upon Congress as to the mode of procedure. (U. S. v. Maxwell, 3 Lill. 275; 21 Int. Rev. Rec. 148.) An indictment must be found by a grand jury; an information may be preferred by an officer of the court. (Clepper v. State, 4 lex. 244.) A grand jury is a body of men varying from twelve to twenty-three, who, in secret, hear the evidence offered by the government only, and find or ignore bills of indictment. (People v. King, 2 Caines' Cas. 98; Commonwealth v. Ward, 2 Cush. 149.) This clause relates to time of war as well as peace. (In re Kemp, 16 Wis. 359.) "When in actual service in time of war or public danger" refers to the militia (In re Bogart, 2 Sawy. 406); it cannot be extended in time of war on a plea of public danger. (Ex parte Milligan, 4 Wall. 123.) Cases arising in the laud and naval forces, etc., are excepted from presentment and indictment and right of trial by jury. (Ex parte Milligan, 4 Wall. 123; In re Bogart, 2 Sawy. 406.) An offense committed by a party while actually in the naval service is a case arising in the naval forces." (In re Bogart, 2 Sawy. 406.) And a paymaster's clerk on duty in the navy is a person "in the naval forces." (In re Bogart, 2 Sawy. 46.) The power to punish military and naval officers is distinct from the power to define judicial powers (Dynes v. Hoover, 20 How. 78; In re Bogart, 2 Sawy. 401), and the power of Congress to provide for the government of the land and naval forces is not affected or limited by this article (In re Bogart, 2 Sawy. 406); but a military commission for the trial of persons not in the military service is unconstitutional. (Milligan v. Hovey, 3 Biss. 18; In re Bogart, 2 Sawy. 402; Ex parte Field, 5 Blatchf. 79.) A court-martial is a lawful tribunal under the Constitution (In re Bogart, 2 Sawy. 406); but if it had no jurisdiction, or should inflict punishment forbidden by law, the civil courts could inquire into the jurisdiction and give redress. (Marshall's Case, 10 Cranch, 76; Dynes v. Hoover, 20 How. 82.) This article creates no new principles, but is simply declarative of great fundamental principles. (Young v. McKenzie, 3 Ga. 31; Campbell v. State, 11 Ga. 353.) A person sentenced to imprisonment for an infamous crime, without having been presented or indicted by a grand jury, is entitled to be discharged on habeas corpus. (Ex parte Wilson, 114 U. S. 417.) Both

the Fourth and Fifth Constitutional Amendments relate to the personal security of the citizen. They nearly run into, and mutually throw light upon, each other. (Boyd v. U. S., 116 U. Š. 616.)

Does not apply to State statutes.-This amendment of U. S. Const. has no application to a State statute prescribing punishment for crime, as it is a 1 mitation upon the powers of the Feleral government on y. (Re Boggs (Ky.) 45 Fed. Rep. 475.) The prohibitions contained in the first twelve constitutional amendments were not designed as limits upon the State governments in reference to their own citizens, but as exclusively upon Federal power. (Barron v. Baltimore, 7 Peters, 243; Fox v. Ohio, 5 How. 410; Mechanics & T. Bank v. Thomas, 18 How. 384; Twitchell v. Pennsylvania, 7 Wall. 321; Presser v. Illinois, 116 U. S. 252.) But a State must recognize as binding an amendment to the Constitution of the United States, and enforce it within its own limits, without reference to any inconsistent provisions in its own Constitution or statutes. (Neal v. Delaware, 103 U. S. 370.)

