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the legislature, upon the executive, and upon the judiciary. The will of the people has spoken through their organic law, and the government which they have created, and even themselves who called that government into being, must alike bow to these declarations of right. Furthermore, as the clauses in question are mandatory and peremptory in their nature, and directed at once to each branch of the government, they require no statute of Congress, decision of judge, or act of President, to execute them, and give them binding efficacy. They execute themselves without the aid of an inferior law. Any proceeding of the government in derogation of their command would be void; any proceeding declaratory would be useless.
Examination and Discussion of these Limitations.
$ 239. I shall now proceed to discuss, in a brief manner, the meaning and nature of these several restrictions, the objects for which they were incorporated into the organic law, the dangers they were intended to guard against, and the extent of their application. It may be remarked that whatever construction is given to these clauses, will also apply to the same or similar provisions in the state constitutions.
1. The right of the people to keep and bear arms. The object of this clause is to secure a well-armed militia. It has always been the policy of free governments to dispense, as far as possible, with standing armies, and to rely for their defence, both against foreign invasion and domestic turbulence, upon the militia. Regular armies have always been associated with despotism. But a militia would be useless unless the citizens were enabled to exercise themselves in the use of warlike weapons. To preserve this privilege, and to secure to the people the ability to oppose themselves in military force against the usurpations of government, as well as against enemies from without, that government is forbidden by any law or proceeding to invade or destroy the right to keep and bear arms. But all such provisions, all such guaranties, must be construed with reference to their intent and design. This constitutional inhibition is certainly not violated by laws forbidding persons to
carry dangerous or concealed weapons, or laws forbidding the accumulation of quantities of arms with the design to use them in a riotous or seditious manner. The clause is analogous to the one securing freedom of speech and of the press. Freedom, not license, is secured; the fair use, not the libellous abuse, is protected
$240. 2. The quartering of soldiers upon private citizens is forbidden in time of peace, and only allowed in time of war when done according to law. This provision is of more historical interest than practical importance. It was borrowed from the Petition of Right, passed by Parliament in the reign of Charles I., under whom the practice of billeting soldiers upon the citizens had grown to be an enormous abuse.
§ 241. 3. Unreasonable searches and seizures are forbidden, and no warrants of search or arrest must issue except upon probable cause, supported by oath, and describing the place to be searched, and the person or thing to be seized.
This provision is of the utmost importance in the administration of justice. It protects the liberty and property of the citizen against the inquisitorial proceedings set in motion by mere suspicion or surmise. It demands some proof to substan tiate a charge before the machinery of the law is set in motion, and requires that some person shall assume the responsibility of sustaining the charge by his oath. It prevents all vague accusations by insisting that the person or thing to be seized, or the place to be searched, shall be particularly described.
This clause of the Constitution was particularly aimed at what were known in the English law as general warrants. These general warrants were used more especially in the case of political offences, and were issued by the government, directing the officers to search all suspected places, and seize all suspected persons, without describing any place or person. The execution of the warrant was left to the caprice of the individual who had it in charge. Although these warrants were so plainly contrary to the spirit of the English common law, and destructive of individual rights, and liable to become instruments of tyranny in the hands of an unscrupulous official, they continued in use down to a time immediately prior to the
American Revolution. The practice was finally declared illegal by the Court of King's Bench during the presidency of Lord Mansfield, in the case of Money v. Leach. The case arose on a warrant issued by one of the Secretaries of State requiring the officers“ to make diligent search for the authors and publishers ” of a certain seditious libel, " and them or any of them having found, to apprehend and seize, together with their papers.”
$ 242. 4. The course of proceeding in criminal trials for all offences except those of a petty character, is established : an indictment or presentment by a grand jury as the initiative; a speedy and public trial of the accusation by a jury; information as to the nature of the charge ; public examination of the witnesses for the prosecution in the presence of the accused ; opportunity for the prisoner to procure his own witnesses ; to maintain silence respecting the imputed crime, and to be defended by counsel.
