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by the common law, for the protection of private proper ty. It is founded in natural equity, and is laid down by jurists as a principle of universal law. Indeed, in a free government, almost all other rights would become utterly worthless, if the government possessed an uncontrollable power over the private fortune of every citizen. One of the fundamental objects of every good government must be, the due administration of justice; and how vain it would be, to speak of such an administration, where all property is subject to the will or caprice of the legislatura and the rulers!
§ 395. The other article, in declaring, that the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State or district, wherein the crime shall have been committed, (which district shall be previously ascertained by law,) and to be informed of the nature and cause of the accusation, and to be confronted with the witnesses against him, does but follow out the established course of the common law in all trials for crimes. The trial is always public; the witnesses are sworn, and give in their testimony, (at least in capital cases,) in the presence of the accused; the nature and cause of the accusation is accurately laid down in the indictment, and the trial is at once speedy, impartial, and in the district where the offence is charged to be committed. Without in any measure impugning the propriety of these provisions, it may be suggested, that there seems to have been an undue solicitude to introduce into the Constitution some of the general guards and proceedings of the common law in criminal trials, (truly admirable in themselves,) without sufficiently adverting to the consideration, that, unless the whole system is incorporated, and especially the law of evidence, a corrupt legislature, or a debased and servile people, may render the whole little more than a solemn pageantry. If, on the other hand, the people are enlightened, and honest, and zealous in defence of their rights and liberties, it will be impossible to surprise them into a surrender of a single valuable appendage of the trial by jury.
§ 396. The remaining clauses are of more direct significance, and necessity. The accused is entitled to have
compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel. A very short review of the state of the common law, on these points, will put their propriety beyond question. In the first place, it was an anciently and commonly-received practice, derived from the civil law, and which Mr. Justice Blackstone says, in his day, still obtained in France, although, since the Revolution, it has been swept away, not to suffer the party accused in capital cases to exculpate himself by the testimony of any witnesses. Of this practice, the courts grew so heartily ashamed from its unreasonable and oppressive character, that another practice was gradually introduced, of examining witnesses for the accused, but
not upon oath; the consequence of which was, that the jury gave less credit to this latter evidence, than to that produced by the government. Sir Edward Coke denounced the practice as tyrannical and unjust; and contended that, i criminal cases, the party accused was entitled to have witnesses sworn for him. The House of Commons, soon after the accession of the house of Stuart to the throne of England, insisted, in a particular bill then pending, and, against the efforts both of the Crown and the House of Lords, carried a clause affirming the right, in cases tried under that act, of witnesses being sworn for, as well as against, the accused. By the statute of 7 Will. 3, ch. 3, the same measure of justice was established throughout the realm in cases of treason; and afterwards, in the reign of Queen Anne, the like rule was extended to all cases of treason and felony. The right seems never to have been doubted, or denied, in cases of mere misdemeanors. For what causes, and upon what grounds, this distinction was maintained, or even excused, it is impossible to assign any satisfactory, or even plausible reasoning. Surely, a man's life must be of infinitely more value than any subordinate punishment; and if he might protect himself against the latter, by proofs of his innocence, there would seem to be irresistible reasons for permitting him to do the same in capital offences. The common suggestion has been, that, in capital cases, no man could, or rather ought, to be convicted, unless upon evidence so
conclusive and satisfactory, as to be above contradiction or doubt. But who can say, whether it be in any case so high, until the proofs in favor, as well as against, the party have been heard? Witnesses for the government may swear falsely, and directly to the matter in charge; and, until opposing testimony is heard, there may not be the slightest ground to doubt its truth; and yet, when such is heard, it may be incontestable, that it is wholly unworthy of belief. The real fact seems to be, that the practice was early adopted into the criminal law in capital cases, in which the crown was supposed to take a peculiar interest, in base subserviency to the wishes of the latter. It is a reproach to the criminal jurisprudence of England, which the State trials, antecedently to the revolution of 1688, but too strongly sustain. They are crimsoned with the blood of persons, who were condemned to death, not only against law, but against the clearest rules of evidence.
