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What is a

What is a

40, 99, 110-

What is No person shall be held to answer for a capital or necessary to

otherwise infamous crime, unless on a presentment or charge a capital or infamous indictment of a grand jury, except in cases arising in crime !

the land or naval forces, or in the militi;, when in

actual service, in time of war or public danger; nor What of thu shall any person be subject for the same offense to be juroperty? twice put in jeopardy of life or limb; nor shall be com405-489, pelled, in any criminal case, to be witness against him- .

self; 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.

253. PERSON.-Practically the slaves and people of color were "person"? never considered as embraced in this amendment, as they were 19, 85, 159.

often proceeded against without indictment. It meant a free white.

** CAPITAL OR OTHERWISE INFAMOUS CRIME."- This must mean capital or

treason, piracy, or felony (“higli crime”), as contradistinguished infamous

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.

telony, and every species of crimen falsi, as perjury, forgers, 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.

But the “PRESENTMENT OR INDICTMENT" is used in all oflenses against the United States. Presentment" is the notice taken bz

a grand jury of any offense, from their own knowledge or obser. 252, 260.

vation, without any bill of indietment 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. Ci per v. The State, 4 Tex. 244; Paschal's Annotated Digest, notes 162, 163, p. 45. 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 2.2, 260.

oath by a grand jury. (4 Bl. Com. 302; 4 Stephens Com. 69; Arch. Cr. Pl. 1.) Birrill'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 er: jury?

dence offered by the government ouly, and tind or ignore bills of in


What is a presentment!

What is an

What is a

dictment presented to them. (4 Bl. Com. 302, 303: 4 Stephens 260. Com. 369, 370.) Burrill's Law Dic., GRAND JURY; Story's Const.

1784; The King v. Marsh, 6 Adolph. El., 236; 1 Nev, & Perry, 187; People v. King, 2 Caines' Cases, 98; Commonwealth F. 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.


117, 130. WAR OR PUBLIC DANGER.”—This article, compared with the eighth section of the first article, " to provide and maintain a navy;" " to

127-129, 260. nake 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 so is given without any connection between it and the third article trial?

in a military 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.

If the court-martial had no jurisdiction, or should inflict a punish- Suppose the ment forbidden by the law, although the sentence be approved, civil courts may, on an action by a party aggrieved, inquire into

no jurisilio 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; SC3 Whiting, 336.

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 shall not be tried a second time for the same offerise, after he has

twice in

jeopardy? once been acquitted or convicted, unless the judgment has been 260. arrested or a new trial granted on motion of the party. But it does not relate to a mis-trial. (Cnited States v. Haskell, 4 Wash.

486. C. C. 402, 410.) United States v. Perez, 9 1l heat, 579. The court inay discharge a jury from giving a verdiet, in a capitil 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 C'nited States v. Haskell, 4 Wash. C. C. 402 : U'nited 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 against himself would be contrary to the principles of a republi

a witness

against him can government. Wynehamer v. The People, 13 N. Y. 391, 392. belly

courtmartial has


Is the inhibition contined to crimina Cases


process of

law ?

This must have reference to criminal proceedings, since the prac-
tice of discovery in civil cases is universal. See 4 Bl. ('om. 326; 3
Wilson's Law Lect. 154-159 ; Cicero pro Sulla, 28. Rutherford's
Inst. B. I, ch. 18, S 5. Such a practice in criminał cases is con-

ceived in a spirit of torture. Siory's Const. § 1788. What is due 257. “ WITHOUT DUE PROCESS OF Law.”—By the “due course

of law," is meant all the guaranties set forth in the sixth amend

ment. Jones v. Montes, 15 Tex. 353; Janes V. Reynolds, 2 Tex. 260. 251. In Magna Charta it probably meant the established law of 487, 488.

the kingdom, in opposition to the Civil or Roman law. James F.

Reynolds, 2 Tex. 251; Paschal's Annotated Digest, note 155. Repeat Vec super eum ibimus, nec super eum mittimus, nisi per legale judiMagna

cium parium suorum, vel per legem terra. Neither will we pass Charta?

upon him, or condemn him, but by the lawful judgment of his peers 251. or the law of the land. Magna Charta; Story's Const. § 1759.

