question was raised upon the validity of the order for the production by the claimant of the invoice and of the proceedings had thereon. The jury, having found a verdict for the United States, by which the thirty-five cases of glass which had been seized were condemned, and judgment of forfeiture rendered; and that judgment having been affirmed by the Circuit Court, the decision of that Court was brought to the Supreme Court for review.

§ 616. Mr. Justice Bradley, in the opinion rendered, held that the proceedings under the motion were in contravention of the Fourth Amendment, and also of the Fifth Amendment to the Constitution. He said: "It is our opinion, therefore, that the compulsory production of a man's private papers to establish a criminal charge against him, or to forfeit his property, is within the scope of the Fourth Amendment to the Constitution, in all cases in which a search and seizure would be; because it is a material ingredient, and affects the sole object and purposes of search and seizure." Beyond this the Court was called to decide whether the act complained of was an "unreasonable search and seizure" within the meaning of the Fourth Amendment.

§ 617. The Court held that in the case of stolen goods the owner from whom they were stolen would be entitled to possession, and that, in such cases, search and seizure would be justifiable.

§ 618. It was also held in the case of dutiable articles that the government, having an interest in them for the payment of duties thereon, might, until such duties were paid, keep them under observation, or pursue them and drag them from concealment.

§ 619. So in the case of goods taken by attachment, or on execution, the creditor is entitled to their seizure in satisfaction of his debt.

§ 620. From these cases and others of a like nature, the Court distinguished the attempt to extort from a party his private books and papers, and make him liable for a penalty,

or the forfeiture of his property. Indeed, the latter process was likened to the Writs of Assistance that, in 1761, were denounced by James Otis as "the worst instrument of arbitrary power, the most destructive of English liberty and the fundamental principles of law that ever was found in an English law book, since they placed the liberty of every man in the hands of every petty officer."

§ 621. The proceeding was also characterized as a violation of the Fifth Amendment to the Constitution as being an attempt to compel the accused in a criminal case to be a witness against himself. On this point the Court say: "We have been unable to perceive that the seizure of a man's private books and papers to be used in evidence against him, is substantially different from compelling him to be a witness against himself."

§ 622. "We are also clearly of opinion that proceedings instituted for the purpose of declaring the forfeiture of a man's property, by reason of offences committed by him, though they may be civil in form, are in their nature criminal." The judgment of the Circuit Court was reversed, and the goods remanded with directions to award a new trial. (Boyd v. United States, 116 U. S. 616.)

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CHAPTER LV.

AS TO SECURITY OF PERSONAL RIGHTS AND DUE PROCESS

OF LAW.

ART. 5.

"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 shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a 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."

§ 623. Three of the justices of the Supreme Court at different times, and in opinions given in different cases, have attempted to define the words "due process of law," as used in the Fifth and Fourteenth Amendments to the Constitution.

§ 624. Mr. Justice Curtis has said: "The Constitution contains no description of those processes which it was intended to allow or forbid. It does not even declare what principles are to be applied to ascertain whether it be due process. It is manifest that it was not left to the legislative power to enact any process which might be devised. The article is a restraint on the legislative, as well as on the executive and judicial powers of the government, and cannot be so construed as to leave Congress free to make any process 'due process of law' by its mere will."

§ 625. In the further consideration of the subject, he says: "We must examine the Constitution itself to see whether this process be in conflict with any of its provisions. If not found to be so, we must look to those settled usages and modes of proceeding existing in the common and statute

law of England, before the emigration of our ancestors, and which are shown not to have been unsuited to their civil and political condition, by having been acted upon by them after the settlement of this country." (Murray's Lessee v. Hoboken Land and Improvement Company, 18 How. 272.)

§ 626. This statement is endorsed by Mr. Justice Miller. (Davidson v. New Orleans, 96 U. S. 101.) Mr. Justice Field has said: "Whatever difficulty may be experienced in giving to those terms a definition which will embrace every permissible exertion of power affecting private rights, and exclude such as is forbidden, there can be no doubt of their meaning when applied to judicial proceedings. They then mean a course of legal proceedings, according to those rules and principles which have been established in our systems of jurisprudence, for the protection and enforcement of private rights." (Pennoyer v. Neff, 95 U. S. 733.)

§ 627. Assuming that the Legislature of a State has enacted laws for the government of its Courts, while exercising their respective jurisdictions, which, if followed, would furnish the parties the necessary constitutional protection of life, liberty and property, by due process of law, the State cannot be deemed guilty of violating the constitutional provision that no State shall deprive a person of life, liberty or property, without due process of law, if it should happen that one of its Courts, acting within its jurisdiction, should make an erroneous decision in some one or all of these particulars. (Arrowsmith v. Harmoning, 118 U. S. 194.)

§ 628. As has been noted under the clause of the Constitution relating to habeas corpus, a person sentenced to imprisonment for an infamous crime without having been presented or indicted by grand jury is entitled to a discharge upon the ground that such sentence was a violation of article five of the Amendments. A test of an infamous crime is found in the fact that the punishment is for a term of years at hard labor. (Ex parte Wilson, 114 U. S. 417, and Mackin v. The United States, 117 U. S. 348.)

§ 629. Under the force of this amendment the Court authorized the discharge of Edward Lange (Ex parte Lange, 18 Wall. 163), on whom a sentence of fine and imprisonment had been imposed for purloining certain mail bags belonging to the Post Office Department, when the statute only conferred power upon the Court to punish by fine or imprisonment.

§ 630. His discharge was authorized for the reason that he had paid his fine, and therefore the continuance of the penalty of imprisonment was subjecting him to a double punishment for the same offence.

§ 631. Following the opinion in the case of Boyd against the United States (116 U. S. 616) cited under the Fourth Amendment, the Court has held that it is the manifest purpose of this amendment to prohibit the compelling of testimony of a self-criminating kind from a party or a witness. By a reasonable construction of the constitutional provision, a witness is protected from being compelled to disclose circumstances of his offence, or the sources from which, or the means by which evidence of its commission or of his connection with it may be obtained.

§ 632. It was held also, that the revised statutes (Sec. 860) which provide that no evidence given by him shall be in any manner used against him in any Court of the United States, in any criminal proceedings, is co-extensive with the provisions of the Constitution, and that a statutory enactment to be valid must afford a witness absolute immunity against future prosecution for the offence to which the question relates. (Counselman v. Hitchcock, 142 U. S. 547.)

§ 633. In many cases the doctrine already stated in regard to the first eight amendments to the Constitution, that they are limitations on the United States and have no relation to the authority of the States, has been applied to the various clauses of the Fifth Article. (Baron v. The Mayor and City Council of Baltimore, 7 Pet. 243, and Withers v. Buckley, 20 How. 84.)