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Subject Area: Law
Topic: The American Revolution and Constitution

§ 35.: The trial of the accused.— - Christopher G. Tiedeman, A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 1 [1900]

Edition used:

A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint (St. Louis: The F.H. Thomas Law Book Co., 1900). Vol. 1.

Part of: A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, 2 vols.

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§ 35.

The trial of the accused.—

“No man shall be deprived of his life, liberty, or property except by the judgment of his peers or the law of the land.” One who has committed a crime can be punished by man, not because he has violated the law of God, or the law of nature (if the two systems of law can be considered distinguishable), but because he has broken the law of man. In order that a man may be lawfully deprived of his life or liberty, he must be convicted of a breach of the human laws, and the conviction must be secured according to the provisions of these laws. If, according to the existing rules of the substantial and remedial law, one charged with a crime is not guilty or cannot be convicted of it, he stands free before the law notwithstanding he has violated the God-given rights of others; and to take away his life or his liberty would be as much an infringement of his constitutional rights, as would a like deprivation be of a man who leads a strictly moral life, and scrupulously respects the natural rights of his fellow-men. A man’s life, liberty, or property cannot be taken away, except by due process of law. It is not proposed to explain all the rules of law governing the conduct and management of criminal prosecutions, since the object of the present outline of the subject is simply to make a statement of the leading constitutional protections to personal liberty. The trial must be conducted in complete accordance with the rules of practice and the law of evidence, in order that a conviction may lawfully support an imprisonment for crime. But these rules of practice and pleading may be changed by the legislature to any extent, provided the constitutional limitations to be presently mentioned are not violated.

As already explained, a temporary confinement of one accused of crime is permissible, in fact necessary, for the purpose of insuring the presence of the alleged criminal at the trial; for in cases of felony no one can be tried and convicted in his absence, even though his absence is voluntary.1 But this confinement is only temporary, and can justifiably continue only for as long a time as is reasonably required by the prosecuting attorney to prepare the case of the State for trial.

[1]Winchell v. State, 7 Cow. 525; Maurer v. People, 43 N. Y. 1; Jacobs v. Cone, 5 Serg. & R. 335; State v. Alman, 64 N. C. 364; Andrews v. State, 2 Sneed, 550; Jackson v. Commonwealth, 19 Gratt. 656. In capital cases, the record must show affirmatively that the accused was present throughout the trial, and particularly when the verdict is brought in and sentence pronounced. Dougherty v. Commonwealth, 69 Pa. St. 286. But it seems that the accused need not always be personally present at the trial for misdemeanors. Cooley Const. Lim. 390.