compensation or damages due to the owner, whether for the value of the part taken, or for any injury to the rest, shall take into consideration, by way of lessening the whole or either part of the sum due him, any special and direct benefits, capable of present estimate and reasonable computation, caused by the establishment of the highway to the part not taken."

Any appropriate tribunal may ascertain the value of the property. In United States v. Jones,131 the court said: "The proceeding for the ascertainment of the value of the property and consequent compensation to be made, is merely an inquisition to establish a particular fact as a preliminary to the actual taking; and it may be prosecuted before commissioners or special boards or the courts, with or without the intervention of a jury, as the legislative power may designate. All that is required is that it shall be conducted in some fair and just manner, with opportunity to the owners of the property to present evidence as to its value, and to be heard thereon, Whether the tribunal shall be created directly by an act of Congress, or one already established by the States shall be adopted for the occasion, is a mere matter of legislative discretion."

In Bauman v. Ross 132 it was held: "By the Constitution of the United States, the estimate of the just compensation for property taken for the public use, under the right of eminent domain, is not required to be made by a jury; but may be entrusted by Congress to commissioners appointed by a court or by the Executive, or to an inquest consisting of more or fewer men than an ordinary jury."

131 109 U. S., 513, 519.

182 167 U. S., 548, 593.

CHAPTER LIV.

SIXTH AMENDMENT.

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.

At the time the Constitution was framed, the Constitutions of New Jersey, Massachusetts, Maryland and Pennsylvania contained similar provisions to this which no doubt suggested the insertion of this amendment in the national Constitution.

This amendment as introduced into the House of Representatives by Mr. Madison was part of his first amendment and read: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, to be informed of the cause and nature of the accusation, to be confronted with his accusers, and the witnesses against him; to have a compulsory process for obtaining witnesses in his favor; and to have the assistance of counsel for his defense."'

It will be observed that this form provided, "The accused should be confronted with his accusers," but the amendment as adopted omits this important provision. This omission occurred in the report of the Committee of Eleven. The amendment was not debated at length in the House, but was agreed upon by a committee of conference.*

11 Annals, 452.

2 Thorpe's Constitutional History of the United States, vol. 2, 226. 31 Annals, 452, 782, 785.

41 Annals, 948.

This amendment contains some of the most important provisions of the Constitution relative to crimes and criminal procedure. Most of its provisions, like those in most of the amendments, are found in the principles of the common law and confer no rights upon an accused person, beyond those which the common law gave one who was being criminally prosecuted.

This amendment is not a limitation on the power of the States, and its provisions do not apply to the State courts.5

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial.-This clause relates to the prosecution of an accused person, which is technically criminal in its nature. A criminal prosecution under article 6, of the amendments, is much narrower than a "criminal case" under article 5 of the amendments."

8

In Ex parte Milligan, Davis, Justice, said: "The great minds of the country have differed on the correct interpretation to be given to various provisions of the Federal

5 Ughbanks v. Armstrong, 208 U. S., 487. Spies v. Illinois, 123 U. S. 131. Eilenbecker v. Dist. Court, 134 U. S., 31. Brown v. New Jersey, 175 U. S., 172-174. Maxwell v. Dow, 176 U. S., 581-586. Wert v. Louisiana, 194 U. S., 258, 262. Howard v. Kentucky, 200 U. S., 164, 172.

• United States v. Zucker, 161 U. S., 475, 481.

