U.S. Supreme Court


March 3, 1884

[110 U.S. 516, 517] The constitution of the state of California adopted in 1879, in article 1, 8, provides as follows: 'Offenses heretofore required to be prosecuted by indictment, shall be prosecuted by information, after examination and commitment by a magistrate, or by indictment, with or without such examination and commitment, as may be prescribed by law. A grand jury shall be drawn and summoned at least once a year in each county.' Various provisions of the Penal Code regulate proceedings before the examining and committing magistrate in cases of persons arrested and brought before them upon charges of having committed public offenses. These require, among other things, that the testimony of the witnesses shall be reduced to writing in the form of depositions; and section 872 declares that if it appears from the examination that a public offense has been committed, and there is sufficient cause to believe the defendant guilty thereof, the magistrate must indorse on the depositions an order, signed by him, to that effect, describing the general nature of the offense committed, and ordering that the defendant be held to answer thereto. Section 809 of the Penal Code is as follows: 'When a defendant has been examined and committed, as provided in section 872 of this Code, it shall be the duty of the district attorney, within thirty days thereafter, to file in the superior court of the county in which the offense is triable, an information charging the defendant with such offense. The information shall [110 U.S. 516, 518] be in the name of the people of the state of California, and subscribed by the district attorney, and shall be in form like an indictment for the same offense.'

In pursuance of the foregoing provision of the constitution, and of the several sections of the Penal Code of California, the district attorney of Sacramento county, on the twentieth day of February, 1882, made and filed an information against the plaintiff in error, charging him with the crime of murder in the killing of one Jose Antonio Stuardo. Upon this information, and without any previous investigation of the cause by any grand jury, the plaintiff in error was arraigned on the twenty-second day of March, 1882, and pleaded not guilty. A trial of the issue was thereafter had, and on May 7, 1882, the jury rendered its verdict, in which it found the plaintiff in error guilty of murder in the first degree. On the fifth day of June, 1882, the superior court of Sacramento county, in which the plaintiff in error had been tried, rendered its judgment upon said verdict, that the said Joseph Hurtado, plaintiff in error, be punished by the infliction of death, and the day of his execution was fixed for the twentieth day of July, 1882. From this judgment an appeal was taken, and the supreme court of the State of California affirmed the judgment. On the sixth day of July, 1883, the superior court of said county of Sacramento ordered that the plaintiff in error be in court on the eleventh day of July, 1883, in order that a day for the execution of the judgment in said cause should be fixed. In pursuance of said order, plaintiff in error, with his counsel, appeared at the bar of the court, and thereupon the judge asked him if he had any legal reason to urge why said judgment should not be executed, and why an order should not then be made fixing the day for the execution of the same. Thereupon the plaintiff in error, by his counsel, objected to the execution of said judgment, and to any order which the court might make fixing a day for the execution of the same, upon the grounds (7) that it appeared upon the face of the judgment that the [110 U.S. 516, 519] plaintiff in error had never been legally, or otherwise, indicted or presented by any grand jury, and that he was proceeded against by information made and filed by the district attorney of the county of Sacramento, after examination and commitment by a magistrate of the said county; (8) that the said proceedings, as well as the laws and constitution of California, attempting to authorize them, and the alleged verdict of the jury, and judgment of the said superior court of said county of Sacramento, were in conflict with and prohibited by the fifth and fourteenth articles of amendment of the constitution of the United States, and that they were therefore void; (9) that the said plaintiff in error had been held to answer for the said crime of murder by the district attorney of the said county of Sacramento, upon an information filed by him, and had been tried and illegally found guilty of the said crime, without any presentment or indictment of any grand or other jury, and that the judgment rendered upon the alleged verdict of the jury in such case was and is void, and if executed would deprive the plaintiff in error of his life or liberty without due process of law. Thereupon the court overruled the said objections, and fixed the thirtieth day of August, 1883, as the time for the execution of the sentence. From this latter judgment the plaintiff in error appealed to the supreme court of the state. On the eighteenth day of September, 1883, the supreme court of the state affirmed the said judgment, to review which the present writ of error was allowed and has been prosecuted.

