peal from State courts to that court came up for consideration in Martin v. Hunter (supra) and was thoroughly discussed by Judge Story in his great opinion in that case. Such extracts from that opinion, as are considered appropriate are inserted here. "Appellate power," said he (pp. 338-340), "is not limited by the terms of the third article to any particular courts. The words are, 'The judicial power' (which includes appellate power), 'shall extend to all cases,' etc., and 'in all other cases before mentioned the Supreme Court shall have appellate jurisdiction.' It is the case, then, and not the court, that gives the jurisdiction. If the judicial power extends to the case, it will be in vain to search in the letter of the Constitution for any qualification as to the tribunal where it depends. If the Constitution meant to limit the appellate jurisdiction to cases pending in the courts of the United States, it would necessarily follow that the jurisdiction of these courts would, in all cases enumerated in the Constitution, be exclusive of State tribunals. How otherwise could the jurisdiction extend to all cases arising under the Constitution, laws, and treaties of the United States, or to all cases of admiralty and maritime jurisdiction? If some of these cases might be entertained by State tribunals, and no appellate jurisdiction as to them should exist, then the appellate power would not extend to all, but to some, cases. If State tribunals might exercise concurrent jurisdiction over all or some of the other classes of cases in the Constitution without control, then the appellate jurisdiction of the United States might, as to such cases, have no real existence, contrary to the manifest intent of the Constitution. Under such circumstances, to give effect to the judicial power, it must be construed to be exclusive; and this not only when the casus foederis should arise directly, but when it should arise, incidentally, in cases pending in State courts. This construction would abridge the jurisdiction of such court far more than has been ever contemplated in any act of Congress.

"On the other hand, if, as has been contended, a discretion be vested in Congress to establish, or not to establish, inferior courts at their own pleasure, and Congress should not establish such courts, the appellate juris

diction of the Supreme Court would have nothing to act upon, unless it could act upon cases pending in the State courts. Under such circumstances it must be held that the appellate power would extend to State courts; for the Constitution is peremptory that it shall extend to certain enumerated cases, which cases could exist in no other courts. Any other construction, upon this supposition, would involve this strange contradiction, that a discretionary power vested in Congress, and which they might rightfully omit to exercise, would defeat the absolute injunctions of the Constitution in relation to the whole appellate power."

In Ex parte Yerger, it was said the doctrine of the Constitution and of the cases thus far may be summed up in these propositions:

1. The original jurisdiction of this court cannot be extended by Congress to any other cases than those expressly defined by the Constitution.

2. The appellate jurisdiction of this court, conferred by the Constitution, extends to all other cases within the judicial power of the United States.

3. This appellate jurisdiction is subject to such exceptions, and must be exercised under such regulations as Congress, in the exercise of its discretion, has made or may see fit to make.

4. Congress not only has not excepted writs of habeas corpus and mandamus from this appellate jurisdiction, but has expressly provided for the exercise of this jurisdiction by means of these writs."

113

"Except in cases which affect ambassadors, other public ministers, and consuls and those where a State is a party-in which cases the jurisdiction of the Supreme Court is original-that court can exercise appellate jurisdiction, both as to law and fact, subject to such exceptions and regulations as Congress may make in the other cases to which the judicial power of the United States extends. What such exceptions and regulations shall be is for Congress to determine, having due regard to the provisions of the Constitution. If a court of original jurisdiction errs in quashing, setting aside or dismissing

113 8 Wallace, 98.

an indictment for an alleged offense against the United States upon the ground of the unconstitutionality of the statute under which the indictment is brought, or that the statute does not embrace the case made by the indictment, there is no mode in which the error can be corrected and the provisions of the statute enforced except by review in the Supreme Court.''114

114 United States v. Bitty, 208 U. S., 393-399.

CHAPTER XLIII.

THE JUDICIAL POWER, CONTINUED.

The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State the Trial shall be at such Place or Places as the Congress may by Law have directed.

The first part of this clause is similar to the provision in Mr. Pinckney's plan,' which was the only provision in any of the plans for a Constitution relative to the trial of offenders, and which was as follows: "All criminal offences, except in cases of impeachment, shall be tried in the State where they shall be committed. The trials shall be open and public, and shall be by jury.''2

The original Constitution did not provide for trial by jury in civil cases.

The Committee of Detail reported on the subject: "The trial of all criminal offences (except in cases of impeachment) shall be in the State where they shall be committed; and shall be by jury."'

In the Convention this report was amended without objection to read: "The trial of all crimes (except in cases of impeachment) shall be by jury; and such trial shall be held in the State where the said crimes shall have been committed; but when not committed within any State, then the trial shall be at such place or places as the Legislature may direct." Mr. Madison says, "The object of this amendment was to provide for trial by jury of offences committed out of a State.'

1 In Mr. Pinckney's plan of a Constitution, as given in Moore's American Eloquence, Page 369, he favored a trial by jury in all cases, criminal as well as civil.

2 Journal, 70.

3 Journal, 459.

4 Journal, 619.

With the change of a word or two this is the provision as found in this clause.

The term "trial" is of very ancient origin, and its history runs through many centuries. The right to trial existed long before the period when a party was entitled to a trial by jury, and this is true both as to civil and criminal cases."

It is not the purpose of this work to trace minutely or even generally, the history of trial in criminal cases, but only to take such a cursory glance at this important term in its association with the development of English Criminal Law, as will enable its true import and meaning as found in the Constitution to be understood.

Trial by Compurgation.-Far back in the history of civilization under the old Saxon Kings, if a person was accused of crime and made oath that he was innocent he was allowed to produce a number of persons who knew him and who would assert their belief in his innocence. If he produced a sufficient number he would be allowed his freedom, provided more were not produced against him. This was known as trial by compurgation. Compurgators were neighbors of the accused who testified that they believed what he swore was the truth. The number of compurgators was indefinite, but twelve were frequently called. On such trial the oath taken by the accused was: "By the Lord, I am guiltless both in deed and counsel of the charge of which accuses me." And the oath taken by the compurgators was, "By the Lord, the oath is has sworn. clear and unperjured which This method was somewhat similar to the modern proceeding of offering testimony concerning the good character of a witness, as the compurgators did not swear

5 The following note is instructive. "I use the word 'trial,' because it is the word in common use during recent centuries. But as applied to the old Law, this word is an anachronism. The old phrases were probatio, purgatio, defensio; seldom, if ever, in the earlier period, triatio. In those days people 'tried' their own issues; and even after the jury came in, e. g., in the early part of the thirteenth century, one is sometimes said to clear himself (purgare se) by a jury; just as a man used to be said in our colonies to 'clear himself' and 'acquit himself' by his own oath as against some accusations and testimony of an Indian." Thayer's Common Law Evidence, 16, note.

• Forsythe History of Jury Trial, 75.