Due process of law is due course of legal proceedings according to rule established for protection of private rights; 73 it implies a tribunal of competent jurisdiction, and a sufficient service on the defendant, or an appearance on his part, to render him amenable to that jurisdiction." It signifies a right to be heard in one's defence," but not necessarily the right of appeal or rehearing," or of delay." The power to distrain for taxes is due process of law." 78 SECTION 89. EMINENT DOMAIN. The fifth amendment also provides that public property shall not be taken for public use without due compensation. Franchises are protected as property under this clause.79 This provision does not prevent the United States Government from taking property, by the right of eminent domain, subject to reimbursement of the owner of the property. The right of eminent domain is an incident of sovereignty. "The power to take private property for public uses, generally termed the right of eminent domain, belongs to every independent government. It is an incident of sovereignty, and, as said in Boom vs. Patterson, 98 U. S., 106, requires no consti 73 Kennard vs. Lamsiana, 92 U. S., 480. 74 Pennayer vs. Neff, 95 U. S., 714; Bank of Columbia vs. Okely, 4 Wheaton, 235, 244; Kilbourn vs. Thompson, 130 U. S., 168, 182; Caldwell vs. Texas, 137 U. S., 697; Leeper vs. Texas, 139 U. S., 468; Scott vs. McNeal, 154 U. S., 46; Brown vs. New Jersey, 175 U. S., 176. "Hovey vs. Elliott, 167 U. S., 417; Marchant vs. Penn. R. R., 153 U. S., 386; Lasere vs. Rocherau, 17 Wallace, 438; Orchard vs. Alexander, 157_U. S., 383; Louisville, etc., R. R. v8. Schmidt, 177 U. S., 236. 76 Montana Co. vs. St. Louis Min., etc., Co., 15 U. S., 176; Pitts. etc., Ry. vs. Backus, 154 U. S., 426; Indianapolis, etc., Ry. vs. Backus, 154 U. S., 439; Fallbrook Irr. Dist. vs. Bradley, 164 U. S., 169; McKane vs. Dunston, 153 U. S., 687. 77 Kennard vs. Louisiana, 92 U. S., 481. 78 Ex parte Wall, 107 U. S., 265; Kelly vs. Pittsburg, 104 U. S., 78; McMillen vs. Anderson, 95 U. S., 37. 79 Wilkinson vs. Leland, 2 Peters, 658. tutional recognition. The provision found in the fifth amendment to the Federal Constitution, and in the Constitutions of the several states, for just compensation for the property taken, is merely a limitation upon the use of the power. It is no part of the power itself, but a condition upon which the power may be exercised. * * The proceeding for the ascertainment of the value of the property and consequent compensation to be made, is merely an inquisition to establish a particular fact as a preliminary to the actual taking and it may be prosecuted before commissioners or special boards or the courts, with or without the intervention of a jury, as the legislative power may designate. All that is required is that it shall be conducted in some fair and just manner, with opportunity to the owners of the property to present evidence as to its value and to be heard thereon."' 80 No state can interfere with the United States' right of eminent domain.81 The United States may grant to a corporation of a quasi-public character, as a railroad, the power to exercise this right of eminent domain.82 The property of an incorporated company may be condemned under the right of eminent domain.89 The United States government may remove bridges over navigable streams without paying compensation. Where only the use of property is impaired by the exercise of the right of eminent domain there is no claim for compensation; nor is there where the use of property is suppressed because it is obnoxious to the public health or morals, but if the property is 80 United States vs. Jones, 109 U. S., 513, 518, 519. See also Boom vs. Patterson, 98 U. S., 106, and Kohl vs. United States, 91 U. S., 367. "Kohl va United States, 91 U. S., 367 8 Olcott vs. Supervisors, 16 Wal- actually taken by the government under such circumstances it must be paid for.85 Confiscation of property of public enemies is not affected by this clause. Compensation must be given for property not belonging to enemies taken by the United States during war time.87 This principle of compensation under right of eminent domain is a common law principle. Compensation under this right may be sued for in the Court of Claims." 