chapter vi, pp. 118-119.

The _Fifth Amendment_ protects the accused from prosecution in capital cases or cases involving infamous crime except upon indictment by a grand jury. Some of the states, as we have seen, have abolished the grand jury, and provided for prosecutions in their courts without the intervention of such an agency, but no person may be prosecuted in a federal court for a serious crime until he has been held for trial by a grand jury. The same amendment also forbids the trial of a person a second time for the same offense, if he was acquitted on the first trial; declares that he shall not be compelled to testify against himself; that he shall not be deprived of life, liberty, or property without due process of law; and that private property shall not be taken for public use without just compensation.

_The Fourth Amendment_ declares among other things that no warrant for arrest (by the federal authorities) shall be issued except upon probable cause, supported by oath or affirmation and particularly describing the person to be seized. This provision is designed to prevent arbitrary arrests of persons on mere suspicion. It prohibits general search warrants such as were commonly used by the British authorities in the colonies prior to the outbreak of the Revolution and which were popularly known as "writs of assistance." Such warrants did not mention the name of the person to be arrested but permitted the officer to insert any name in the warrant and arrest whomsoever he might choose.

_The Eighth Amendment_ declares that excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted. The purpose of the first provision is discussed on p. 119. The purpose of the other two prohibitions is to prevent the old severities of the penal code that were common two hundred years ago.

_Treason._--Among the crimes in the prosecution of which judges were frequently arbitrary and which were punished with undue severity, was that of treason. Treason has always been regarded as the highest crime known to society, because it seeks the overthrow or destruction of the government itself. In earlier times, judges frequently construed offenses to be treasonable which were not declared so by the laws. This was known as _constructive_ treason. To prevent them from construing the existence of treason where it really did not exist, parliament therefore passed a statute during the reign of Edward III defining the offense with more or less precision, and this definition in substance was incorporated in the Constitution of the United States, This provision 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. The Supreme Court in interpreting this provision has ruled that in order to constitute treason there must be an actual levying of war or an assembling of persons for the purpose of making war; that a mere conspiracy to subvert the government by force is not treason, but after the war has once begun, all those who perform any part, however minute or remote, or who give aid and comfort to the enemy, are traitors and as such are liable to the penalties of treason. To protect persons accused of treason against conviction upon the testimony of a single witness, the Constitution requires the testimony of two witnesses to the act, or confession in open court, to convict. Congress is authorized to prescribe the punishment of treason, but the Constitution declares that no attainder of treason shall work corruption of blood or forfeiture except during the life of the person attainted. Under the old law, a person convicted of treason was not only put to death in a barbarous manner, but his blood, was considered as "corrupted" or "attainted," so that as a matter of course, without any decree of the court to that effect, his children could not inherit property or titles through him. Thus the innocent offspring of the traitor were punished for the offense of the parent. The provision of our Constitution places the punishment on the offender alone.

=References.=--ANDREWS, Manual of the Constitution, pp. 201-223. BALDWIN, The American Judiciary, ch. ix. BEARD, American Government and Politics, ch. xv. BRYCE, The American Commonwealth (abridged edition), chs. xxi-xxii. HARRISON, This Country of Ours, chs. xx-xxi. HART, Actual Government, ch. xvii.

=Documentary and Illustrative Material.=--1. The Congressional Directory, which contains a list of the higher judges and the judicial districts. 2. Specimen copies of decisions of the Supreme Court. These may be obtained from the clerk of the Supreme Court at Washington.

RESEARCH QUESTIONS

1. Name the Chief Justices of the United States Supreme Court from 1789 to the present time.

2. Name the present members of the Supreme Court and give the date of the appointment of each. (See Congressional Directory).

3. In which one of the nine judicial circuits of the United States do you live? Who is the Supreme Court justice assigned to the circuit? Who are the circuit judges of the circuit?

4. Who is the United States district judge for your district? At what places in your state are United States district courts held?

5. Who is the United States attorney for your district? The United States marshal?

6. What is meant by the terms "constitutional" and "unconstitutional" as applied to an act of Congress? Do you think the courts should be allowed to declare a law unconstitutional?

7. Do you think it is a wise provision which allows federal judges to serve during good behavior?

8. It has been proposed by a well-known public man that federal judges should be elected by the people. What is your opinion of the proposition?

9. Do you think the present salary allowed justices of the Supreme Court large enough to attract the best judicial talent?

10. Do you think the Supreme Court is ever justified in reversing its own decisions, or should it stand by the precedents?

11. What is the meaning of the term obiter dicta as applied to a judicial opinion?

12. Do you think it is a wise practice for judges who disagree with the majority of the court to file dissenting opinions?

13. A recent President took occasion to criticize publicly a federal judge for a decision which he rendered in a "trust" case. Do you think judges should be criticized for their decisions?

14. Are juries ever made use of in federal courts? If so, when?

15. Why have federal judges been criticized for issuing injunctions?

16. When may an appeal be taken from a state court to a federal court?

17. The Supreme Court has always refused to decide "political" controversies. What is a "political" as opposed to a "legal" controversy? Give examples.