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of the several states, to bind themselves by oath or solemn affirmation, to support this constitution. "Now," continued the Chief Justice, "it certainly can be no humiliation to the citizen of a republic to yield a ready obedience to the laws as administered by the constituted authorities. On the contrary, it is among his first and highest duties as a citizen, because free government cannot exist without it. • • • And no power is more clearly conferred by the constitution and laws of the United States, than the power of this court to decide, ultimately and finally, all cases arising under such constitution and laws; and for that purpose to bring here for revision, by writ of error, the judgment of a state court, where such questions have arisen, and the right claimed under them denied by the highest judicial tribunal of the state."1

1 Looking at this question under the strong light shed upon it by the opinion of Chief Justice Taney, it may seem strange, not to say unaccountable, that it should have rested so long in doubt, or, indeed that it should have led to any diversity of opinion at all among the learned and able men under whose judicial consideration it has, from time to time, been brought, during the lapse of three-quarters of a century. But it is to be borne in mind that until the establishment of the constitutional government, the judicial power, with a very limited exception, under the articles of confederation, had been lodged exclusively, first in the colonial, and then in the state tribunals. Their power to grant relief on habeas corpus was plenary. It was as ample as that of the King,s Bench in England, and they were inured to its unquestioned exercise. The constitution, it is true, had invested the national judiciary with jurisdiction over all cases arising under the constitution, laws and treaties of the United States, and congress at its first session had enacted that the national courts and judges should have power to issue the writ of habeas corpus for the relief of all persons restrained of their liberty under or by color of the authority of the United States. With this exception, hardly comprehensive enough to embrace one in a hundred of the cases requiring the application of this remedy, the state judicatories were left in full possession of their jurisdiction over the remaining ninety-nine. Nor was the limited power conferred upon the federal judiciary to grant the writ, in terms declared to be exclusive. If to Part 4.




Where the indictment is to be preferred.] The 6th article of the amendment to the constitution, adopted soon after the passage of the judiciary act, among other things ordains, that"In all criminal prosecutions

these circumstances we add the prejudice arising from a widely diffused jealousy of the national government, it will appear less surprising that even lawyers and judges were slow to discern that from the very nature of the power, it must of necessity be exclusive, and that the authority of the state courts and judges had accordingly become indirectly limited pro tanto. It was a result not to be arrived at by the study of English law books, but to be reasoned ou-t by an attentive consideration and thorough comprehension of our duplex system of civil government. In some of the discussions to which the subject has given rise, it has been said that each state is bound to protect the liberties of its own citizens, and that to this end its judiciary mnst be armed with unlimited power to afford a remedy in all cases of unlawful restraint from whatever quarter. But the oitizens of a state are citizens also of the United States, and the national government is no less imperatively bound, and its judiciary no less competent, to afford them the like protection against any infringement of their rights nnder color of its authority.

It is unnecessary to add that no provision contained in the constitution or laws of any state touching the writ of habeas corpus, can in any respeot vary the duty of its courts and judges, as indicated in the judgment of the court in the case of Abkman v. Booth, mentioned in the text, nor afford any justification for a disregard of such duty. For example, a statute of the State of New York, in describing the persons who shall not be entitled to prosecute this writ, designates those " committed or detained by virtue of any process issued by any court of the United States, or any judge thereof, in cases where such courts or judges have exclusive jurisdiction under the laws of the United States ;" but is silent as to cases of commitment on process issued by the commissioners of the United States, although, probably, nineteen-twentieths of the commitments before indictment are made by these officers; and it is silent also with respect to restraints of liberty in virtue of the military laws of the United States. These omissions can have no legitimate influence on the conduct of the state courts and judges, but it would have been better to supply them, and better still to have exoepted in general terms all persons restrained of liberty under or by color of the laws of the United States.

