute certainty, and that no doubt should ever be permitted to enter the minds, as to this subject, of either lawgivers or judicial expositors.

§ 390. One of these re-enactments of the Common Law is, that no private property shall be taken for public use without just compensation: yet plain justice as this is, it is frequently violated in this country by indirect means, and shows how difficult it is to preserve private rights when the people at large are interested against them: thus, private land is frequently taken for public works, streets, highways, canals, &c.; the owners are remunerated by an appraised valuation, not of what the property is worth in itself, but with the additional circumstance of its increased value, by an improvement which the owner never desired, and in his judgment, is injurious to his interests. The plain rule of justice is, to pay the actual value, without reference either to the increase or diminution of value in the residue.

§ 391. The trial by jury is public, in the presence of both the prisoner and the witnesses. The accused is entitled to compulsory process to obtain witnesses, and is also entitled to have counsel. This provision was inserted because, by the ancient common law the prisoner had not that privilege, but acquired it by a statute of William and Mary. Indeed, the criminal jurisprudenco of England, previous to that time, was, except the trial by jury, conducted with the greatest disregard of justice. Neither had the prisoner the benefit of counsel, though as the maxim ran, the judge is his counsel, and bound to see him have equal advantages with the accuser. This discreditable injustice on the part of the Common 13 Story's Comm. 663.

Law is, however, entirely done away by these provisions of the Constitution.

§ 392. SECTION 3D. 1st clause. Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.

2d clause. The Congress shall have power to declare the punishment of treason; but no attainder of treason shall work corruption of blood, or forfeiture, except during the life of the person attainted.

Treason is some act whose object is the overthrow of the government: hence it is the highest crime against society, and universally regarded with odium and resentment. The definition of what is treason, and what is necessary to conviction, is of vast importance to the peace of society, and the liberty of the citizen. Constructive or implied treason, from suspicious circumstances, is dangerous wherever it exists. In the reign of Edward III. in England, a statute was passed declaring and defining treason and its different branch-' es. This was confirmed by the statute of Mary I. Our Constitution has used the very words of this statute, and thus adopted its definition, with the interpretation which it has received during several centuries. The war must be actually levied to constitute treason. A conspiracy to levy war is not treason.2

§ 393. The punishment of treason in our country is simply death by hanging; at the Common Law it was accompanied by many barbarities, which would not now be tolerated.

§ 394. By corruption of blood is meant the destruction of all inheritable qualities;-so that no one can claim any thing from a person attainted, or through him. 1 Hawkins, p. 6, book I. chap. 1-7. 24 Cranch, 126..