§ 397. Another anomaly in the common law, is, that in capital cases, the prisoner is not, upon his trial upon the general issue, entitled to have counsel, unless some matter of law shall arise, proper to be debated. That is, in other words, that he shall not have the benefit of the talents and assistance of counsel in examining the witnesses or making his defence before the jury. Mr. Justice Blackstone, with all his habitual reverence for the institutions of English jurisprudence, as they actually exist, speaks out upon this subject with the free spirit of a patriot and a jurist. This (he says) is "a rule, which, however it may be palliated under cover of that noble declaration of the law, when rightly understood, that the judge shall be counsel for the prisoner, that is, shall see, that the proceedings against him are legal, and strictly regular, seems to be not all of a piece with the rest of the humane treatment of prisoners by the English law. For, upon what face of reason, can that assistance be denied to save the life of a man, which is yet allowed him in prosecu tions for every petty trespass." The defect has indeed been cured in England in cases of treason; but it remain ed unprovided for in all other cases, to, what one can
hardly help deeming, the discredit of the free genius of the English Constitution, until a very recent period.
$398. The wisdom of both of these provisions is, therefore, manifest, since they make matter of constitutional right, what the common law had left in a most imperfect and questionable state. The right to have witnesses sworn, and counsel employed for the prisoner, are scarcely less important privileges, than the right of a trial by jury. The omission of them in the Constitution is a matter of surprise; and their present incorporation into it is matter of honest congratulation among all the friends of rational liberty.
§ 399. We may bring also into view, in this place, two other amendments of the Constitution, connected with the subject of crimes. One is designed to guard the citizens from unreasonable and illegal searches of their persons, houses, papers, and effects, without probable cause of the commission of any offence; the other is, to prevent Congress, as well as the courts, from inflicting excessive and cruel punishments. The first is; "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. And no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized." A warrant is a writ, or process under seal, issued by some court or magistrate, for the arrest of a person, who is accused on oath of some public offence or misdemeanor, requiring the officer, to whom it is directed, to arrest the offender, and to bring him before the court or magistrate, to answer for the offence, and otherwise to be dealt with according to law. Sometimes such warrants include, not only an authority to arrest the person, but also, in cases where the accusation is for stealing goods, authority to search the dwelling house, or other place of abode, of the party, for the stolen goods, and hence the latter are com monly called search-warrants. Formerly, search-war rants, in a general form, were issued from the State De partment in England, authorizing officers to search houses
and persons, without naming any persons or places in pai ticular, so that, under color of such warrants, every man's house in the kingdom might, at the mere discretion of such officers, be searched, without any ground of accusation. Such warrants were, however, held illegal by the courts of justice in England. And this amendment not only pronounces them illegal; but prohibits Congress from passing any laws to give them effect.
§ 400. The second amendment is; "Excessive bail shall not be required; nor excessive fines imposed; nor cruel and unusual punishments inflicted." This amendment may, at first sight, be thought superfluous. It is, however, an exact transcript of a clause in the Bill of Rights, passed and ratified in the great Revolution of 1688, in England. It was thought, at that time, to be a most important constitutional provision for the security of the people against the wilful oppression of their rulers. The history of former ages had, indeed, taught the people the necessity of some such guards against the vindictiveness and the cruelty of the supple dependents of the Crown. In the arbitrary reigns of some of the princes of the house of Stuart, demands had often been made of excessive bail against persons, who were odious to the Court or its favorites; and on failing to procure such bail, (as often occurred,) they were committed to prison, and remained there for long periods, and always during the pleasure of the Crown. Enormous fines and assessments were also sometimes imposed by judges and magistrates, and cruel and vindictive punishments were inflicted, with a view to gratify the resentments of the prosecutors, or to subdue the unhappy victims to the will of their oppressors The provision may now seem to be unnecessary, under our free Constitution, since it may be thought scarcely possible, that any department of our Government should authorize or justify such atrocious conduct. But the clause holds out a wise admonition to all departments of the National Government, to warn them against such vio. lent proceedings, and to instruct them in the duties of clemency and moderation. A barrier is thus interposed against the use of those vindictive and atrocious punish