ing them which are appropriate or necessary and which are not forbidden by the law of its being. When the power to establish post-offices are to create courts within the States was conferred upon the Federal Government, included in it was authority to obtain sites for such offices and for court-houses, and to obtain them by such means as were known and appropriate. The right of eminent domain was one of those means well known when the constitution was adopted, and employed to obtain land for public uses. Its existence, therefore, in the grantee of that power, ought not to be questioned. The Constitution itself contains an implied recognition of it beyond what may justly be implied from the express grant. The Fifth Amendment contains a provision that private property shall not be taken for public use without just compensation. What is that but an implied assertion that, on making just compensation, it may be taken?" In the case in question, involving the condemnation of land for a custom house, it was held that the circuit court had jurisdiction of the proceeding, under the general grant of jurisdiction made by the Act of 1789, and that such court was not required to allow a separate trial to each owner of an estate or interest in each parcel.

§ 33. Ex-parte Wilson-Indictment for infamous crime. In the case in question it was held that under the provisions of the Fifth Amendment a person sentenced to imprisonment for an infamous crime, without having been presented by a grand jury, is entitled to be discharged on habeas corpus. In the course of its opinion the Court says: "The leading word 'capital' describing the crime by its punishment, only the associated words 'or other infamous crime' must, by an elementary rule of construction, include crimes subject to any infamous punishment, even if they should be held to include also crimes infamous in their nature independently of the punishment affixed to them. A reference to the history of the proposal and adoption of this provision of the

Constitution confirms this conclusion. It had its origin in one of the Amendments in the nature of a Bill of Rights, recommended by the Convention, by which the State of Massachusetts in 1788 ratified the original Constitution, and as so recommended was in this form: 'No person shall be tried for any crime, by which he may incur an infamous punishment, or loss of life, until he be first indicted by a grand jury, except in such cases. as may arise in the government and regulation of the land and naval forces.' Journal Massachusetts Convention, 1788 (ed. 1856) 80, 84, 87; 2 Elliott's Debates, 177. As introduced by Mr. Madison in 1789 at the first session of the House of Representatives of the United States, it stood thus: 'In all crimes punishable with loss of life or member, presentment or indictment by a grand jury shall be an essential preliminary.' Being referred to a committee, of which Mr. Madison was a member, it was reported back in substantially the same form, in which it was afterwards approved by Congress and ratified by the States. Annals of Congress, 435, 760. Mr. Dane, one of the most learned lawyers of his time, and who as a member of the Continental Congress took a principal part in framing the Ordinance of 1787 for the government of the Northwest Territory, assumes it as unquestionable that by virtue of the Amendment of the Constitution, informations 'can not be used where either capital or infamous punishment is inflicted.' 7 Dane Abr. 280. Judge Cooley has expressed a similar opinion. Cooley Constitutional Law, 291. Within the last fifteen years, prosecutions by information have greatly increased, and the general current of opinion in the Circuit and District Courts has been towards sustaining them for any crime a conviction of which would not at common law have disqualified the convict to be a witness. U. S. v. Shepard, 1 Abb. U. S. 431; U. S. v. Maxwell, 3 Dill. 275; U. S. v. Block, 4 Sawy. 211; U. S. v. Miller, 3 Hughes 553; U. S. v. Baugh, 4 Hughes 501; U. S. v. Yates, 6 Fed. Rep. 861; U. S. v. Field, 21 Blatchf. 330; Re Wilson, 18

Fed. 33. But, for the reasons above stated, having regard to the object and the terms of the first provision of the Fifth Amendment, as well as to the history of its proposal and adoption, and to the early understanding and practice under it, this court is of opinion that the competency of the defendant, if convicted, to be a witness in another case, is not the true test; and that no person can be held to answer, without presentment or indictment by a grand jury, for any crime for which an infamous punishment may be imposed by the court.

