by the party imprisoned, or by some person in his behalf. The complaint should be verified by the oath of the person making the application, or by some person in his behalf.

The complaint need not be in any special form; but it should set forth substantially the following things:

First. The person by whom and the place where he is imprisoned or restrained (naming the prisoner and the person detaining him if their names are known, and describing them if they are not known).

Second. The cause or pretence of such imprisonment or restraint, according to the knowledge and belief of the person applying.

Third. If the imprisonment or restraint is by virtue of a warrant or other process, a copy thereof should be annexed, unless it is made to appear that such copy has been demanded or refused, or that for some sufficient reason a demand therefor could not be made.

The court or magistrate to whom the complaint is made should, without delay, award and issue the writ of habeas corpus substantially in the form below, and the sheriff must forthwith execute the

same.

[SEAL.]

(9.)

A WRIT OF HABEAS CORPUS.

STATE (or COMMONWEALTH) OF

To the Sheriffs of our several Counties and their respective Deputies:·

---

WE COMMAND YOU, That the body of (name of imprisoned party), of (his residence), by (name of party imprisoning), of (his residence), imprisoned and restrained of his liberty, as it is said, you take and have before (name of the court or magistrate to whom the writ is returnable), a justice of our (name of court), at (place where the court or magistrate will sit to receive the return), immediately after receipt of this writ, to do and receive what our said justice shall then and there consider concerning him in this behalf; and summon said (name of party imprisoning) then and there to appear before our said justice, to show the cause of the taking and detaining of said (name of party imprisoned), and have you there this writ, with your doings thereon.

Witness (name of justice or magistrate issuing the writ) at (place of issuing he same), on this (time of issuing) day of in the year

If this writ is issued by the court while in session, it should be signed by the clerk of the court, otherwise by the magistrate issuing the same; and in either case it may be served in any county by a sheriff or deputysheriff of the same, or of any other county in the State

CHAPTER II.

THE RIGHT TO PERSONAL SECURITY.

SECTION I.

TRIAL BY JURY.

A provision to secure a fair trial to every accused person was made by the constitution, in the third article, which related to the judicial power, by the following 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."

In the amendments to the constitution, a similar provision for the security of the accused is made in article fifth of the amendments, by declaring that "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;" and in article sixth of the amendments, that "in all criminal prosecutions the accused shall have a speedy and public trial by an impartial jury of the State and district wherein the crime shall have been committed, and that this district shall have been previously ascertained by law;" and in the seventh article of the amendments, that "in suits of common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved; and that no fact tried by a jury shall be re-examined in any court of the United States otherwise than according to the rules of the common law."

All these provisions and precautions to secure a presentment and a trial by jury are very minute and precise, and might seem to be extreme to one who had not fully considered, under the light thrown on the subject by the history of other nations, the inestimable value of the institution of a jury.

There are two kinds of jury, and each of them is entirely distinct from the other in its functions. Both of them are referred to in the constitution, in the clauses above quoted. The grand jury must consist of twelve, and may be larger, up to the number of twenty

three. Its duty is to hear complaints brought before it by the prosecuting officer. This the officer does by bringing before the grand jury a bill of indictment, which means a written accusation of some party charging him with a crime, and such evidence as can be offered to support the accusation. This indictment the grand jury either find or ignore, which means dismiss. If they find the bill, which means that they find it to be true, the party charged may then be arrested and put upon his trial. If they dismiss the bill, there is an end of it. The grand jury acts in secret, and only on the evidence which the prosecuting officer brings before them.

Beside the indictment, the grand jury may make a presentment, by which they charge a party with wrong-doing of any kind, from their own knowledge, or from any evidence they have; but the prosecuting officer must afterwards frame an indictment founded on the presentment before the party presented can be put to his trial. From this we may see the effect of the provision, that no person shall answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury. This effect is, that a man cannot be put upon his trial by any court or magistrate or officer, at their pleasure, or for any reason, but only on the accusation, solemnly made, by a jury of his countrymen, taken from the community. Here, too, we must go to history if we would know the enormous abuses against which this provision secures the citizens of this country; for we may read there, that when a government, or its members or officers, have the power of charging whom they will, with what crime they will, and bringing him to trial therefor, at their own pleasure, personal liberty then and there becomes impossible: it ceases to exist, because the government has in its hands a means of coercion which nothing can resist.

The other jury is a trial jury. Such a jury consists of twelve men, impartially selected, according to law; and they must unanimously concur in the guilt of a prisoner before a conviction can be had.

