1 Elijah N.

Zoline, Federal Criminal Law and Procedure 18 (1921)

Due Process of Law
[ 7 pages, 18 to 24 ]
Federal Criminal Law and Procedure 1 Elijah N. Zoline, Feder

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Citation: 1 Elijah N. Zoline Federal Criminal Law and Procedure
1921

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CHAPTER III
DUE PROCESS OF LAW

15.

Constitutional Provision and Definition.

16. "Due Process" as Applied to Criminal Procedure.
17. "Due Process of Law" Holds Good Even in Time of War.
17 a. When Civil Suits Are within the Meaning of the Fourth and Fifth
Amendments.
17 b. "Due Process" as Applied to a Deaf Person.
17 c. "Due Process" Applied to Corporations.

15. Constitutional Provision and Definition.

The Fifth Amendment to the Constitution of the United States
among other things provides: "Nor (shall any person) be deprived
of life, liberty or property, without due process of law . . . ." Regarding the definition of the term "due process of law ", the United

States Supreme Court said :' "The Constitution contains no

description of those processes which it was intended to allow or
forbid.

It does not even declare what principles are to be applied

to ascertain whether it be due process. It is manifest that it was

not left to the legislative power to enact any process which might
be devised. The article is a restraint on the legislative, as well as
on the executive and judicial powers of the government and cannot
be so construed as to leave Congress free to make any process
'due process of law' by its mere will. To what principles then are

we to resort to ascertain whether this process, enacted by Congress,

is due process? To this the answer must be twofold. We must
examine the Constitution itself, to see whether this process be in conIf not found to be so, we must look
to those settled usages and modes of proceeding existing in the

flict with any of its provisions.

common and statute law of England before the emigration of our

15. 1John Den ex dem. Murray
v. Hoboken Land & Improvement

18

Co., 18 How. 272, 276, 277, 15 L. ed.

372, 374.

CHAP. III]

"DUE

PROCESS"

[ 16

IN CRIMINAL PROCEDURE

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. . . ."

It is the duty of the court

to protect a defendant in his constitutional rights and the court

will not permit a violation of such rights either directly or indirectly.2 The privileges and immunities designated in the Constitution of the United States are those which of right belong to
the citizens of all free governments.3 " The Constitution of the
United States is a law for rulers and people, equally in war and
peace, and covers with the shield of its protection all classes of
men, at all times and under all circumstances." 4 The phrase
"due process of law " is synonymous with " the law of the land " in
Magna Charta.5 In another case,' Mr. Justice Shiras defined
the term in a few words: "Due process of law is process according
to the law of the land. . .

."

The forms of law should be strictly

observed, for as Mr. Justice Bradley well said: " Unconstitutional

practices get their first footing by silent approaches and slight
deviations from legal modes of procedure. This can only be
obviated by adhering to the rule that constitutional provisions for
the security of the person and property should be liberally construed."

'

16. " Due Process " as Applied to Criminal Procedure.

In the administration of criminal law it may be laid down
broadly that no one can be deprived of life or liberty except by
due process of law and that any deprivation of any right of an accused person guaranteed to him by the Constitution of the United
States, or by any act of Congress or by the settled usage of the
common law, is tantamount to a denial of due process of law. For
the purpose of ascertaining whether an accused person was accorded
2 McKnight v. United States, 115
Fed. 972 (C. C. A. 6th Cir.).
aSlaughter House Cases, 16 Wall.
(U. S.) 36, 21 L. ed. 394.
4
Ex parte Orozco, 201 Fed. 106.
(Approving Ex parte Milligan, 4
Wall. (U. S.) 2, 18 L. ed. 281.); but,
see remarks of Holmes, J. in Schenk
v. United States, 249 U. S. 47, - L.

ed.2

Davidson v. Board of Administrators of New Orleans, 96 U. S. 97,

24 L. ed. 616.
French.v. Barber Asphalt Paying Co., 181 U. S. 324, 45 L. ed. 879,
21 S. C. 625.
7 Boyd v. United States, 116 U.
S. 616, 635, 29 L. ed. 746, 6 S. C.
524.
.

