 | property violated the Fifth Amendment prohibition. The Marshall court ruled that the intention of the Bill of Rights was to restrain the federal government only. "These amendments contain no expression indicating an intention to apply them to the state governments," the Court held. "This court cannot so apply them." The Fourteenth Amendment, ratified in 1868, stated that ''No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." But it was not until seventy years later that the Supreme Court held that the due process clause of the Fourteenth Amendment incorporated the rights protected by the Bill of Rights. This extended the provisions of the Bill of Rights to all levels of government, not only to the federal. The extent of the incorporation thesis, however, is still debated. Mr. Justice Black, in
Adamson v. California
, 322 U.S. 46, 8090 (1947), argued unsuccessfully for "wholesale incorporation" of the protections of the Bill of Rights. The Court rejected this argument but achieved similar results through "selective incorporation.'' See Raoul Berger,
The Fourteenth Amendment and the Bill of Rights
(Norman: University of Oklahoma Press, 1989). Also Charles Fairman and Stanley Morrison,
The Fourteenth Amendment and the Bill of Rights: The Incorporation Theory
(New York: Da Capo Press, 1970).
|
| 3. A. H. M. Jones,
The Criminal Courts of the Roman Republic and Principate
(Oxford: Basil Blackwell, 1972; Totowa, New Jersey: Rowman and Littlefield, 1972), p. 63.
|
| 4. Jones,
Criminal Courts
, p. 45.
|
| 5. Jones,
Criminal Courts
, p. 79.
|
| 6. Jones,
Criminal Courts
, p. 79.
|
| 7. In a refinement of this principle, the Supreme Court in
Ashe v. Swenson
, 397 U.S. 436 (1970), ruled that all the charges against a person for related offenses must be brought and tried at the same time. This ruling, called collateral estoppel, was subsequently codified in the rules of the federal and most state courts. It arose from the prosecution of a man charged with robbing five other men in a poker game. The state prosecutors decided to try the accused of robbing only the first of the five men, with the intention of trying him subsequently for robbing the others if he was acquitted of the first charge.
|
| 8. Leonard W. Levy,
Origins of the Fifth Amendment
(Oxford: Oxford University Press, 1968), p. 431.
|
| 9. Callistratus (4
de cognitionibus
)
Digest
22.5.3.2.
|
| 10. See Edith Guild Henderson, "The Background of the Seventh Amendment,"
Harvard Law Review
80 (1966), p. 289. Henderson argues that the Seventh Amendment was never meant to codify a rigid form of jury practice, as there was no consistent pattern of juries in 1790 to be codified.
|
| 11. See Hansen,
Athenian Assembly
, pp. 1045.
|
| 12. Aristotle,
The Athenian Constitution
53.3, indicates that there was a jury of 201 for cases up to a 1,000 drachmae, 401 for those over 1,000 drachmae.
|
|
