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to prevent petitions on the question of slavery from being considered by Congress.51

SECTION 83. BEARING ARMS.

The second amendment is as follows:

"A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed."

Citizens of the United States, however, have no right to associate together to drill or parade with arms, independent of any act of Congress or of a State legislature authorizing them so to do.52

Compare this amendment with the seventh section of the English Bill of Rights, (1689): "That the subjects that are Protestants may have arms for their defense suitable for their conditions, and as allowed by law." Blackstone says that this right of the subject to carry arms proper for his defence, "is a public allowance under due restrictions, of the natural right of resistance and self preservation, when the sanction of society and laws are found insufficient to restrain the violence of apprehension."

SECTION 84. QUARTERING OF SOLDIERS.

By the third amendment it is provided, that:"No soldier shall, in time of peace, be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law." The forerunner of this amendment is to be found in

E. g. Resolution of Henry L. Pinckney of South Carolina, introduced in the House of Representatives on May 26, 1836. "Resolved, that all petitions, memorials, resolutions, propositions or papers relating in any way, or to any extent whatever to the subject

of slavery, or the abolition of slavery, shall, without being either printed or referred, be laid upon the table, and that no further action whatever shall be had thereon." "Presser vs. People of Illinois, 116 U. S., 252.

the Petition of Rights, (1628). Among the grievances there complained of it is set forth: "And whereas of late, great companies of soldiers and mariners have been dispersed into divers countries of the realm, and the inhabitants against their wills have been compelled to receive them into their houses and there to suffer them to sojourn against the laws and customes of this realme, and to the great grievance and vexacion of the people." And among the remedies prayed for was, "that your Majestie would be pleased to remove the said souldiers and marriners, and that your people may not be soe burthened in tyme to come.'

This quartering of soldiers was also one of the evils protested against in the Declaration of Independence. "For quartering large bodies of armed troops among us." 53

SECTION 85. SEARCH WARRANTS.

The fourth amendment takes up the subject of search warrants:

"The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures shall not be violated, and no warrant shall issue, but on probable cause, supported by oath and affirmation, and particularly describing the place to be searched and the persons or things to be seized."

This provision was mainly directed against what were known in English law as general warrants; i. e., warrants authorizing the searching of all suspected places and the arrest of all suspected persons. This class of warrants had been declared unconstitutional in England in the case of Money vs. Leach 54 shortly "Declaration of Independence 16th

paragraph

Vol. II-12.

3 Burr, 1742.

prior to the time of the adoption of the United States Constitution. The United States Supreme Court thus refers to the protection furnished by this amendment:

"The genius of our liberties holds in abhorrence all the irregular inroads upon the dwelling houses and persons of the citizen, and with a wise jealousy regards them as sacred, except when assailed in the established and allowed forms of municipal law."'55

All the facts necessary to be proved to constitute probable cause must be substantiated by oath or affirmation. This guarantee extends to sealed packages in the United States mail and they can only be seized and opened under a warrant regularly issued."

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This amendment applies to criminal cases only. It has no application to process for the recovery of debts where no search warrant is used,5o nor to searches and seizures to aid in the collection of revenue.00 Persons cannot be compelled to produce books to be used against them in criminal proceedings or in suits for the recovery of penalties.

SECTION 86. RIGHTS OF PERSONS ACCUSED OF CRIME.

The fifth amendment is for the protection of those accused of infamous crimes:

"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, or in the militia, when in actual service in time of war or public danger; nor shall Luther vs. Borden, 7 Howard, 1,

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Ex parte Meador, 1 Abb. (U. S.), 317; Federal Cases No. 9, 375; Stanwood vs. Green, 2 Abb. (U. S.), 184; Federal Cases No. 13, 301; United States vs. Distillery, 6 Biss. 483; Federal Cases No. 14, 966; Ex parte Strouse, 1 Sawry. 605; Federal Cases No. 13, 548.

any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property without due process of law; nor shall private properties be taken for public use without just compensation."

The principles contained in the fifth amendment, together with those contained in the sixth, date back to Magna Charta, where they may be found in their rudimentary state in the thirty-ninth and fortieth sections of that instrument, as follows:

39. "No free man shall be taken or imprisoned, or disseised or outlawed, or exiled, or anyways destroyed; nor will we go upon him, nor will we send against him, unless by the lawful judgment of his peers, or by the law of the land."

40. "To none will we sell, to none will we deny, or delay, right or justice."

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Under the fifth amendment to the Constitution the common law method of procedure by criminal information, can be pursued in criminal cases, except in prosecutions for capital or otherwise infamous crimes. Any crime which is punished by imprisonment at hard labor, for life or for a term of years, is an infamous one.62 In such cases no United States Court has power to try any person, except on a presentment or indictment of a grand jury. Lesser misdemeanors cannot be brought within the term infamous."

The protections under this and the sixth amendment do not apply to persons in the army or navy of

61 United States vs. Shepard, 1

Abbott, 431; United States vs.
Maxwell, 3 Dill, 275; Federal
Cases No. 15, 750.

"Ex parte Wilson, 114 U. S., 417;
United States vs. Petit, 114

VS.

U. S., 429; Parkinson United States, 121, U. S., 281. Ex parte Bain, 121 Ú. S., 1. 4 United States vs. Ebert, 1 Cent. L. J., 205; Federal Cases No. 15,019,

the United States. Every one connected with either the military or naval branches of the public service is amenable to the jurisdiction which Congress has created for their government, and while thus serving surrenders his right to be tried by the civil courts.

SECTION 87. DOUBLE JEOPARDY.

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The provision, "Nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb," does not prevent a retrial where there has been a mistrial on account of a defective indictment or for any other cause, nor where the jury failed to agree on the first trial. This provision prevents the

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granting to the government of the right of appeal from judgments of acquittal in criminal cases.

No person in a criminal case, can be compelled to be a witness against himself. The object of this provision is to protect the accused from conviction by his own testimony, not to protect him from the infamy or disgrace which might be occasioned to him by such testimony.70 If the accused voluntarily goes on the witness stand in his own defence he is subject to crossexamination.71

SECTION 88. DUE PROCESS OF LAW.

The phrase "due process of law" in this amendment is equivalent to that of "the law of the land" used in Magna Charta."2

65 Ex parte Milligan, 2.

66 United States vs. Keen, 1 McLean

429; United States vs. Haskell,
4 Wash., C. C. 410; Federal
Cases No. 15,321; Thompson
vs. United States, 155 U. S.,
274.

67 United States vs. Perez, 9 Whea

ton, 579.

68 Kepner vs. United States, 195 Ú. S., 100.

6 United States vs. Distillery, 6 Biss. 483; United States vs. Parker, 6 Biss., 379.

70 Brown vs. Walker, 70 Federal Reporter, 46.

71 Spies vs. Illinois, 123 U. S., 131. 72 Murray vs. Hoboken Land and Improvement Co., 18 Howard,

272.

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