A. L. Hart, for plaintiff in error.

John T. Carey, for defendant in error.


It is claimed on behalf of the prisoner that the conviction and sentence are void, on the ground that they are repugnant to that clause of the fourteenth article of amendment to the constitution of the United States, which is in these words: [110 U.S. 516, 520] 'Nor shall any state deprive any person of life, liberty, or property without due process of law.' The proposition of law we are asked to affirm is that an indictment or presentment by a grand jury, as known to the common law of England, is essential to that 'due process of law,' when applied to prosecutions for felonies, which is secured and guarantied by this provision of the constitution of the United States, and which accordingly it is forbidden to the states, respectively, to dispense with in the administration of criminal law. The question is one of grave and serious import, affecting both private and public rights and interests of great magnitude, and involves a consideration of what additional restrictions upon the legislative policy of the states has been imposed by the fourteenth amendment to the constitution of the United States. The supreme court of California, in the judgment now under review, followed its own previous decision in Kalloch v. Super. Ct. 56 Cal. 229, in which the question was deliberately adjudged. Its conclusion was there stated as follows: 'This proceeding, as [it] is regulated by the constitution and laws of this state, is not opposed to any of the definitions given of the phrases 'due process of law' and 'the law of the land;' but, on the contrary, it is a proceeding strictly within such definitions, as much so in every respect as is a proceeding by indictment. It may be questioned whether the proceeding by indictment secures to the accused any superior rights and privileges; but certainly a prosecution by information takes from him no immunity or protection to which he is entitled under the law.' And the opinion cites and relies upon a decision of the supreme court of Wisconsin in the case of Rowan v. State, 30 Wis. 129. In that case the court, speaking of the fourteenth amendment, says: 'But its design was not to confine the states to a particular mode of procedure in judicial proceedings, and prohibit them from [110 U.S. 516, 521] prosecuting for felonies by information instead of by indictment, if they chose to abolish the grand jury system. And the words 'due process of law' in the amendment do not mean and have not the effect to limit the powers of state governments to prosecutions for crime by indictment; but these words do mean law in its regular course of administration, according to prescribed forms, and in accordance with the general rules for the protection of individual rights. Administration and remedial proceedings must change, from time to time, with the advancement of legal science and the progress of society; and, if the people of the state find it wise and expedient to abolish the grand jury and prosecute all crimes by information, there is nothing in our state constitution and nothing in the fourteenth amendment to the constitution of the United States which prevents them from doing so.'

On the other hand, it is maintained on behalf of the plaintiff in error that the phrase 'due process of law' is equivalent to 'law of the land,' as found in the twenty-ninth chapter of Magna Charta; that by immemorial usage it has acquired a fixed, definite, and technical meaning; that it refers to and includes, not only the general principles of public liberty and private right, which lie at the foundation of all free government, but the very institutions which, venerable by time and custom, have been tried by experience and found fit and necessary for the preservation of those principles, and which, having been the birthright and inheritance of every English subject, crossed the Atlantic with the colonists and were transplanted and established in the fundamental laws of the state; that, having been originally introduced into the constitution of the United States as a limitation upon the powers of the government, brought into being by that instrument, it has now been added as an additional security to the individual against oppression by the states themselves; that one of these institutions is that of the grand jury, an indictment or presentment by which against the accused in cases of alleged felonies is an essential part of due process of law, in order that he may not be harassed and destroyed by prosecutions founded only upon private malice or popular fury. This view is certainly supported by the authority of the [110 U.S. 516, 522] great name of Chief Justice SHAW and of the court in which he presided, which, in Jones v. Robbins, 8 Gray, 329, decided that the twelfth article of the bill of rights of Massachusetts, a transcript of Magna Charta in this respect, made an indictment or presentment of a grand jury essential to the validity of a conviction in cases of prosecutions for felonies. In delivering the opinion of the court in that case, MERRICK, J., alone dissenting, the chief justice said: 'The right of individual citizens to be secure from an open and public accusation of crime, and from the trouble, expense, and anxiety of a public trial before a probable cause is established by the presentment and indictment of a grand jury, in case of high offenses, is justly regarded as one of thesecurities to the innocent against hasty, malicious, and oppressive public prosecutions, and as one of the ancient immunities and privileges of English liberty. ... It having been stated,' he continued, 'by Lord COKE, that by the 'law of the land' was intended a due course of proceeding according to the established rules and practice of the courts of common law, it may, perhaps, be suggested that this might include other modes of proceeding, sanctioned by the common law, the most familiar of which are, by informations of various kinds, by the officers of the crown, in the name of the king. But, in reply to this, it may be said that Lord COKE himself explains his own meaning by saying by 'the law of the land.' as expressed in Magna Charta, was intended due process of law; that is, by indictment or presentment of good and lawful men. And further, it is stated. On the authority of Blackstone, that informations of every kind are confined by the constitutional law to misdemeanors only. 4 Bl. Comm. 310.' Referring again to the passage from Lord COKE, he says, page 343: 'This may not be conclusive, but, being a construction adopted by a writer of high authority before the emigration of our ancestors, it has a tendency to show how it was then understood.'

