The Short Constitution Part 37

70 "At common law a prisoner was not allowed counsel. In England this right was not granted in all cases before 1836."-_Cyclopedia of American Government_, Vol. I, p. 487.

The United States was the earliest of nations to not only permit every person accused of crime and tried before a court to have counsel, but to furnish counsel for every person who was not himself able to get counsel or able to pay for counsel.

71 Const.i.tution of the United States, Amendment VII.

"Common Law is that system of law or form of the science of jurisprudence which has prevailed in England and in the United States, in contradistinction from other great systems, such as Roman or civil law."-Bouvier's _Law Dictionary_, Vol. I, p. 370.

"Common law is used to distinguish the body of rules and of remedies administered by courts of law, technically so called, in contradistinction to those of equity administered by courts of chancery, and to the canon law, administered by ecclesiastical courts."-Bouvier's _Law Dictionary_, Vol. I, p. 370.

72 Const.i.tution of the United States, Amendment VII.

"A jury is a body of men sworn to declare the facts of a case as they are proven from the evidence placed before them."-Bouvier's _Law Dictionary_.

The definition of a jury explains why the facts of a case are not open for re-examination after being declared by a jury. It is because a jury meets in a court in the place where the offense has been committed, and is therefore better able to know the whole truth, and to determine what the facts really are than would be possible for any other body of men who did not have such means of knowing. A higher court in reviewing a case on an appeal cannot usually go behind the facts as declared by a jury.

73 In ordinary instances arrests may be made only by officers of the law upon warrants issued by a magistrate. Any officer may, however, upon his own cognizance of a crime being committed, arrest the person or persons without warrant. If such authority were not given to officers of the law, many persons violating law would be able to escape before a warrant could be issued. Furthermore, under the laws of some States, any person who sees a crime committed is legally required to pursue and arrest the offending person and may himself be punished if he refuses to act. Sheriffs and other officers of the peace may call upon and require other persons to a.s.sist in the pursuit and capture of fleeing criminals.

74 Const.i.tution of the United States, Amendment VIII.

In criminal actions the matter of bail is determined by statute.

Bail is often denied to those accused of committing serious crimes.

The term _bail_ is used to designate a person who becomes a surety for the appearance of the defendant in court at the time called for.

But in modern usage the term _bail_ means the amount of money pledged by another person for the appearance of the defendant. If the defendant fails to appear the person going his bail must pay the stipulated amount into the court. The payment of the bail does not, however, relieve the delinquent defendant of further punishment. He may be again seized and punished as according to the charge, and furthermore may be given additional punishment for "jumping" his bail.

"The defendant usually binds himself as princ.i.p.al with two sureties; but sometimes the bail alone binds himself as princ.i.p.al, and sometimes one surety is accepted by the sheriff. The bail bond may be said to stand in the place of the defendant as far as the sheriff is concerned, and if properly taken, furnishes the sheriff a complete answer to the requirement of the writ, requiring him to take and produce the body of the defendant."-Bouvier's _Law Dictionary_, Vol. I, p. 211.

75 United States Const.i.tution, Amendment VIII.

"The amount of fine is frequently left to the discretion of the court, who ought to proportion the fine to the offense."-Cooley's _Const.i.tutional Limitations_, p. 377.

"The object of punishment is to reform the offender, to deter him and others from committing like offenses, and to protect society."

"A state may provide a severer punishment for a second than for a first offense providing it is dealt out to all alike."-159 _U. S._ 673.

"Punishments are cruel when they involve torture or a lingering death; but the punishment of death is not cruel, within the meaning of that word as used in the Const.i.tution."-136_U. S._ 436.

A warden of a State penitentiary was recently found guilty of inflicting cruel punishment because he punished a convict by suspending his body from chains placed around his wrists.

The British Museum contains several machines of torture used to punish criminals in early days. One is a machine in the form of a hollow case fitting a human form. This case is filled with sharp spikes driven through from the outside. The machine was so constructed that when a victim was placed inside, the sides could be gradually turned up to fit the body and press these spikes into the body of the victim so as to produce death.

Another machine is constructed much as a cross in form of the letter X. The victim was fastened in such manner as to bind his wrists and ankles to the ends of the bars. A horse was then hitched to either his arms or legs and they were torn from the body.

Many States in the United States have now adopted electrocution as the means of inflicting the death penalty because it is believed to be the most humane way.

76 Const.i.tution of the United States, Amendment XIII, Sec. 1.

This amendment was submitted to the States by resolution of Congress in 1865 and by proclamation of the President of December 18th of that year was declared to have received the approval of the requisite number of States.

So far as the abolition of slavery is involved there has been no question as to the effect of the amendment, but as to what const.i.tutes involuntary servitude important questions have arisen.

While the primary object of the amendment was to free the colored race, the general purpose was to render impossible the existence within the jurisdiction of the United States of any legal or social inst.i.tution imposing involuntary labor on any cla.s.s of persons. The introduction here of the peonage system prevalent in Mexico, the coolie system of China, or the padrone system of Italy fall within the prohibition.

The amendment permits imprisonment and also involuntary servitude as a penalty for failure to pay a fine imposed as a punishment.

Moreover the services of persons imprisoned for crime belong to the State and may be leased, subject of course to humanitarian regulations as to the method in which such services may be employed.

