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be public, for publicity is more likely to ensure fairness on the part of the court and jury.
§ 641. The impartiality of the jury is further secured by a right which the prisoner has by law, to challenge, or object to such jurors as have formed and expressed an opinion about his guilt, or are otherwise disqualified to sit as jurors. We have already seen, (§ 514,) that the States are, by act of Congress, divided into judicial districts, in each of which is established a district court for, among other purposes, the trial of criminal cases.
§ 642. The prisoner is to be informed of the nature and cause of the accusation, so that he will know what the charge is which he is to meet. The bill of indictment against him is required by the rules of law, to set forth the offence charged, and the circumstances of its commission. The witnesses against him are to be examined in his presence; he is entitled to a subpoena, or other compulsory process of the court, for obtaining witnesses in his favour, and he is allowed the assistance of legal counsel for his defence.
"ARTICLE VII. In suits at common law, where the value 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 the common law."
§ 643. The Constitution, as we have seen in art. III., sec. 2, clause 3, declares that the trial of all crimes, except in cases of impeachment, shall be by jury. It did not, however, contain any express provision for trial by jury in civil cases. From the silence of the Constitu
tion on this subject, the opponents of its ratification argued that it tended to abolish the trial by jury in civil
§ 644. This amendment was adopted to meet the objection. It preserves the right of trial by jury in suits at common law, (by which is meant the common law of England as adopted in this country,) where the value in controversy exceeds twenty dollars. The judicial power of the United States (by art. III., sec. 2, clause 3) extends to all cases in law and equity arising under the Constitution and laws of the United States, and to all cases of admiralty and maritime jurisdiction. It is only in the cases at law, or as it is called in this article, common law, that the right of trial by jury is preserved. In cases of equity, and of admiralty or maritime jurisdiction, the mode of trial is different, for the judge in such cases determines the facts as well as the law.
§ 645. It is also provided in this clause that no fact tried by a jury shall be otherwise re-examined in any court of the United States, than according to the rules of the common law. There are certain modes, such, among others, as motion for new trial, or writ of error, known to the common law, in which facts tried by a jury in any case can be re-examined by the court in which the cause was tried, or by another court. This article, in order to give full force and effect to the verdict of a jury, so that it may not be arbitrarily disregarded, declares that no fact which has once been tried by a jury, shall be examined again in any court of the United States, except according to the rules of the common law, such, for instance, as those mentioned above.
"ARTICLE VIII. Excessive bail shall not be required,
nor excessive fines imposed, nor cruel and unusual punish ments inflicted."
§ 646. By bail is meant the security given for the release of a prisoner from custody, and his appearance at a particular day, in court, or at a certain place. A party who produces sureties, who become bound for his future appearance, is said to be admitted to bail; he is then discharged from custody, and the sureties become responsible for his appearance at the time and place named. If bail is required in a very large amount, it would be difficult, or perhaps impossible, for a citizen to obtain sureties willing to assume so great a responsibility, and the party would then be committed to prison in default of bail. In order that oppression may not be practised in this way, it is provided that excessive bail shall not be required.
§ 647. The courts are frequently authorized by law to punish offences by fines. If these fines are extravagant in amount, it may be beyond the prisoner's ability to pay them. This article, therefore, declares that excessive fines shall not be imposed; and in the same spirit of mildness it also prohibits the infliction of cruel and unusual punishments.
"ARTICLE IX. The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.'
§ 648. This means that, because the Constitution recites particular rights which belong to the people, it is not therefore to be inferred that the people have no other rights. The enumeration of certain rights is not to be construed as a denial or disparagement of other rights retained by the people.
"ARTICLE X. The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
§ 649. The government of the United States is one of defined and limited extent. It is created by the Constitution, and possesses only such powers as are conferred upon it by the Constitution. It can exercise no powers but those which it derives from the Constitution. The States were jealous of their own sovereignty, and were fearful that their rights would be diminished or invaded by the general government. Hence this amendment was adopted, which provides expressly that the powers which are not delegated to the United States by the Constitution, nor prohibited by it to the States, are to be considered as retained by the States or by the people.
"ARTICLE XI. The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State."
We have already spoken of this article. See § 524.
"ARTICLE XII. The Electors shall meet in their respective states, and vote by ballot for President and VicePresident, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as
President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate;-The President of the Senate shall, in presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted; The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the Presi dent. The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two high