land, and all state laws, whether in the form of constitutional provisions or statutes or judicial decisions, in conflict therewith, are utterly null and vovid; and, in all cases carried from the highest court of a state under the twenty-fifth section of the Judiciary Act, or by writ of error or appeal from the United States circuit courts, to the supreme court of the United States, involving any such conflict or any federal question, that court will exercise an independent judgment in determining the question involved, whether it be the construction of a state statute, or the provisions of a state constitution, or a conflict between a state statute and a provision of the state constitution, or the validity of a rule laid down by the decisions of the highest court of the state; and will, in such cases, declare void all state statutes and constitutional provisions, and overturn all state decisions, found to be repugnant to or in conflict with the constitution or any treaty or satute of, or any commission held or authority exercised under the United States.45 45 U. S. Rev. Stat. sec. 709; McCulloch v. Maryland, 4 Wheat. 316, 437 (4:579); Gibbons v. Ogden, 9 Wheat. 1 (6:23); U. S. v. Muscatine, 8 Wall. 575, 587 (19: 490); Bank v. Kelly, 1 Black, 436 (17:173); Hall v. De Cuir, 95 U. S. 485 (24:547); Railroad Co. v. Otoe County, 16 Wall. 667 (21:375); Olcott v. Supervisors, 16 Wall. 679 (21:382); Pine Grove Township v. Talcott, 19 Wall. 666, 679 (22: 227); Louisville & Nashville Railroad Co. v. Palmes, 109 U. S. 244, 258 (27:922); Louisville Gas Co. v. Citizens Gas Light Co., 115 U. S. 633, 700 (29:510); Citizens Sav. ings Bank v. Owensboro, 173 U. S. C36, 662 (43:840); McCulloch v. Virginia, 172 U. S. 102, 133 (43: 382); McGahey v. Virginia, 135 U. S. 665 (34:305); Douglas v. Kentucky, 168 U. S. 488 (42:553); Wright v. Nagle, 101 U. S. 791, 797 (25:92); Stearns v. Minne sota, 179 U. S. 223, 262 (45:162); CHAPTER V. CONSITUTIONAL LIMITATIONS IMPOSED UPON THE FEDERAL GOVERNMENT AFFECTING JUDICIAL PROCEDURE. poses of impeachments under the federal constitution. 109. Same-Restraint upon par doning power of the president. 110. Same-Right of trial by common-law jury. 111. Due process of law-Maxims of the English constitution and the common law. 112. Same-Means and methods by which these guaranties were violated. 113. Due process of law secured by constitutional limitation upon both federal and state governments. 114. The constitutional provision securing due process of law as against the action of the federal government. 115. Same-The inhibition is a restraint on all the departments of the government. § 116. Due process of law defined. 117. The federal rule for determining what is "due process of law." 118. Same-Controlling force of the federal constitution. 119. Same Same-Decision of administrative officers as to right of foreigners to enter the United States. 120. The "due process of law" of the English constitution embodied in the amendments to the federal constitution. 121. Unreasonable search and seizure. 122. Same-Requisites of lawful search. § 148. No person twice in jeopardy for same offensemeaning of the prohibition. 149. Same-Acquittal upon defective indictment-Common-law rule. 150. Same-Same-Rule as to acquittal upon defective indictment in the federal courts. 151. Same-The verdict constitutes the bar. 152. Same-When defendant procures verdict of conviction set aside. 153. Same-Several counts in the indictment - Nolle prosequi as to some No finding as to others. 154. Same-Disagreement of the jury-Discharge for bias, disqualification or corrup phrases "cases in law" and "suits at common law." 165. Same-Trial by jury defined. 166. Same-Not to be defeated by blending legal and equitable demands. 167. Same-Phillippine Islands. 168. Same-Not applicable to court of claims. 169. Fact tried by jury not reexamined otherwise than according to the rules of the common law. 170. Same-Doctrine stated by Justice Gray. 171. Same-Facts tried by jury in bankruptcy proceedings reviewable on writ of error only. 172. Eminent domain. 173. Same-Public use. 174. Same-What is a taking. 175. Same-Mode of procedure in exercising the power. 176. Same-Compensation. 177. Writ of habeas corpus. § 94. Great and important limitations imposed by the constitution upon the federal judiciary.-The federal constitution, in its original provisions, and more especially, in the earlier amendments, imposes great and important limitations and restrictions upon the federal government, as to the means and methods of procedure to be adopted and pursued in the execution of the powers vested in it by that instrument. These re straints and limitations embody great principles of human right, which, for centuries prior to the revolution, had been claimed and insisted upon by the English people, and the colonies in this country, as fundamental principles of the British constitution and the English common law, but which, in the long-continued struggle between the liberties of the people and the prerogatives of the crown, had been constantly invaded and violated; the invasion of those principles was one of the chief causes which resulted in the revolution and the formation of the union, and the founders of our government, led by the light of history, imposed these limitations upon that government, as a perpetual guaranty of the individual right of life, liberty and property. While these restraints operate uniformly upon all of the departments of the government, they are first observed as a check upon congress in legislation affecting the rights of persons, and more especially in the establishment of judicial procedure; but their operation is more constantly and familiarly manifested in the federal judicial tribunals, as they sit in the public administration of justice, adjudicating causes which involve the rights sought to be protected. These constitutional limitations literally abide upon and restrain the federal courts at every step taken throughout the progress of every judicial proceeding had or taken before them, in both civil and criminal cases, whether it be in the organization of the tribunal itself, the pleadings, the evidence, the conduct of the cause, the charge to the jury, the judgment and its execution, or appellate proceedings for its revision; and this being true, there can be no comprehensive understanding of the judicial procedure in the courts of the United States without taking into the account these constitutional provisions affecting it. It is designed in this chapter to discuss the constitutional limitations which regulate and control judicial procedure in the federal system, and to state some of the results reached by the adjudicated cases, and also to call attention to some of the rules of constitutional construction. § 95. The federal constitution must be construed in the light of the history and principles of the common law of England.— The constitution of the United States was written, and its provisions framed, in the language of the English common law, and many of its guaranties of life, liberty and property are |