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 out 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 must be armed with unlimited power to afford a remedy in all cases of unlawful restraint from whatever quarter. But the citizens 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 under 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 respect vary the duty of its courts and judges, as indicated in the judgment of the court in the case of Ableman 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 excepted 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. 4. trial by an impartial jury of the state or district wherein 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 committed; or where that cannot be done without great inconvenience, twelve petit jurors at last shall be summoned thence." 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 Virginia. The trial was at the city of Richmond, in that state, on account, it is presumed, of the inconvenience 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. 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, ch. 20, § 29: 1 Stat. at Large, p. 88. 'Burr's Trial, vol. 1, p. 353. 'Act of July 16, 1862, ch. 99, § 2: 12 Stat. at Large, p. 589. PART 4. or if not, any justice thereof together with the dis Jurisdiction of circuit and district courts con current, except, &c. trict 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 Indictments for all offenses against the United States may be found indifferently either in the district or circuit court, and may, at the instance of the district 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 '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. 4. is made the duty of the district court to send all such indictments found therein.1 "Whenever there are several charges against the Joinder of same person or persons for the same act or transac- counts. tion, 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'Act of August 8, 1846, ch. 98, § 2, 3: 9 Stat. at Large, p. 72. PART 4. prison for contempt, is to be considered an exception), except through the intervention of a grand jury. State laws adopted Grand jurors not to be sum moned without special order. The Grand Jury.] The mode of designating and summoning grand and petit jurors, their qualifications, &c., have already been treated of in one of the earlier parts of this work, to which the reader is referred. In those states where, as in New York, grand jurors are designated by lot to serve in the state courts, the same mode of designation must be resorted to in the national courts. Upon this point the act of 1840 is explicit, and it expressly empowers the court" to make all necessary rules and regulations for conforming the designation and impanneling of juries, to the laws and usages now in force” in the several states. The rarity of criminal prosecutions in the courts of the United States, where it often happened that the attendance of a grand jury was but an idle ceremony, owing to the limited criminal jurisdiction of these courts, a well guarded act of congress was at length passed by which it was enacted: "That no grand jury shall hereafter be summoned to attend any circuit or district court of the United States, unless the judge of such district court, or one of the judges of such circuit court, shall, in his own discretion, or upon the notification of the district attorney that such jury will be needed, order a venire to be issued thereon: Provided, that nothing herein shall prevent either of the said courts in turn from directing a grand jury to be summoned and impanneled, whenever, in its judgment it may be proper to do so, and at such time as it may direct: And provided further, that nothing herein shall operate to extend beyond what the law now permits, the imprisonment before indictment found of an individual accused of a crime or offense, or the time during which an individual thus accused may be held under recognizance before indictment formed.” 1 1 Act of August 8, 1846, ch. 98: 9 Stat. at Large, p. 72. |