to any fact in the case, but only that the oath of the accused was true.

Trial by Ordeal.-Trial by ordeal was one of the most ancient methods of proceeding against a person accused of crime being older, perhaps, than trial by compurgation. It generally was divided into Ordeal by Fire, or Ordeal by Water, but it also included other Ordeals.

A brief but comprehensive history of Trial by Ordeal is given by Thayer."

7 Patetta, Ordalie, C. 1. See Inst. of Narada, Jolly's Trans. 44-54. This book is attributed to some period between the second and ninth centuries before Christ; "but the materials of our work," says the translator (p. xx), "are, of course, much older, and many of the laws it contains belong to the remotest antiquity." Beginning at Part 1, chapter 5, s. 102, and ending at Part 2 (pp. 44-54), we have the doctrine of ordeals. After speaking of the situation where there are neither writings nor witnesses, and of the examination of the defendant, it is said that "If reasonable inference also leads to no result," the defendant is to be put to ordeal. "He whom the blazing fire burns not, whom the water soon forces not up, or who meets with no speedy misfortune must be held veracious in his testimony on oath. Let ordeals be administered if an offense has been committed in a solitary forest, at night, in the interior of a house, and in cases of violence and of denial of a deposit. . . . The balance, fire, water, poison, and sacred libation are said to be the five divine tests for the purgation of suspected persons." Then follows an account of each of these ordeals. 1. After describing the scales and the first weighing of the accused, it is said, "And having adjured the balance by imprecations, the judge should cause the person accused to be placed in the balance again. 'O balance, thou only knowest what mortals do not comprehend. This man being arraigned in a cause is weighed upon thee. Therefore, mayest thou deliver him lawfully from his perplexity.' Should the individual increase in weight, he is not innocent; if he be equal in weight or lighter, his innocer.ce is established." 2. In the ordeal of fire, seven circles with a diameter equal to the length of the man's foot, and thirty-two inches distant from each other, are marked on the ground. The circles are smeared with cows' dung and the man, having fasted and made himself clean, has seven acvattha leaves laid on his hands and fastened there, and takes in his hands a smooth ball of red-hot iron, weighing fifty palas, and walks slowly through the seven circles. He then puts the ball on the ground. "If he is burnt, his guilt is proved; but if he remains wholly unburnt, he is undoubtedly innocent. "Thou, O fire, dwellest in the interior of all creatures, like a witness. Thou only knowest what mortals do not comprehend. This man is arraigned in a cause and desires acquittal. Therefore mayest thou deliver him lawfully from his perplexity.'" 3. In the ordeal of water, the man wades out into the water up to his navel, and another shoots an arrow. The man dives or ducks into the water, and if he remains wholly under while a swift runner gets and fetches

Trial by Ordeal was abandoned about 1215 A. D. It was founded upon the idea of the supernatural: that the innocent would be protected by Providence and be enabled to endure great suffering. These ordeals were called Judicia Dei-the judgment of God.

Trial by Battle or Duel.-Another form of trying an accused person was by battle or duel. It was introduced into England by William the Conqueror, and the earliest case said to have been tried in this manner was in 1074. Incomprehensible as it may seem to the student of constitutional law and modern jurisprudence, this ancient and unreasonable method of determining the guilt or innocence of an accused person prevailed in England till as late as the year 1819, "and then," says an accomplished writer, "came the abolition of a long-lived relic of barbarism, which had survived in England when all the rest of Christendom had abandoned it.""

Other forms of trial existed in criminal cases before the introduction of the jury system, but these were the most frequent and important. They grew largely out of the superstition of the Dark Ages, when it was believed that miraculous interventions could be made to save those who were innocent. In the reign of Henry

back the arrow he is innocent. The adjuration to the water is similar to the above, in the case of fire and the balance. 4. In the ordeal by poison elaborate directions are given about the choice of the poison and the time of year for administering it. The invocation runs: "Thou, O poison, art the son of Brahma, thou art persistent in truth and justice, relieve this man from sin, and by thy virtue become an ambrosia to him. On account of thy venomous and dangerous nature thou art the destruction of all living creatures; thou art destined to show the difference between right and wrong like a witness," etc., etc., much as in the other cases above. "If the poison is digested easily, without violent symptoms, the king shall recognize him as innocent, and dismiss him, after having honored him with presents." 5. In the ordeal by sacred libation, "the judge should give the accused water in which an image of that diety to whom he is devoted has been bathed, thrice calling out the charge with composure. One to whom any calamity or misfortune happens within a week or a fortnight is proved to be guilty." Sir Henry Maine, writing in 1880 (Life and Speeches, 426) after saying that "perjury and corruption are still deplorably common in India,' adds: "ordeals are perpetually resorted to in private life." Thayer's Common Law Evidence, 35-36.

