privilege. Gatlin v. Walton (1864), 60 N. C. 325, 333.

Pensions.-Pensioners of the United States have no vested legal rights to their pensions, and it was competent for Congress by act July 25, 1882, sec. 5, to provide that no person receiving a pension under special act should receive in addition a pension under the general law. U. S. v. Teller (1883), 2 Sup. Ct. 39, 107 U. S. 64, 27 L. Ed. 352.

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Purpose of taking.-The Government is liable for property taken to be destroyed as for property taken to be used. Wiggins r. U. S. (1867), 3 Ct. Cl. 412, reaffirming Grant's Case (1863), 1 Ct. Cl. 41.

Incidental and future injuries in general. Congress is prohibited by this amendment from conferring immunity in action for a private nuisance which amounts in effect to a taking of private property for publle use. Richards r. Washington Terminal Co. (1914), 34 Sup. Ct. 654, 233 U. S. 546. 58 L. Ed. 1088, reversing judgment (1911), 37 App. D. C. 289.

Semble, the rule of law that merely incidental injury to property arising from the occupation and use of the property of another by the State or United States for public purposes does not constitute a "taklug" of the property so incidentally injured, which entitles the owner to compensation, can not be avoided by private covenants, so as to impose an additional burden upon the public in the exercise of the right of eminent domain. U. S. r. Certain Lands in Town of Jamestown, R. I. (C. C. 1899), 112 Fd 622; judgment affirmed, Wharton r. U. S. (1907), 153 Fed. 876, 83 C. C. A. 58. Acts done in the exercise of governmental powers, and not directly encroaching on private property, though impairing the use thereof, are not a taking. Id.

Where the owner is merely put to some expense in warding off consequences resuiting from a public work, there is not a taking. Peabody r. U'. S. (1907), 43 Ct. Cl. 5. Walis r. U. S. (1909), 44 Ct. Cl. 482.

Change or improvement of navigable waters, rivers, and harbors. --The liability of the United States under this amendment to make just compensation for an appropriation of land for public use is not defeated because such land was taken by the Government in the exercise of its power to In prove navigation I. S. e. Lynah (1903), 23 Sup. (t, 349, 357, 18 U. S. 445, 47 L. Ed 5.9.

358), permits the lease by the Secretary of War of any water power resulting from such conservation and the works the Government may construct. U. S. v. ChandlerDunbar Water Power Co. (1913), 33 Sup. Ct. 667, 229 U. S. 53, 57 L. Ed. 1063.

Erection and use of fortifications.-That the erection and use of a fortification by the United States interferes with the purpose a neighboring landowner had in view in purchasing and improving his prop erty, or even impairs it value, does not constitute a taking of such property which entitles him to compensation. U. S. v. Certain Lands in Town of Jamestown, R. I. (C. C. 1899), 112 Fed. 622; judgment affirmed, Wharton v. U. S. (1907), 153 Fed. 876, 83 C. C. A. 58.

Firing guns in such a direction as to send projectiles over and beyond land does not constitute a taking. Peabody ť. I. S. (1907), 43 Ct. Cl. 5; Id. (1911), 46 Ct. CL 39.

The concussion of guns fired from a fort for practice purposes may injure an adjacent hotel, and the continued occupancy of the fort by the military forces may be a constant menace to the quietude of the hotel as a summer resort, Impairing its value; but these acts do not constitute a taking of private property for public use. Peabody v. U. S. (1911), 46 Ct. Cl. 39.

Use of patented machines. R. 8. 4899, relating to use of patented machines, held not unconstitutional as depriving one of his property without compensation. Dable Grain Shovel Co, e Flint (1890), 11 Sup. Ct. 8, 9, 137 U. S. 41, 34 L. Ed. 618,

Using a patented machine, by officers of the Government, although in prosecuting public works, does not constitute such a taking of private property for public use as is contemplated by the Constitution It is a disturbance or infringement of the right of the patentee, and not a caption of his property. Pitcher v. U. S. (1863), 1 Ct. Cl. 7.