The way in which juries, both grand and petit, are selected, is usually this jurors for both juries are returned by the sheriff of each county (or, for the United States courts, by the marshal of each district), in obedience to a writ, called a venire (which is a Latin word, meaning "to come "), which writ commands him to summon to come" to the court at the appointed time the proper number of persons. The authorities of every city and town, or sometimes county, put into a box the names of all persons therein qualified and bound to serve as jurors. Usually these are all persons qualified to vote, with some special exemptions. When notice is given them to select and return the names of jurymen, the proper

officer (as determined by statute or usage) draws a name from the box; and if persons are wanted both for grand and petit juries, usually the first twenty-three drawn are returned as grand jurors, and those that come after are for petit jurymen, until the necessary number is made out, which is usually enough to supply two or three juries. The names of these persons are given to the sheriff or marshal, and entered by him in the return of his venire. As no one can be called upon to discharge this duty, which is sometimes very burdensome, oftener than once in a certain number of years (usually three), when any one's name is drawn, the day is indorsed upon the paper; and if it be seen that the same person has been drawn within three years, the paper is put back into the box and he is considered as not drawn. The grand jury is "impanelled" when sworn and organized. A petit jury is impanelled when the names are called over, and the first twelve who are present, and are not excused or objected to, are sworn, and set apart as the jury. It is common in most of our courts having much business to impanel two juries; that sitting on the right hand of the court being called "the first jury," and that on the left hand "the second jury." Sometimes, though very seldom, and only when the urgent pressure of business requires it, a third jury is impanelled. The purpose in impanelling more than one jury is, that while one is charged with a case and is deliberating, another case may be tried before another jury. Upon trials before a jury, the court are the exclusive judges of the admissibility or competency of evidence; but if it be admitted, the jury are the judges of its effect and value.

The origin of this institution is lost in the obscurity which hangr over early English history. It probably existed in an imperfec form among the German races who invaded and peopled England It gradually grew up in that country as the love of freedom and justice grew from age to age, and expressed itself in these and other institutions of the common law. It was unknown elsewhere in Europe, for elsewhere there was not the same vital and enduring love of liberty. For the very reason that this love is paramount and unfettered in this country, and lies at the foundation of all our civil and political institutions, to this country a trial by jury is essentially adapted. It sometimes seems to be inconvenient; and we hear arguments against the reasonableness of submitting questions of extreme difficulty and of the utmost importance to a panel composed of twelve men, who are selected, almost by lot, from all classes in the community, and who cannot be supposed to bring to the weighing of the evidence, and the determining of the questions, any training or adaptation for this peculiar work. Against all these and other arguments against the jury stands the great fact, that

nothing has ever been contrived which, on the whole, works so fairly, is sc little open to corruption, and does so much justice. The jurymen are taken right out from the community, and to that community they return. Wise laws and well-adapted precautions guard them, as far as. may be, from improper influence; and while this institution, like all other human institutions which must be carried into effect by human beings, is always liable to failure and imperfection, it remains much the best institution for its purpose that has ever been devised. It is a good thing that the framers of our national constitution, and of the many State constitutions which contain similar provisions, were so careful to perpetuate this institution, and that the people are as determined -as there is good reason to believe that they are- to preserve it unimpaired.

There are other provisions in the constitution, intended to secure a fair trial, to which we will allude only generally. These are, that no person accused of and tried for crime shall be compelled to be a witness against himself; that he shall be informed of the nature and cause of the accusation; that he shall be confronted with the witnesses against him; that he shall have compulsory process for obtaining witnesses in his favor, and the assistance of counsel for his defence; and that he shall not be deprived of life, liberty, or property, without due process of law.

SECTION II.

NO PERSON SHALL BE TRIED TWICE FOR THE SAME OFFENCE.

The fifth article of the amendments contains this provision: "No person shall be subject, for the same offence, to be twice put in jeopardy of life or limb."

The reason for this provision is not so obvious as it is certain. It does not apply to civil actions to the same extent. If a person is sued for a debt, and either party fails to maintain his suit or his defence, and afterwards discovers new evidence which will maintain his suit or his defence, he may often, proceeding according to the rules of courts, try his case again. But even in civil suits there is a limit to this; because the whole purpose of the law being to settle questions and terminate disputes, it will not permit a question which has been settled to be tried again, provided the question had been settled after a full and regular trial, and had been the object of direct investigation, and the parties have had their attention drawn to it in such a way as to warrant the supposition that a new trial could only be a repetition of a former trial, — a question tried in