The importance of this provision is likely to be underestimated.  Says Montesquieu, “Liberty consists in security.  This security is never more attacked than in public and private accusations.  It is, therefore, upon the excellence of the criminal laws that chiefly the liberty of the citizen depends.”  And Lieber, in his very able work on Civil Liberty and Self-Government, says, “A sound penal trial is invariably one of the last fruits of political civilization, partly because it is one of the most difficult of subjects to elaborate, and because it requires long experience to find the proper mean between a due protection of the indicted person and an equally due protection of society....  It is one of the most difficult things in all spheres of action to induce irritated power to limit itself.”

Besides the guarantees of the constitution, Lieber mentions the following as characteristic of a sound penal trial:  the person to be tried must be present (and, of course, living); every man must be held innocent until proved otherwise; the indictment must be definite, and the prisoner must be allowed reasonable time to prepare his defense; the trial must be oral; there must be well-considered law of evidence, which must exclude hearsay evidence; the judge must refrain from cross-examining witnesses; the verdict must be upon the evidence alone, and it must be guilty or not guilty; [Footnote:  In some countries the verdict may leave a stigma upon an accused person, against whom guilt cannot be proven.  Of this nature was the old verdict, “not proven.”] the punishment must be in proportion to the offense, and in accordance with common sense and justice; and there must be no injudicious pardoning power, which is a direct interference with the true government of law.

Most, if not all but the last, of the points mentioned by Dr. Lieber are covered by that rich inheritance which we have from England, that unwritten constitution, the common law.  The question of how best to regulate the pardoning power is still unsettled.

[1] He may have his trial at the next term of court, which is never very remote.  But the accused may, at his own request, have his trial postponed.

[2] Publicity is secured by the keeping of official records to which all may have access, by having an oral trial, by the admission of spectators to the court room, and by publication of the proceedings in the newspapers.

[3] For the mode of securing the “impartial jury,” see page 63.

[4] It is provided in the body of the constitution (III., 2, 3,) that criminal trial shall be by jury, and in the state where the crime was committed.  This amendment makes the further limitation that the trial shall be in the district where the crime was committed, so a person accused of crime cannot be put to the trouble and expense of transporting witnesses a great distance.

[5] The nature of the accusation is specified in the warrant and in the indictment, both of which, or certified copies of them, the accused has a right to see.