Taking of property under military au thority. The military forces of the Government have the right while in occupation of friendly territory in time of war, and upon pressure of military necessity, to take for the public use, or to destroy, private property without first making compensation Brady r. Atlantic Works (C. C. 1876), Fed Cas No. 1,794: judgment re versed (1882), 107 U 192, 2 Sup Ct. 225, 7 L. Ed 48; Park! am r Just ces of Inferior Court of Decatur County (1851), 9 Gen. 341; Taylor e Nashvine & CR Co, (1869), 46 Tenn. 46 Cold ), 646, 9% Am. De 474

to hire it and the officer subsequently put it to use in the Government service it must be considered as property taken for a public use; and the owner may recover its reasonable value and can not be required to take it back and accept compensation for its use. Peck v. U. S. (1878), 14 Ct. Cl. 84.

Occasions may arise when a military officer may destroy private property to prevent its falling into the hands of the public enemy, or, where the officer is charged with a particular duty, he may impress private property and take it for public use, and then the Government is bound to compensate the owner, and the officer is not a trespasser; but in all such cases the danger must be immediate and impending, or the necessity for the public service so urgent as not to admit of delay.

Yost v. Stout (1867), 44 Tenn. (4 Cold.) 205, 94 Am. Dec. 194.

The laws of war do not justify the taking of private property for the purpose of feeding the inmates of au incorporated asylum located in a city occupied by the military forces without making compensation to the owner. Eastern Lunatic Asylum. Garrett (Va. 1876), 27 Grat. 163.

Elements and measures of damage in general. The compensation to be made for land taken for public use in the exercise of the right of eminent domain is measured by its market value at the time of the taking. U. S. v. Honolulu Plantation Co. (1903), 122 Fed. 581, 58 C. C. A. 279; U. S. v. Inlots (C. C. 1873), Fed Cas. No. 15,441; U. S. v. Inlots (C. C. 1873), Fed. Cas. No. 15.441a; Archer v. U. S. (1912), 47 Ct. Cl. 248.

General scope of statute. This section, so far as it confers rights, is not limited to negroes and colored persons. It confers rights on white persons, and puts in the form of statute what has been substantially ordained by the Constitution. Kentucky v. Powers (C. C. 1905), 139 Fed. 452.

Crimes against negroes.-A crime inflicted upon a colored person, not by reason of his race, color, or previous condition, is

not within the civil rights act of 1866. U. S. v. Cruikshank (C. C. 1874), Fed. Cas. No. 14,897.

Effect of court-martial conviction.-Conviction of a military offense by courtmartial does not make a witness incompe tent to testify in the civil courts in a criminal prosecution. Reed v. U. S. (C. C. A. 1918), 252 Fed. 21.

Validity. This section was enacted by virtue of the thirteenth amendment. U. S. v. Harris (1882), 1 Sup. Ct. 601, 610, 106 U S. 629, 27 L. Ed. 290; U. S. v. Morris (D. C. 1903), 125 Fed. 322.

Congress has the power, under the thirteenth constitutional amendment, to protect

citizens of the United States in the enjoy ment of those rights which are fundamental and belong to every citizen, if the deprivation of such rights is solely because of race or color; and this section is within such power. U. S. v. Morris (D. C. 1903), 125 Fed. 322.

Right of defendant to testify and weight of his testimony. The purpose of this act was to make defendants competent witasses, but reserving to them the right to frain from testifying without prejudice, and when any defendant chooses to testify h may do so, and it does not matter whether his testimony is for or against himself or for or against a codefendant. Wolfson v. US (1900), 101 Fed. 430, 436, 41 C. C. A. 422, writ of certiorari denied (1901), 21 Sep Ct. 919, 180 U. S. 637, 45 L. Ed. 710.

