service in an army; a private or one in the ranks. Dic., SOLDIER. Webster's "SHALL BE QUARTERED IN ANY HOUSE."-TO QUARTER is to station soldiers for lodging. Webster's Dic., QUARTER. The object is to secure the perfect enjoyment of that great right of the common law, that a man's house shall be his own castle, privileged against all civil and military intrusion. Story's Const. § 1900. "THE OWNER" here means the occupant in possession. ARTICLE IV. The right of the people to be secure in their persons, Warrants? houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. 251. "THE PEOPLE" is here used in as comprehensive a sense Who are the as in the preamble, and perhaps in a more enlarged sense than people? there or elsewhere. It embraces all the inhabitants-citizens and aliens-who are entitled to the protection of the law. The slaves 6, 16, 93, 220, were never treated as a part of this "people." The provision 221, 248, 258. is indispensable to the full enjoyment of the rights of personal security, personal liberty, and private property. Story's Const. § 1902. "SEARCHES AND SEIZURES," are always unreasonable when they When unare without authority of law. It was intended to prevent domi- reasonable? ciliary visits and arbitrary arrests, which are the natural fruits of unrestricted power. 252. "AND NO WARRANT," &c.—[O. Fr. guarent; Lomb. warens.] What is a -An authority to do some judicial act; a power derived from warrant? a court, to take some person or property. Burrill's Law Dic., WARRANT. 257. This refers only to process issued under authority of the United To what States. Smith v. Maryland, 18 How. 71. And it has no applica- confined ? tion to proceedings for the recovery of debts, as a treasury distress warrant. Murray's Lessee v. Hoboken Land & Improvement Co. Id. 272. See Ex parte Burford, 3 Cr. 448; Wakely v. Hart, 6* Binn. 316; 1 Opin. 229; 2 Id. 266. See Ex parte Milligan, 4 Wall. 119. It was caused by the practice of issuing general warrants. Story's Const. § 1902. See Moody v. Beach, 3 Burr. 1743; 4 Black. Com. 291, 292; 15 Hansard's Parliamentary History, 13981419 (1764); Bell v. Clapp, 10 Jolins. 263; Sailley v. Smith, 11 Johns. 500; Report and Resolutions of the Virginia Legislature, 25th Feb. 1799; 4 Jefferson's Correspondence, justifying arrests by Wilkinson, 75-136; Story's Const. § 1902, note 2. 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 be property? 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 What is a "person"? 19, 35, 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 country, 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 offenses against the United States. "Presentment" is the notice taken by a grand jury of any offense, from their own knowledge or observation, 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 persons 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 only, and find or ignore bills of in 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. 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, 180. WAR OR PUBLIC DANGER."-This article, compared with the eighth 127-129, 260. section of the first article, "to provide and maintain a navy;" "to 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 in a military so is given without any connection between it and the third article 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. trial? 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; Parton v. Williams, B. & A. 330.) Dynes v. Hoover, 20 How. 82; S C. 3 Whiting, 336. twice in jeopardy? 260. 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, 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 himcan government. Wynehamer v. The People, 13 N. Y. 391, 392. self? Is the inhibition confined to criminal cases? 233. What is due process of law? 260. 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 This must have reference to criminal proceedings, since the prac- 257. "WITHOUT DUE PROCESS OF LAW."-By the "due course Nec super eum ibimus, nec super eum mittimus, nisi per legale judi- It conveys the same meaning as "law of the land," in Magna "DUE PROCESS OF LAW."--This means that the right of the 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 branch 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. Wynehamer v. People, 13 N. Y. R. 393; Taylor v. Porter, 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 y. Montes, 15 Tex. 352; Paschal's Annotated Digest, note 155; 2 Inst. 50, 51; 2 Kent's Com. Lect. 24, p. 10; Story's Const. § 1789. What law? Undoubtedly a pre-existing rule of conduct, not an ex post facto 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; 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. This is intended to secure the citizen the right to a trial, accordrule apply ing 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 Land & Improvement Company, 18 How. 272. revenue? For though "due process of law" generally implies and includes 1 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. "due 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 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. 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 City 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? |