This passage from COKE seems to be the chief foundation of the opinion for which it is cited; but a critical examination and [110 U.S. 516, 523] comparison of the text and context will show that it has been misunderstood; that it was not intended to assert that an indictment or presentment of a grand jury was essential to the idea of due process of law in the prosecution and punishment of crimes, but was only mentioned as an example and illustration of due process of law as it actually existed in cases in which it was customarily used. In beginning his commentary on this chapter of Magna Charta, (2 Inst. 46,) COKE says: 'This chapter containeth nine several branches: (1) That no man may be taken or imprisoned but per legem terroe, – that is, by the common law, statute law, of custom of England; for the words per legem terroe, being towards the end of this chapter, doe referre to all the precedent matters in this chapter, etc. (2) No man shall be disseized, etc., unless it be by the lawful judgment, that is. verdict, of his equals, (that is, of men of his own condition,) or by the law of the land, (that is, to speak it once for all,) by the due course and process of law.' He then proceeds to state that (3) no man shall be outlawed, unless according to the law of the land ; (4) no man shall be exiled, unless according to the law of the land; (5) no man shall be in any sort destroyed, 'unless it be by the verdict of his equals, or according to the law of the land;' (6) 'no man shall be condemned at the king's suite, either before the king in his bench, where the pleas are coram rege, (and so are the words nec super eum ibimus to be understood,) nor before any other commissioner or judge whatsoever, and so are the words nec super eum mittemus to be understood, but by the judgment of his peers, that is, equals, or according to the law of the land.'

Recurring to the first clause of the chapter, he continues: '(1) No man shall be taken (that is) restrained of liberty by petition or suggestion to the king, or to his council, unless it be by indictment or presentment of good and lawful men, where such deeds be done. This branch and divers other parts of this act have been notably explained by divers acts of parliament, etc., quoted in the margent.' The reference is to various acts during the reign of Edward [110 U.S. 516, 524] III. And reaching again the words 'nisi per legem terroe,' he continues: 'But by the law of the land. For the true sense and exposition of these words see the statute of 37 E. 3, cap. 8, where the words, 'by the law of the land' are rendered, without due proces of law, for there it is said, though it be contained in the great charter, that no man be taken, imprisoned, or put out of his freehold without proces of the law; that is by indictment of good and lawfull men, where such deeds be done in due manner, or by writ originall of the common law. Without being brought in to answere swere but by due proces of the common law. No man be put to answer without presentment before justices, or thing of record, or by due proces, or by writ originall, according to the old law of the land. Wherein it is to be observed that this chapter is but declaratory of the old law of England.'