One of two defendants jointly indicted ard tried may, at his own request, be examired as a witness by the Government. Wolfson r. U. S. (1900), 101 Fed. 430, 41 C. C. A. 422; writ of certiorari denied (1901), 21 Sup. Ct. 919, 180 U. S. 637, 47 L. Ed. 710; Id. (1900), 102 Fed. 134, 41 C. C. A. 422; writ of certiorari denied (1901). 21 Sup. Ct. 919, 180 U. S. 637, 47 L. Ed. 710.

defendants who had pleaded guilty were tmpetent to testify for the Government against their codefendants in the indictment. Ryan T. U. S. (C. C. A. 1914), 216 Fed. 13.

The laws of the United States permit a person charged with crime or misdemeanor to be a witness in his own behalf, and such weight is to be given to his testimony as, urder all the circumstances, it is fairly entitled to U. S. v. Houghton (D. C. 1882), 14 Fed. 544.

Comment on failure to testify.-The fact that the accused declines to testify on his own b-baif an not be commented on by the public prosecutor in his remarks to the Jury. U. S. v. Snyder (C. C. 1882), 14 Fed. 154; Wilson r. U. S. (1893). 13 Sup. Ct. 763, 766, 149 U. S. 60, 37 L. Ed. 650; Stout #. I 8 (C. C. A. 1915), 227 Fed. 799; U. S. #. Ogden (D. C. 1900), 105 Fed. 371.

it is prejudicial error for the court or counsel to call to the attention of the jury, it a criminal case, in any manner, the right

the defendant, under the statute, to testify in his own behalf; and such an error an only be cured. if at all, by a clear and enphatic statement by the court that the Jery are not permitted to attach any importance to the failure of the defendant to testify. Such comment is not rendered harmless by the fact that the defendant does afterwards testify, since it virtually

Act of

compels him to do so to avoid unfavorable inferences by the jury. McKnight . U. S. (1902), 115 Fed. 972, 54 C. C. A. 358. See U. S. v. Breese (D. C. 1904), 131 Fed. 915, 927; reversed (1906), 143 Fed. 250, 74 C. C. A. 388. Nor can it be commented on by the court. Stout v. U. S. (C. C. A. 1915), 227 Fed. 799; U. S. v. Ogden (D. C. 1900), 105 Fed. 371. But, where accused has waived the privilege accorded him by testifying in his own behalf, his failure to testify concerning certain matters may be commented on by counsel. Diggs v. U. S. (C. C. A. 1915), 220 Fed. 545. And may be considered by the jury. Diggs v. U. S. (C. C. A. 1915), 220 Fed. 545.

The exception to the court's action or want of action on objection to reference by counsel for the prosecution to the failure of accused to take the stand is the proper method of objection, and such an exception when properly presented can be considered on writ of error. Wilson v. U. S. (1893), 13 Sup. Ct. 765, 766, 767, 149 U. S. 60, 37 L. Ed. 650.

That the district attorney may not refer in argument to failure of accused to testify did not prevent argument that the Government had made out a prima facie case, which had not been contradicted. Carlisle v. U. S. (1912), 194 Fed. 827, 114 C. C. A. 531.

Accused, being tried on two indictments and having testified only as to a fact involved in one, did not waive his right to object to argument of counsel as to his failure to testify fully. Myrick . U. S.

(1915). 219 Fed. 1, 134 C. C. A. 619.

Witness compelled to testify.-A particeps criminis, where the statute of limitations bas run in his favor, may be compelled to testify against the defendant. I'. S. v. Smith (C. C. 1809), Fed. Cas. No. 16,332.

Presumption.-Where, in a prosecution for using the mails with intent to defraud, defendant became a witness in his own behalf, as authorized by this section, an instruction that, defendant having gone on the stand, if he had not fully explained or had not explained matters material to the issues which were naturally within his knowledge, the jury might consider such failure as a circumstance tending to show

that the facts, if explained world bear out the contention of the Government, and his failure to explain them, or give a truthful explanation, was against him, was erronous as misleading, and as placing an undue burden of proof on defendant. Balliet v. U. S. (1904), 129 Fed. 689, 64 C. C. A. 201. Waiver of privilege.-Where accused testifies in his own behalf, his waiver of his privilege is complete. Diggs v. U. S. (C. C. A. 1915), 220 Fed. 545.