88 89 SECTION 90. JURY TRIALS IN CRIMINAL CASES. The right of trial by jury in criminal cases is given by the sixth amendment: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense." The jury trial guaranteed by this amendment, and by Article III, section 2, clause 3 of the original Constitution, is the old common law jury trial requiring the unanimous vote of a jury of twelve men for a verdict." The Supreme Court has decided that the protection of this amendment extends to the District of Columbia; but in later cases the same Court held 91 8 New Orleans Water Works Co. vs. St. Tamany Water Works Co., 14 Fed. Rep., 194. 86 Miller vs. United States, 11 Wallace, 268. United States vs. Russell, 3 Wallace, 623. This does not refer of course to property taken from enemies. 88 Pompelly vs. Canal Co., 13 Wallace, 166. 89 Cherokee Nation vs. R. R. Co., 139 U. S., 641. 90 Thompson vs. Utah, 170 U. S., 349; Maxwell vs. Daw, 176 U. S., 586. 01 Callan vs. Wilson, 127 U. S., 540. that it did not extend to Hawaii or the Philippine Islands. 92 The indictment must set forth the offense with clearness and all necessary certainty, to appraise the accused of the crime with which he stands charged; and every ingredient of which the offense is composed must be accurately and clearly alleged. It is an elementary principle of criminal pleading, that, where the definition of an offense, whether it be at common law or by statute, includes generic terms, it is not sufficient that the indictment shall charge the offense in the same generic terms as in the definition, but it must state the species-it must descend to particulars. The object of the indictment is,-first, to furnish the accused with such a description of the charge against him as will enable him to make his defense, and avail himself of his conviction or acquittal for protection against a further prosecution for the same cause; and, second, to inform the Court of the facts alleged, so that it may decide whether they are sufficient in law to support a conviction, if one should be had. For this, facts are to be stated, not conclusions of law alone. A crime is made up of acts and intent; and these must be set forth in the indictment, with reasonable particularity of time, place and circumstances." The provision for a trial in the State and district where the crime was committed does not apply in cases of crimes committed on the high seas.94 Where witnesses are kept away by accused, evidence of their testimony introduced in a former trial may be used against him.95 "Hawaii vs. Mankichi, 190 U. S., 197; Dorr vs. United States, 195 U. S., 138. For account of these cases, see Chapter IX. United States vs. Cruikshank, 92 U. S., 542. United States vs. Dawson, 15 05 Reynolds vs United States, 98 The right of prisoner to counsel was first allowed in England in cases of treason by Act of 7, William III, c. 3, and in other criminal cases by Act of 6 and 7, William IV, c. 114. SECTION 91. JURY TRIALS IN CIVIL CASES. The seventh amendment extends the right of trial by jury to civil cases. "In suits at common law where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any Court of the United States than according to the rules of the common law." By "Common Law" the framers of the Constitution meant what the Constitution of the United States denominated in the third article, "law"; not merely suits which the common law recognized among its old and settled proceedings, but suits in which legal rights were to be ascertained and determined, in contradistinction to those where equitable remedies were administered; or where, as in the admiralty, a mixture of public law and of maritime law and equity were often found in the same suit. The term "common law" here, includes all suits but those in equity or admiralty." It does not include admiralty suits; 98 nor equity proceedings nor did it include proceedings under the fugitive slave law.100 99 96 The right of trial by jury herein provided for is the 96 Parsons vs. Bedford, 3 Peters, 432. Shields vs. Thomas, 18 Howard, 253; Ins. Co. vs. Coinstock, 16 Wallace, 258; United States vs. La Vengeance, 3 Dallas, 297; Webster vs. Reid, 11 Howard, 437. 23 Waring vs. Clarke, 5 Howard, 441. * Shields vs. Thomas, 18 Howard, 253. 100 Miller vs. McInerry, 5 McLean, 469. |