religious and political repression, an instance of which was the execution of Archbishop Laud. In his case, the judges having, upon a reference from the lords, given the opinion that the charges contained no legal treason, the commons changed their impeachment into an ordinance for his execution.

§ 108. Same-Objects and purposes of impeachments under the federal constitution.-It would seem from the language of the federal constitution that the objects and purposes of impeachments are, to maintain the efficiency and fidelity of the. public service, and to prevent criminals from holding and enjoying any office of honor, trust, or profit under the United States. "Judgment in cases of impeachment shall not extend further than to removal from office and disqualification to hold and enjoy any office of honor, trust, or profit under the United States." And "the president, vice-president, and all civil officers of the United States shall be removed from office on impeachment for, and conviction of, treason, bribery or other high crimes and misdemeanors," and in such cases the president cannot grant reprieves or pardons. Upon conviction, the senate cannot inflict upon the accused the punishment or penalty annexed to his crime by law, as in the English parliament; but the delinquent is, nevertheless, liable and subject to indictment, trial, judgment, and punishment, according to law in the ordinary courts of justice. At the time of the adoption of the constitution, there was some division of sentiment among the statesmen of that day, as to the power of removal vested in the president, but the existence of the power was soon recognized and established, and acted on in the practice of the government, except as to the judicial officers of the United States which do not, it seems, include territorial judges, and, as a result of the recognition of the power of removal in the executive, impeachments have been infrequent and unnecessary in the ordinary operations of government.28

§ 109. Same-Restraint upon the pardoning power of the president.-Lord Danby, upon being required to give in his written answer to the charges of the commons, pleaded a pardon, secretly obtained from the king, in bar of the prosecution of the

27 U. S. Const. art. I, sec. 2, cl. 5, and sec. 3, cls. 6, 7; art. II, sec. 2, cl. 1, and sec. 4, cl. 1.

28 Parsons v. United States, 167 U. S. 324, 344 (42:185).

impeachment. It was, however, insisted by the commons that neither a general nor a special pardon from the king could be pleaded in answer to an impeachment by the commons, so as to prevent further proceedings in it, claiming that it was evident that a minister who had influence enough to obtain such an indemnity, might set both houses of parliament at defiance, and the pretended responsibility of the crown's advisers, which was accounted the palladium of the English constitution, would be an idle mockery, if not only punishment could be averted, but inquiry frustrated; but this point was not then decided.29 It was provided by the Act of Settlement, that no pardon under the great seal of England be pleadable to an impeachment of the commons in parliament; 30 notwithstanding this statute, it was, after its enactment, determined by the house of lords that the king had a right, after conviction and sentence, to reprieve in cases of impeachment.31 It was held that the words of the act of settlement conceded, tacitly, the crown's right to grant a reprieve, or pardon after conviction and sentence; and, it would seem that to prevent the possibility of such a result, our constitution provides that: the president "shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachments." 32

34

§ 110. Same-Right of trial by common law jury.-The constitution declares that: "The trial of all crimes, except in cases of impeachments, shall be by jury;" 33 yet, inasmuch as the judgment in such cases cannot extend further than to removal from office and disqualification to hold office, in no case can a fine, or amercement, or forfeiture, or imprisonment, or capital execution, ever be inflicted on any person as a penalty for the violation of any law of the United States, except upon conviction by an impartial jury of the state and district wherein the crime shall have been committed.35

29 Hallam's Const. Hist. England, 465, 466.

30 IV Blackst. Com. 261; 12 & 13 Wm. III, c. 2; Hallam's Const. Hist. England, 466.

31 Hallam's Const. Hist. England, 466, 467. Reprieve actually granted to three of the six peers

concerned in the rebellion of 1715; Parl. Hist. VII, 283.

32 U. S. Const. art. II, sec. 2, cl. 1.

33 U. S. Const. art. III, sec. 2, cl. 3.

34 U. S. Const. art. I, sec. 3, cl. 7. 35 U. S. Const. VI art. of Amndt.

§ 111. Due process of law-Maxims of the English constitution and the common law.-The English constitution and the common law, from the early history of that nation, embodied the spirit and genius, and the essential principles, of free political institutions, among which must be reckoned due process of law, although those principles were frequently and at long periods of time obscured by the perpetual aggressions of the crown and the delinquencies of servile ministers and judges. Among the maxims of the English constitution and the common law, which stood as direct guaranties of civil liberty, were the following: (1) The government of the English commonwealth is a government restrained and limited by law. (2) The king has no power except that which is given to him and vested in him by law, and the bounds and limits of that power are known. (3) The laws of England do not receive their force from any power communicated by the king to parliament, but such laws are made by, and receive their force from the whole body politic, the whole realm of England. (4) The king's act or grant made contrary to the law is void. (5) Parliament has the right, without let or interruption, to inquire into, and obtain the redress of public grievances. (6) It is the indubitable right of the people of the kingdom "to be guided and governed by the certain rule of the law," and not by any uncertain or arbitrary form of government; and not to be made subject to any punishment that shall extend to their lives, lands, bodies, or goods, other than such as are ordained by the common laws of the land, or the statutes made by their common consent in parliament. (7) The common law of England has always abhorred the accursed mysteries of a prison-house, and neither admits of torture to extort confession, nor of any penal affliction not warranted by a judicial sentence. (8) The open administration of justice according to known laws truly interpreted, and fair construction of evidence.36