Cross-examination and impeachment.Where a defendant in a criminal case becomes a witness for himself, his credibility may be impeached. U. S. v. Brown (D. C. 1889), 40 Fed. 457. P waives his constitutional privilege by taking the witness stand, occupies the attitude of any other witness, and may be cross-examined like an ordinary witness and to the same extent. Balliet v. U. S. (1904), 129 Fed. 689, 64 C. C. A. 201.

Construction of provision.-The office of the writ of habeas corpus is confined to an inquiry as to the cause of commitment, and if it is ascertained that the party invoking it is held under a process of a court or tribunal having jurisdiction of his person and the subject-matter of the charge the writ must be dismissed. Ex parte Jim Hong (1914), 211 Fed. 73, 127 C. C. A. 369.

Ex

The writ will be issued in the territorial jurisdiction of the courts, or the judges thereof, to relieve a person, who is in custody in violation of the Constitution. parte Kenyon (C. C. 1878), Fed. Cas. No. 7,720; Ex parte Farley (C. C. 1889), 40 Fed. 66.

The writ of habeas corpus provided for in the United States statutes is the high prerogative writ of right granted upon the application of a person illegally imprisoned or in any way restrained of his liberty. U. S. v. Harden (D. C. 1881), 10 Fed. 802, 808.

Proceedings on habeas corpus in the Federal courts are not governed by State legislation, but must conform to commonlaw rules. In re Morris (C. C. 1889), 40 Fel. 824.

The special grant of power to issue writs of habeas corpus is contained in this chapter, and it is necessary for a correct analy sis thereof to consider the several sections separately, and also to treat the chapter in its entirety as one law. This section provides that the Supreme Court, circuit courts, and district courts, and the justices and judges of said courts within their respective jurisdictions, shall have power to issue writs of habeas corpus for the pur

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pose of inquiry into the cause of restraint of liberty. Section 404, post, provides for summary hearing and authorizes the court or justice or judge to dispose of the party as law and justice require. These sections seem to contain the entire grant of power, but they do not contain any clause or sentence indicating limitations of the power. Clifford v. Williams (C. C. 1904), 131 Fed. 100, 102; State v. Sullivan (C. C. 1892), 50 Fed. 593.

To ascertain the nature of the writ which the courts and judges are authorized to issue, reference must be n.ade to the common law. In re Keeler (D. C. 1843), Fed. Cas. No. 7,637.

The right to a writ of habeas corpus is the right to have the lawfulness of the restraint to which the petitioner is subjected inquired into by the courts, to be adjudged and determined by the law of the land. In re Jung Ah Lung (D. C. 1885), 25 Fed. 141, 143.

The Federal district court, or the judge thereof, has jurisdiction to issue the writ and hear the case when petitioner is held under illegal restraint, without any formal or technical commitment. In re McDonald (D. C. 1861), Fed. Cas. No. 8,751.

The several acts of Congress relative to the jurisdiction of the courts of the United States to issue writs of habeas corpus do not declare that the jurisdiction of those courts shall be exclusive of the jurisdiction of the State courts, even in cases provided for by Federal law. (1867) 12 Op. Atty. Gen. 259.

Power of Federal courts in general.-Resort may be had to the common law for the

meaning of the term habeas corpus, but the power of the Federal courts to grant the weit must be given by statute. Ex parte Teman (1807), 4 Cranch. 75, 2 L. Ed. 34

The circuit courts (whose powers have tow been transferred to the district courts), as well as the judges thereof, may issue writs if kale as corpus to inquire into the cause of mitment, and they have jurisdiction, 1 vt in cases where the privilege of the writ is suspended, to hear and determine 1 question whether the party is entitied be discharged. Ex parte Milligan (1866), 4 Wa 1. 2, 110, 18 L. Ed. 281.

The broad language of this section is tended by the general condition that the thority must be exercised agreeably to " prinoples and usages of law. Ex parte Ryall (1886), 6 Sup. Ct. 734, 737, 117 TS. 241, 29 L. Ed. 868.