7 Counselman v. Hitchcock, 142 U. S., 547, 563. 8 4 Wallace, 122, 123.

Mr. Charles O'Conor in his argument upon the motion to quash the indictment in the case of United States v. Jefferson Davis, speaking of the cruelties which were practiced in England for many years preceding the American Revolution says:

"The accused were generally convicted and executed with all the attendant horrors enumerated in the barbarous treason sentence. They were hanged, drawn, and quartered. Many of the cases are stated in Sir Michael Foster's Treatise on Crown Law. This work, first published in 1761, soon found its way across the Atlantic; and just about the time when 'the troubles in America,' as they were called, began to unsettle British authority here. The harsh treatment and cruel fate of these true-hearted people were thus fully described and made known to our people. One of the most thrilling of these scenes was the subject of Shenstone's touching ballad, 'Jemmy Dawson.' It can not be doubted that the feelings excited by these cruel prosecutions induced the adoption of the Sixth Amendment. It was intended that no such transaction should ever stain the judicial annals of our country." Chase's Decisions,

Constitution; and judicial decision has been often invoked to settle their true meaning; but until recently no one ever doubted that the right of trial by jury was fortified in the organic law against the power of attack. It is now assailed, but if ideas can be expressed in words, and language has any meaning, this right-one of the most valuable in a free country-is preserved to every one accused of crime who is not attached to the army, or navy or militia in actual service. The framers of the Constitution, doubtless, meant to limit the right of trial by jury, in the Sixth Amendment, to those persons who were subject to indictment or presentment in the Fifth.'

There are some exceptions to the rule that all persons indicted are entitled to trial by jury, and among these are the following:

Crimes and accusations which at the time of the adoption of the Constitution were, by the regular course of law and the established modes of procedure, not the subjects of jury trial, are not so triable now.

When the issue of the insanity of a defendant is presented in a trial the Federal courts are governed by the rule of the common law, and the court may call a jury to determine the matter, or may do so himself, but the defendant is not entitled to a jury to pass on his sanity as a matter of right.

It is not "due process of law" to subject an insane person to trial upon an indictment involving liberty or life.10

Neither is one who is tried for contempt of court entitled to a jury trial.

In In re Debs11 it was said: The power of a court to make an order carries with it the equal power to punish for disobedience of that order, and the inquiry as to the question of disobedience has been from time immemorial the special function of the court. And this is no technical rule. In order that the court may compel obedience to its orders it must have the right to inquire whether there has been any disobedience thereof. To submit the question of disobedience to another tribunal, be it a jury or another

In re Cross, 20 Fed. Rep., 825. State v. Glenn, 54 Md., 600, 601. 10 Youtsey v. United States, 97 Fed. Rep., 937.

11 158 U. S., 564, 594.

court, would operate to deprive the proceeding of half its efficiency.

What is meant by a speedy and public trial?-This was considered in Ex parte Stanley.12 "It is very clear," said the court, "that one arrested and accused of crime has not the right to demand a trial immediately upon the accusation or arrest being made. He must wait until a regular term of the Court having jurisdiction of the offense with which he is charged, until an indictment is found and presented, and until the prosecution has had a reasonable time to prepare for the trial. Nor does a speedy trial mean a trial immediately upon the presentation of the indictment or the arrest upon it. It simply means that the trial shall take place as soon as possible after the indictment is found, without depriving the prosecution of a reasonable time for preparation. The law is the embodiment of reason and good sense; hence, whilst it secures to every person accused of crime the right to have such charge speedily determined by a competent jury, it does not exact impossibilities, extraordinary efforts, diligence or exertion from the courts, or the representatives of the State; nor does it contemplate that the right of a speedy trial which it guaranteed to the prisoner shall operate to deprive the State of a reasonable opportunity of fairly prosecuting criminals."

"The speedy trial, to which a person charged with crime is entitled under the Constitution, then is, a trial at such time, after the finding of the indictment, regard being had to the terms of court, as shall afford the prosecution a reasonable opportunity, by the fair and honest exercise of reasonable diligence, to prepare for a trial; and if the trial is delayed or postponed beyond such period, when there is a term of court at which the trial might be had, by reason of the neglect or laches of the prosecution in preparing for trial, such delay is a denial to the defendant of his right to a speedy trial.'

9713

The right to a speedy trial, while mandatory, is not absolute. The term "speedy" must be construed with a view to surrounding facts and circumstances. It is, said

12 4 Nevada, 113, 116.

18 United States v. Fox, 3 Montana, 517.