Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1866-05-03
THE RreHrs or CITIZENS,
Hon. Jeremiah ;. Black on Military
Trials Of Civilians.

!. jeremiah :. Black, before the United
: States supreme court in the case OF the
! I" Indians conspirators:"
do not assert that the jury trial is an
infallible mode of ascertaining truth.
! Like everything human, 1t has its imper-
fections. only say that il Is the best
protection for innocence and the surest
mede of punishing guilt that has yet been
discovered. It has borne the test of a
longer experience, and borne it better
than any other legal institution thatever
existed among men. England owes
more of her freedom, her grandeur and
her prosperity to that, than b all other
causes put together. It has had the APP
probation not only of those who lived
under it, but of great thinkers who looked
at it calmly from distance. Montes-
quieu and DetocqueYille speak of il with
an admiration as rapturous as Coke and
Blackstone. Within the present century
the most enlightened states OF continent
tai Europe have transplanted il into their
countries; and no people ever adopted it
once and were afterwards willing TO part
with it. 1t was only in 1880 that an in
reference with it in Belgium provoked a
successful insurrection which perma-
nenty divided one kingdom into two.
In the same year, the revolution of the
Barrieades gave the right Of trial by jury
10 every Frenchman.
Those colonies of this country who
came from the British Islands brought
this institution with them, and they re-
/ gard il as the most precious part of their
I Inheritance The Immigrants from other
( places where trial by jury did not exist
l became equally attached to it as soon as
! they understood what it was. There was
| no subject upon which all the inhabitants
/ of the country were more perfectly unan-
I imOus than they were 10 their determi-
/ nation to maintain this great right un-
! impaired. An attempt was made to set
J il aside and substitute military trials In
[ its place, by Lord Dunmore, in Virginia,
and Gen. Gage, in Massachusetts, ac-
1 companied with the excuse which has
1 been repeated 50 often in late DAYS,
/ namely, that rebellion had made it. nee
/ essary but it excited intense anger, and
every colony from New Hampshire to
! Georgia made common cause with the
two whose rights had been especially in
vaded. Subsequently the continental
congress thundered it into the ear of the
world, as an eRdurable outrage, sufficient
! to justify universal insurTection against
the authority of the government which
had allowed it to be done.
If the men who had fought out our
revolutionary contest, when they came
10 frame a government for themselves /
and their pOsterity, had failed to insert a I
provision making the trial by jury per |
petuGl and universal, they would have
covered themselves all over with infamy !
as with garment; for they would have
proved themselves basely recreant to the I
principles of that very liberty of which /
they prOfessed TO be the special champi- I
ons. But they were guilty Of no such |
treacheTy. They only took care of the J
trial by jury, but they regulated every
step to be taken in q criminal trial. !
They knew very well that no people \
could be free under q government which
had the power to punish without re-
straiut. Hamilton expressed in the
Feder0itst the universal sentiment OF his
time, when he said that the arbitrary
power Of conviction and punishment for
pretended Offenses had been the great
engine Of dospotisn in all ages and all
countries. The existence Of such a DOW.
er is utterly incompatible with freedom.
The difference between a master and his
slave consists only in this: that the mas
ter holds the Lash in his hands, and he
may use it without legal restraint while
the naked back of the slave is bound to
take whatever is laid on il.
But our fathers were not absurd enough
TO put unlimited power in the hands Of
the ruler and take away the protection
of law from the rights of individuals.
1t was not thus that they meant 4" to Sc
cure the blessings of liberty to them
selves and their pOsterity,n They de-
termined that not one drop of the blood
which has been shed on the other side of
the Atlantic, during seven centuries
Of contest with arbitrary power.
should sink into the ground; but
the fruits of every popular victory
should be garnered up in this new
government. Of al the great rights al
ready Won they threw not an atom away
They went over magma charta, the petit
ton of right, the bill Of rights, and the
rules Of common law, and whatever was
found there TO favor individual liberty
they carefully inserted in their own svs-
tenn, improved by clearer expression.
strengthened by heavier sanctions. and
extended by a more universal spplioar
ton. They put all those provisions into
the organic law, SO that neither tyranny
IN the executive, nor party rage in The
legislature could change them without
destroying the government itself,
ioOk for moment at ths particulars
and see how carefully everything con-
nected with the administration of punt
tive justice is guarded.
:, No fr post fQctQ law shall he passed.
No man shall be ansWerable erinainallv
for any act which was not defined and
made punishable as crime by some law
in force al the time when the aot was
done.
, For an act which Is criminal he can
not be arrested without a judicial war
rant founded on proof of probable cause.
T.. y, L. L.. 4 z
on the mere report Of some base SPY who
gathers the materials OF false accusation
by crawling into his house and listening '
at the keyhole of his chamber door,
3. He shall not be compelled to tes-
tify against himself. He may be exam I
ined before he is committed, and tell his
own story if he pleases: but the rack
shall be put out of sight, and even his
conscience shall not be tortured nor !
shall his unpublished papers be used
against nIni, As was dOue most wrong :
fully in the case of AlgenOn Sydney.
l. He shall be entitled to a speedy
trial not kept in prison for an indef-
mite tine without the opportunity Of vim
dicating his innocence.
., He shall be informed of the aecusa-
ton, its nature and grounds. The pub
lie accuser must put the charge into the
party can meet il full in the face.
8. Even to the indictment he need not
answer unless a grand jury, after hear
ing the evidence, shall say upon their
Oaths that they believe il to be true.
:. Then comes the trial, and IL must
be before a regular court, of competent
jurisdiction, ordained and established for v
the state and district in which the crime
was committed; and this shall not be
evaded by a legislative change in the
district after the crime is alleged to be
done, a
s. His guilt or innocence shall be oe-
termlned by an impartial jury. These 7
English words are 10 be understood in
their English sense, as they mean that
the jurors shall be fairly selected by
sworn officer from among the peers the
party, residing within the local jurisdic- I
tlon Of the court. When they are called
into the box he can purge the panel Of
all dishonesty, prejudice, personal enmity I
and ignorance by certain number Of :
peremptory Challenges, and as many
more challenges as he can sustain by
showing reasonable cause.
8. The trial shall be public and open, :
that no gnderhand advantage might be L
taken. The party shall be confronted
with the witnesses against him, have I
process for his own witness
ses, aud be entitled TO the assistance of d
counsel inh his defense. q
10. After the evidence is heard and
discussed, unless the jury shall, upon
their oaths, unanimously agree to sur
render him up into the hands Of the
court as guilty man, not hair of his
head can be touched by way of punish
ment -
IL. After verdict Of guilty he is still I
protected. No cruel or unusual punish
ment shall be inflicted, nor any punish-
nent al all, except what Is annexed by
the law to his offense. 1t cannot be
doubted for a moment that if a person
convicted Of an ofiense not capital were 6
to be hung on the order of a Judge. such
Judge would be guilty Of murder as
plainly as if be should come down from
the bench, tuck up the sleeves Of his
gown, apd LET out the prisoners blood 4
with his own hand
u. After al is over, the law continues
70 spread its guardianship around him. ,
Whether he is acquitted or condemned,
he shall never again be molested for that
offense. NO In2n shall be twice pat in 4
Jeopardy of life or Limo for the sane
cause.
These rules apply to all criminal pros
ecutiOns. But, in addition to these. eer-