Witness.-The provision as to a party not being a witness against himself applies only to criminal cases.1 Forcing a man to be a witness against himself is contrary to the principles of a republican government.2 The words "criminal case mean a case involving punishment for crime in an ordinary criminal proceeding, or on a charge of misconduct against a public officer.4 1 Ex parte Meador, 1 Abb. U. S. 317; Ex parte Strause, 1 Sawy. 605; In re Phillips, 10 Int. Rev. Rec. 107. 2 Wyneham v. People, 13 N. Y. 392. 3 U. S. v. Distillery, 8 Ch. L. N. 57; U. S. v. Parker, 21 Int. Rev. Rec. 251. 4 U. S. v. Collins, 1 Woods, 499. 8 1 Jeopardy, when it attaches.-Jeopardy attaches when a party is once placed upon his trial before a competent court and jury, on a valid indictment, and an acquittal before the jury, or if the jury be discharged without legal consent, or unwarrantably,2 or if the defendant is acquitted by reason of such variance between the indictment and the proof that conviction is impossible,4 whether in cases of felony or misdemeanor.3 Where the provision is "jeopardy of life or limb," it applies only to capital offenses. In England, the rule extends no further than to cases of conviction or acquittal. A defendant is not put in jeopardy till a verdict has been rendered; so, a court may grant a new trial at the instance of the accused; so, if judgment is arrested or reversed at the instance of the accused.9 This clause is intended for the protection of the accused, and may be waived by his consenting to a discharge of the jury.10 A discharge of a jury because of their inability to agree does not operate as an acquittal; 11 in case of pressing necessity courts may discharge the jury. 2 If a reasonable time has been given the jury, the court may discharge it for failure to agree, but the court should not adjourn except in case of great necessity, 14 as for illness of juror. 15 If the court has no jurisdiction of the offense, or if the jury is discharged without rendering a verdict, or if a failure of the trial ensues from any cause, it does not operate as an acquittal;16 so, if the term expires the court may order a mistrial and proceed at the next term.17 The withdrawal of a judge from the bench during trial does not authorize a discharge of the accused.18 13 1 State v. Dark, 8 Blatchf. 526; Jones v. State, 15 Ark. 261; State v. McKee, 1 Bailey, 651; State v. Wright, 3 Brev. 421; People v. Gilmore, 4 Cal. 376; People v. Backus, 5 Cal. 278; People v. Webb, 38 Cal. 467; State v. Brown, 16 Conn. 54; Comm. v. Cummings, 3 Cush. 212; State v. Denton, 1 Eng. 169; State v. Jones, 7 Ga. 422; State v. Martin, 3 Hawks, 381; State v. De Hart, 2 Halst. 172; 17 Mass. 515; State v. Spear, 7 Mo. 644; State v. Baker, 19 Mo. 683; State v. Anderson, 3 Smedes & M. 751; State v. Barris, 3 Tex. 118; Emson v. State, 1 Swan, 14; State v. Kittle, 2 Tyler, 171; People v. Comstock, 8 Wend. 640. 2 Ned v. State, 7 Port. 187. 3 McCauley v. State, 26 Ala. 135. 4 People v. McNealy, 17 Cal. 333. 5 McCreary v. Comm. 27 Pa. St. 323. 6 Ned v. State, 7 Port. 187. 7 O'Brien v. Comm. 6 Bush, (Ky.) 563; U. S. v. Perez, 9 Wheat. 579; U. S. v. Haskell, 4 Wash. C. C. 402; People v. Goodwin, 18 Johns. 187; Hoffman v. State, 20 Md. 425; State v. Moor, Walk. 134; Commonwealth v. Merrill, Thach. C. C. 1. 8 State v. Slack, 6 Ala. 676. 9 State v. Hughes, 2 Ala. 102; Cobia v. State, 16 Ala. 781. 10 McCauley v. State, 26 Ala. 135; Hughes v. State, 35 Ala. 351; Veatch v. State, 60 Ind. 291. 11 Lester v. State, 33 Ga. 329; McCreary v. Comm. 29 Pa. St. 323. But see State v. Alman, 64 N. C. 364; and Comm. v. Clue, 3 Rawle, 498. 12 Ned v. State, 7 Port. 187; U. S. v. Perez, 9 Wheat. 579; U. S. v. Gilbert, 2 Sum. 19; Commonwealth v. Cook, 6 Serg. & R. 577; U. S. v. Wilson, Bald. 95; Ú. S. v. Kerry, 1 McLean, 434. 13 Battle's Case, 7 Ala. 259; Barrett v. State, 35 Ala. 406. Contra, Ex parte Vincent, 43 Ala. 402. 14 Barrett v. State, 35 Ala. 406. 15 Ned v. State, 7 Port. 187; McCauley v. State, 26 Ala. 135; Comm. v. Merrill, Thach. C. C. 1, or his insanity. 