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Trial by Jury in Civil Cases.

367. We have now seen that the Constitution provides that the trial of all crimes, except in cases of impeachment, shall be by jury; and we have considered the various securities that have been devised to prevent wrong and injustice in criminal prosecutions. But it was made a great objection to the Constitution that there was no express provision for a trial by jury in civil cases. Besides, it was said that as the Supreme Court had appellate jurisdiction both as to law and fact, they would have the power practically to review and overturn the verdicts of juries, and thus destroy the benefits of that mode of trial.

368. To meet these objections the Constitution was amended, and it was expressly provided that in suits at common law, when the value in controversy should exceed twenty dollars, the right of trial by jury should be preserved; and no fact, tried by a jury, should be otherwise re-examined in any court of the United States than according to the rules of the common law.

369. The common law here meant is the common law of England. This law has been incorporated, so far as it is applicable to their situation, into the

jurisprudence of all the states, except the state of

Louisiana, where the civil law prevails. And by suits at common law is meant all suits, not of equity or admiralty jurisdiction, in which legal rights are determined according to the principles of the common law, no matter what may be the peculiar form of the suit. And in all suits of this character, where the value in controversy exceeds twenty dollars, the trial must be by jury, unless the parties to the suit waive the benefit of such trial. 370. According to the common law, facts once tried by a jury are never re-examined, unless a new trial be granted by the court before which the suit is depending; or unless the judgment of such court be reversed, by a superior tribunal, for some error of law in its proceedings, and a new trial be granted in consequence. It is therefore only in these two modes that a fact, once tried by a jury, can again be re-examined in any court of the United States.


In what it Consists.

371. To prevent subordinate acts from being construed as treason, which, in former times, was frequently done in England, the Constitution declares that treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. 372. Levying war is the assembling of a body of men, in a condition to make war, for the purpose of overthrowing the government, or resisting its powers. A conspiracy or agreement to levy war does not amount to treason. There must be an actual assembling of men, with the intention and capacity to levy war, to constitute a levying of war, or, in other words, treason. But if war be actually levied, all those who perform any part, however minute, or owever remote from the scene of action, and who are really leagued in the general attempt, are to be considered traitors. 373. Treason against the United States may also consist in adhering to their enemies, giving them aid and comfort. Delivering up prisoners and deserters to the enemy is treason within this clause. And so it has been held is the carrying of provisions towards the enemy with intent to supply him, though that intention should be defeated.

How many Witnesses necessary in cases of

374. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.

Punishment of Treason.

375. Congress have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood or forfeiture, except during the life of the person attainted.

376. The common law prescribes the following mode of punishment for the crime of treason: 1. That the offender be drawn to the gallows, and not be carried or walk, though usually (by connivance, at length ripened into law) a sledge or hurdle is allowed, to preserve the offender from the extreme torment of being dragged on the ground or pavement. 2. That he be hanged by the neck, and cut down alive. 3. That his entrails be taken out and burned while he is yet alive. 4. That his head be cut off. 5. That his body be divided into four parts. 6. That his head and quarters be at the king's disposal.

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377. Such a barbarous and cruel mode of punishment could only have been devised in an uncivilized and ferocious age. It is a source of just pride and congratulation, that a spirit of mildness and humanity characterizes all the provisions of the Constitution of the United States that relate to crimes and punishments. In a previous section we have seen that it is expressly provided that excessive fines shall not be imposed, nor cruel and unusual punishments inflicted. So that, although Congress may declare the punishment of treason, such punishment must not be cruel or unusual. The punishment actually declared by Congress is death by hanging.

878. Another restraint upon the power of Congress to declare the punishment of treason is, that no attainder of treason shall work corruption of blood or forfeiture, except during the life of the person attainted

379. By attainder of treason is meant that stain or corruption of blood which, by the common law, follows upon conviction of treason. A person thus attainted forfeits all his lands, and tenements, and goods, and can neither inherit an estate from his ancestors, nor transmit one to his posterity. To prevent this unjust punishment of the innocent descendants of a man convicted of treason, the Constitution provides that no attainder of treason shall

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