PART 4. the guilty, that the interpretation there given to it should be repudiated, as false and mischievous.' CHAPTER VI. NEW TRIAL. In the case of The United States v. Gilbert and others (2 Sumner, 19), which was an indictment for piracy, the question arose, and was very elaborately discussed both at the bar and by the court, whether in a capital case, after a regular conviction, upon a sufficient indictment, a court of the United States has authority to grant a new trial. The question was supposed to depend on the true interpretation of that provision of the constitution of the United States (which is but a constitutional recognition of an old and well established maxim of the common law), that no person shall be subject for the same offense to be twice put in jeopardy of life or limb. No doubt was entertained that had there been a verdict of acquittal, this constitutional inhibition would have afforded a complete protection to the prisoners against a new trial. The question considered and decided was, whether it extended also to cases of conviction. Mr. Justice STORY maintained that it did, and the motion was denied. His honor Judge DAVIS was of the opposite opinion. The argument of Mr. Justice STORY evinces great learning and deep research, and seems fully to sustain his conclusion that the power in question is never 'The doctrine held by Mr. Justice STORY in the case of The United States v. Battiste, has since been emphatically reasserted in a well considered and very able opinion, by Mr. Justice CURTIS. It is known to the author, moreover, that the same opinion was entertained also, with undoubting confidence, by Mr. Justice THOMPSON. exercised, and is understood not to exist in the CHAP. 6. English courts. The settled law of England appears to be, as stated by Mr. Chitty (1 Chit. Cr. Law, p. 654), that in cases of felony or treason no new trial can in any case be granted; the only remedy which remains to the defendant in case of his conviction being, that if the conviction appear to the judge to be improper, he may respite the execution to enable the convict to apply for a pardon. The decisions of the American courts seem to have generally been adverse to this doctrine. With regard to the decisions of the supreme court of New York, I doubt whether they warrant the impression of Mr. Justice STORY, that they support the doctrine he maintains. The case of Comstock (8.Wend., 549), was an application in behalf of the people for a new trial, for the alleged misdirection of the judge, after a verdict of acquittal on an indictment for grand larceny, and was in truth too clear for argument. The court, in delivering their opinion, content themselves with briefly quoting the English doctrine above mentioned, as summarily stated by Mr. Chitty, and deny the motion. But in the case of The People v. Stone (5 Wend., 39), the court, after quoting the English rule that a new trial can never be granted in cases of felony or treason, proceed to denounce it in very strong terms as tyrannical and unjust; and then add, that this rule "has never been countenanced by our courts, and would never be tolerated by our people." Perhaps it is to the habit of considering the subject independently of the constitutional inhibition, that is to be ascribed in some degree the general prevalence in this country of an impression in favor of the existence of the power in question. The common law maxim which this inhibition embodies, like other humane maxims of the common law, doubtless had PART 4. its origin, as already observed, in the more humane spirit awakened by advancing civilization, and shocked by the terrible severity of the ancient penal code of England. It has generally been regarded, therefore, as having reference exclusively to the security of the accused; and viewing it under this aspect, the mind does not easily reconcile itself to the notion that its spirit would be violated by granting to a man already convicted, and at his request, another chance for his life. The question whether, when in a capital case the jury have been discharged by the court, from necessity, before verdict, the accused can be again put upon his trial, has been differently decided by the courts of the several states.' But the question may be considered as put at rest in the courts of the United States by the decision of the supreme court in the case of The United States v. Perez (9 Wheat., 579), in which it was decided that courts have a discretionary power even in capital cases (to be exercised however with great caution and reserve), to discharge the jury from giving a verdict, and that the prisoner may be tried again for the same offense after the exercise of this power. CHAPTER VII. JUDGMENT AND EXECUTION. Attainder.] By section 3, of article 3, of the constitution of the United States, it is declared that "The congress shall have power to declare the punishment of treason; but no attainder of treason shall 'See the case of The United States v. Gilbert et al. (2 Sumner's Rep., 19), where the cases on this point are collected and commented by Mr. Justice STORY. work corruption of blood or forfeiture, except during CHAP.7. the life of the person attainted." By the crimes act of April 30, 1790, it is declared "that no conviction or judgment for any of the offenses aforesaid [one of which is treason], shall work corruption of blood, or any forfeiture of estate."" Benefit of clergy.] By the thirtieth section of the same act it is enacted "that the benefit of clergy shall not be used or allowed, upon conviction of any crime, for which, by any statute of the United States, the punishment is or shall be declared to be death." Punishment of death, how inflicted, &c.] By section thirty-second of the same act it is provided "that the manner of inflicting the punishment of death, shall be by hanging the person convicted by the neck until dead." The fourth section of the same act provides "that the court before whom any person shall be convicted of the crime of murder, for which he or she shall be sentenced to suffer death, may, at their discretion, add to the judgment, that the body of such offender shall be delivered to a surgeon, for dissection; and the marshal who is to cause such sentence to be executed, shall accordingly deliver the body of such offender, after execution done to such surgeon as the court shall direct, for the purpose aforesaid; Provided, That such surgeon, or some other person by him appointed for the purpose, shall attend to receive and take away the dead body at the time of the execution of such offender." The next section inflicts a fine of one hundred dollars and imprisonment for a term not exceeding twelve months, for rescuing or attempting to rescue the body during its conveyance to the place of dissection, or from the house of the surgeon. 'Ch. 9, § 24: 1 Stat. at Large, p. 112. ᏢᎪᎡᎢ 4. Whipping-pillory.] By the act of February 28, 1839, it is enacted "that the punishment of whipping and the punishment of standing in the pillory, so far as they now are provided for by the laws of the United States, be and the same are hereby abolished."1 Place of imprisonment.] By the act of March 3, 1825, it is enacted "that in every case where any criminal convicted of any offense against the United States shall be sentenced to imprisonment and confinement to hard labor, it shall be lawful for the court by which the sentence is passed, to order the same to be executed in any state prison, or penitentiary, within the district where such court is holden; the use of which prison or penitentiary may be allowed or granted by the legislature of such state for such purposes; and the expenses attendant upon the execution of such sentence, shall be paid by the United States."2 And by the act of March 3d, 1835, it is provided "that whenever any person shall be convicted of any offense against the United States which is punishable by fine and imprisonment, or by either, it shall be lawful for the court by which the sentence is passed, to order the sentence to be executed in any house of correction, or house of reformation for juvenile delinquents, within the state or district where such court is holden, the use of which shall be allowed and authorized by the legislature of the state for such purpose. And the expense attendant on the execution of such sentence shall be paid by the United States." Vide, supra, p. 199, “Jails." 'Ch. 36, § 5: 5 Stat. at Large, p. 321. |