§ 112. Same-Means and methods by which these guaranties were violated.-The guaranties of civil liberty mentioned in the section next preceding were invaded and violated by such means and methods as the following: (1) By proclamations of the king, in which he assumed to modify, alter, change, sus

36 Hallam's Const. Hist. England, 93, 127, 128, 132, 133, 134, 138, 189, 224, 526.

pend or supersede acts of parliament and the rules and procedure of the common law. (2) By warrants, issued by the special command of the king, specifying no particular ground of arrest, detention, or commitment. (3) By the procedure, judgments, sentences, penalties and punishments of the privy-council, the star chamber, the "court of the president and council of the north," and the court of high commission, all which were contrary to the rules, principles and procedure of the common law, and a usurpation of the jurisdiction of the common law courts, which were the constitutional judicial tribunals of the country for the trial of civil causes, and the indictment, trial and punishment of criminal offenses, whether arising from a violation of the common law or acts of parliament.37 These abuses of the successive administrations in England were a denial of due process of law, and did more to disturb the domestic tranquility of that country than any other one cause; and their occurrence in this country is rendered impossible by the limitations contained in the federal constitution.

39

§ 113. Due process of law secured by constitutional limitation upon both federal and state governments.-The constitution secures to the people due process of law against the improper action of both the federal and state government; but this result is reached by two separate and distinct amendments to the constitution, the one acting upon and restraining the federal government as the other acting upon and restraining the state governments.3 There is (1) a due process of law of the federal government and (2) a due process of law of the state governments, and there is some difference in the rules followed by the federal courts, and applied, respectively, to the acts and operations of the two governments; due process of law in the state is regulated by the law of the state, while, in determining what is due process of law of the federal government, broader principles are applied." Due process of law

37 Hallam's Const. Hist. England, 122, 123, 124, 125, 220, 222, 241, 255, 256, 257, 258, 259, 260, 292, 526.

38 U. S. Const. V art. of Amndt. 39 U. S. Const. XIV art. of Amndt.

40

40 Walker v. Sauvinet, 92 U. S. 90, 93 (23:678).

41 Post secs. 110 & 111; Holden v. Hardy, 169 U. S. 366, 398 (42:780).

in the state will not be considered in this connection, but will be reserved for attention in the chapter next succeeding.

*

114. The constitutional provision securing due process of law as against the action of the federal government.-The fifth amendment to the federal constitution declares that: "no person shall be * deprived of life, liberty or property, without due process of law." This amendment was designed as a limitation upon the federal government, and not upon the state governments, 2 and there was no such limitation upon the states to be found in the federal constitution until the adoption of the fourteenth amendment.+3

§ 115. Same The inhibition is a restraint on all the departments of the governments.-The constitutional inhibition under discussion was intended to secure the individual from the arbitrary exercise of the powers of government, unrestrained by the established principles of private rights and distributive justice; it is a restraint upon the legislative, executive and judicial departments of the government; and it relates to that class of rights whose protection is peculiarly within the province of the judicial department; and, undoubtedly, it is intended that the provision shall be enforced by the courts when cases involving its operation and effect are brought before them, even as against persons assuming to act under the authority of the government.*7

§ 116. Due process of law defined. The words, "due process of law" are the equivalent of the words, "the law of the land;" and by "the laws of the land" is meant general and public laws which operate equally upon all members of the community, affecting the rights of all alike.

42 Ante, secs. 92,, 93.

43 Holden v. Handy, 169 U. S. 366, 398 (42:780).

44 The Bank of Columbia v. Okely, 4 Wheat. 235 (4:559).

45 Murray v. Hoboken Land Co. 18 How. 272 (15:372); United States V. Lee, 106 U. S. 240 (27:171).

46 United States v. Lee, 106 U. S. 240 (27:171).

47 United States v. Lee, 106 U. S.

"Due process of law"

240 (27:171); Ex parte Milligan, 4 Wall. 2 (18:281).

48 Murray v. Hoboken Land Co. 18 How. 272 (15:372); Davidson y. New Orleans, 96 U. S. 97, 108 (24:616); Janes v. Reynolds, 2 Texas, 250; Jones v. Perry, 10 Yerg. (Tenn.) 59; Vanzandt v. Waddell, 2 Yerg. (Tenn.) 269; Walley's Heirs v. Kennedy, 2 Yerg. (Tenn.) 554; Hoke v. Henderson, 4 Dev. (N. C.) 1; Brown v. Levee