the accused shall enjoy the right to a speedy public Chap. *.
trial by an impartial jury of the state or district where-
in the crime shall have been committed." Congress
had, however, already seen fit, at its first session, to
provide "That in cases punishable with death, the trial
shall be had in the county where the offense was com-
mitted; or where that cannot be done without great
inconvenience, twelve petit jurors at last shall be sum-
moned thence."1 This statutable provision, not being
inconsistent with the amendment, is not repealed by
it, and so it was considered by the circuit court of the
district of Virginia on the trial of Burr for treason.
The crime was alleged to have been committed in
Wood county, one of the frontier counties of Vir-
ginia. The trial was at the city of Eichmond, in that
state, on account, it is presumed, of the inconveni-
ence of holding the court in Wood county. But
twelve of the petit jurors were directed to be drawn
from that county, the court being of opinion that
the act requiring this to be done was still obligatory,
certainly so unless its observance was waived as well
by the United States as by the accused.2 But by a
recent act this provision of the act of '89 is repealed.3
So much of it however as requires the trial in capital
cases to be held in the county where the offense was
committed, where this can be done "without great
inconvenience," is yet in force. But to render the
enactment effective, it was necessary to confer the
power of appointing special sessions of the circuit
courts; and this authority was accordingly given
by an additional act passed March 2d, 1793, which
was made to embrace criminal offenses of whatever
grade. It empowers the supreme court if in session,

'Act of Sept. 24, 1789, oh. 20, § 29: 1 Stat, at Large, p. 88.
'Bun's Trial, vol. 1, p. 353.

* Act of July 16, 1862, ch. 99, § 2: 12 Stat, at Large, p. 689.

PaRT 4- or if not, any justice thereof together with the district judge, to order special sessions of the circuit court "for the trial of criminal causes at any convenient place "within the district nearer to the place .where the offense may be said to be committed, than the place or places appointed by law for the ordinary sessions.1

The foregoing regulations respecting the place of trial all relate to offenses committed within the United States. But the jurisdiction of the national courts is not limited to such offenses; and by a later act it is ordained that the trial of all offenses which shall have been committed on the high seas, or elsewhere out of the limits of any state or district, shall be in the district where the offender is apprehended, or into which he may be first brought.2 jurisdic- Indictments for all offenses against the United

Uon of 0

district8"4 States may be found indifferently either in the district courts con- or circuit court, and may, at the instance of the dis

current, »

except, trict attorney, by order of the court having possession of them, to be entered on its minutes, be transmitted from the one court to the other for trial, except that all indictments for capital offenses, found in either

1 Ch. 22, § 3 : 1 Stat. at Large, p. 334. The section proceeds to direct, that upon the appointment of any such special session, "the clerk of such circuit court shall, at least thirty days before the commencement of such special session, cause the time and place of holding the same, to be notified for at least three weeks successively, in one or more of the newspapers published nearest to the place where the session is to be holden. That all process, suits and recognizances of every kind, whether respecting jurors, witnesses, bail or otherwise, which relate to the cases to be tried at the said special sessions, shall be considered as belonging to such sessions, in the same manner as if they had been issued or taken in reference thereto. That any special session may be adjourned to any time or times previous to the next stated meeting of the circuit court. That all business depending for trial at any special court, shall at the close thereof be considered as of course removed to the next stated term of the circuit court."

'Act of March 3, 1825, ch. 65, § 1: 4 Stat. at Large, p. 115.

court, are triable only in the circuit court, whither it Chap, t. is made the duty of the district court to send all such indictments found therein.1

"Whenever there are several charges against the joinderof same person or persons for the same act or transac- oountotion, or for two or more acts or transactions connected together, or for two or more acts or transactions of the same class of crimes or offenses which may be properly joined, instead of having several indictments, the whole may be joined in one indictment in separate counts; and if two or more indictments shall be found in such cases, the court may order them consolidated." Act of 16th Feb., 1853: see Appendix.

Indictment necessary in all cases.] The 5th article of the amendment to the constitution declares that "no person shall be held to answer for a capital or otherwise infamous crime, unless on presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service, in time of war or actual danger." /

This provision being in terms confined to capital or otherwise infamous crimes, it leaves to congress a discretionary power to provide some more simple mode of bringing minor offenders to justice, as, for example, the legislature of the State of New York has done, although the state constitution contains a similar inhibition. But this power is limited by a further restriction imposed by the 2d section of the 3d article of the constitution, which ordains that "The trial of all crimes, except in cases of impeachment, shall be by jury, and congress has not seen fit to exercise it. Consequently no punishment can be inflicted by the civil judicial tribunals of the United States (unless the limited authority possessed by the courts to im

1 Act of August 8, 1846, oh. 98, § 2, 3 : 9 Stat, at Large, p. 72.

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