Under the enforcement clause Congress has legislated against peonage, that is, a condition of enforced servitude by which the servitor is restrained of his liberty and compelled to labor in liquidation of some contract, debt, or obligation. But without such legislation, State statutes imposing imprisonment or servitude for non-performance of contractual obligations are invalid as in conflict with the provisions of the amendment.-Emlin McClain, in the _Cyclopedia of American Government_, Vol. III, p. 536.

In the early days many of the American colonies permitted imprisonment for debt, and one of the greatest patriots and philanthropists of colonial times, Robert Morris, was imprisoned for debt by the State of Pennsylvania.

77 James Bryce has written of our government: "The American Union is ... a state which, while one, is nevertheless composed of other states even more essential to its existence than it is to theirs."

78 Const.i.tution of the United States, Amendment XIV. Sec. 1.

A person may attain to citizens.h.i.+p in the United States in any of seven different ways: 1. By birth-i.e. natural born. 2. By naturalization, which usually requires continuous residence for five years. 3. By treaty regulation. 4. By statute of Congress. 3. By annexation of territory. 6. By marriage-if a foreign woman marries an American citizen. 7. By honorable discharge from the army or navy, upon which the court admits to citizens.h.i.+p regardless of the time of residence in the United States.

In the United States we recognize a dual citizens.h.i.+p-citizens.h.i.+p in the United States, and citizens.h.i.+p in a State. Any person who is a citizen of the United States is also a citizen of the State wherein he or she resides. Nine different States grant the right of suffrage and State citizens.h.i.+p to such foreigners as take out their first naturalization papers. These States are Alabama, Arkansas, Indiana, Kansas, Missouri, Nebraska, Oregon, South Dakota, and Texas.

Citizens.h.i.+p must not be confused with the right of suffrage. Neither one necessarily includes the other. All citizens cannot vote-children for example. All voters are not necessarily citizens, those in the above nine States for example.

Aliens in the United States have practically all the civil rights that are enjoyed by citizens, but they do not have political rights.

An alien may purchase, own, and convey property. He may sue and be sued in the courts.

"There can be no doubt that the minimum expectation of the framers of this amendment to the Const.i.tution was that it would make the first eight amendments to the Const.i.tution binding upon the states, as they already were upon the Federal Government, and that it should be susceptible not only of negative enforcement by the courts but also of direct positive enforcement by Congress."-_Cyclopedia of American Government_, Vol. II, p. 41.

79 Const.i.tution of the United States, Amendment XV.

80 "By a series of decisions the most important of which were those in the Slaughter House cases (16 Wallace 36) and in the Civil Rights Cases (109 U.S. 3) the United States Supreme Court established the following principles: (1) that the prohibitions of the fourteenth amendment are addressed to the states as such and not to private individuals; (2) that these prohibitions contemplate only positive state acts and not acts of omission; (3) that the amendment recognizes a distinction between state citizens.h.i.+p and United States citizens.h.i.+p; (4) that it protects from state abridgement only 'the privileges and immunities' which the Const.i.tution by its other provisions bestows upon 'citizens of the United States' as such."-_Cyclopedia of American Government_, Vol. II, p. 41.

The nineteenth amendment which is now ratified by the States, provides that "the right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of s.e.x."-Const.i.tution of the United States, Amendment XIX.

81 "The good citizen must in the first place, recognize what he owes his fellow citizens. If he is worthy to live in a free republic he must keep before his eyes his duty to the nation of which he forms a part. He must keep himself informed, and he must think of himself as well as of the great questions of the day; and he must know how to express his thoughts."-Theodore Roosevelt.

82 In receiving applications for the many appointments which it was his duty to make, President Taylor said: "I shall make honesty, capacity and fidelity indispensable requisites to the bestowal of office; and the absence of any one of these qualities shall be deemed sufficient cause for removal."

83 "The American Const.i.tution is the most wonderful work ever struck off at a given moment by the brain and purpose of man."-William E.

Gladstone.

"It will be the wonder and admiration of all future generations and the model of all future const.i.tutions."-William Pitt.

"Our fathers by an almost divine prescience, struck the golden mean," when they made the Const.i.tution.-Pomeroy.

"It (The U. S. Const.i.tution) ranks above every other written const.i.tution for the intrinsic excellence of its scheme, its adaptation to the circ.u.mstances of the people, the simplicity, brevity and precision of its language, its judicious mixture of definition in principle with elasticity in details."-James Bryce.

84 "This is the most famous writ in the law; and, having for many centuries been employed to remove illegal restraint upon personal liberty, no matter by what power imposed, it is often called the great writ of liberty."-Bouvier's _Law Dictionary_, Vol. I, p. 917.

85 In 1861 Chief Justice Taney decided in the United States Circuit Court of Maryland that Congress alone possessed the power under the Const.i.tution to suspend the writ.-_American Law Register_, 524.

The privilege of the writ is, however, necessarily suspended whenever martial law is declared in force; for martial law suspends all civil process.

"As a recognized legal remedy, resort to the proceeding by habeas corpus may be had where a person is imprisoned under pretended legal authority which in fact for any reason is absolutely void, as where the warrant of arrest or commitment is insufficient or the proceeding under which the warrant was issued was without legal authority."