What is

necessary to charge a capital or infamous crime?

ARTICLE V.

No person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service, in time of war or public danger; nor What of the shall any person be subject for the same offense to he twice put in jeopardy of life or limb; nor shall be compelled, in any criminal case, to be witness against himself; nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.

rights of

property?

485-489.

What is a "person"? 19, 85, 159.

What is a capital or infamous crime?

40, 99, 110

194.

253. PERSON.-Practically the slaves and people of color were never considered as embraced in this amendment, as they were often proceeded against without indictment. It meant a free white.

"CAPITAL OR OTHERWISE INFAMOUS CRIME."-This must mean treason, piracy, or felony ("high crime"), as contradistinguished from misdemeanor." Story's Const. § 1784.

In England, it formerly incapacitated the party committing it 116, 142, 191- from giving evidence as a witness; such as treason, præmunire felony, and every species of crimen falsi, as perjury, forgery, and the like. Roscoe's Criminal Evidence, 135. Usually, in this coun try, it means such as are punished with death, or imprisonment in a State prison or penitentiary. Id.

What is a presentment?

252, 260.

What is an

232, 260.

But the PRESENTMENT OR INDICTMENT" is used in all offenses against the United States. "Presentment" is the notice taken by a grand jury of any offense, from their own knowledge or obser vation, without any bill of indictment laid before them, upon which the officer of the court must afterward frame an indictment. before the party presented can be put to answer for it. 4 Black. Com. 301.

Presentment (information) is not synonymous with "indictment." An indictment must be found by a grand jury; an informatiou may be preferred by an officer of court. Clepper v. The State, 4 Tex. 244; Paschal's Annotated Digest, notes 162, 163, p. 48. It has never yet been authorized by act of Congress. Story's Const. $ 1785.

An "INDICTMENT" is a written accusation of one or more perindictment? sons of a crime or misdemeanor, preferred to and presented on oath by a grand jury. (4 Bl. Com. 302; 4 Stephens' Com. 69; Arch. Cr. Pl. 1.) Burrill's Law Dic.. INDICTMENT. See Paschal's Annotated Digest. Art. 2863, notes 720-721. A GRAND JURY is a body of men varying from not less than twelve to not more than twenty-three, who, in secret, hear the evidence offered by the government ouly, and find or ignore bills of in

What is a

grand

jury?

dictment presented to them. (4 Bl. Com. 302, 303: 4 Stephens Com. 369, 370.) Burrill's Law Dic., GRAND JURY; Story's Const. $ 1784; The King v. Marsh, 6 Adolph. & Ell., 236; 1 Nev. & Perry, 187; People v. King, 2 Caines' Cases, 98; Commonwealth v. Wood, 2 Cush. 149. The subject of grand juries is regulated by Act of Congress. 9 St. 72; 4 St. 188; 1 Brightly's Dig. 223,

232.

260.

127-129, 260.

254. "EXCEPT IN CASES ARISING IN THE LAND OR NAVAL What is the FORCES, OR THE MILITIA WHEN IN ACTUAL SERVICE IN TIME OF exception? 117, 130. WAR OR PUBLIC DANGER."-This article, compared with the eighth section of the first article, "to provide and maintain a navy;" "to make rules for the government of the land and naval forces." Under these provisions Congress has the power to provide for the trial and punishment of military and naval offenses in the manner What is the then and now practiced by civilized nations; and the power to do jurisdiction in a military so is given without any connection between it and the third article trial? of the Constitution defining the judicial power of the United States. Indeed, the two powers are entirely independent of each other. Dynes v. Hoover, 20 How. 78.