8 Longman's Lectures on English History, 129, 130. Thayer's Common Law Evidence, 45.

II, beginning 1154 and ending 1189, the privilege, as it was considered, of being tried by twelve sworn knights was extended to criminals for offences relating to landed property if they paid the King a sufficient sum of money.10

We have traced the history of trial in criminal cases to the year 1215, when Magna Charta was granted by King John. In this great instrument, the "right of trial" was assured to every one accused of crime and from it the permanent date of "trial" in English law may be reckoned, for from that time the trial became a fixed part of the procedure in criminal jurisprudence, and the system has endured through the intervening centuries.

The word "trial" as used in this clause means a trial as it existed under the common law of England at the time the Constitution was adopted. Provision for jury trials of offences committed in a State existed in the Constitutions of all American States at the time the Federal Convention met and the adoption of this clause consumed but little of the Convention's time, so unanimous were the members in their opinion that the provision should be inserted in the Constitution.

A "trial" is an examination according to law, before a duly constituted tribunal, of the facts in the issue of

a case.

The clause under consideration applies to trials in the Federal courts throughout the United States and in the District of Columbia,11 and in the Territories of the United States.12 But it does not apply to State courts13 nor to a trial by a military commission organized during a war when the courts are accessible; 14 nor to a proceeding in contempt.15 Nor is a person who violates an injunction entitled to a jury trial. Before the courts of the United States can try a person for the commission of a crime, Congress must have declared the offence complained of to have been a crime. In United States v.

10 Longman's Lectures on English History, 130.

11 Callan v. Wilson, 127 U. S., 540, 550.

12 Thompson v. Utah, 170 U. S., 343, 347.

18 Eilenbecker v. Plymouth Colony, 134 U. S., 31, 35.

14 Ex parte Milligan, 4 Wallace, 3.

15 In re Debs, 158 U. S., 564, 595.

Hudson,16 Marshall, C. J., said: "The legislative authority of the Union must first make an act a crime, affix a punishment to it, and declare the court that shall have jurisdiction over the offence." Following this opinion, Justice McLean in United States v. Lancaster1 held, "The Federal Government can exercise no criminal jurisdiction which is not given by the statute, nor punish any act, criminally except as the statute provides."

The word "crime" is susceptible of two meanings. In its broadest meaning, said Mr. Justice Harlan in Callan v. Wilson,18 it embraces every violation of the public law, but in its narrower sense it only includes offences of a serious or atrocious character. It is to be considered in the light of the principles which, at common law, determined whether the accused was entitled to a trial by jury, and is not to be construed as relating only to felonies, or offences which are punished by imprisonment in the penitentiary, but also includes some classes of misdemeanors, the punishment of which may involve the deprivation of the liberty of a citizen. It would be a narrow construction of the Constitution to hold that no prosecution for a misdemeanor is a prosecution for a "crime," within the meaning of this clause.

But petty offences do not come within the meaning of the term "crimes" so as to justify a trial by jury where one is accused of such an offence.19

We have shown that the Committee of Detail reported "the trial of all criminal offences," etc., but that the Convention omitted the word "offences" and substituted "crimes." The term "offense" means generally the same as misdemeanor; the difference being that a "misdemeanor" is indictable, while an "offense" is not, the punishment being summary by forfeiting the penalty.20

Blackstone's Commentaries on the Laws of England were published a few years before the meeting of the Convention which framed the Federal Constitution, and it is fair to assume that that great work had been ex

167 Cranch, 34.

17 2 McLean, 431, 433.

18 127 U. S., 549.

19 Schrick v. U. S., 195 U. S., 65, 70; Dow v. U. S., 138.

20 Bouvier.

tensively read by the men who were members of that Convention and by other leading men of the times. Blackstone defines the word "crime" thus: "A crime or misdemeanor is an act committed, or omitted, in violation of a public law either forbidding it or commanding it." This general definition comprehends both crimes and misdemeanors, which, properly speaking, are mere synonymous terms; though, in common usage, the word "crimes" is made to denote such offences as are of a deeper and more atrocious dye; while smaller faults, and omissions of less consequence, are confined under the gentler name of "misdemeanors, only.21

Paschal seems to think the word "crime," as used in this clause, includes misdemeanors.22 Commenting on the substitution of the word "crimes" for the word "offences," as reported to the Convention by the Committee of Detail, Mr. Justice Gray, in Schrick v. United States, 23 said, "The significance of this change cannot be misunderstood. If the language had remained 'criminal offences,' it might have been contended that it meant all offences of a criminal nature; petty as well as serious, but when the change was made from 'criminal offences' to 'crimes,' and made in the light of the popular understanding of the meaning of the word 'crimes,' as stated by Blackstone, it is obvious that the intent was to exclude from the constitutional requirement of the jury the trial of petty criminal offences."

The Trial of all Crimes except in Cases of Impeachment, shall be by Jury.

This mandatory language excludes every other kind of trial, and guarantees to everyone accused of crime a jury trial.

Origin of Jury Trial.-In the brief history we have given of the word "trial," "trial," we have seen that its origin is vague and indefinite, and, as it has been understood for centuries, is an evolution of older forms and methods of settling disputes and controversies.

21 Blackstone, vol. 4, 2.

22 Paschal on the Constitution, 209.

23 195 U. S., 70.