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England juries were summoned for the sole purpose of giving a true saying (veredictum) on a question of fact, and never have had anything to do with the sentence of the court, which follows the verdict of the jury. Because, says Forsyth, the functions of the jury have always been distinct from those of the judge, the institution of trial by jury has been perpetuated in England. From judges of mere questions of fact in criminal trials the step to a like function in civil causes was easily taken, but when it was taken is unknown.
In the reign of Henry the Second (1154-1188) trial by jury was regulated and established on a basis very similar to the jury system of to-day. A law of the time of Edward I. compelled men to submit the question of guilt or innocence to the jury, and many other important changes in the laws regulating trial by jury have been made during the many centuries of the existence of that noble institution, but the changes have only rendered jury trials more and more efficient in preserving and vindicating the lives, liberties and possessions of an intelligent and upright people.
The Constitution wisely avoided specific regulations of jury trials except in requiring “such trial to 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 Congress by law may have directed."* of the transportation of suspected criminals from America to England for trial, was fresh in the minds of our forefathers and the wide extent of
* Art. iii.-2.
the Federal government might well call for this precaution against the use of a jury prejudiced in favor of the prosecutor.
Indeed the discretionary power of selecting jurymen placed by Congress in the hands of United States marshals, gives just grounds for complaint against the injustice of Federal judicial administration.
No bill of attainder or ex post facto law shall be passed. The legislature, or rather Parliament, by bills of attainder declared a certain act to be treason or convicted a man of treason, not by a judicial investigation, but by a mere resolution. An ex post facto law applies only to criminal affairs and either increases the punishment of an act already committed or makes that criminal which when committed was not so. It is a prohibition upon Congress in favor of the offender, and marks the progress of legislation from the madness of a savage age to the mildness of beneficent laws. Mr. Wilson contended, in the Constitutional Convention, that *“ no lawyer, no civilian would say that ex post facto laws are not void of themselves,” yet the Convention made assurance doubly sure by prohibiting both Congress and the States from passing bills of attainder or expost facto laws.
† 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.
The crime that strikes at the life of civil government, the evidence required for the conviction of the defendant, and the limit of the punishment of the offender are definitely defined by the Constitution, The next thing to having good laws is to have those laws that do exist, plain and well understood. By of Congress, treason is punished by death, or fine and imprisonment in the discretion of the court; but for engaging in or assisting a rebellion, or insurrection against the United States authority or laws of the United States, the death penalty is not to be inflicted. The tendency of modern legislation is toward the mitigation of punishment.
* Elliot's Debates, vol. v., p. 462. # Const., Art. iii., 3-1.
Upon an attainder of treason, which means a judicial conviction of treason, the traitor himself is punished, yet his friends are not punished by corruption of his blood, whereby he could neither succeed as heir to any lands which might otherwise have come to him by descent, nor could other persons inherit from or through him. The cruelties of English penal laws rose from the implacable hatred of intermingling races, and the audacity of an enterprising half-savage people. Civil wars, religious conflicts, the pitiless cruelty of the higher ranks of society toward the lower, the chafings of human nature against the restraints of inherited condition, the ignorance and lawlessness of the commonalty, and the vices of the nobility, called for a penal code where death was written in every line.
Our Constitution was for a different system of society, and the rigor of English laws was mitigated. Only that part of the English code that was adapted to our situation was held to be in force here, and only those laws re-enacted here that were suitable to our social system.
* No religious test shall ever be required as a qualification to any office or public trust under the United States.
The zealots of religious bigotry and fanaticism ever strove to bend all views into conformity with their
The Catholic persecuted the Protestant, who in turn, when in power, became persecutor. The history of the Established Church in England is such a story of outrage upon private judgment and religious freedom that our ancestors desired to exclude the Federal government from all connection with religious affairs. The framers of our Constitution, with all their learning and ingenuity, thought that they would accomplish enough if they should establish a system of government which they believed would perpetuate a happy union, and they very wisely left all questions untouched that had no necessary connection with government. To meddle in matters of religion is no part of the business of the general government and would only tend, says Judge Cooley, to revive what Mr. Madison thought was extinguished, “the ambitious hope of making laws for the human mind."
But the Constitution was not definite enough and the very
first clause of the first amendment restrains Congress from making any law respecting an establishment of religion or prohibiting the free exercise thereof. Thus the beneficence of the Federal government-like the air we breathe-is enjoyed by every liberty-loving man, whether he be white or black, Christian or infidel. The Providence that rules the affairs of men is wiser than the ambition of spiritual pride or the
* Art. vi.
intolerance of sects. “In matters of religion,” says Locke, “every man, must know, believe and give an account for himself.” Every step that government takes in religious affairs is that much of a trespass upon the sacred domain of private judgment and individual conscience. The Federal Constitution has not yet made the slighest trespass.
* The citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States.
Individual rights are thus protected against a possible abuse of State power. Although the courts refuse to define what a citizen is entitled to by this guarantee --preferring to decide each case as it comes up-it is well known what are some of the privileges and immunities of citizens. A citizen of another State is by the Constitution entitled to such fundmental rights as protection by the government, the enjoyment of life and liberty with the right to acquire and possess and transfer property, free passage through and residence in another State, to institute and maintain actions of every kind in the State courts, the payment of taxes on an equality with the citizens of the taxing States. With the definition of citizenship given by the Fourteenth amendment and the additional protection to citizens of the United States by the prohibitions on the States of making or enforcing any law which shall abridge the privileges or immunities of citizens, the individual has thus a general citizenship in all the States and the Federal courts can inquire into the legal
* Art. iv., 2.