And if the sentence be confirmed, it becomes final, and must be executed, unless the President pardon the offenders. When confirmed, it is beyond the jurisdiction of any civil tribunal whatever, unless it should be in a case where the court had not jurisdiction over the subject-matter of the charge. Dynes v. Hoover, 20 How. 81; 3 Whiting, 335.

martial has no jurisdic

If the court-martial had no jurisdiction, or should inflict a punish- Suppose the ment forbidden by the law, although the sentence be approved, courtcivil courts may, on an action by a party aggrieved, inquire into the want of jurisdiction and give redress. (Harman v. Tuppenden, tion? 1 East, 555; Marshall's Case, 10 Cr. 76; Morrison v. Sloper, Willes, 30: Par on v. Williams, B. & A. 330.) Dynes v. Hoover, 20 How. 82; S C 3 Whiting, 336.

twice in

jeopardy 2

260.

486.

255. FOR THE SAME OFFENSE TO BE PUT TWICE IN JEOPARDY What OF LIFE OR LIMB."-The meaning of this phrase is, that a party means shall not be tried a second time for the same offense, after he has once been acquitted or convicted, unless the judgment has been arrested or a new trial granted on motion of the party. But it does not relate to a mis-trial. (United States v. Haskell, 4 Wash. C. C. 402, 410.) United States v. Perez, 9 Wheat, 579. The court may discharge a jury from giving a verdict, in a capital case, without the consent of the prisoner, whenever, in their opinion, there is a manifest necessity for such an act, or the ends of justice would be otherwise defeated. United States v. Perez, 9 Wh. 579. See United States v. Haskell, 4 Wash. C. C. 402; United States v. Gilbert, 2 Sumn. 19; Story's Const. § 1787. See the cases fully collected and the distinctions nicely stated in 2 Graham & Waterman on New Trials, ch. 2, pp. 51-135. Paschal's Annotated Digest, note

113.

256. "WITNESS AGAINST HIMSELF."-To make a man a witness Why not a witness against himself would be contrary to the principles of a republi- against him. can government. Wynehamer v. The People, 13 N. Y. 391, 392. Belf?

Is the inhibition

confined to criminal cases?

233.

What is due process of law :

260. 487, 488.

Repeat Magna Charta?

251.

What is due course of law?

260.

Define the right of a citizen?

253.

What is law?

239.

Does the

to the collection of revenue?

This must have reference to criminal proceedings, since the practice of discovery in civil cases is universal. See 4 Bl. Com. 326; 3 Wilson's Law Lect. 154-159; Cicero pro Sulla, 28. Rutherford's Inst. B. 1, ch. 18, § 5. Such a practice in criminal cases is conceived in a spirit of torture. Story's Const. § 1788.

ment.
251.

257. “WITHOUT DUE PROCESS OF LAW."-By the "due course of law," is meant all the guaranties set forth in the sixth amendJones v. Montes, 15 Tex. 353; Janes v. Reynolds, 2 Tex. In Magna Charta it probably meant the established law of the kingdom, in opposition to the Civil or Roman law. James v. Reynolds, 2 Tex. 251; Paschal's Annotated Digest, note 155.

Nec super eum ibimus, nec super eum mittimus, nisi per legale judicium parium suorum, vel per legem terræ. Neither will we pass upon him, or condemn him, but by the lawful judgment of his peers or the law of the land. Magna Charta; Story's Const. § 1789. See the question examined. Murray's Lessee v. Hoboken Land & Improvement Company, 18 How. 272.

It conveys the same meaning as "law of the land," in Magnu Charta. (2 Inst. 50.) Id. 276.

“DUE PROCESS OF LAW."--This means that the right of the citizen to his property, as well as life or liberty, could be taken away only upon an open, public, and fair trial before a judicial tribunal, according to the forms prescribed by the laws of the land for the investigation of such subjects. 9th Op. 200. An execu tive officer cannot make an order to violate this principle. Id. Property and life are put upon the same footing. Id.

The true interpretation of these constitutional phrases is, that where rights are acquired by the citizen under the existing law, there is no power in any brauch of the government to take them away; but where they are held contrary to existing law, or are forfeited by its violation, then they may be taken from him-not by an act of the legislature, but in the due administration of the law itself, before the judicial tribunals of the State. Wynehamet v. People, 13 N. Y. R. 393; Taylor v. Porter, 4 Hill, 145. That is by indictment or presentment of good and lawful men. (2 Kent's Com. 13; Story's Const. § 1782; 2 Coke's Inst. 45-50.) Wynehamer v. People, 13 N. Y. R. 395; Jones v. Montes, 15 Tex. 352; Paschal's Annotated Digest, note 155; 2 Inst. 50, 51; 2 Kent's Com. Lect. 24, p. 10; Story's Coust. § 1789.

