§ 243]

Suspension of Habeas Corpus.

331

242. Suspension of Habeas Corpus.

To protect the privilege of resorting in a proper case to proceedings by habeas corpus the federal constitution as well as the constitutions of the various states contain provisions regulating the suspension of the writ. The provision of the federal constitution is that "The privilege of the writ of habeas corpus shall not be suspended unless when in cases of rebellion or invasion the public safety may require it" (Art. I, § 9, ¶ 2). Such suspension is involved in the declaration of martial law (see above, § 114), and is only proper when it becomes necessary temporarily to subject the exercise of civil authority to the military power. It has been the subject of much discussion whether without legislative authority the president may suspend the writ on his own judgment in cases of rebellion or invasion (Ex parte Merryman and Ex parte Milligan). But he may be authorized to do so by statute, as was done in 1863, 1866, and 1867.

In the absence of any suspension of the writ on account of such emergency as is contemplated by the constitution, the right to the writ for the purpose of having determined by judicial authority the lawfulness of imprisonment or other deprivation of personal liberty is a constitutional right, and the prohibition against its suspension is regarded as one of the personal guaranties of civil liberty. In the constitutional history of England the final establishment of the right to a judicial inquiry as to the lawfulness of any arrest or detention, even under the authority of the king himself, was the final step in the complete recognition of individual liberty and the subordination of the executive authority to the limitations imposed by constitutional government. The right was finally established in England by the Habeas Corpus Act, passed in 1679, which is regarded as one of the fundamental charters of civil liberty.

243. Waiver of Constitutional Guaranties.

While the protection afforded by the guaranties found in the federal or a state constitution is often spoken of as the inalien

able right of one accused of crime, it does not follow that such guaranties may not be waived by the accused. While he cannot by any act of his give jurisdiction to a court which under the law does not have jurisdiction, nor consent to a punishment which a court cannot lawfully inflict; there is no inherent reason why he may not waive any provisions of the constitution or the law which are intended for his protection, provided he freely and in the possession of a sound mind exercises the discretion of doing so for his own presumed advantage. He cannot waive the necessity for his presence in the court on a trial for treason or felony, because the court has no jurisdiction to proceed without his presence; nor can he consent to be tried in a court which is not authorized by law to try prosecutions for the offence with which he is charged; nor can he consent to death or imprisonment as a punishment, for an offence for which such punishment is not provided; but he may waive a jury trial by plea of guilty (Hallinger v. Davis) and he may waive objections to evidence which he might interpose according to constitutional provisions; and he may consent to be tried without a jury provided the court is legally authorized to proceed to try a criminal case without a jury (Harris v. People of Illinois); and without question he may waive a speedy trial or the assistance of counsel or any of the other provisions specially intended to secure to him a fair trial.

CHAPTER XLIII.

TRIAL BY JURY.

244. References.

J. Story, Constitution, §§ 1768-1772; J. R. Tucker, Constitution, § 334; T. M. Cooley, Constitutional Law, ch. xiii, § 5; H. C. Black, Constitutional Law, §§ 220-223; M. Hale, History of the Common Law, ch. xii; W. Blackstone, Commentaries, III, ch. xxiii, and note in Hammond's ed., 507; J. F. Dillon, Laws and Jurisprudence of England and America, 121-132; The Federalist, No. 83; Capital Traction Co. v. Hof (1899, 174 U. S. 1; McClain's Cases, 956); Vicksburg & Meridian Railroad Co. v. Putnam (1886, 118 U. S. 545; McClain's Cases, 963); Eilenbecker v. Plymouth County (1890, 134 U. S. 31; Thayer's Cases, 673); In re Debs (1895, 158 U. S. 564); Maxwell v. Dow (1900, 176 U. S. 581).

245. Constitutional Provisions.

Jury trial is not only guaranteed in criminal prosecutions (see above, § 235), but also in civil suits, by Amendment VII of the federal constitution, "In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved; and no fact, tried by a jury, shall be otherwise re-examined in any court of the United States, than according to the rules of the common law."

These provisions are analogous to those found in the various state constitutions on the same subject, the general purpose being to preserve as a distinctive and important feature of judicial procedure the common-law trial by jury as a safeguard against the encroachments of arbitrary power. The evident intent has been to preserve it in form and substance as it was known in the courts of Great Britain and the colonies, for it was regarded by the people as a right to which as British subjects

they were entitled; which they were anxious to preserve as against any encroachments by the royal government; and which they thought it necessary to perpetuate as against any possible encroachment by the governments established under the constitutions.

246. Selection of a Jury.

Jury trial as guaranteed in general terms means a determination of questions of fact in cases tried at law, either civil or criminal (as distinct from civil cases tried in equity), by a jury of twelve qualified persons selected, in accordance with legal methods, for the particular case and constituting for the time being a part of the machinery of the court to find the ultimate facts, and under the instructions of the judge as to the law render a general verdict which has received the unanimous approval of all of the twelve jurors, which verdict determines the case as between the parties and furnishes the basis for a judgment in favor of one party against the other to be rendered by the court. The essential features of this form of trial are numerous and they cannot all be elaborated here; but briefly they are as follows.

By some suitable means of procedure twelve persons are secured for the trial of the particular case; they are usually required to be citizens of the state or United States, as the case may be, possessing full mental capacity and in the enjoyment of the faculties of seeing and hearing so that they may rightly and fully comprehend the evidence presented to them. It is usually required that they be selected from the class of persons who are entitled to exercise the elective franchise, but there is no necessary connection between the right to vote and the capacity to serve as juror.

Some classes of persons are as a matter of public policy exempted from the obligation to serve on juries, such exemptions usually extending to physicians, lawyers, teachers, and public officers whose business or public duties are such as to be seriously interfered with to the public detriment if jury service is required of them. It is left discretionary with the court

§ 246]

Selection of a Jury.

335 to excuse in particular instances other persons who by reason of some special emergency would be unreasonably inconvenienced or damaged by such compulsory service; but mere interference with ordinary business or occupation is not regarded as just ground of excuse, for the citizen can be properly required to perform his public duties without regard to the effect upon his private interests.

A juror to be qualified to sit in a case must be, however, not only generally qualified to discharge such duty, but he must also be qualified with reference to the particular case in which he is to sit; that is, he must be substantially without bias or prejudice which would be likely to interfere with his rendering a fair and impartial verdict. Therefore one who has formed or expressed an opinion as to the merits of the case, or is so related to one of the parties that he is likely to be predisposed to favor him, or who occupies a position of hostility towards one of the parties which would predispose him to a decision hostile to such party's interests may properly be excluded. The general and special qualifications of each particular juror are inquired into, and if for any reason he appears to be disqualified the party desiring that he shall not serve as a juror in the trial of the case interposes a challenge for cause, and if the judge considers the objection to be well taken such person is not selected as one of the jurors.

There may be special reasons why a person called as a juror would not be likely to render a fair verdict in a case between the parties, other than the general reasons just suggested, and it is usually provided that each party shall have a number of so called peremptory charges which he may exercise for the purpose of excluding such persons from the jury as he desires to object to, although no legal reason for such exclusion is given. When twelve persons are secured against whom no valid objection is found to exist and to whom no peremptory challenge is interposed, these twelve persons are sworn to render a fair and impartial verdict in the case and become the jury for the trial.