19

 16]

. DUE PROCESS OF LAW

[CHAP. III

due process of law, the several provisions of the Constitution of

the United States relating to personal liberty and security should
be read together with the "due process of law" clause contained
in the Fifth Amendment to the Constitution of the United States.'
"Every freeman has a right to demand the enjoyment of proving
his innocence simultaneous with the first step of the prosecution."' 2
Accordingly, it is not within the province of a legislature or Congress to declare an individual guilty of a crime.3 Hence a trial
without a compliance with the Constitutional requirements is
without due process of law and absolutely void.4 "Due process
of law" requires notice and an opportunity to be heard.I The
right of the citizen to his personal liberty, except when restrained
of it upon a charge of crime, and for the purpose of judicial investigation, or under the command of the law pronounced through
a judicial tribunal, is one. of those elementary facts which lie at
the foundation of our political structure. The cardinal object of
our Constitution, as it is the end of all good government, is to
secure the people in their right to life, liberty and property. The
more certainly to attain this end, the framers of our Constitution
not only proclaimed certain great principles in the bill of rights,
but they distributed governmental power into three distinct
departments, each of which, while acting in its proper sphere, was
designed to be independent of the others. To the legislative department is delegated the duty to declare the causes for which the liberty
of a citizen may be taken from him, to the judicial department to
16. 1Callan v. Wilson, 127 U.
S. 540, 32 L. ed. 223, 8 S. C. 1301;
Boyd v. United States, 116 U. S.
616, 29 L. ed. 746, 6 S. C. 524.
2 United States v. Almeda, U. S.
Cir. Ct. 2 Wheel. Cr. 570, approved
in Hastings v. Murchie, 219 Fed.
83 (C. C. A. 1st Cir.).
3 McFarland v. American Sugar
Refining Co., 241 U. S. 79, 60 L. ed.
899, 36 S. C. 498.
* Callan v. Wilson, 127 U. S.
540, 32 L. ed. 223, 8 S. C. 1301; Ex
Parte Wilson, 114 U. S. 417, 29 L.
ed. 89, 5 S. C. 935; In Re Bain, 121
U. S. 1, 30 L. ed. 849, 7 S. C. 781;

20

Ex parte McClusky, 40 Fed. 71;

United States v. De Walt, 128 U. S.
393, 32 L. ed. 485, 9 S. C. 111; Ex
Parte Van Vranken, 47 Fed. 888.
5 Hovey v. Elliott, 167 U. S. 409,
42 L. ed. 215, 17 S. C. 841; Pennoyer
v. Neff, 95 U. S. 714, 24 L. ed. 565;
Webster v. Reid, 11 How. (U. S.)
437, 13 L. ed. 678; Windsor v.
McVeigh, 93 U. S. 274, 23 L. ed.
914; Reynolds v. Stockton, 140 U.
S. 254, 35 L. ed. 464, 11 S. C. 773;
Simon v. Craft, 182 U. S. 427, 45 L.
ed. 1165, 21 S. C. 836; Lasere v.
Rochereau, 17 Wall. 437, 21 L. ed.
694.

CHAP. III]

"DUE

PROCESS Y IN CRIMINAL PROCEDURE

[ 16

determine the existence of such causes in any given case, and to

the executive to enforce the sentence of the court. If a citizen can
be arrested, except upon a charge of violated law, and for the purpose of taking him before some judicial tribunal for investigation,
then it is plain that the executive department has usurped the functions of the other two, and the whole theory of our government,
so far as it relates to the protection of private rights, is overthrown. But on this question we are not left merely to arguments drawn from the general spirit and object of our Constitution. Our forefathers had fresh in their memory the struggles
which it had cost in England to secure those two great charters of
freedom, the Magna Charta of King John's time and the bill of
rights of 1688, and they incorporated into our fundamental law
whatever was most valuable in those instruments for the security
of life, liberty and property. They provided in Article 4 of the
amendments, that " 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 Warrants shall issue,
but upon probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the persons or
things to be seized." They further provided in Article 5, that "No
person shall .

