Conclusiveness of opinion. Although the acts prescribing the duties of Attorneys General do not declare the effect of their advice, it has been the practice of the departments to heed it. It has been found greatly advantageous, if not absoIntely necessary, to have uniformity of action upon analogous questions and cases; and that result is more likely to be attained under the guidance of a single de partment constituted for the purpose than by a disregard of its opinions and advice. (1849) 5 Op. Atty Gen. 97.

In giving his advice and opinion on questions of law to the President and heads of departments, the action of the Attorney General is quasi judicial. His opinions officially define the law, in a multitude of cases, where his decision is in practice final and conclusive, not only as respects the action of public officers in administrative matters, who are thus relieved from the responsibility which would otherwise attach to their acts, but also in many questions of private right. (1854) 6 Op. Atty. Gen. 326.

Accordingly, the opinions of successive Attorneys General, possessed of greater or less amount of legal acumen, acquirement, and experience, have come to constitute a body of legal precedents and exposition, baving authority the same in kind, if not the same in degree, with decisions of the courts of justice. Id.

The opinion of the Attorney General for the time being is in terms advisory to the secretary who calls for it; but it is obligatory as the law of the case, unless, on appeal by such Secretary to the common

superior of himself and the Attorney General, namely, the President of the United States, it be by the latter overruled. (1856) 7 Op. Atty. Gen. 692.

A question once fully considered and answered by one Attorney General cannot with propriety be reconsidered by his successor, unless in some extraordinary case. (1865) 11 Op. Atty. Gen. 189; (1894) 21 Op. Atty. Gen. 24; (1895) 21 Op. Atty. Gen. 264; (1902) 24 Op. Atty. Gen. 53.

Official opinions of the Attorney General should be followed by other depart ments. (1893) 20 Op. Atty. Gen. 648; (1894) 20 Op. Atty. Gen. 719.

When the Comptroller of the Treasury waives his right to determine a matter involving disbursements within the scope of his authority under the law and requests or suggests a ruling by the Attorney General, the Attorney General's opinion should be controlling upon the accounting officers of the Treasury and should be followed by them unless contrary to some authoritative judicial decision. (1904) 25 Op. Atty. Gen. 301.

Where a question is presented to the Attorney General in accordance with law for decision, and he is of opinion that the nature of the question is general and important in other respects than disbursement, and therefore conceives that it is proper for him to deliver his opinion, it is final and authoritative under the law and should be so treated by the accounting officers of the Treasury, even though the question involves a payment to be made from the Treasury. Id.

"un

Advice to War Department.-The Attorney General can not pass upon the question as to whether a bridge is an reasonable" obstruction, and its maintenance a violation of law, as its determination involves an examination of all the facts, circumstances, and equities surrounding the case. (1890) 19 Op. Atty. Gen. 676.

The question of unreasonableness must be determined in the first instance by the Secretary of War, whose decision is probably subject to review by the courts. Id.

A question of the legality of a prov!sion of long standing in contracts of the

War Department determined, as presented, in general terms, though a strict regard to the rule of the Department of Justice which forbids the expression of an official opinion upon any question of law which has not arisen in an existing case and presented upon a definite statement of facts, might warrant a refusal of an opinion thereon. (1895) 21 Op. Atty. Gen. 207.

The Attorney General will not give an opinion upon a question proposed by the Secretary of War, where no occasion "has arisen for his official action. (1896) 21 Op. Atty. Gen. 457.

This amendment is not limited in its application to citizens, but applies generally to all persons within the jurisdiction of the United States. Yick Wo v. Hopkins (1886), 118 U. S. 356; Colyer v. Skeffington (D. C. 1920), 265 Fed. 17.

The fundamental guaranties of life, liberty, and property made by the Federal Constitution have no relation to crimes committed without the jurisdiction of the United States against the laws of a foreign country. Neely v. Henkel (1901), 21 Sup. Ct. 302, 307, 180 U. S. 109, 45 L. Ed. 448. This amendment only announces and reaffirms the ancient principles of the common law, and prevents them from being unjustly invaded by the power of the Federal Goyernment. North Carolina v. Vanderford (C. C. 1888). 35 Fed. 283.

This amendment applies to proceedings in the United States courts. Ex parte Brown (D. C. 1905), 140 Fed. 461.