Jeopardy.-A prisoner is not once put in jeopardy until the verdict of the jury is rendered for or against him (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. Moore, Walk. 134; Commonwealth v. Merrill, Thach. C. C. 1), and twice in jeopardy does not relate to a mistrial (U. S. v. Haskell, 4 Wash. C. C. 410), nor when the jury is discharged from necessity, or the ends of justice would be defeated (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, Bad. 95; U. S. v. Kerry, 1 McLean, 434), as where one of the jury becomes insane (U. S. v. Haskell, 4 Wash. C. C. 402), or is attacked with a sudden illness (Commonwealth v. Merrill, Thach. C. C. 1), or if a juror is so biased that he is unfit to sit on the case (U. S. v. Norris, 1 Curt. 23), or where the jury fail to agree (U. S. v. Perez, 9 Wheat. 579; People v. Goodwin, 18 Johns, 187), or where they do not agree on the last day of the term. (State v. Moor, Walk. 134.) Jeopardy attaches where the verdict of

guilty is rendered, and judgment is arrested for want of arraignment and plea. (State v. Parrish, 43 Wis. 395; and see State v. Norvell, 2 Yerg. 24.) The court may, in its discretion, discharge the jury in a capital case, as well as in a case of misdemeanor. (U. S. v. Haskell, 4 Wash. C. C. 402.) Whe e the jury is empanneled and sworn by inadvertence before an argument, the proceeding may be disregarded, and a jury empanneled in regular order. (U. S. v. Riley, 5 Blatchf. 204.) Where the jury was discharged on account of the absence of witnesses, it does not prevent a subsequent trial. (Hofman v. State, 20 Md. 425; and see U. S. v. Watson, 3 Ben. 1.) Where the indictment on demurrer is held bad, the prisoner may be remanded for further proceedings. (U. S. v. Townmaker, Hemp. 299. The provision is intended to shield the prisoner from a second trial, except at his election and request, which is manifested by his application for a new trial. (U. S. v. Williams, 1 Cliff. 5; U. S. v. Keen, 1 McLean, 434; U. S. v. Connor, 3 McLean, 573; U. S. v. McComb, 5 McLean, 286; U. S. v. Harding, 1 Wall. Jr. 127.) If the district attorney enters a nolle prosequi after the jury is empanneled and sworn, the accused cannot be again indicted for the same offense (U. S. v. Shoemaker, 2 McLean, 114), if the court had jurisdiction. (Thompson v. State, 6 Neb. 107; Commonwealth v. Peters, 53 Mass. 387; State v. Odell, 4 Blackf. 156.) Where either a fine or imprisonment can be imposed, the court cannot, after payment of the fine, render a new judgment of imprisonment. (Ex parte Lange, 18 Wall. 170; but sce Brown v. Swineford, 44 Wis. 282.) This constitutional right may be waived. (Veatch v. State, 60 Ind. 291.)

Witness. The provision as to a party not being a witness against himself applies only to criminal cases. (Ex parte Meador, 1 Abb. U. S. 317; Ex parte Strause, 1 Sawy. 605; In re Phillips, 10 Int. Rev. Rec. 107.) Forcing a man to be a witness against himself is contrary to the principles of a republican government. (Wyneham v. People, 13 N. Y. 392.) The words "criminal case a case involving punishment for crime in an ordinary criminal proceeding (U. S. v. Distillery, 6 Biss. 483; U. S. v. Parker, 21 Int. Rev. Rec. 251), or on a charge of mis-'

mean

conduct against a public officer. (U. S. v. Collins, 1 Woods, 499.)

