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§ 225. Criminal jurisdiction of United States courts.— The third clause of the second section of the third article of the United States Constitution provides that: "The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the State where the said crime shall have been committed; but when not committed within any State, the trial shall be at such place or places as the Congress may by law have directed."

The guarantee contained in this section extends to cases arising in time of war, but not to those arising in the land or naval forces of the United States.163

The word "trial" here means a trial by jury.10 164 The United States courts have no common law criminal jurisdiction.165 The Supreme Court of the United States in Callan V. Wilson,166 cites the following opinion167 as showing to the trial of what crimes this Constitutional guarantee extends:

"In England, notwithstanding the provisions in the Magna Charta of King John, Act 46, and in that of King Henry III, Chap. 29, which declared that no free man shall be taken, imprisoned or condemned but by lawful judgment of his peers, or by the law of the land, it has been the constant course of legislation in that kingdom, for centuries past, to confer summary jurisdiction upon Justices of the Peace for the trial and conviction of parties for minor and statutory police offenses; and when it is declared that the party is entitled to a speedy trial by an impartial jury, that must be understood as referring to such crimes and accusations as have, by the regular course of the law and the established modes of procedure, as heretofore practiced, been the subjects of jury trial. It could never have been intended to embrace every species of accusation involving either criminal or penal consequences."

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168

168 127 U. S. 640.

167 From State V. Glenin, 54 Maryland, 573.

168 See also Eilenbacker v. District Court of Plymouth County, 134 U. S. 31. For further treatment of the subject see Chapter II.

CHAPTER XI.

THE BILL OF RIGHTS.

§ 226. Origin of term.-The term "Bill of Rights" was first used as the title of the statute passed by the English Parliament after the Revolution of 1688-9, for the purpose of securing to the English people those political and civil rights of which the crown had attempted to deprive them during the Stuart period. It was the last of the "three great charters of English liberty."

This term is now applied to that portion of a constitution designed to guarantee the individual rights of the citizen and to protect him and his property against oppression by the Government.

One of the strongest objections against the adoption of the United States Constitution urged by its opponents when it was submitted to the States for their ratification was the absence therefrom a Bill of Rights, the only provisions in the original Constitution which would fall under this head being the second and third clauses of the ninth section of the first article relative to habeas corpus, ex post facto laws and bills of attainder, and the third section of the third article relative to the subject of treason. The State of Massachusetts (in whose Constitutional Convention this absence of a Bill of Rights was made the basis of a particularly bitter attack on the proposed Constitution) followed its ratification of the Constitution with the proposal of various amendments thereto, which were designed to supply this defect; and this example was followed by several of the other States.

From this action grew the first ten amendments to the United States Constitution; the first eight of which, in connection with the second and third clauses of the ninth section of the first article of the Constitution, the third section of the third article,

and the thirteenth, fourteenth and fifteenth amendments constitute the Bill of Rights in the United States Constitution.

§ 227. Construction.-The Bill of Rights in the United States Constitution was expressed almost of necessity in broad general terms; and its framers mainly employed in the work phrases and maxims already well known in English history. Their original English meaning, however, cannot always be held to follow them into the Federal Constitution.

"It necessarily happened, therefore, that as these broad and general maxims of liberty and justice held in our system a different place and performed a different function from their position and office in English Constitutional history and law, they would receive and justify a corresponding and more comprehensive interpretation. Applied in England only as guards against executive usurpation and tyranny, there they have become bulwarks also against arbitrary legislation; but in that application, as it would be incongruous to measure and restrict them by the ancient customary English law, they must be held to guarantee not particular forms of procedure, but the very substance of individual rights to life, liberty and property."1

A liberal and elastic interpretation must thus be given the United States Bill of Rights; one which will tend to secure substantial rights of liberty and safety to the individual rather than one based on an exact adherence to the technical meaning generally accorded to its terms.2 The common law meaning of the terms employed in the Bill of Rights, however, is generally referred to in aid of their interpretation. This is done, not because the common law is part of the law of the United States, for it is not; but because this is supposed to give to

1 Hurtado v. California, 110 U. S. 516, 532.

2 Hurtado v. California, 110 U. S. 516, 532; Munn v. Illinois, 94 U. S. 113; 134; Hawaii v. Mankichi, 190 U. S. 197.

i. e., Law of the United States or general government; it is a part of the law of each individual

State except Louisiana.

"It is clear, there can be no common law of the United States." Wheaton et al. v. Peter et al., 8 Peters, 591, 657. "There is no common law of the United States in the sense of a national customary law." Smith v. Alabama, 124 U. S. 465.

these expressions the meaning which they had in the minds of the framers and adopters of the Constitution and the first eight amendments."

The United States Supreme Court has also resorted to other sources of information which would tend to show the intentions of these men; for example, in ex parte Wilson' a study was made of the history of the convention in Massachusetts which ratified the United States Constitution and at the same time proposed various amendments to the Constitution which later formed in a large measure the basis for the first ten amendments to the Constitution.

§ 228. The first eight amendments. The first eight amendments are exclusively restrictions on the power of the United States Government and do not affect the individual States. This was decided in Barron v. Baltimore," the decision in which case was written by Chief Justice Marshall and was in part as follows:

"The Constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of the individual States. Each State established a Constitution for itself, and, in that Constitution, provided such limitations and restrictions on the powers of its particular government as its judgment dictated. The people of the United States framed such a government for the United States as they supposed best adapted for their situation and best calculated to promote their interests. The powers they conferred upon this Government were to be exercised by itself; and the limitations on power, if expressed in

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general terms, are naturally, and, we, think, necessarily applicable to the government created by the instrument. They are limitations of power granted in the instrument itself; not of distinct governments, framed by different persons, for different 'purposes.

"If these propositions be correct the fifth amendment must be understood as restraining the power of the general Government, not as applicable to the States. In their several Constitutions they have imposed such restrictions on their respective Governments as their own wishes suggested; such as they deemed most proper for themselves. It is a subject on which they judge exclusively, and with which others interfere no further than they are supposed to have a common interest." The first eight amendments are all in the same position in this respect; and what was held in Barron v. Baltimore as to the fifth amendment has since been held in a long series of decisions as to the others.1 10

§ 229. The writ of habeas corpus.-"The privilege of the writ of habeas corpus shall not be suspended unless when in cases of invasion or rebellion the public safety may require it."11

"No law of the United States prescribes the cases in which this great writ shall be issued, nor the power of the court over the party brought up by it. The term is used in the Constitution as one which was well understood; and the judiciary act authorizes this court, and all the courts of the United States, and the judges thereof, to issue the writ 'for the purpose of inquiring into the cause of the commitment.' This general reference to a power which we are required to exercise, without any precise definition of that power, imposes upon us the necessity of making some inquiries into its use, according to that law,

10 Fox v. Ohio, 5 Howard, 410; United States v. Cruickshank, 92 U. S. 542; Withers v. Buckley, 20 Howard, 84; Permoli V. First Municipality, 3 Howard, 588; Edwards v. Elliott, 21 Wallace, 532; Pearson v. Yewdall, 95 U. S. 294; Pumpelly v. Canal Co., 13 Wal

lace, 166; Eilenbecker v. District Court of Plymouth County, 134 U. S. 31; West River Bridge Co. v. Dix, 6 Howard, 507. For additional cases see note 130 to Chapter V.

11 United States Constitution, Art. I., Sec. IX., Clause II.

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