Prohibition Of Excessive Bail Or Fines, Cruel Or Unusual Punishments, And Involuntary Servitude

Before we finish, I want you to have in your mind a clear conception of the way in which a person accused of an offense is brought before the court, tried, and convicted or acquitted.

I have already explained that the first step is the arrest of the suspected person.73 Again put yourself in the place of the suspected person.

You are arrested. It is the duty of the officer making the arrest to bring you into a court, but this is not generally to a trial court. A person is generally brought before what is called a committing magistrate, a justice of the peace or commissioner—some person having authority to issue warrants of arrest. You may be far from home and friends when you are arrested. You may be entirely unacquainted in the neighborhood. The government is not ready to proceed to your trial. Witnesses must be summoned, not only for the government, but if you have witnesses you desire to use, they must be brought in.

The general rule is to set the case for hearing—a “preliminary hearing” in a day or two, or a week possibly. You must therefore wait until this time comes. What are you going to do? Must you go to jail until they get ready to have the hearing? No, you are entitled to bail; that is, you are entitled to be discharged upon a bond fixed by the magistrate, commissioner, or judge. There are usually only two offenses which are not, as the saying is, bailable—murder and treason. Usually [pg 131] where murder or treason is charged, the person is not admitted to bail. He is locked up in a cell to await trial; but as a general rule, when a person is arrested his bail is fixed—that is, the amount of the bond which he must file in order to be discharged pending the trial. For instance, if it were a charge of stealing a bicycle, the court might fix the bail at $500 or $1000. That would mean that if he would file a bond, with sureties, conditioned that in case he did not appear for hearing—that he should run away, for instance—the sureties would pay into the court the amount of the bond. Mostly any person of fair standing in a community can secure some friends who will sign such a bond, so that he may have his liberty until the trial.

But the framers of the Constitution, again anxious about the liberties of the people, provided:

“Excessive bail shall not be required.”74

There were many instances in the olden days where bail was purposely fixed so high—so far beyond all reason in view of the nature of the offense that the party could not furnish the bail, the purpose being to compel the party to remain in prison. Our Constitution guarantees to every individual that the amount of bail fixed shall be reasonable in view of the nature of the offense and if it is not reasonable, the person arrested may have the matter brought before the court, who will make full inquiry, and reduce the amount of the bail if found to be too large.

All through these guaranties of the Constitution, all through these provisions guarding the sacred rights of every person, you will see that the effort is that justice shall be done, not injustice; that right shall prevail, not wrong. That no one shall be kept in prison, deprived of his liberty, unless absolutely necessary in the interest of justice.

Then after a trial, if a person is found guilty, the Constitution [pg 132] again guards the rights even of the guilty, by providing:

“Excessive fines (shall not be) imposed, nor cruel and unusual punishments inflicted.”75

When this constitutional guaranty was written persons then living could recall without doubt the barbarous punishments which had been imposed in civilized countries even for light offenses. Common hanging was not regarded as sufficient punishment. “Hanged, drawn and quartered” was often heard in the courts of countries which had been left behind. It was nothing uncommon to see persons upon the roadside in England left hanging to the gibbet for long periods of time where the people could see them as a warning. It was not uncommon in those times to have a penalty of death imposed for the offense of stealing.

It is almost impossible to read of the punishments of the olden days, even under decrees of courts, without a shudder. Therefore, every one in America should be filled with gratitude that in the adoption of our Constitution these excessive cruelties were forever ended.

We have in this country the death penalty only for the most grave offenses, and it is seldom imposed. Imprisonment is generally regarded as just and sufficient. I might spend an hour if we had time, telling you something of the horrible dungeons which served as prisons in the olden days, into which God's sunlight seldom entered; of the chains the prisoners had to wear; of the starvation; yes, and of the lash—inhumanities which one can scarcely conceive, and which can never disgrace the civilization of America.

Again, carefully guarding the rights and liberties of the people we find:

“Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly [pg 133] convicted, shall exist within the United States, or any place subject to their jurisdiction.”76

This is not a part of the original Constitution. It was adopted after the war had driven slavery from our shores. The spirit of America has from the beginning been exerted in enlarging the rights of human beings. Slavery existed before the adoption of the Constitution, and so strongly was it intrenched at that time in some of the colonies that it was impossible then to wipe it out.