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 Jagnu

Charta. (2 Inst. 50.) Id. 276. What is due DUE PROCESS OF LAW.”---This means that the right of the course of law ?

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 200. tribunal, according to the forms prescribed by the laws of the land

for the investigation of such subjects. 9th Op. 200. An execuitive officer canzot make an order to violate this principle. Id.

Property and life are put upon the same footing. Id. Define the The true interpretation of these constitutional phrases is that right of u

where rights are acquired by the citizen under the existing law,

there is no power in any branch of the government to take them 258. away ; but where they are held contrary to existing law, or are

forfeited by its violation, then they may be taken from him—100 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. Kent's Com. 13; Story's Const. § 1782; 2 Coke's Inst. 45–50. Wynelamer 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 facto law, rescript, or decree made for the occasion-the 239.

purpose of working the wrong. (Norman v. Heist, 5 Watts & Sergt. 193; Taylor v. Porter, + Hill, 145; Hoke 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. Does the 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 to the collection of

it does not apply to proceedings to collect the public revenue. revenue ! Ames v. Port Huron, &c., Co 11 lich. 139. see that question ex.

haustively investigated. Taylor's Lessee v. Hoboken Land & Improvement Company, 18 How. 272.

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


What is law?

actor, reus, judex, regular allegations, opportunity to answer, and a 488. trial according to some settled course of judicial proceeding: yet this is not universally true. (2 Inst. 47, 50 : Hoke v. Henderson, 4 Dev. X. C. R. 15; Tavlor v. Porter, 4 Hill, 146; Van Zandt v. Waddel, ? Yery. 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.

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

strain the due

legislature process of law.” Id. 276. We must examine the Coustitution it elf, 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 attidavit, 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 india private vidual donjivion. 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 12. use of the public; nor then, without compensation. Story's Const. $ 1790.

This plırase includes all private property. United States v. 489. Hardiny, 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.) Gilinan v. The Cty 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 amend. ments to the Constitution do not extend lo 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 riglits of the States, and of their citizens, Fox v. Olio, 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

Charta? 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 aflirmance of a great doctrine established by the common law for the protection of private property. It is fouuded on natural equiry, 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

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

v. McKenzie, 3 (ia. 40-14; ? Kent's Con. Lect? 4. pp. 275, 276; 3 Wilson's Law Lect. 203; Ware v. Hylton. 3 Dill. 19+, 23. In the absence of any such declaration in the Constitution of Georgia, we refer to this amendinent as a plain, simple declaration of a great constitutional pri:ciple, of universal application, as asserted and declared in the Constitution of the United States. Young v. Mc. Kenzie, 3 Ga. 4.), 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--par. mount pro tanto.-- ED. Some of these amendments were declara. tory; 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 erers 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 adjoiniug street, is as much property as the lot itself. Lackland y. North Missouri R. R. Co. 31 Mo. 180.

Inust be

What is just

259. “Just COMPENSATION."— Although we may hold that con pensa “compensation” is not altogether synonymous with "

parment," tion?

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 F. 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. Ferris, 26 Tex. 602. (See 2 Kent's Com. 3d ed. notes f, and 1 ;

Miller v. Craig. 3 Stockt. V. J. 106.) In what The payment must be in money, ihe constitutional currency. Id.

The advantages to the laud not taken cannot be estimated against the payment:

the intrinsic value of the land actually taken. (Jacob v. The Cits 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, 60+; Paschal's Annotated Dig. note 168.

Under an act which authorizes a work, but does not provide for vision for

compensation for private properly, which it will be necessary to payment must be take, such property cannot be taken without the owuer's consent. inade! Carson v. Coleman, 3 Stocki. 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 prolibition 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. purpose can

A railroad company cannot condemn a site for erecting a n anti

factory of railroad cars. Eldridge v. Smith, 34 Vermont (5 Shaw), demn!


Nor dwelling-houses for employees. Id. Otherwise as to

What pro

For what

not a rail. rocon

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