What law? Undoubtedly a pre-existing rule of conduct, not an ex post jacto law, rescript, or decree made for the occasion-the purpose of working the wrong. (Norman v. Heist, 5 Watts & Sergt. 193; Taylor v. Porter, 4 Hill, 145; Hokе v. Henderson, 4 Dev. 15.) Wynehamer v. People, 13 N. Y. R. 393. 394. See full citations, 2 Kent's Com. 11th ed. 339, 240, and notes.

This is intended to secure the citizen the right to a trial, accordrule applying to the forms of law. Parsons v. Russel, 11 Mich. 113. But it does not apply to proceedings to collect the public revenue. Ames v. Port Huron, &c., Co 11 Mich. 139. See that question exhaustively investigated. Taylor's Lessee v. Hoboken Laud & Improvement Company, 18 How. 272.

For though "due process of law" generally implies and includes

actor, reus, judex, regular allegations, opportunity to answer, and a trial according to some settled course of judicial proceeding, yet this is not universally true. (2 Inst. 47, 50: Hoke v. Henderson, 4 Dev. N. C. R. 15; Taylor v. Porter, 4 Hill, 146; Van Zandt v. Waddel, 2 Yerg. 260; State Bank v. Cooper; Id. 599; Jones v. Heirs of Perry, 10 Id. 59; Greene v. Briggs, 1 Curtis, 311.) Murray v. Hoboken L. & I. Co., 18 How. 280.

488.

strain the

legislature

The article is a restraint on the legislative as well as on the Does the executive and judicial branches of the government, and cannot be article reso construed as to leave Congress free to make any process due process of law." Id. 276. We must examine the Constitution itself, to see whether the process be in conflict with any of its provisions. Id. 277. Summary process to collect revenue was always allowed. Id. Authorities exhausted. Id.

The law of New York, which authorizes a person to be commit- Exemplify a ted as an inebriate to the lunatic asylum upon an ex parte affidavit, violation of this clause" without being heard, violates this guaranty. In matter of Jones, 30 How. Pr. 446.

258. "PRIVATE PROPERTY FOR PUBLIC USE WITHOUT JUST What is COMPENSATION.—“ PRIVATE PROPERTY" is the sacred right of indi- private vidual dominion. It is one of the great absolute rights of every property? citizen to have his property protected. And the government has 231, 233, 144, no right to deprive the citizen of his property, except for the 72. use of the public; nor then, without compensation. Story's Const $1790.

489.

This phrase includes all private property. United States v. Harding, 1 Wall. Jr. 127; 2 Opin. 655. See Murray's Lessee v. Hoboken Land & Improvement Company, 18 How. 276. This last clause refers solely to the exercise by the State of the right of eminent domain. (The People v. The Mayor of Brooklyn, 4 Comst. 419.) Gilman v. The C ty of Sheboygan, 2 Blackf. 513. This provision is only a limitation of the power of the general government; it has no application to the legislation of the several States. Barron v. Mayor of Baltimore, 7 Pet. 243-7; Bonaparte v. Camden & Amboy R. R. Co., Bald. 220. It is now settled that the amendments to the Constitution do not extend to the States. Livingston's Lessee v. Moore, 7 Pet. 551; Boring v. Williams, 17 Ala. 516. They are exclusively restrictions upon federal power, intended to prevent interference with the rights of the States, and of their citizens. Fox v. Ohio, 5 How. 434; James v. Commonwealth, 12 S. & R. 221; Barker v. The People, 3 Cow. 686. It is a great principle of the common law, which existed anterior to the Constitution and to magna charta, and which was embodied in the 29th What says article of that great charter:-" "No freeman shall be taken, or im- Magna prisoned, or disseized of his freehold, or liberties, or otherwise destroyed, but by lawful judgment of his peers, or by the law of the land." Young v. McKenzie, 3 Ga. 42. This is an affirmance of a great doctrine established by the common law for the protection of private property. It is founded on natural equity, and laid down by jurists as a principle of universal law. (Story's Const. $1790; Bradshaw v. Rogers, 2 Johns. 106; Louisville, Cincinnati & Charleston Railroad Co. v. Chappell, Rice, 387; Doe v. The

Charta?

