[6] Not only do the witnesses give their evidence in the presence of the accused, but he has also the right to cross-examine them.

[7] But for this “compulsory process” (called a subpoena), persons entirely guiltless might be unable to produce evidence in their own behalf.  The natural desire of people to “keep out of trouble” would keep some knowing the circumstances of the case from giving their testimony, and others would be afraid to speak up for one under a cloud and with all the power of the government arrayed against him.

[8] The accused may plead his own cause, or he may engage a lawyer to do it for him.  If he is too poor to employ counsel, the judge appoints a lawyer to defend him, whose services are paid for out of the public treasury.

From the foregoing, it will be seen that great care is exercised to give a person accused of crime full opportunity to defend himself.  And it must be remembered in this connection that it is a principle of our jurisprudence that the burden of proof lies upon the government.  That is, the accused is to be deemed innocent until he is proved guilty.  We prefer that a number of guilty persons should escape punishment rather than that one innocent person should suffer.

ARTICLE VII.

JURY TRIAL IN COMMON LAW SUITS.

In suits at common law,[1] where the amount 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 common law.[2]

[1] The meaning of this expression is difficult of explanation, but it covers most ordinary lawsuits.  From the fact that a jury in criminal cases has already been guaranteed (III., 2, 3, and Am.  VI.), it may be assumed that this provision is intended to cover civil suits.

[2] Among the “rules of common law” are these:  1.  All suits are tried before a judge and a jury, the jury determining the facts in the case and the judge applying the law. 2.  The facts tried by a jury can be re-examined only by means of a new trial before the same court or one of the same jurisdiction.

The purpose of this provision is to preserve the jury trial as a real defense against governmental oppression.  In the Supreme Court there is no jury; the trials are by the court.  If questions of fact could be reviewed or re-examined by such a court on appeal the protection now given by the jury would be nullified.

ARTICLE VIII.

EXCESSIVE BAILS, FINES AND PUNISHMENTS FORBIDDEN.

Excessive bail shall not he required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Having enjoyed the protection of this and similar provisions for so many years, we can hardly appreciate their value.  It must be borne in mind that those who “ordained and established” the constitution had been abused in just these ways, and that in this provision they provided against a real danger.