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in any criminal case, to be a witness against himself; and in all criminal prosecutions, the accused is entitled to a speedy and public trial by an impartial jury; and upon the trial he is entitled to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defence. And as a further guard against abuse and oppression in criminal proceedings, it is declared, that excessive bail cannot be required, nor excessive fines imposed, or cruel and unusual punishments inflicted; nor can any bill of attainder, or ex post facto law, be passed. The constitution of the United States, and the constitutions of almost every state in the Union, contain the same declarations in substance, and nearly in the same language.* And where express con
verdict, it was held by the Supreme Court of the United States, in the case of the Uuited States v. Perez, 9 Wheaton, 579, that the courts have a discretionary power even in capital cases, (to be exercised with great caution and reserve,) to discharge the jury from giving a verdict, and that the prisoner may be tried again for the same offence. This question as to the power of the court to discharge a jury sworn and charged in a capital case before verdict, and to put the party accused upon trial a second time for the same offence after a verdict rendered, has been much discussed in the courts in this country, and the vigorous and powerful opposition to the power of the court by Mr. Justice Story in the case of U. S. v. Gibert, has given additional interest to the investigation. The cases in the American courts on the power of discharging a jury in their Round discretion before verdict, and of puttmg the party again on his trial, are fully collected in Wharton's American Criminal Law, Edit . Phil., 1846, pp. 146-155, 625-H35. The result clearly is, that the power of the courts is settled by overwhelming precedent and authority in favor of the power of the courts to discharge a jury before eerdict, after being charged in a capital case, when there is an absolute necessity for it to be judged of by the court in its sound discretion, and that the accused may be put upon his trial de noeo, and also that a new trial, after a verdict of coneiction, may be awarded, for the party is not put in jeopardy a second time. That jeopardy already exists, and the only object of a second trial is to give the accused a chance from being relieved from it.
» In the ordinance of congress of July 13th, 1787, for the government of stitutional provisions on this subject appear to be wanting, the same principles are probably asserted by declaratory legislative acts; and they must be regarded as fundamental doctrines in every state, for the colonies were parties to the national declaration of rights in 1774, in which the trial by jury, and the other rights and liberties of English subjects, were peremptorily claimed as their undoubted *inheritance and birthright. It *13 may be received as a proposition, universally understood and acknowledged throughout this country, that no person can be taken or imprisoned; or disseised of his freehold, or estate; or exiled, or condemned; or deprived of life, liberty, or property, unless by the law of the land, or the judgment of his peers. The words, by the law of the land, as used originally in magna charta* in reference to this subject, are understood to mean due process of law, that is, by indictment or presentment of good and lawful men; and this, says Lord Coke,b is the true sense and exposition of those words. The bet
the territory of the United States northwest of the river Ohio, it was declared to be an unalterable article of compact between the original states and the people and states in the said territory, that the inhabitants thereof should always be entitled to the benefit of the writ of habeas corpus, and of trial by jury; of judicial proceedings according to the course of the common law; that all persons should be bailable, unless for capital offences, where the proof shall be evident, or the presumption great; that all fines should be moderate, and no cruel or unusual punishments inflicted; that no man should be deprived of his liberty or property, but by the judgment of hi» peers or the law of the land; that no man's property or services should be taken or demanded for public exigencies, without full compensation; and that no law ought ever to be made, or have force in the territory, interfering in any manner whatever with, or affecting private contracts or engagements bona fide, and without fraud previously formed. This last and valuable provision was at that time new and unprecedented in constitutional history. * Ch. 29.
b 2 Inst. 50. See also the matter of John and Cherry streets, 19 Wen
Vol. II. 2
ter and larger definition of due process of law is that it means law, in its regular course of administration, through courts of justice. (Story Comm. on the Const., Vol. 3, 264, 661.)
