CHAPTER LIII.

FIFTH AMENDMENT

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.

No amendment submitted by Mr. Madison to the House of Representatives embraced all the provisions contained in this amendment. The first clause probably came from the first clause of his seventh amendment, which provided: "The trial of all crimes (except in cases of impeachments, and cases arising in the land and naval forces, or the militia when on actual service, in time of war or public danger).""

The remainder of the amendment was taken from the fifth subdivision of Mr. Madison's fourth amendment, which read: "No person shall be subject, except in cases of impeachment, to more than one punishment or one trial for the same offence; nor shall be compelled to be a witness against himself; nor be deprived of life, liberty or property, without due process of law; nor be obliged to relinquish his property, where it may be necessary for public use, without a just compensation.""

The Committee of Eleven changed it to read: "No person shall be subject, in case of impeachment, to more

11 Annals, 452.

21 Annals, 451, 452.

than one trial or one punishment for the same offense, nor shall be compelled 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 special Committee of Three slightly changed it,* and it was then altered by Congress to read as it is now found in the Constitution.

This is the greatest of the original amendments. It secures to the citizen certain rights without which society could not endure nor the State survive. It affords more protection to the individual than any amendment or any provision of the original Constitution. It affects more directly the citizen in his daily life, and provides him with greater security in his person and property, than any other provision in our organic law. It protects him from prosecution by declaring "no one shall be held to answer for crime, except by presentment or indictment by a Grand Jury." It protects him from continued prosecution by providing that "no one shall be twice put in jeopardy for the same offense." It protects him from being compelled to be a witness against himself in a "criminal case." It protects him from being "deprived of life, liberty, or property without due process of law;" and it protects his property from being "taken for public use, unless he receives just compensation for it."

These are all fundamental rights of the citizen. Without them society would soon become chaotic and perhaps anarchistic. To secure the individual and society in these rights is a part of the office and function of this amendment. No greater rights can be secured to men than those secured by this article. The amendment is susceptible of four divisions.

First, "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment by 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."

8 Thorpe's Constitutional History of U. S., vol. 2, 225, 226. 4 Thorpe's Constitutional History of U. S., vol. 2, 258.

Second, "Nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb."

Third, "Nor shall any person 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." Fourth, "Nor shall private property be taken for public use, without just compensation.'

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.

This clause originated in the Massachusetts convention called to ratify the Constitution. Among the amendments which that convention adopted and recommended was: "That 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.''5 As Mr. Madison introduced it in Congress with the other original amendments it read: "In all crimes punishable with loss of life or member, presentment or indictment by a grand jury shall be an essential preliminary.' It was then referred to a committee, and reported back to the House practically as it now reads.

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The expression "no person" includes aliens of whatever nationality, and they cannot be deprived of the benefit of this clause. Even an alien who is here contrary to law is entitled to the benefit of this amendment.s

Cases where the amendment does not apply.-Persons triable in a consular court in a foreign country are not

5 Elliot, vol. 2, 177.

• 1 Annals, 452.

7 Wong Wing v. United States, 163 U. S., 228, 234; Li Sing v. United States, 180 U. S., 495.

8 Taylor v. Carpenter, 3 Story, 458.

Ken, 57 Fed. Rep., 206-212.

United States v. Wong Dep

entitled to the benefit of this clause. In In re Ross, it was held:

"The guarantees which the Constitution affords against accusation of capital or infamous crimes except by indictment or presentment by a grand jury, and for an impartial trial by a jury when thus accused, apply only to citizens and others within the United States, or who are brought there for trial for alleged offenses committed elsewhere, and not to residents or temporary sojourners abroad."

Nor are the inhabitants of the Cherokee Nation entitled to the benefit of this amendment. In Talton v. Mayes,1o it was said:

"The crime of murder committed by one Cherokee Indian upon the person of another within the jurisdiction of that nation is clearly not an offense against the United States, but an offense against the local laws of the Cherokee Nation, and necessarily the statutes of the United States which provide for an indictment by a grand jury. etc., have no application in such a case, for such statutes relate only, if not otherwise specially provided, to grand juries empanelled for the courts of and under the laws of the United States. . . . As the powers of local self-government enjoyed by the Cherokee Nation existed prior to the Constitution, they are not operated upon by the fifth amendment, which had for its sole object to control the powers conferred by the Constitution on the National Government."

The amendment did not apply to Hawaii during the period of its transition from the Republic of Hawaii to a territory of the United States. By joint resolution of Congress, passed July 7, 1898, the Hawaiian Islands were annexed "as a part of the territory of the United States, and subject to the sovereign dominion thereof," with the following condition: "the municipal legislation of the islands not enacted for the fulfillment of the treaties so extinguished, and not inconsistent with this joint resolution. contrary to the Constitution of the

United States," etc.

In 1899 a prisoner was tried upon an indictment accord

• 140 U. S., 453, 464. Cook v. United States, 138 U. S., 157, 181. 10 163 U. S., 376, 381, 382.

ing to the usual course of procedure in the Republic of Hawaii, which permitted a person to be tried without an indictment by a grand jury, and permitted a conviction by nine members of the jury of twelve. The prisoner was convicted and sentenced to the penitentiary, and subsequently sought his release by writ of habeas corpus, claiming that he was entitled to the protection of the fifth amendment. Mr. Justice Brown, in delivering the opinion of a majority of the court in Hawaii v. Makichi, held that it was not intended by the resolution of Congress to abolish at once the criminal procedure theretofore in force in the islands of Hawaii, and to substitute immediately, and without legislation, the common-law proceedings by grand and petit juries, and that the conviction being August 12, 1898, and June 4, 1900, in accordance with the legislation at the time of the annexation was legal, although it did not give the defendant the benefit of the fifth amendment to the Constitution.

What is a capital or otherwise infamous crime?-A capital crime is an offense punishable by death. famous crime is one punishable by imprisonment at hard labor. In Mackin et al. v. United States,12 the defendants were indicted for offenses punishable by fine and imprisonment. It was held that the crimes charged against the defendants were infamous crimes within the meaning of the fifth amendment to the Constitution.

In United States v. De Walt,13 it was held that imprisonment in a State prison or penitentiary, with or without hard labor, is an infamous punishment; also that a crime punishable by imprisonment for a term of years at hard labor is an infamous crime within the meaning of the Fifth Amendment.11

Unless on presentment or indictment of a Grand Jury.In ex parte M'Clusky,15 the Judge said:

"Has any person the right to surrender his liberty in violation of a fundamental right, secured to him for the protection of the liberty of such person by the Fifth

11 190 U. S., 197, 213.

12 117 U. S., 348. Parkinson v. United States, 121 U. S., 281. 13 128 U. S., 393, 394.

14 Ex parte Wilson, 114 U. S., 417, 429.

15 40 Fed. Rep., 71, 74, 76.