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he is liable for perjury.136 A witness may be compelled to testify to matters incriminating him if prosecution against him is barred by pardon or lapse of time;137 a witness may also be compelled to testify to facts which will tend to degrade him in the public estimation.138

§ 245. Due process of law. The provision that no person shall be deprived of life, liberty or property without due process of law, is also a reaffirmation of common law principles.139 The germ of this principle is found in the thirty-ninth chapter of the Magna Charta, which provided that: "No free man shall be taken, or imprisoned, or disseised, or outlawed, or exiled, or in any wise destroyed; nor shall we go upon him, nor send upon him, but by the lawful judgment of his peers or by the law of the land." The expression, "due process of law," is to be found in a statute of the next century,140 which enacted that: "No man, of what state or condition soever he be, shall be put out of his lands, or tenements, nor taken, nor imprisoned, nor indicated, nor put to death without he be brought in to answer by due process of law."

141

"Due process of law" in the United States Constitution is practically equivalent to "the law of the land" in Magna Charta. In Murray v. Hoboken Land and Improvement Co.11 the court said: "The words 'due process of law' were undoubtedly intended to convey the same meaning as the words 'by the law of the land,' in Magna Charta. Lord Coke, in his commentary on those words (2 Inst. 50) says they mean due process of law. The constitutions which had been adopted by the several States before the formation of the Federal Constitution, following the language of the Great Charter more closely, generally contained the words 'but by the judgment of his peers, or the law of the land.' The ordinance of Congress of July 13, 1787, for the government of the territory of the United States northwest of the Ohio river,

130 United States v. bell, 81 Fed. Rep. 840.

137 Robertson v. Baldwin, 165 U. S. 281.

138 Brown v. Walker, 161 U. S. 605; Mackel v. Rochester, 102 Fed.

Rep. 314.

139 North Carolina v. Vanderfoot, 35 Fed. Rep. 282.

140 Stat. 28, Edw. III, c. 3.
141 18 Howard, 272.

used the same words. The Constitution of the United States, as adopted, contained the provision that the trial of all crimes, except in cases of impeachment, shall be by jury.' When the fifth article of amendment containing the words now in question was made, the trial by jury in criminal cases had thus already been provided for. By the sixth and seventh articles of amendment further special provisions were separately made for that mode of trial in civil and criminal cases. To have followed, as in the State constitutions and in the ordinance of 1787, the words of Magna Charta, and declared that no person shall be deprived of his life, liberty or property, but by the judgment of his peers or the law of the land, would have been in part superfluous and inappropriate. To have taken the clause, law of the land,' without its immediate context, might possibly have given rise to doubts, which would be effectually dispelled by using those words which the great commentator on Magna Charta had declared to be the true meaning of the phrase, 'law of the land,' in that instrument, and which were undoubtedly then received as their true meaning. * * We must examine the Constitution itself to see whether this process is in conflict with any of its provisions. If not found to be so, we must look to those settled usages and modes of proceeding existing in the common and statute law of England, before the emigration of our ancestors, and which are shown not to have been unsuited to their civil and political condition by having been acted on by them after the settlement of this country."

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There is, however, one great difference between the extent of the application of this guarantee in English law and in the law of our country. In England it only serves as a protection against the executive department, in the United States it is a restraint on all departments of the Federal Government-executive, legisla tive and judicial.142 The provisions contained in the fifth amendment, however, are not restrictions on the States;1 a similar worded restriction was placed upon the States by the fourteenth amendment.144

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.143

143 See Chapter V.

144 See Chapter XIII.

The Supreme Court has never attempted a definition of "due process of law," or an enumeration of all the cases where protection will be given under this guarantee, preferring to decide each individual case as it comes before it. "Apart from the imminent risk of a failure to give any definition which would be at once perspicuous, comprehensive and satisfactory, there is wisdom, we think, in the ascertaining of the intent and application of such an important phrase in the Federal Constitution, by the gradual process of judicial inclusion and exclusion, as the cases presented for decision shall require, with the reasoning on which such decisions may be founded."145

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In general a liberal interpretation is given to the extent of the protection contained in this guarantee. "By the term 'life' something more is meant than mere animal existence. The inhibition against its deprivation extends to all those links and faculties by which life is enjoyed. The provision equally prohibits the mutilation of the body by the amputation of an arm or leg, or the putting out of an eye, or the destruction of any other organ of the body through which the soul communicates with the outer world."146 "Liberty means not only the right of the citizen to be free from the mere physical restraint of his person, as by incarceration, but the term is deemed to embrace the right of the citizen to be free in the enjoyment of all his faculties; to be free to use them in all lawful ways; to live and work where he will; to earn his livelihood by any lawful calling; to pursue any livelihood or avocation; and for that purpose to enter into all contracts which may be proper, necessary and essential to his carrying out of a successful conclusion the purposes above mentioned."147 "Property is everything which has an exchangeable value, and the right of property includes the power to dispose of it according to the will of the owner. Labor is property,

14 Davidson v. New Orleans, 96 U. S. 97. See also Holden v. Hardy, 169 U. S. 366; Orient Ins. Co. v. Daggs, 172 U. S. 563.

146 Munn v. Illinois, 94 U. S. 113. This citation is found in the dis

senting opinion of Justice Field, but is nevertheless a fair statement of the meaning of this word in this place.

147

Allgeyer v. Louisiana, 165 U. S. 578.

and as such merits protection. The right to make it available is next in importance to the rights of life and liberty."148

Trial by jury is not necessarily essential to "due process of law," and the following acts have been decided not to be an impairment of this right: deportation of an alien illegally in this country;150 the imprisonment of such alien at hard labor pending expulsion;151 distraint for payment of taxes;152 depriving a party by the order of the Postmaster-General of the right of using the postal service;153 discharging surplus naval cadets;154 and the destruction of illegally acquired property.155

The police power of the United States, and its rights of taxation and of eminent domain, is superior to any rights which a citizen can have under this guarantee. As to taxation Chief Justice Marshall declared:15 "The power of taxing the people and their property is essential to the very existence of government, and may be legitimately exercised on the objects to which it is applicable to the utmost extent to which the Government may choose to carry it. The only security against the abuse of this power is found in the structure of the Government itself."

§ 246. The taking of private property, and the right of eminent domain. The provision that private property shall not be taken for public use without just compensation 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 v. Patterson, 98 U. S. 106, requires no constitutional recognition. The provision found in the

14 Justice Swayne in Slaughter House cases, 16 Wallace, 36.

149 Ex parte Wall, 107 U. S. 265, 289.

150 United States V. Williams, 194 U. S. 290.

151 Wong Wing v. United States, 163 U. S. 235.

152

Springer v. United States, 102

U. S. 593.

153 Public Clearing House V. Cayne, 194 U. S. 508.

154 Harmon v. United States, 23 Ct. Cl. 406.

155 North Carolina v. Vanderford, 35 Fed. Rep. 282.

156 McCulloch V. Maryland, 4 Wheaton, 316.

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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 of 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."157

No State can interfere with the United States' right of eminent domain.158 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.159 The property of an incorporated company may be condemned under the right of eminent domain.160

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,161 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 actually taken by the Government under such circumstances it must be paid for.162 Confiscation of property of public enemies is not affected by this clause.163 Compensation must be given for property not be

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