. be deprived of life, liberty, or property, without

due process of law," and in Article 6, that " 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 the witnesses against
him; to have compulsory process for obtaining Witnesses in his
favor, and to have the Assistance of Counsel for his defense."
A general warrant without a sufficient description of the person
or thing to be seized is wanting in due process of law.6 Such warrants may suit the purposes of a despotic power, " but cannot
abide the pure atmosphere of political liberty and personal freedom."' The Fourth and Fifth Amendments to the Constitution
are interrelated.8 The basic principle of English and American
6 Boyd v. United States, 116
U. S.

616, 629, 29 L. ed. 746, 6 S. C. 524.

7Boyd v. United States, supra,632.

6 Boyd v. United States, supra,663.
21

 16]

DUE PROCESS OF LAW

[CHAP. III

jurisprudence is that no man shall be deprived of life, liberty, or

property without due process of law; and notice of the charge or
claim against him, not only sufficient to inform him that there is
a charge or claim, but so distinct and specific as clearly to advise
him what he has to meet, and to give him a fair and reasonable
opportunity to prepare his defense, is an indispensable element of
that process. When one is indicted for a serious offense, the
presumption is that he is innocent thereof, and consequently that
he is ignorant of the facts on which the pleader founds his charges,
and it is a fundamental rule that the sufficiency of an indictment
must be tested on the presumption that the defendant is innocent
of it and has no knowledge of the facts charged against him in
the pleading.9 It is essential to the sufficiency of an indictment
that it set forth the facts, which the pleader claims constitute the
alleged transgression, so distinctly as to advise the accused of the
charge which he has to meet, and to give him a fair opportunity
to prepare his defense, so particularly as to enable him to avail
himself of a conviction or acquittal in defense of another prosecution for the same offense, and so clearly that the court may be able
to determine whether or not the facts there stated are sufficient
to support a conviction.o
17. " Due Process of Law " Holds Good Even in Time of
War.
The "due process of law " clause of the Constitution of the United
States is applicable in time of war as well as in peace. Martial
law can never exist when the courts are open, and this applies even
to the locality of actual war. Presidential warrants are prohibited,'
9
Fontana v. United States, 262
Fed. 283, 286 (C. C. A. 8th Cir.);
Miller v. United States, 133 Fed.
337, 341, 66 C. C. A. 399, 403; Naftzger v. United States, 200 Fed. 494,
502, 118 C. C. A. 598, 604.
20 Fontana v. United States, 262

Fed. 283, at page 286, -

C. C. A. -

(8th Cir.); United States v. Britton,

107 U. S. 665, 669, 670, 27 L. ed.
520, 2 S. C. 512; United States v.
Hess, 124 U. S. 483, 488, 31 L. ed.
516, 8 S. C. 571; Miller v. United

22

States, 133 Fed. 337, 341, 66 C. C. A.

399, 403; Armour Pkg. Co. v. United
States, 153 Fed. 1, 16, 17, 82 C. C. A.
135, 150, 151; Etheredge v. United
States, 186 Fed. 434, 108 C. C. A.
356; Winters v. United States, 201
Fed. 845, 848, 120 C. C. A. 175,
178; Horn v. United States, 182
Fed. 721, 722, 105 C. C. A. 163, 167.
17. 1 Ex parte Milligan, 4 Wall.
2, 18 L. ed. 281; but see, note 4 to 15,
supra.