This case was distinguished in Bannon v. United States, 156 U. S. 464, in which the court held that the affixing of an infamous punishment did not raise the crime to the grade of a felony. "Neither does it necessarily follow that, because the punishment affixed to an offense is infamous, the offense is thereby raised to the grade of felony. The word 'felony' was used at common law to denote offenses which occasioned a forfeiture of the lands or goods of the offender to which capital or other punishment might be superadded according to the degree of guilt. 4 Black. Com. 94, 95; 1 Russell, Crimes, 42. Certainly there is no intimation to the contrary in Mackin's Case [117 U. S. 348], which was put wholly upon the ground that, at the present day, imprisonment in a state prison or penitentiary, with or without hard labor, is considered an infamous punishment. If such imprisonment were made the sole test of felonies, it would necessarily follow that a great many offenses of minor importance, such as selling distilled liquors without payment of the special tax, and other analogous offenses under the internal and customs revenue laws, would be treated as felonies, and the persons guilty of such offenses stigmatized as felons. The cases of Exparte Wilson, 114 U. S. 417, and Mackin v. United States, 117 U. S. 348, prescribe no new definition of the word felony, but secured persons accused of offenses punishable by imprisonment in the penitentiary against

prosecution by information, and without a preliminary investigation of their cases by a grand jury."

§ 34. Boyd v. U. S.2-Kinship of Fourth and Fifth amendments. In the case in question the court, after declaring that it does not require actual entry upon the premises and search for and seizure of papers to constitute an unreasonable search and seizure as defined by the Fourth Amendment, held that a proceeding to forfeit a man's goods for an offense against the laws, though civil in form, no matter whether in rem or in personam, is a criminal case within the scope of that part of the Fifth Amendment declaring that no person "shall be compelled, in any criminal case, to be a witness against himself." In speaking of the Fourth Amendment, the Court said: "The case, however, which will always be celebrated as being the occasion of Lord Camden's memorable discussion of the subject, was that on Entick v. Carrington, reported at length in 19 How. St. Tr. 1029. The action was trespass for entering the plaintiff's dwelling house in November, 1762, and breaking open his desks, boxes, etc., and searching and examining his papers. The jury rendered a special verdict, and the case was twice solemnly argued at the bar. Lord Camden pronounced the judgment of the Court in Michaelmas Term, 1765, and the law as expounded by him has been regarded as settled from that time to this, and his great judgment on that occasion is considered as one of the landmarks of English liberty. It was welcomed and applauded by the lovers of liberty in the Colonies as well as in the mother country. It is regarded as one of the permanent monuments of the British Constitution, and is quoted as such by the English authorities on that subject down to the present time. As every American statesman, during our revolutionary and formative period as a nation, was undoubtedly familiar with this monument of English freedom, and considered it as the

2-116 U. S. 616.

true and intimate expression of constitutional law, it may be confidently asserted that its propositions were in the mind of those who framed the Fourth Amendment to the Constitution, and were considered as sufficiently explanatory of what was meant by unreasonable searches and seizures. We have already noticed the intimate relation between the two Amendments. They throw great light on each other. For the 'unreasonable searches and seizures' condemned in the Fourth Amendment are almost always made for the purpose of compelling a man to give evidence against himself, which in criminal cases is condemned in the Fifth Amendment; and compelling a man 'in a criminal case to be a witness against himself,' which is condemned in the Fifth Amendment, throws light on the question as to what is an 'unreasonable search and seizure' within the meaning of the Fourth Amendment. And 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. We think it is within the clear intent and meaning of those terms. We are also clearly of the opinion that proceedings instituted for the purpose of declaring the forfeiture of a man's property by reason of offenses committed by him, though they may be civil in form, are in their nature criminal. Though the proceeding in question is divested of many of the aggravating incidents of actual search and seizure, yet, as before said, it contains their substance and essence, and effects their substantial purpose. It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely: by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of the person and property should be liberally construed." The foregoing case was cited and relied upon by the