The right under this section and the two flow.ng sections to apply for a writ of

corpus is an ample protection 1st the danger of unlawful oppression from the courts or authority of a State. Vrzlar. Paul (1893), 13 Sup. Ct. 536, 144 rs 107, 37 L. Ed. 386. Where an ernary writ of habeas corpus is issued by ■ district judge on the ground that the prisster is in custody for an act done in pursu

of a law of the United States, the stion whether good cause was shown for bedscharge is for the judicial determinatom of the judge, in the exercise of the 2-letion vested in him by this section A the two following sections. Id.

The Federal courts can not issue the writ, tris • it is necessary in aid of jurisdiction

to a cas or proceding pending therein. Ti parte Everts (C. C. 1858), Fed. Cas. No 4.381.

In

A Federal court has Jurisdiction to issue writ of certiorari as ancillary to a writ was corpus, and to render their juris***n under the latter writ effective. * Vertin (C C 1866), Fed. Cas. No. 9.151. The Jurisdiction of Federal courts in Assas corpus cases is derived from this secr and not from sections conferring gen• jurisdiction. Rosenbaum v. Board of 1 (C. C. 1886), 28 Fed. 223, 225; ****d (18871, 7 Sup. Ct. 633, 120 U. S. 4% 30 L Ed 743. This grant of authority ***be writs of habeas corpus includes *** 1 *p*}** of the writ. State v. Sullivan 1×92), 50 Fed. 593.

The capacity of the proper courts of the United States to take jurisdiction in habeas corpus of persons enlisted in the Navy does not, before its actual exercise, oust the jurisdiction of a State court. (1867) 12 Op. Atty. Gen. 259.

Proceedings by certiorari in a State court for the revw of a decision on a habeas corpus in said court do not prevent a United States court from proceeding on a habeas corpus subsequently issued from the latter court in behalf of the same prisoner. In re Leary (N. Y. 1857), 6 Abb. N. C. 43.

Power of Supreme Court.-The Supreme Court has authority to issue the writ of habeas corpus ad subjiciendum, such writ being for the purpose of revising a decision that the party should be imprisoned. Ex parte Bollman (1807), 8 U. S. (4 Cranch.) 75, 2 L. Ed. 554; Ex parte Watkins (1833), 32 U. S. (7 Pet.) 568, 8 L. Ed. 786; Ex parte Milburn (1835), 34 U. S. (9 Pet:) 704. 9 L. Ed. 280; Ex parte Clarke (1879), 100 U. S. 399, 25 L. Ed. 715.

The Supreme Court has no appellate jurisdiction in criminal cases; and it can not revise the judgments of the circuit courts, by writ of error or habeas corpus, in any case where a party has been convicted of a public offense. Ex parte Kearney (1822), 20 U. S. (7 Wheat.) 38, 5 L Ed. 391. The power to do so is conferred by this section. Ex parte Watkins (1830), 3 Pet. 193, 201, 7 L. Ed. 650.

The original jurisdiction of the Supreme Court of the United States does not extend to the case of a petition by a private individual for a habeas corpus to bring up the body of his infant daughter, alleged to be unlawfully detained from him. Ex parte Barry (U. S. 1844), 43 U. S. (2 How.) 65, 11 L. Ed. 181.

Where a district judge at his chambers decided that there was sufficient cause for surrender of a person claimed by the French Government, and committed him to custody to await the order of the President of the United States, the Supreme Court has no jurisdiction to issue a habeas corpus to review that decision. In re Metzger (1847), 5 How. 176, 12 L. Ed. 104.

The Supreme Court of the United States has no jurisdiction of a writ of habeas corpus, under the seal of the circuit court, issued and tested by an associate judge of the Supreme Court, returnable before him at chambers, and adjourned by him into the Supreme Court in banc. In re Kaine (1852), 55 U. S. (14 How.) 103, 14 L. Ed. 345.

It seems that the Supreme Court of the United States has power to issue a writ of habeas corpus to discharge a person committed by a commissioner of the circuit court of the United States, as a fugitive