It is quite apparent from these extracts that the interpretation usually put upon Lord COKE's statement is too large, because if an indictment or presentment by a grand jury is essential to due process of law in all cases of imprisonment for crime, it applies not only to felonies, but to misdemeanors and petty offenses, and the conclusion would be inevitable that informations as a substitute for indictments would be illegal in all cases. It was indeed so argued by Sir FRANCIS WINNINGTON in Prynn's Case, 5 Mod. 457, from this very language of Magna Charta, that all suits of the king must be by presentment or indictment, and he cited Lord COKE as authority to that effect. He attempted to show that informations had their origin in the act of 11 Hen. VII. c. 3, enacted in 1494, known as the infamous Empson and Dudley act, which was repealed by that of 1 Hen. VIII. c. 6, in 1509. But the argument was overruled, Lord HOLT saying that to hold otherwise 'would be a reflection on the whole bar.' Sir BARTHOLOMEW SHOWER, who was prevented from arguing in support of the information, prints his intended argument in his report of the case under the name of The King v. Berchet, 1 Show. 106, in which, with great thoroughness, he arrays all the learning of the time on the subject. He undertakes to 'evince that this method of prosecution is noways [110 U.S. 516, 525] contrariant to any fundamental rule of law, but agreeable to it.' He answers the objection that it is inconvenient and vexatious to the subject by saying, (page 117:) 'Here is no inconvenience to the people. Here is a trial per pais, fair notice, liberty of pleading dilatories as well as bars. Here is subpoena and attachment, as much time for defense, charge, etc., for the prosecutor makes up the record, etc.; then, in case of malicious prosecution, the person who prosecutes is known by the note to the coroner, according to the practice of the court.' He answers the argument drawn from Magna Charta, and says 'that this method of prosecution no way contradicts that law, for we say this is per legem terroe et per communem legem terroe; for otherwise there never had been so universal a practice of it in all ages.' And referring to COKE's comment, that 'no man shall be taken,' i. e., restrained of liberty, by petition or suggestion to the king or his council unless it be by indictment or presentment, he says, (page 122:) 'By petition or suggestion can never be meant of the king's bench, for he himself had preferred several here; that is meant only of the king alone, or in council, or in the star chamber. In the king's bench the information is not a suggestion to the king but to the court upon record;' and he quotes 3 Inst. 136, where Coke modifies the statement by saying, 'The king cannot put any to answer, but his court must be apprized of the crime by indictment, presentment, or other matter of record,' which, Shower says, includes an information. So it has been recently held that upon a coroner's inquisition taken concerning the death of a man, and a verdict of guilty of murder or manslaughter is returned, the offender may be prosecuted and tried without the intervention of a grand jury. Reg. v. Ingham, 5 Best & S. 257. And it was said by BULLER, J., in* [110 U.S. 516, 526] Rex v. Jolliffe, 4 Term R. 285-293, that if to an action for slander in charging the plaintiff with felony a justification is pleaded which is found by the jury, that of itself amounts to an indictment, as if it had been found by the grand jury, and is sufficient to put the party thus accused on his trial.

The language of Lord COKE applies only to forfeitures of life and liberty at the suit of the king, and hence appeals of murder, which were prosecutions by private persons, were never regarded as contrary to Magna Charta. On the contrary, the appeal of death was by Lord HOLT 'esteemed a noble remedy, and a badge of the rights and liberties of an Englishman.' Rex v. Toler, 1 Ld. Raym. 557; 12 Mod. 375; Holt, 483. We are told that in the early part of the last century, in England, persons who had been acquitted on indictments for murder were often tried, convicted, and executed on appeals. Kendall, Trial by Battel, (3d Ed.) 44-47. An appeal of murder was brought in England as lately as 1817, but defeated by the appellant's declining to accept the wager of battel. Ashford v. Thornton, 1 Barn Ald. 405. The English statutes concerning appeals of murder were in force in the provinces of Pennsylvania and Maryland. Report of Judges, 6 Bin. 599-604; Kitty, Md. St. 141, 143, 158. It is said that no such appeal was ever brought in Pennsylvania; but in Maryland, in 1765, a negro was convicted and executed upon such an appeal. Soaper v. Tom, 1 Har. & McH. 227. See note to Paxton's Case, Quincy, (Mass.) 53, by Mr. Justice GRAY.

