of no importance, because in all crimes which come within the judicial power of the United States, the complaint is made either by presentment or indictment. A grand jury, according to the law of March 3, 1865, must consist of not less than sixteen nor more than twenty-three jurors. This provision of the fifth amendment does not apply to the federal army or to the militia when the latter, in time of public peril or of war, is in the service of the United States; in other words, they may be subjected by law to courts-martial. No one can be compelled in any criminal case to be a witness against himself. No one can be twice put in jeopardy of life or limb for the same offense. A man is put into jeopardy (in the sense of this clause) only when the jury has given a verdict. If the trial has to be stopped for any legal reason, it does not count as a trial under this provision. So, too, of course, when the person tried is granted a new trial; be. cause the law gives him this for his own benefit. A new trial is granted when the court considers the finding contrary to law or to the evidence produced. In capital cases the court can, even without the consent of the accused, discharge the jury if it thinks there is good ground for doing so. If the jury bring in a verdict which covers only some points of the complaint, the accused is protected against a new trial as to these, but not as to the others. If the jury is dismissed without the consent of the accused, and it was not a case in which the law recognizes this as necessary, such, for instance, as a mistrial, he cannot again be tried for the same offense stitution of the United States, p. 320, says: “Infamous crimes, in the meaning of this clause, are only those made infamous or declared a felony by express act of congress:” and cites in proof of this United States vs. Wynn, McCrary, III., 266.

1 See J. Proffatt, Law of Jury Trial, San Francisco, 1877; H. Hirsh, Law relating to Juries, N. Y., 1879.

although he has not been acquitted." The eighth amendment forbids the requirement of excessive bail, the imposition of excessive fines and the infliction of cruel and unusual punishments. Bail is always admitted, except when the crime charged is punishable by death or lifelong imprisonment. Even in these cases it may be taken. § 87. JURY TRIALs IN Civil CASEs. The seventh amendment provides “that 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.” As only the preservation of a right is here concerned, this evidently refers to the English common law at the time of the adoption of the constitution, and the intention is to extend the right, so far as constitutional law permits, to cases in which it did not exist before. Moreover, since it is only a right, the parties can waive it.” So, too, the right is sufficiently preserved when, in case of appeal from the first decision, a trial by jury may be demanded. It is to be noticed, again, that the right is restricted to suits at common law; in equity and in admiralty and maritime courts, it does not exist. If in a common-law suit the question of fact has been decided by a jury and an appeal is taken, the appellate court has nothing to do with the question of fact; it has simply to decide whether the law was properly applied. It is only when a new trial is granted that questions of fact are retried, but even then they must be decided again by a jury. The seventh amendment also applies in common-law suits, which have first been tried with a jury in a state court and are then brought by appeal before the United States supreme

1 To the provisions of the fifth amendment as to criminal procedure, there is coupled-on the prohibition against taking private property for public uses without just compensation. It goes without saying that the right of expropriation belongs to the federal government only when public uses within its jurisdiction are concerned. It relates back to the “right of eminent domain" and this belongs to the states, except as to those rights deduced from this, which the constitutional purposes of the federal government require to be vested in it. In the territories the United States have the right of eminent domain. If a territory be transformed into a state, the right passes over to the latter. As to the right of eminent domain see Cooley, Constitutional Limitations, ch. XV.

* This is not true of criminal cases. In them the jury is a necessary part of the court, and the accused cannot waive it.


§ 88. For AMENDING THE CoNSTITUTION, different methods are provided by the fifth article. The initiatory step may be taken either by congress or by the state legislatures. The latter cannot propose any amendments, but congress must call a convention for this purpose if the legislatures of two-thirds of the states demand it. This has never yet happened. All amendments have been proposed by congress, in which body two-thirds of each house must favor the proposition. The states decide whether its proposals shall be ratified, but congress determines whether the vote of the states is to be cast by their legis. latures or by conventions called for that particular pur. pose. In either case, a ratification requires the assent of three-fourths of the states. The constitution says nothing as to an obligation on the part of the states to come to any conclusion about a proposed amendment. In practice it has been decided that there is no such obligation. I have already discussed the question whether and how far a state is bound by its assent once given. This has never been properly settled, and it is by no means impossible that it may yet give rise to serious difficulties.



§ 89. PRELIMINARY REMARKs. I cannot attempt to treat the general law of each of the thirty-eight states separately. Regard for space would make this impossible, even if the sketch were confined to the most superficial outline. Yet a superficial sketch would present an endless array of repetitions. But, on the other hand, the most cursory perusal of the different state constitutions suffices to convince any one that it would be just as inadimissible to select a certain state and to analyze its general law as a type of the whole. The selection would be entirely arbitrary; for there are so many and such important differences in details that no state can be used as a pattern or type of the rest. It must suffice, therefore, to give a general characterization in broad outlines, laying especial stress upon what is common to all or nearly all, and briefly noting the most important differences. In order to lessen the repetition which is unavoidable, and not to heap up a mass of useless details, I shall not always note to how many or to which states what I say applies. If the matters concerned are peculiar to one or to a few states, this will be pointed out. The omission to point it out must nevertheless not be construed as meaning always that the statement is one of quite general application. In the more important questions in which this is the case I shall say so expressly.

$90. ORIGIN of THE CONSTITUTIONs. The constitutions of the states are without exception the work of constitutional conventions." But many constitutions contain provisions that became constituent parts of them without the meeting of any constitutional convention. Conventions are instruments which the people use for reasons of expediency in constitution-making; but their task should always belimited to drafting a plan of a constitution. The people — as all the constitutions say, in a more or less precise formula—are the sole possessor of political power, and they alone, therefore, can give the state its fundamental law. These are fundamental principles. It is not only theoretically that they are of the highest importance. It has repeatedly become of the greatest political significance, that conventions — partly by appealing to precedents in the struggle of the colonies with the mother country, and partly in imitation of the convention of the first French revolution — have claimed to be the bearers of the people's sovereignty, a claim that in its final logical results tends to a complete overturning of the fundamental principle of American popular government, that is, transforms popular sovereignty into its very opposite.” This doctrine, which rests on the logical ab

"Americans distinguish between revolutionary and constitutional conventions, and many conventions are held in the United States which have nothing to do with adopting or amending a constitution.

*It suffices to recall those conventions which decreed their respective states out of the Union after the presidential election of 1860. The Lecompton convention in Kansas, in 1857, was theoretically of peculiar interest and practically of great importance. It proposed to the people to vote, not whether or no they would adopt the whole constitution as drafted, but simply whether they would have “the constitution with slavery” or “the constitution without slavery.” The majority of the people did not want the constitution at all. At the election ordered by the convention “the constitution with slavery” was adopted by 6,266 against 567 votes. The territorial legislature had already fixed a later day for voting on the general question, and at this election 10,266 votes were cast against the constitution

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