CHAP. III]

"DUE

PROCESS"

IN QUASI-CRIMINAL

CASES

[ 17 b

but the constitutionality of the recent statute granting the President the power to cause the arrest and internment of enemy
aliens was upheld by a Federal District Judge, 2 and' a conviction was sustained for rescuing an enemy alien arrested upon a
presidential warrant under the provision of 4067-4070 Rev.
Stat. of United States, and the Court further held that the " Due
Process of Law " clause of the Constitution does not apply to an
alien enemy. This case also holds that habeas corpus does not lie
at the instance of an alien enemy. Whether one is subject to
military law and trial by court martial depends on whether he is
a member of the land and naval forces of the United States.4

17 a. When Civil Suits Are within the Meaning of the

Fourth and Fifth Amendments.
Suits for penalties and forfeitures incurred by the commission
of offenses against the law are of a quasi-criminalnature and are
within the reason of criminal proceedings for all the purposes of
the Fourth and of that portion of the Fifth Amendment which
declares that no person shall be compelled in any criminal case to
be a witness against himself and a defendant cannot be compelled
to produce his private books and papers. Such compulsion is
equivalent to compelling him to be a witness against himself and
amounts to an unreasonable search and seizure.'

17 b. "Due Process" as Applied to a Deaf Person.

When a totally deaf person is on trial, it is the duty of the Court
to see that the defendant is provided with an ear drum, or the evidence read or repeated to him, so that he may be advised what is
going on at the trial. But when no request is made to this effect
by the accused or his counsel, the failure to so provide the defendant with a proper appliance so that he may hear the evidence, or to
read or to repeat the evidence, will be regarded merely as an irregularity and not as a trial wanting in due process of law.'
2 Ex parte Graber, 247 Fed. 882.

3 De Lacy v. United States, 249

Fed. 625 (C. C. A. 9th Cir.).
4 Ex parte Jochen, 257 Fed. 200.
17 a. 1Boyd v. United States,

116 U. S. 616, 635, 29 L. ed. 746, 6

S. C. 524.
17 b. I Felts v. Murphy, 201
U. S. 123, 50 L. ed. 689, 26 S. C.
366.
23

 17 c]

DUE PROCESS OF LAW

[CHAP. III

17 c. "Due Process" Applied to Corporations.

While the provision against self-incrimination is not available
to corporations,' nevertheless all provisions as to due process of
law are applicable to corporations as well as to natural persons.
In one case 2 Chief Justice Waite said: "The Court does not wish
to hear argument on the question whether the provision in the
Fourteenth Amendment to the Constitution, which forbids a State
to deny to any person within its jurisdiction the equal protection
of the laws, applies to these corporations. We are all of opinion
that it does. . . ."
17 c. ' Hale v. Henkel, 201 U. S.
43, 50 L. ed. 652, 26 S. C. 370.
See also Chapter SELF-INCRIMINATION.
2 Santa Clara County v. Southern
Railway Company, 118 U. S. 394,
30 L. Ed. 118, 6 S. C. 1132. See also
Pembina Mining Company v. Pennsylvania, 125 U. S. 181, 31 L. ed. 650,
8 S. C. 737; Missouri Pacific Railway Company v. Mackey, 127 U. S.
205, 32 L. ed. 107, 8 S. C. 1161;
Minneapolis & St. Louis Railway
Company v. Beckwith, 129 U. S. 26,

24

32 L. ed. 585, 9 S. C. 207; Charlotte

&c. Railroad v. Gibbes, 142 U. S.
386, 35 L. ed. 1051, 12 I. C. 255;
Monongahela Navigation Company
v. United States, 148 U. S. 312,
37 L. ed. 463, 13 S. C. 622; Gulf,
Colorado & Santa Fe Ry. v. Ellis,
165 U. S. 150, 154, 41 L. ed. 666,
17 S. C. 255, and cases cited; Chicago,
Burlington & Quincy Railroad Company v. Chicago, 166 U. S. 226, 41
L. ed. 679, 17 S. C. 581.