Under this amendment the people through the grand jury system initiate criminal prosecutions, and it was adopted as a safeguard against arbitrary or oppressive action. U. S. v. Wells (D. C. 1908), 163 Fed. 313.

Provisions of this amendment for the protection of persons charged with crime held not applicable to proceedings for extradition to a foreign country. Ex parte La Mantia (D. C. 1913), 206 Fed. 330.

The provision in Fourteenth Amendment that no State shall make any law abridging the privileges and immunities of citizens of the United States, does not extend the operation of this amendment to the States. State v. Atkinson (1893), 40 S. C. 363, 18 S. E. 1021, 42 Am. St. Rep. 877; Id. (1894), 41 S. C. 551, 19 S. E. 691.

Applicability to District of Columbia.The jurisdiction of Congress in respect to the District of Columbia, in matters municipal as well as political, is exclusive, and not controlled by the provisions of the Fourteenth Amendment, though, in the exercise of such legislative powers, Congress is subject to the provisions of the fifth amendment. Wight v. Davidson (1901), 21 Sup. Ct. 616, 621, 181 U. S. 371, 45 L. Ed. 900. Applicability to Territories.- Where Territory is a part of the United States, its Inhabitants are entitled to the guaranties of this amendment. Rasmussen v. U. S. (1905), 25 Sup. Ct. 514, 518, 197 U. S. 516, 49 L. Ed. 862.

a

II. Necessity for Presentment or Indictment.

Scope of provision.-The provision that no person shall be held to answer for a capital or other infamous crime, unless on Indictment or presentment of a grand jury," does not apply to the individual States, but restricts the power to the Gen

eral Government only. Williams v. Hert (C. C. 1901), 110 Fed. 166. [C. S. p. 14,323].

Territorial enactments.-The guaranty of a trial on presentment or indictment of one charged with an infamous crime, constitutes a substantial right under the laws of Congress and the laws of Oklahoma Territory, and any State law which operates as a denial of such right alters the situation of accused to his disadvantage and is ex post facto as to such offense. Garnsey v. State (Okl. 1910), 112 Pac. 24.

Sufficiency of presentment or indictment. The indictment referred to is the presentment to the proper court under oath by a grand jury duly impaneled of a charge describing an offense against the law. Ex parte Bain (1887), 7 Sup. Ct. 781, 121 U. S. 1, 30 L. Ed. 849; U. S. v. Munday (D. C. 1914), 211 Fed. 536.

In case of an infamous crime, required to be charged by indictment, the indictment is a necessary requisite to give the court jurisdiction. Garnsey v. State (Okl. 1910), 112 Pac. 24.

Amendment of indictment.-When an indictment is filed no change can be made in the body of the instrument by order of the court or by the prosecuting attorney without a resubmission to the grand jury, and the fact that the court may deem the change immaterial, as striking out of sur plus words, makes no difference. Ex parte Bain (1887), 7 Sup. Ct. 781, 784, 121 U. S. 1, 30 L. Ed. 849.

Waiver of right. One can not waive his constitutional right to be tried by indictment or presentment. Ex parte McClusky (C. C. 1889), 40 Fed. 71.

The provision requiring an indictment by a grand jury does not give a citizen or a temporary subject the right to claim the guaranty when tried before a consul or tribunal, in accordance with a treaty for offenses committed in a foreign country; nor does the fact that the offense is committed on an American vessel give the offender the right to invoke the guaranty on the ground that the deck is territory of the United States. Ross v. McIntyre (1891), 11 Sup. Ct. 897, 140 U. S. 453, 35 L. Ed. 581. Where an offense is made punishable by imprisonment, but the statute provides no mode of prosecution, an indictment will lie. U. S. v. Malebran (C. C. 1820), Fed. Cas. No. 15,711.

Where an act is declared unlawful, and a penalty prescribed, but no remedy specially provided, an offender may be proceeded against either by indictment or by an action of debt. U. S. v. Bougher (C. C. 1854), Fed. Cas. No. 14,627.

Infamous crime. --A crime punishable by imprisonment in a State prison or pení

tentiary with or without hard labor is an infamous crime. Ex parte Wilson (1885), 5 Sup. Ct. 935, 114 U. S. 417, 29 L. Ed. 89 [C. S. p. 14,325].