dell, 659. Taylor v. Porter, 4 Hill, N. Y. Rep. 145, 146, 147. The law of the land in bills of right, says Ch. J. Ruffin, in the elaborate opinion delivered in Hoke v. Henderson, 4 Dev. N. C. Rep. 15, (and one replete with sound constitutional doctrines,) does not mean merely an act of the legislature, for that construction would abrogate all restrictions on legislative authority. The clause means, that statutes which would deprive a citizen of the rights of person or property without a regular trial, according to the course and usage of the common law, would not be the law of the land in the sense of the constitution. Mr. Justice Story, in his Commentaries on the Constitution, vol. 3, 661, and Mr. Justice Bronson, in 4 Hill, N. Y. Rep. 146, 147, adopt Ihe same construction. In South Carolina the law of the land in the constitution of that state means the common and the statute law existing in that state at the adoption of its constitution. O'Neill, J. in the State v. Simons, 2 Spear's R., 767. In Tennessee "the law of the land" in the constitution of that state is understood in many cases to mean a general and public law, operating equally upon every member of the community ; and every partial law, by which private property and the rights of individuals are abridged or taken away, is held to be against the constitution of the state. 2 Yerger, 500, 554. 10 Id. 71. A statute declaring it to be felony to embezzle or make false entries by the officers of a specific bank, is held to be unconstitutional and void, as being a partial law, not embracing the officers of other institutions under similar circumstances. Budd v. The State, 3 Humph. Tenn. R. 483. The judgment of his peers means, trial by a jury of twelve men according to the course of the common law; and even in private suits at common law, the right of trial by jury is preserved in the constitution of the United States, where the value in controversy exceeds twenty dollars. Cons. U. S. Amendments, art. 7. In the constitution of New York it is declared, that trial by jury, "in all cases in which it has been heretofore used," should remain inviolate forever; and no new court should be instituted, except courts of equity, which should not proceed according to the course of the common law. Const. N. Y. art. 7. Under these provisions it has been adjudged, that the provision in the constitution of the United States, relative to trial by jury, applies only to the federal courts; and that the provision in the state constitution applies only to cases of trials of issues of fact in civil and criminal proceedings in courts of justice; and that the provision as to new courts referred to courts exercising the usual jurisdiction of courts of law, but proceeding by modes unknown to the common law. In the matter of Smith,
But while cruel and unusual punishments are universally condemned, some theorists have proposed the entire abolition of the punishment of death, and have considered it to be an unnecessary waste of power, if not altogether unjust and unwarrantable. It has been supposed that the proper object of punishment, the protection of society by the prevention of crime, can be as well, or more effectually attained, by the substitution of milder sanctions. The great difficulty is, to effect the salutary ends of punishment, and, at the same time, avoid wounding the public sense of humanity. The punishment of death is, doubtless, the most dreadful and the most impressive spectacle of public justice; and it is not possible to adopt any other punishment equally powerful by its example. It ought to be confined to the few cases of the most atrocious character, for it is only in such cases that public opinion will warrant the measure, or the peace and safety of society require it. Civil society has an undoubted right to use the means requisite for its preservation; and the punishment of murder with death, accords with the judgment and the practice of mankind, because the intensity and the violence of the malignity that will commit the crime, require to be counteracted by the strong
10 Wendell, 449. Cowen, J., in the matter of John and Cherry streets, 19 Wendell, 676. Lee v. Tillotson, 24 Wendell, 337. In Georgia, where the provision in the constitution securing trial by jury is the same as in that of New York, it has been adjudged, that it did not apply to summary jurisdictions known and in use before the adoption of the constitution. Law and commissioners of pilotage, R. AT Charlton's Rep. 302. This has been also the contemporaneous and practical exposition of the same words in the constitution of New York. Lee v. Tillotson, 24 Wendell's Rep. 337. So in Mississippi, it is held in Lewis v. Garrett. 5 Howard's Rep. 434, that a statute authorizing summary proceedings by motion against a sheriff and his sureties for official misconduct, is uot a violation of the constitution which guarantees the right of trial by jury. That revision was not intended to disturb the ancient and established jurisdiction of the courts and the modes of trial as regulated by the common law under magna charta.
*14 est motives which can be presented to *the human mind. Grotius* discusses much at large, and with his usual learning and ability, the design and the lawfulness of punishment; and he is decidedly of the opinion, that capital punishments, in certain cases, are not only lawful under the divine law, but indispensable to restrain the audaciousness of guilt. He recommends, however, for adoption, in many cases, the advice, and even the example of some of the ancients, by the substitution of servile labour and imprisonment for capital punishment. This has been done since his time to a very great extent in some parts of Europe, and especially in these United States. In the earlier code of laws prepared by William Penn, and adopted by the legislature of Pennsylvania, in 1682,b it was declared, that all prisons should be workhouses for felons and vagrants; and the penitentiary system founded on labour, discipline, and instruction, accompanied with patient and humane treatment, was first introduced into this country by the wisdom and benevolence of that eminent lawgiver. Though the penitentiary system has not been able sufficiently to answer the expectations of the public, either in the reformation of offenders, or as an example to deter others, yet the more skilful structure and arrangement of the prisons, and the introduction of a stricter and more energetic system of prison discipline, consisting essentially of separate and solitary confinement by night, and hard labour without solitude, and in companies but without conversation, in the workshops, by day; (and which ha»e been carried into effect with beneficial results in the state prison at Auburn, and in the new state prison at Sing-Sing, in New-York, and at Weathersfield in Connecticut,) afford encouraging expectations that they will be able to redeem the credit of
» Ve Jure Belli, b. 2, ch. 20.
b Proud's History of Pennsyleania, vol. ii. app. p. 16.