Life, liberty, or property.-This amendment simply declares the great common-law principle as to personal rights, applicable to both State and Federal governments. (Young v. McKenzie, 3 Ga. 42; Parkham v. Justice, 9 Ga. 341; Ervine's Appeal, 16 Pa. St. 256.) 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 propertythe right to acquire, possess, and enjoy it in any way consistent with the equal rights of others, and the just demands of the State. (Bertholf v. O'Reilly, 18 Am. Law Reg. N. S. 115.) No person can be deprived of his liberty on the ground of neglect to assert his rights. (Allen v. Sarah, 2 Har. 434.) This section prohibits an act authorizing the arrest of a citizen without just cause (Griffin v. Wilcox, 21 Ind. 370); yet a rebel in battle may be slain or captured, and thus deprived of his liberty (Norris v. Doniphan, 4 Met. (Ky.) 385); but a statute which makes an order of the President a sufficient defense for an act personally done is void. (Johnson v. Jones, 44 Ill. 142.) A law which authorizes commitment, as an inebriate to a lunatic asylum, on an ex parte affidavit, violates this provision. (In re James, 30 How. Pr. 446.) 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. (Bonaparte v. Camden etc. R. R. Co., Bald. 220; Mason v. Kennebec etc. R. R. Co., 31 Me. 215; Stevens v. Middlesex Canal, 14 Mass. 466; Stowell v. Flagg, 11 Mass. 364; Aldrich v. Cheshire etc. R. R. Co., 21 N. H. 359; Beckman v. Saratoga etc. R. R. Co., 3 Paige 45; B. B. etc. R. R. Co. v. Ferris, 26 Tex. 588; Wheelock v. Young, 4 Wend. 647; Bloodgood v. Mohawk etc. R. R. Co., 14 Wend. 51.) Legislative authority cannot reach life, liberty, or property, except for crime, or when a sacrifice is demanded by a just regard for the public welfare. (Atchinson etc. R. R. Co. v. Baty, 6 Ñeb. 37; Taylor v. Porter, 4 Hill, 745; Wilkinson v. Leland, 2 Peters, 658.) The right to acquire, hold, and enjoy prop

erty is guaranteed by the fundamental law. (Commonwealth v. Bacon, 13 Bush, 214.) All property is held under the implied liability that its use shall not be injurious to others. (Commonwealth v. Alger, 7 Cush. 84; Bertholf v. O'Reilly, 18 Am. Law Reg. N. S. 120; Comm. v. Bacon, 13 Bush. 214.) A party is protected in the enjoyment of all property, whether real or personal (Ervine's Appeal, 16 Pa. St. 256), including the right to the use of a patented machine. (Bloomer v. McQuewan, 14 How. 539.) The legislature has no power to take property from one individual and give it to another. (Turner v. Althaus, 6 Neb. 54. It is intended that courts shall enforce this provision even against persons assuming to act under the authority of the government. (United States v. Lee, 106 U. S. 196.)

Due process of law means such an exertion of the powers of government as the settled maxims of the law permit and sanction. (Bertholf v. O'Reilly, 18 Am. L. Reg. N. S. 119; Ex parte Ah Fook, 49 Cal. 402.) It simply requires that a person should be brought into court and have an opportunity to prove any fact for his protection. (People v. Essex Co., 70 N. Y. 229. It means law in its regular course of administration through courts of justice (Barker v. Kelly, 11 Minn. 480; Rowan v. State, 30 Wis. 129; State v. Becht, 43 Minn. 413), a timely and regular proceeding to judgment and execution. (Dwight v. Williams, 4 McLean, 586.) It generally implies and includes parties, judge, regular allegations, and a trial according to some settled course of judicial proceedings (Murray v. Hoboken etc. Co., 18 How. 272; Huber v. Reilly, 53 Fa. St. 112; Reese v. City of Watertown, 19 Wall. 122; Westervelt v. Greg, 12 N. Y. 202); a legal proceeding under direction of a court (Newcomb v. Smith, 1 Chand. 71); intending to secure the right of trial according to the forms of law (Parsons v. Russell, 11 Mich. 113); the law of the land (Matt v. Meador, 1 Abb. U. S. 331; Murray v. Hoboken etc. Co. 18 How. 272; James v. Reynolds, 2 Tex. 251); a present existing rule and not an ex post facto law (Ho Ke v. Henderson, 4 Dev. 15; Taylor v. orter, 4 Hill, 147; Wynehamer v. People, 13 N. Y. 303; Norman v. Heist, 5 Watts & S. 171; Murray v.