In determining whether a crime is infamous, the inquiry is whether it "is one for which the statute authorizes the court to award an infamous punishment, not whether the punishment ultimately awarded is an infamous one." U. S. v. Thompson (D. C. 1912), 202 Fed. 346; U. S. v. Evans (1906), 28 App. D. C. 264; Palmer v. Lenovitz (1910), 35 App. D. C. 303.

The amendment did not have special reference to the particular crimes which theretofere had been known at common law as capital and infamous; but it was intended for all offenses which might thereafter be made capital or infamous by the legislation of Congress. U. S. v. Brady (D. C. 1881), 3 Cr. Law Mag. 69.

To make a penalty infamous it must pronounce against the offender a degradation from his civil rights as a citizen, and in the absence of such forfeiture the crime is not legally infamous unless it is 80 expressly pronounced. U. S. v. Cross (D. C. 1873), 1 McArthur, 149.

An offense punishable by imprisonment not exceeding one year without hard labor is not infamous. U. S. v. Cobb (D. C. 1890), 43 Fed. 570.

It is not the law that no crime is infamous within the meaning of this amendment that has not been so declared by Congress. Ex parte Wilson (1885), 5 Sup. Ct. 935, 114 U. S. 417, 29 L. Ed. 89.

Jurisdiction of military courts.-Military commissions organized in a State invaded and not engaged in rebellion in which the Federal courts were open and in the unobstructed exercise of their judicial functions had no jurisdiction to try a citizen who was neither a resident of a rebellious State or prisoner of war nor a person in the military or naval service, and Congress could not invest them with such power. Ex parte Milligan (1866), 4 Wall. 2, 119, 18 L. Ed. 281.

This amendment expressly excepts cases arising in the land or naval forces," and leaves such cases subject to the rules for the government and regulation of those forces which, by the eighth section of the first article of the Constitution, Congress is empowered to make. Courts-martial form no part of the judicial system of the United States, and their proceedings, within the limits of their jurisdiction, can not be controlled or revised by the civil courts. Congress has never conferred upon civil officers or magistrates or private citizens any power over offenders punishable only in a military tribunal. Kurtz v. Moffitt (1885),

6 Sup. Ct. 148, 152, 115 U. S. 487, 29 L. Ed. 458.

This provision is no authority for the contention that the district court has no jurisdiction to indict and try a person charged with having forged an obligation of the United States with intent to defraud, which is made an offense against the United States by R. S. sec. 5414, although such person was at the time an officer of the Army, and the alleged offense was committed at a military post and with intent to defraud an enlisted soldier, where accused has since been discharged from the Army without any action against him having been taken by the military authorities. Neall v. U. S. (1902), 118 Fed. 699, 701, 56 C. C. ‘A. 31.

Articles of War can not take the place of or supersede the criminal or civil laws without violating this amendment. In re Kelly (C. C. 1895), 71 Fed, 545, 553.

Offenses triable by court-martial.—Act March 3, 1873, providing that prisoners under confinement in military prisons undergoing sentences of court-martial shall be liable to trial and punishment by courtsmartial for offenses committed during said confinement, is not in conflict with this amendment. In re Craig (C. C. 1895), 70 Fed. 969; ex parte Wildman (D. C. 1876), Fed. Cas. No. 17,653a.

Congress may provide for the trial and punishment of military and naval offenses in the manner practiced by civilized nations. Dynes . Hoover (1857), 20 How. 65, 78, 15 L. Ed. 838.

A soldier who while standing guard over a jail attempts to kill a prisoner onfined therein may be tried by court-martial, it being a case "arising in the land or naval forces." and the exception as to "actual service in time of war or public danger " relating only to the militia. Ex parte Mason (1881), 105 C. S. 696, 700, 26 L. Ed. 1213.

The provision that "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," in effect says that offenses in those forces shall be dealt with according to military law. Runkle v. U. S. (1884), 19 Ct. Cl. 396.

Conscription act March 3, 1863, making a man subject to military laws, and liable to punishment as a deserter, as soon as he is drafted, and before he is mustered into service, is not repugnant to the amend ment. Kneedler . Lane (1863), 45 Pa. St. (9 Wright) 238, 5 Phila. 485.

Cases arising in the militia.-The clause "when in actual service in time of war" has no reference to the Regular Army or the Navy, but refers only to the Militia. Ex parte Mason (1881), 105 U. S. 696, 26