Use of essentially historical materials.

• Jurisdiction: United States

Section 59. Use of essentially historical materials.—Mr. Justice Holmes, who more than most judges before or since understood both the value and the limitations of historical learning, remarked on different occasions that "historic continuity with the past is not a duty, it is only a necessity,"¹⁹⁰ and that "It is revolting to have no better reason for a rule than that it was so laid down in the time of Henry IV."¹⁹¹

Legal history in its purely antiquarian aspects will have but few uses for the lawyer. But since there are so many terms in the Constitution of the United States that would be meaningless without a thorough grounding in the common law,¹⁹² and since constitutional law accordingly presupposes an understanding of the common law,¹⁹³ historical materials, including the earliest cases, may sometimes be controlling, will generally be helpful—and will always be suggestive.

A number of instances of the effective use of such materials come to mind. Undoubtedly the classic instance of a change of decision in consequence of more accurate historical knowledge was Vidal v. Guard's Executors,¹⁹⁴ where the Supreme Court modified its earlier decision in Baptist Ass'n v. Hart's Executors¹⁹⁵ and up-held the charitable trust established by Stephen Girard's will, on the strength of then recent publications of the Record Commissioners of England which demonstrated that the English Court of Chancery had entertained jurisdiction over charitable trusts long before the Statute of 43 Elizabeth I.¹⁹⁶

But there are modern examples also. In United States v. Wood¹⁹⁷ the question was whether Congress could constitutionally provide, consistently with the Sixth Amendment's guaranty of trial "by an impartial jury," that Government employees not shown to be actually biased might sit on juries in criminal cases in the District of Columbia. An earlier case in point apparently barred the way.¹⁹⁸ But the Government's brief, which collected and discussed all the early English authorities on the point, some of them from the era of black-letter folios,¹⁹⁹ demonstrated that King's servants were not ineligible per se as a matter of common law. The Supreme Court was persuaded by these authorities, and disapproved its earlier decision.²⁰⁰

In the Haupt treason case,²⁰¹ the basic question was whether the constitutional command that "No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act"²⁰² required that "Testimony" to be eyewitness testimony, or "direct testimony" or whether, if the latter, it excluded any testimony that as a matter of ordinary speech might be considered circumstantial. In order to resolve this question, the Government's brief traced the two-witnesses requirement in treason cases back to the Statute of 7 & 8 Will. Iii, c. 3, which settled that requirement in the English law for 250 years,²⁰³ and took up and discussed, from the proceedings set forth in Howell's State Trials, the rulings under that statute in English treason trials antedating the American Revolution. It then turned to the earliest American trials on the same point. The Government argued, on the basis of these historical materials, that the constitutional requirement did not render insufficient testimony that required some interpretation;²⁰⁴ and the Supreme Court agreed.

Resort to the reports in Howell's State Trials was likewise had in the Harris search and seizure case,²⁰⁵ to show that a search of premises incident to an arrest represented an existing and widespread practice in England that was unaffected by Lord Camden's ruling in Entick v. Carrington²⁰⁶—and reference was made to reports in the American State Trials to show that the practice had never theretofore been deemed affected by American constitutional provisions.²⁰⁷ The Supreme Court agreed, although, as has already been noted in the preceding chapter (Section 30), later decisions since then may well have undermined the present authority of the Harris case. Indeed, there have been later decisions which appear to suggest that the very concept of Due Process of Law is now deemed to include a constitutional guaranty of privacy.²⁰⁸

However, even when they do not find their way into the decision or even into the ratio decidendi of the decision, historical materials are at least suggestive and hence helpful to the advocate. I found this to be so in the case of Wade v. Hunter,²⁰⁹ which involved the right of the Army to try a soldier by a second court-martial after the partially tried case had been withdrawn from the first court-martial when the tactical situation—in this instance the final advance into Germany in the spring of 1945—made it impracticable to continue the original trial.

The question was whether the second trial improperly subjected Wade to double jeopardy, and the case turned largely on the difference between the provisions of the Fifth Amendment, "nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb," and those of the then 40th Article of War, "No person shall, without his consent, be tried a second time for the same offense * * * ."²¹⁰

Clearly, under the remaining portions of Article of War 40, Wade had not been "tried";²¹¹ had he, however, been "put in jeopardy"? The Supreme Court had early ruled that the Fifth Amendment did not preclude a second trial in a criminal case after the first trial had terminated in a disagreement by the jury.²¹² But the lower courts in more recent cases had been applying a rather mechanical rule, to the effect that "jeopardy" attached once evidence was heard,²¹³ or even after the jury had been sworn, in a situation where the prosecutor failed to have his witnesses present.²¹⁴ An early case was most helpful in resolving this apparent conflict; there Mr. Justice Washington, who had been a contemporary of the Framers, had said,

* * * we are clearly of opinion, that the jeopardy spoken of in this article [Fifth Amendment] can be interpreted to mean nothing short of the acquittal or conviction of the prisoner, and the judgment of the court thereupon. This was the meaning affixed to the expression by the common law. * * * the moment it is admitted that in cases of necessity the court is authorized to discharge the jury, the whole argument for applying this article of the constitution to a discharge of the jury before conviction and judgment is abandoned, because the exception of necessity is not to be found in any part of the constitution; and I should consider this court as stepping beyond its duty in interpolating it into that instrument, if the article of the constitution is applicable to a case of this kind. We admit the exception, but we do it because that article does not apply to a jeopardy short of conviction.²¹⁵

The Wade case was decided, both in the...