torical interest than practical importance. It was borrowed from the Petition of Right, passed by Parliament in the reign. of Charles I., under whom the practice of billeting soldiers upon the citizens had grown to be an enormous abuse.

§ 241. 3. Unreasonable searches and seizures are forbidden, and no warrants of search or arrest must issue except upon probable cause, supported by oath, and describing the place to be searched, and the person or thing to be seized.

This provision is of the utmost importance in the administration of justice. It protects the liberty and property of the citizen against the inquisitorial proceedings set in motion by mere suspicion or surmise. It demands some proof to substantiate a charge before the machinery of the law is set in motion, and requires that some person shall assume the responsibility of sustaining the charge by his oath. It prevents all vague accusations by insisting that the person or thing to be seized, or the place to be searched, shall be particularly described.

This clause of the Constitution was particularly aimed at what were known in the English law as general warrants. These general warrants were used more especially in the case of political offences, and were issued by the government, directing the officers to search all suspected places, and seize all suspected persons, without describing any place or person. The execution of the warrant was left to the caprice of the individual who had it in charge. Although these warrants were so plainly contrary to the spirit of the English common law, and destructive of individual rights, and liable to become instruments of tyranny in the hands of an unscrupulous official, they continued in use down to a time immediately prior to the American Revolution. The practice was finally declared ille. gal by the Court of King's Bench during the presidency of Lord Mansfield, in the case of Money v. Leach.1 The case arose on a warrant issued by one of the Secretaries of State requiring the officers "to make diligent search for the authors and publishers" of a certain seditious libel," and them or any of them having found, to apprehend and seize, together with their papers."

1 3 Burr. 1742. And see Commonwealth v. Crotty, 10 Allen, 403, and cases cited.

§ 242. 4. The course of proceeding in criminal trials for all offences except those of a petty character, is established: an indictment or presentment by a grand jury as the initiative; a speedy and public trial of the accusation by a jury; information as to the nature of the charge; public examination of the witnesses for the prosecution in the presence of the accused; opportunity for the prisoner to procure his own witnesses; to maintain silence respecting the imputed crime, and to be defended by counsel.

It is thus that the Constitution endeavors to protect the liberties of the citizen against any oppressive acts of the government, by absolutely prohibiting that government, through its officers, from deciding first, whether a person shall be put upon trial for an alleged offence, and secondly, whether he is guilty of the offence which may be alleged against him. Both of these questions must be determined by bodies of men chosen from the people at large. The grand jury as the accusers, and the petit jury as the judges of the fact, are a part of the English system of administering justice, and have been thence borrowed by us. No doubt they have been greatly instrumental in maintaining the liberties of the British subject. It may well be questioned, however, if the grand jury is not now so cumbersome and inefficient, that any theoretical advantages which may flow from it, are not far outweighed by the practical defects and hindrances which are inseparable from its use in administering the criminal law. Indeed, it has been already abolished in some states. I am strongly of the opinion, also, that some others of these time-honored principles of English and American criminal procedure have outlived their usefulness, and are obstacles to the proper investigation and punishment of crime. The provision that no person shall be compelled to be a witness against himself can only be supported by that intense reverence for the past which is so difficult to be overcome. This ancient rule of the English law has been entirely repudiated in civil cases, and there is no reason for preserving it in criminal trials. A judicial trial is in theory, and should be in fact, a means of ascertaining the truth; but this maxim of the law closes at once the most direct and certain road which leads

to the truth. There can be no doubt that the states will gradually abandon this provision, and reject it from their constitutions.

§ 242 a. The fifth amendment also declared 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," etc., and the meaning of the phrase "infamous crime was much discussed in a very recent case by the Supreme Court. It was held to include any crime punishable by imprisonment at hard labor for a term of years; and not to be limited merely to crimes which were subject to cruel and unusual punishments, or which disabled a person from being a witness in court.