It is thus that the Constitution endeavors to protect the liberties of the citizen against any oppressive acts of the goyernment, by absolutely prohibiting that government, through its officers, from deciding first, whether a person shall be put upon trial for an alleged offence, and secondly, whether he is guilty of the offence which may be alleged against him. Both of these questions must be determined by bodies of men chosen from the people at large. The grand jury as the accusers, and the petit jury as the judges of the fact, are a part of the English system of administering justice, and have been thence borrowed by us. No doubt they have been greatly instrumental in maintaining the liberties of the British subject. It may well be questioned, however, if the grand jury is not now so cumbersome and inefficient, that any theoretical advantages which may flow from it, are not far outweighed by the practical defects and hindrances which are inseparable from its use in administering the criminal law. Indeed, it has been already abolished in some states. I am strongly of the opinion, also, that some others of these time-honored principles of English and American criminal procedure have outlived their usefulness, and are obstacles to the proper investigation and punishment of crime. The provision that no person shall be compelled to be a witness against himself can only be supported by that intense reverence for the past which is so difficult to be overcome. This ancient rule of the English law has been entirely repudiated in civil cases, and there is no reason for preserving it in criminal trials. A judicial trial is in theory, and should be in fact, a means of ascertaining the truth; but this maxim of the law closes at once the most direct and certain road which leads to the truth. There can be no doubt that the states will gradually abandon this provision, and reject it from their constitutions.
1 3 Burr. R. 1742.
$ 243. The fifth amendment excepts from its operation a class of cases; and this exception applies in fact to the whole course of criminal investigations as regulated by the Bill of Rights. These cases are those " arising in the land or naval forces, or in the militia when in actual service in time of war or public danger.” It is evident that the navy and regnlar army, at all times, and the militia when in actual public service, cannot be governed by the code of laws which applies to the great body of citizens. Military exigencies require, not individual liberty, but subordination, obedience. The very rules which are framed to protect the individual rights of the people, would destroy an army. The Constitution, therefore, gave Congress the power to make rules for the government of the land and naval forces, and of the militia employed in the service of the United States. These rules constitute that department of the municipal law known as the “ Military Law;" and the methods of trial and punishment are military in their character.
$ 244. 5. No person shall be twice put in jeopardy of life or limb for the same offence. The same guaranty is contained in most or all of the state constitutions ; indeed, the general maxim which includes this particular case, is as old as the common law. I shall not attempt to quote or comment upon the many cases which have given a construction to this clause. The rule which is settled by them all is, that a person shall not be tried a second time for the same offence after a verdict of conviction or acquittal has passed upon him. But this rule must be taken with the following exceptions : After acquittal the state, or the United States, cannot procure the case to be reviewed for any error committed by judge or jury, and obtain a new trial; for this would be to put the party twice in jeopardy. But after conviction, the accused may, if error has been committed, obtain a new trial ; and such new trial is not considered to be a second jeopardizing of the prisoner.
1 Const. Art. I. Sec. VIII.
$ 245. 6. No person shall be deprived of life, liberty, or property, without due process of law.
The same provision is contained in the state constitutions. It was borrowed from Magna Charta, and appears in that celebrated instrument in the following form : “ Nullus liber homo capiatur, vel imprisonetur, aut dissaisiatur, aut utlagetur, aut exuletur, aut aliquo modo destruatur, nec super eum ibimus, nec super eum mittemus, nisi per legale judicium parium suorum, vel per legem terræ.” No freeman can be taken, or imprisoned, or disseized, or outlawed, or in any other manner injured, nor will we proceed against him, unless by the lawful judgment of his peers, or by the law of the land.
The phrase, “ law of the land," as originally used, referred to the trial by wager of battle or by ordeal, as distinguished from trial by one's peers ; but it has long been settled in England and America, that under the modern law and institutions, this phrase, and “due process of law,” are identical in import. Let us endeavor to obtain a clear idea of their meaning and application.
§ 246. It is plain that any statute which Congress or legis. lature may see fit to pass, is not, in the sense in which the words are used in the Constitution, “due process of law,” or “ the law of the land.” Otherwise this safeguard of private rights would become a mere empty form. Due process of law implies, primarily and principally, that regular course of judicial proceeding to which our fathers were accustomed at the time the Constitution was framed; and, secondly, and in a subordinate degree, those more summary measures, which are not strictly judicial, but which had long been known in the