16 State v. Cheek, 25 Ark. 206; Ned v. State, 7 Port. 187; McCauley v. State, 26 Ala. 135; Lover v. State, 4 Ala. 173; Barrett v. State, 35 Ala. 406; State v. Battle, 7 Ala. 258; Canter v. People, 38 How. Pr. 91. 17 Ned v. State, 7 Port. 187; McCauley v. State, 26 Ala. 135; Love v. State, 4 Ala. 173; U. S. v. Haskell, 4 Wash. C. C. 410; U. S. v. Perez, 9 Wheat. 579; People v. Goodwin, 18 Johns. 187. 18 State v. Abram, 4 Ala. 272. Depriving of life, liberty, or property. This provision simply declares the great common-law principle as to personal rights, applicable to both State and Federal Governments. The right to life includes the right to the body in its completeness and without dismemberment; to liberty-the right to exercise the faculties and follow lawful avocations; to property-the right to acquire, possess, and enjoy it in any way consistent with the equal rights of others and the just demands of the State.2 No person can be deprived of his liberty on the ground of neglect to assert his rights. This section prohibits an act authorizing the arrest of a citizen without just cause; 4 yet a rebel in battle may be slain or captured, and thus deprived of his liberty; 5 but a statute which makes an order of the President a sufficient defense for an act personally done, is void. A law which authorizes commitment, as an in ebriate to a lunatic asylum, on an ex parte affidavit, violates this provision.7 This section was intended as a constitutional safeguard in the trial of those cases for which it was stipulated the courts shall remain open, and those wherein a party shall have his remedy by due course of law.8 Legislative authority cannot reach life, liberty, or property, except for crime, or when the sacrifice is demanded by a just regard for the public welfare.9 The right to acquire, hold, and enjoy property is guaranteed by the fundamental law. 10 All property is held under the implied liability that its use shall not be injurious to others.11 A party is protected in the enjoyment of all property, whether real or personal,12 including the right to the use of a patented machine. 18 The legislature has no power to take property from one individual and give it to another. 14 1 Young v. McKenzie, 3 Ga. 42; Parkham v. Justice, 9 Ga. 341; Ervine's Appeal, 16 Pa. St. 256. 2 Bertholf v. O'Reilly, 18 Am. Law Reg. N. S. 115. 3 Allen v. Sarah, 2 Har. 434. 4 Griffin v. Wilcox, 21 Ind. 370. 5 Norris v. Doniphan, 4 Met. (Ky.) 385. 6 Johnson". Jones, 44 Ill. 142. 7 In re Janes, 30 How. Pr. 446. 8 Bonaparte v. Camden &c. R. R. Co. Bald. 220; Mason v. Kennebec &c. R. R. Co. 31 Me. 215; Stevens v. Middlesex Canal, 12 Mass. 466; Stowell v. Flagg, 11 Mass. 364; Aldrich v. Cheshire &c. R. R. Co. 21 N. H. 359; Beekman v. Saratoga &c. R. R. Co. 3 Paige, 45; B. B. &c. R. R. Co. v. Ferris, 26 Tex. 588; Wheelock v. Young, 4 Wend. 647; Bloodgood v. Mohawk &c. R. R. Co. 14 Wend. 51. 9 Atchison &c. R. R. Co. v. Baty, 6 Neb. 37; Taylor v. Porter, 4 Hill, 745; Wilkinson v. Leland, 2 Peters, 658. 10 Commonwealth v. Bacon, 13 Bush, 214. 11 Commonwealth v. Alger, 7 Cush. 84; Bertholf v. O'Reilly, 18 Am. Law Reg. N. S. 120; Comm. v. Bacon, 13 Bush, 214. 12 Ervine's Appeal, 16 Pa. St. 256. 13 Bloomer v. McQuewan, 14 How. 539. 14 Turner v. Althaus, 6 Neb. 54. Due process of law. That no person shall be deprived of life, liberty, or property, without due process of law, is a principle of natural justice. "Due process of law" means judgment of law in its regular course of administration through courts of justice, or such an exertion of the powers of government as the settled maxims of the law permit and sanction, and under such safeguards for protection of individual rights as these maxims prescribe.8 "Due process of law" and "due course of law" are substantially identical terms. So the private prop erty of a citizen cannot be taken by exertion of the legislative power, this being a judicial power.5 So, an act of the legislature validating a judgment of a court void for want of jurisdiction contravenes this provision.6 So as to acts ratifying sales of real estate made by probate courts where there are defects and errors.7 So, depriving a person of property without notice and without examination of witnesses is in contravention of this provision.8 A private act is not the law of the land.9 A partial law to affect or destroy rights of particular persons or classes of persons is not the law of the land. 10 The law must furnish some just form or mode in which the duty of a citizen shall be determined before he can be visited by a penalty for a non-performance.11 1 Brown v. Morrison, 5 Ark. 217. 