§ 243. The fifth amendment excepts from its operation a class of cases; and this exception applies in fact to the whole course of criminal investigations as regulated by the Bill of Rights. These cases are those "arising in the land or naval forces, or in the militia when in actual service in time of war or public danger." It is evident that the navy and regular army, at all times, and the militia when in actual public service, cannot be governed by the code of laws which applies to the great body of citizens. Military exigencies require, not individual liberty, but subordination, obedience. The very rules which are framed to protect the individual rights of the people, would destroy an army. The Constitution, therefore, gave Congress the power to make rules for the government of the land and naval forces, and of the militia employed in the service of the United States. These rules constitute that department of the municipal law known as the "Military Law; and the methods of trial and punishment are military in their character.

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§ 244. 5. No person shall be twice put in jeopardy of life or limb for the same offence. The same guaranty is contained in most or all of the state constitutions; indeed, the general

1 Ex parte Wilson, 114 U. S. 417, in which a very exhaustive and valuable opinion was given by Mr. Justice Gray. See also Nolan's case, 122 Mass. 330; Commonwealth v. Horregan, 127 Mass. 450. Ed. 2 Const. Art. I. Sec. VIII.

maxim which includes this particular case, is as old as the common law. I shall not attempt to quote or comment upon the many cases which have given a construction to this clause. The rule which is settled by them all is, that a person shall not be tried a second time for the same offence after a verdict of conviction or acquittal has passed upon him. But this rule must be taken with the following exceptions: After acquittal the state, or the United States, cannot procure the case to be reviewed for any error committed by judge or jury, and obtain a new trial; for this would be to put the party twice in jeopardy. But after conviction, the accused may, if error has been committed, obtain a new trial; and such new trial is not considered to be a second jeopardizing of the prisoner.

§ 245. 6. No person shall be deprived of life, liberty, or property, without due process of law.1

The same provision is contained in the state constitutions. It was borrowed from Magna Charta, and appears in that celebrated instrument in the following form: "Nullus liber homo capiatur, vel imprisonetur, aut dissaisiatur, aut utlagetur, aut exuletur, aut aliquo modo destruatur, nec super eum ibimus, nec super eum mittemus, nisi per legale judicium parium suorum, vel per legem terræ." No freeman can be taken, or imprisoned, or disseized, or outlawed, or in any other manner injured, nor will we proceed against him, unless by the lawful judgment of his peers, or by the law of the land.

The phrase," law of the land," as originally used, referred to the trial by wager of battle or by ordeal, as distinguished from trial by one's peers; but it has long been settled in England and America, that under the modern law and institutions, this phrase, and "due process of law," are identical in import. Let us endeavor to obtain a clear idea of their meaning and application.

§ 246. It is plain that any statute which Congress or legis. lature may see fit to pass, is not, in the sense in which the words are used in the Constitution, "due process of law," or

1 The force and effect of these words are more fully stated hereafter in considering the fourteenth amendment to the Constitution. See post 256 a, etc. ED.

"the law of the land." Otherwise this safeguard of private rights would become a mere empty form. Due process of law implies, primarily and principally, that regular course of judicial proceeding to which our fathers were accustomed at the time the Constitution was framed; and, secondly, and in a subordinate degree, those more summary measures, which are not strictly judicial, but which had long been known in the English law, and which were in familiar use when the Constitution was adopted. These summary measures generally, though not universally, form a part of that mass of regulations which many juridical writers term Police, and which relate to the preservation of public quiet, good order, health, and the like. The regular judicial proceedings, which thus constitute due process of law, differed in different courts, but they were all well known and acknowledged. They all required a judicial trial to determine the rights of parties, a public charge, an opportunity to answer, and a verdict of jury or decision of judge. It must not be understood that trial by jury is an essential element in due process of law. Courts of equity and admiralty dispensed with this method of determining the facts in litigations; while in common law cases, and in criminal trials, it was in general use.

The summary measures which may form a part of due process of law are those which have been admitted from the very necessities of the case, to protect society by abating nuisances, preserving health, warding off imminent danger, and the like, when the slower and more formal proceedings of the courts would be ineffectual. Such measures of administration have been common in England since the epoch of Magna Charta, and in this country from the colonial times. Still, no statute of Congress or of a state legislature authorizing such summary methods would be in accordance with due process of law, unless these methods were substantially identical with those in existence when the Constitution was framed, and which might, therefore, be considered as within the meaning and intent of the people who adopted the organic law.

§ 247. The cases which have given a definition or illustra tions of due process of law are exceedingly numerous; and, as