But it did not belong in America, and the time came when the American people, after a long bitter war, crushed the slave power, and swept from our shores the last vestige of involuntary servitude. That it might not be renewed, the people amended the Constitution so as forever to bar slavery or involuntary servitude except as men might be put in prison in punishment for crime after a full, fair trial.

Did you ever read of the debtor's prison? It used to be in nearly every country in the world, that men who were merely unfortunate, who got in debt and who could not pay when the debt was due were sent to prison, and kept there sometimes for long periods. It was most cruel, because in many instances the persons were honest. They wanted to pay their debts, but sickness came, or floods, or fire, or other misfortune, and when the time came they were unable to pay and thus they lost their liberty.

In those olden days, men were not only imprisoned, but in some countries they were compelled to labor for the person whom they owed. They were compelled to be slaves.

But at last we have reached a stage in America, where no one may be compelled to work for another, unless by his own free will, except under conviction of a crime where the State may compel prisoners to work for some one in order to help pay the expense of maintaining them.

The old debtor's prison is gone. No one in this country [pg 134] can now be imprisoned for an ordinary debt. There are a few States in which a person may be imprisoned for debts arising in fraud, but for an ordinary contract debt, mere inability to pay, no one in America can now be compelled to submit to imprisonment.

I wish sometime you would think seriously about what America has done for the poor. In the olden days they had few if any rights; but to-day in America, while by law we cannot prevent sickness nor sorrow, or other misfortune, we can and we do guard the liberty of the poorest and the most unfortunate. In fact many laws have been enacted which give to the poor special privileges which are denied to those who have property or money.

For instance in nearly every State there are what are called exemptions for a person who is the head of a family, which protect him even in the possession of a limited amount of property which his creditors cannot take away from him in payment of a debt. In most of the States laborers may hold the earnings of a certain period, for instance ninety days, for support of themselves and their families, which no one can touch, which no officers and no court can seize in payment of a debt. Also they are protected in their household goods, their clothing for themselves and their families, and in many other ways.

The farmer who may be heavily in debt is protected for himself and his family by having exempted to him a team of horses, harness and wagon, machinery, farm utensils, and food and clothing for the family.

I have not time to relate all that has been done by America in sympathetic aid of the poor and the unfortunate. No other country in the world has given such consideration to the poor as has America.

We hear much talk of social injustice, that the poor man has no chance. The truth is that more has been done in [pg 135] America during the past twenty-five years to provide justice for the poor and unfortunate and for those who toil, than was done in any other country of the world during the last one thousand years. The spirit of America is right. The people have the power. They are right at heart. The only weakness in America is the failure of many thousands of our men and women to take an active interest in the affairs of government. Hundreds of thousands, yes millions, of our voters fail to go to the polls on election day to vote. They do not seem to feel any gratitude for the privilege of living in a free country where liberty is guarded by written guaranties of a Constitution which cannot be changed, except by the will of the people themselves.

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ELEMENTARY QUESTIONS

1. After a person is arrested where is he generally taken by the officer?

2. If the hearing is postponed, what is generally done with him in the meantime?

3. What is bail?

4. What offenses are not bailable?

5. What is the constitutional guaranty as to bail?

6. Why should excessive bail be prohibited? What would be the injustice of this practice?

7. What happens when a person “out on bail” fails to appear in court at the time set? Is he relieved of further punishment?

8. If a magistrate fixes excessive bail, what may the accused person do in order to have it reduced?

9. Name some cruel and unusual punishments?

10. When was slavery in America abolished?

11. What was a debtor's prison?

12. How does America protect the poor? Can a debtor be put in prison for failing to pay ordinary debts?

13. What is meant by “exemptions” in relation to property and debts?

ADVANCED QUESTIONS

A. Explain the injustice of requiring excessive bail?

B. When a judge determines the amount of bail, what factors does he consider?

C. What is the purpose of punishment?

D. Discuss the movement for prison reform.

E. What is the purpose of the bankruptcy law?

F. Write a paper on:

Cruel and Unusual Punishments

Punishment and Crime in the United States

How America Protects the Poor Man

The Reformatory Versus the Penitentiary

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