2 Felter v. Wilt, 46 Pa. St. 460; Craig v. Kline, 65 Ibid. 413; Barker v. Kelly, 11 Minn. 480; Rowan v. State, 30 Wis. 129; State v. Becht, 23 Minn. 413; Huber v. Reily, 53 Pa. St. 112; Westervelt v. Gregg, 12 N. Y. 202; Rees v. City of Watertown, 19 Wall. 122. 3 Beyman v. Black, 47 Tex. 558. 4 State v. Ashley, 1 Ark. 513. 8 Sullivan v. Oneida City, 61 Ill. 242. 9 Norman v. Heist, 5 Watts & S. 171; Brown v. Hummel, 6 Pa. St. 87. And see Greene v. Briggs, 1 Curt. 314. 10 A. & N. R. R. v. Baty, 6 Neb. 37. What not inhibited.-This clause does not deny to the legislature the power to make rules and regulations respecting the use and enjoyment of property; so, the legislature may regulate warehouses and fix the compensation for storage, or it may authorize the impounding of animals taken damage feasant, and their retention till damages and costs are paid, and may authorize their sale if not redeemed after reasonable notice; 4 but whether it can empower the court to sell without process at law, not decided. It may provide that trespassing animals may be sold and disposed of as directed, and may delegate this power to municipal corporations.7 Private roads may be vacated by prescription, by an act of the legislature,8 and a grant of franchise to a ferry may be annulled or resumed.9 A statute may authorize judgment against a surety as well as against a principal; 10 so, the enforcement of a valid tax is not a taking of property without due process of law. The legislature may provide that conveyances previously made are not invalid because not executed and acknowledged in the mode therein prescribed. 12 An incorporation act may authorize arrest and detention of a violater of ordinances without a warrant,18 or may authorize holding a special term of court. 14 Due process of law does not necessarily import a jury trial, 15 but includes summary remedies. 16 Civil proceedings for contempt are not included.17 A statute making the property-owner liable for damages resulting from the illegal use of property by a tenant is valid. 18 An assessment for grading and improving streets is not a taking of property without compensation, or without due process of law. 19 Private property may be taken by a commander in war in case of exigency, but the case must be urgent.20 Provisions for searches and seizures to aid in the collection of the revenue are not repugnant to this amendment.21 So, processes for seizure and assessment are within the discretion of the legislature. 22 1 Mann v. Illinois, 69 Ill. 80. 2 Munn v. Illinois, 69 Ill. 80. 3 Rood v. McCarger, 49 Cal. 117. 4 Dillard v. Webb, 55 Ala. 468; Beyman v. Black, 47 Tex. 558. 5 Rood v. McCarger, 49 Cal. 117. 6 Squares v. Campbell, 41 How. Pr. 193. 7 Dillard v. Webb, 55 Ala. 468; Beyman v. Black, 47 Tex. 558. 8 Krier's Road, 73 Pa. St. 109. 9 Dyer v. Tuscaloosa B. Co. 2 Port. 296. 10 Hennies v. People, 70 Ill. 100; Whitehurst v. Coleen, 53 Ill. 247. 11 Emery v. San Francisco, 28 Cal. 345; Hagar v. Yolo Co. 47 Cal. 223, 12 Ala. L. Ins. & T. Co. v. Boykin, 38 Ala. 510. 13 Johnson v. Mayor &c. 46 Ga. 80. 14 Spann v. State, 47 Ga. 553. 15 Ex parte Meador, 1 Abb. U. S. 317. 16 Martin v. Mott, 12 Wheat. 19; U. S. v. Ferreira, 13 How. 40; Ex parte Meador, 1 Abb. U. S. 317; Murray v. Hoboken &c. Co. 18 How.272. 17 State v. Becht, 23 Minn. 411. 18 Bertholf v. O'Rielly, 18 Am. Law Reg. N. S. 124; Dobbins v. U. S. 96 U. S. 395. 19 Griffin v. Mayor, 4 N. Y. 419. 20 Mitchell v. Harmony, 13 How. 115. And see Ex parte Milligan, 4 Wall. 2; Clark v. Mitchell, 64 Mo. 564. 21 Matt. of Platt, 7 Ben. 261; 19 Int. Rev. Rec. 132; Murray v. Hobo. ken &c. Co. 18 How. 277; Ames v. Port Huron &c. Co. 11 Mich. 139. 22 Pullan v. Kinsinger, 2 Abb. U. S. 94; Davidson v. New Orleans. 96 U. S. 97. DESTY CAL. CON.-17. |