Authorities. Georgia R. R. & B. Co, 1 Kelley, 524; 1 Bl. Com. 139, 140.) Young

What 13 just con.pensation?

In what

must be

the payment?

What provision for payment must be made?

For what purpose cannot a rail

road condemn?

v. McKenzie. 3 Ga. 40-44; 2 Kent's Com. Lect 24, pp. 275, 276; 3 Wilson's Law Lect. 203; Ware v. Hylton. 3 Dill. 194, 235. In the absence of any such declaration in the Constitution of Georgia, we refer to this amendment as a plain, simple declaration of a great constitutional principle, of universal application, as asserted and declared in the Constitution of the United States. Young v. McKenzie, 3 Ga. 45. The true principle from this case would seem to be, that the Constitution of the United States, and the amendments, enter into and form parts of the State Constitutions--paramount pro tanto.-ED. Some of these amendments were declaratory; some restrictive of the powers of the federal government. The latter clause of this article is only declaratory. Young v. McKenzie, 3 Ga. 44.

A "public use means a use concerning the whole community, as distinguished from particular individuals, though each and every member of society need not be equally interested in such use. Gilmer v. Line Point, 18 Cal. 229. And see Honeyman v. Blake, 19 Cal. 579. See People v. Kerr, 3 Barb. N. Y. 357. The right of the owners of town lots to the adjoining street, is as much property as the lot itself. Lackland v. North Missouri R. R. Co. 31 Mo. 180.

259. "JUST COMPENSATION."-Although we may hold that 'compensation" is not altogether synonymous with “ "payment," yet the means of payment must not be doubtful. The making of compensation must be as absolutely certain as that the property is taken. (Carr v. Ga. R. R. & B. Co., 1 Kelley, 524; Young v. Harrison, 6 Ga. 130; Bloodgood v. M & H. R. R. Co., 18 Wend. 9; 2 Kent's Com. 339.) B. B., Brazos & Colorado Railroad Co. v. Ferris, 26 Tex. 602. (See 2 Kent's Com. 3d ed. notes f, and 7; Miller v. Craig. 3 Stockt. N. J. 106.)

The payment must be in money, the constitutional currency. Id. The advantages to the land not taken cannot be estimated against the intrinsic value of the land actually taken. (Jacob v. The City of Louisville, 9 Dana, 114; The People v. The Mayor of Brooklyn, 6 Barb. 309: Rogers v. R. R. Co. 3 Maine, 310; State v. Miller, 3 Zab. 383; Hatch v. R. R. 25 Vt. 49; Moale v. Baltimore, 5 Md. 314.) B. B., Brazos & Colo. R. R. Co. v. Ferris, 26 Tex. 603, 604; Paschal's Annotated Dig. note 168.

Under an act which authorizes a work, but does not provide for compensation for private property, which it will be necessary to take, such property cannot be taken without the owner's consent. Carson v. Coleman, 3 Stockt. N. J. 106. The consequential injury occasioned by the grading of a street, is not a taking of private property for public use within the meaning of the prohibition of the Constitution. Macy v. Indianapolis, 17 Iud. 267.

The question is not judicial, but one of political sovereignty, to be exerted as the legislature directs. Ford v. Chicago, &c., R. R. Co. 14 Wis. 609.

A railroad company cannot condemn a site for erecting a manufactory of railroad cars. Eldridge v. Smith, 34 Vermont (5 Shaw), Nor dwelling-houses for employees. Id. Otherwise as to

484.