3 How. 292. And in Grear v. Biddle, 8 Wheat. 1, it was held that a law denying to the owner of land a remedy to recover its possession when withheld by a party, however innocently, or to recover the profits of it, impairs his rights in the property and is in violation of a contract providing for the security of such rights.

CHAPTER XIV

LIFE AND LIBERTY AS PROTECTED BY DUE PROCESS PROCEDURE IN CRIMINAL CASES IN FEDERAL COURTS

§ 297. No change in procedure, either under federal or state law, must work a denial of fundamental rights. The declaration made in Backus v. Fort Street Union Depot Co., 160 U. S. 557, that "There is no vested right in a mode of procedure. Each succeeding legislature may establish a different one, provided only that in each are preserved the essential elements of protection," embodies a basic principle which underlies all Federal and state legislation upon the subject. The legislatures, Federal and state, may make any changes however radical in modes of procedure, provided always that such changes do not work a denial of fundamental rights. In the words of the court in Brown v. New Jersey, 175 U. S. 175: “The state has full control over the procedure in its courts, both in civil and criminal cases, subject only to the qualification that such procedure must not work a denial of fundamental rights or conflict with specific and applicable provisions of the Federal Constitution. Ex parte Reggel, 114 U. S. 642; Iowa Central Railway v. Iowa, 160 U. S. 389; Chicago, B. & Q. Railroad v. Chicago, 166 U. S. 226." Neither Congress nor the state legislature can prescribe modes of procedure that deny due process; and in Hibben v. Smith, 191 U. S. 310, the fact was emphasized that the due process clause of the Fifth Amendment places the same limitation upon the Federal Government as that of the Fourteenth Amendment upon the states. In that case the Court said: "The Fourteenth Amendment, it has been held, legitimately operates to extend to the citizens and residents of the states the same protec

tion against arbitrary state legislation affecting life, liberty and property as is offered by the Fifth Amendment against similar legislation by Congress; but that the Federal courts ought not to interfere when what is complained of amounts to the enforcement of the laws of a state applicable to all persons in like circumstances and conditions, and that the Federal courts should not interfere unless there is some abuse of law amounting to confiscation of property or a deprivation of personal rights, such as existed in the case of Norwood v. Baker, 172 U. S. 269."

§ 298. Due process clause of Fifth Amendment as reenforced by Amendments Six and Seven. The Fifth Amendment provides that "No person shall be held to answer for a capital or otherwise infamous crime, unless on a presentation 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." The Sixth Amendment provides that "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense." The Seventh Amendment provides that: "In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise

re-examined in any court of the United States, than according to the rules of the common law." In Articles of Amendment, V, VI, and VII are restated the guaranties of due process of law, springing from chapter 39 of the Great Charter, and from the English jury system, grand and petit, as that system existed at the time of the severance of the colonies from the mother country. "During the one hundred and forty-two years that intervened between Coke's death and the severance of the English colonies in America from the mother country, what may be called the ancient Constitution of England, first clearly defined in Magna Carta, was transformed into the modern Constitution through the Revolutions of 1640 and 1648. The reformed and invigorated constitutional system that stands out after those revolutions was a vastly wider and more complete fabric of liberty under law than that existing in Coke's time. Those revolutions brought into being many new constitutional principles, most of which passed into American law, of which Coke never heard." Taylor, THE ORIGIN AND GROWTH OF THE AMERICAN CONSTITUTION, pp. 78-79. Subject to the limitations contained in that enlarged statement, as embodied in Articles of Amendment, V, VI, and VII, Congress must legislate when dealing with the subject of procedure in criminal cases, always mindful of the fact that no change must be made in such procedure as will "work a denial of fundamental right or conflict with the specific and applicable provisions of the Federal Constitution." Prominent among the leading cases expounding that branch of the subject, heretofore reviewed in Part I, are Hurtado v. California, 110 U. S. 528; Lowe v. Kansas, 163 U. S. 81; Twining v. New Jersey, 211 U. S. 101.

§ 299. Federal right to indictment by grand jury in criminal cases-Informations. The purpose of the first clause of the Fifth Amendment, providing that "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," was to perpetuate the grand jury as an instrument for the prosecution of serious crimes in the courts of the United States. In Hurtado v. California, 110 U. S. 516, the Court said: "The same words are contained in the Fifth Amendment. That article makes specific and express provision for perpetuating the institution of the grand jury so far as it relates to prosecutions for the more aggravated crimes under the laws of the United States. The conclusion is

equally irresistible that when the same phrase was employed in the Fourteenth Amendment to restrain the action of the states, it was in the same sense and with no greater extent; and that if in the adoption of that amendment it had been part of its purpose to perpetuate the institution of the grand jury in all the states, it would have embodied, as did the Fifth, express declarations to the effect." An infamous crime can not be punished except upon presentment or indictment by a grand jury. Mackin v. United States, 117 U. S. 348; United States v. De Walt, 128 U. S. 393. The provision of the Fifth Amendment is jurisdictional, and no Federal court can try a prisoner without indictment or presentment in such cases. Re Bain, 121 U. S. 1; Parkinson v. United States, 121 U. S. 281; Wong Wing v. United States, 163 U. S. 228. For a definition of infamous crimes, see Parkinson v. United States, 121 U. S. 281; Re Wilson, 114 U. S. 417. Offenses of a lower grade may be prosecuted in the Federal courts by information. Nebraska ex rel. Wakely v. Lockwood, 3 Wall. 236; Re Wilson, 114 U. S. 417; United States v. Isham, 17 Wall. 496; United States v. Buzzo, 18 Wall. 125.

§ 300. Federal right to trial by petit jury. The term "common law" as used in the Seventh Amendment, which provides that "In suits at common law, where the value in controversy shall exceed twenty dollars, the right of