This view of the meaning of Lord COKE is the one taken by MERRICK, J., in his dissenting opinion in Jones Robbins, supra, who states his conclusions in these words: 'It is the forensic trial, under a broad and general law, operating equally upon every member of our community, which the words 'by the law of the land,' in Magna Charta, and in every subsequent declaration of rights which has borrowed its phraseology, make essential to the safety of the citizen, securing thereby both his liberty and his property, by preventing the unlawful arrest of his person, or any unlawful interference with his estate.' See, also, state v. Starling, 15 Rich. (S. C.) Law, 120. [110 U.S. 516, 527] Mr. Reeve, in 2 Hist. Eng. Law, 43, translates the phrase, nisi per legale judicium parium suorum vel per legem terroe, 'but by the judgment of his peers, or by some other legal process or proceeding adapted by law to the nature of the case.' Chancellor KENT, (2 Comm. 13,) adopts this mode of construing the phrase. Quoting the language of Magna Charta, and referring to Lord COKE's comment upon it, he says: 'The better and larger definition of due process of law is that it means law in its regular course of administration through courts of justice.' This accords with what is said in Westervelt v. Gregg, 12 N. Y. 202, by DENIO, J., p. 212: 'The provision was designed to protect the citizen against all mere acts of power, whether flowing from the legislative or executive branches of the government.' The principle and true meaning of the phrase have never been more tersely or accurately stated than by Mr. Justice JOHNSON in Bank of Columbia v. Okely, 4 Wheat. 235-244: 'As to the words from Magna Charta, incorporated into the constitution of Maryland, after volumes spoken and written with a view to their exposition, the good sense of mankind has at last settled down to this: that they were intended to secure the individual from the arbitrary exercise of the powers of government, unrestrained by the established principles of private right and distributive justice.' And the conclusion rightly deduced is as stated by Mr. Cooley, (Const. Lim. 356:) 'The principles, then, upon which the process is based, are to determine whether it is 'due process' or not, and not any considerations of mere form. Administrative and remedial process may [110 U.S. 516, 528] be changed from time to time, but only with due regard to the landmarks established for the protection of the citizen.'

It is urged upon us, however, in argument, that the claim made in behalf of the plaintiff in error is supported by the decision of this court in Murray's Lessee v. Hoboken Land & Imp. Co. 18 How. 272. There, Mr. Justice CURTIS, delivering the opinion of the court, after showing (page 276) that due process of law must mean something more then the actual existing law of the land, for otherwise it would be no restraint upon legislative power, proceeds as follows: 'To what principle, 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 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.' This, it is argued, furnishes an indispensable test of what constitutes 'due process of law;' that any proceeding otherwise authorized by law, which is not thus sanctioned by usage, or which supersedes and displaces one that is, cannot be regarded as due process of law. But this inference is unwarranted. The real syllabus of the passage quoted is that a process of law, which is not otherwise forbidden, must be taken to be due process of law, if it can show the sanction of settled usage both in England and in this country; but it by no means follows, that nothing else can be due process of law. The point in the case cited arose in reference to a summary proceeding, questioned on that account as not due process of law. The answer was, however exceptional it may be, as tested by definitions and principles of ordinary procedure, nevertheless, this, in substance, has been immemorially the actual law of the land, and, therefore, is due process of law. [110 U.S. 516, 529] But to hold that such a characteristic is essential to due process of law, would be to deny every quality of the law but its age, and to render it incapable of progress or improvement. It would be to stamp upon our jurisprudence the unchangeableness attributed to the laws of the Medes and Persians.

This would be all the more singular and surprising, in this quick and active age, when we consider that, owing to the progressive development of legal ideas and institutions in England, the words of Magna Charta stood for very different things at the time of the separation of the American colonies from what they represented originally. For at first the words nisi per legale judicium parium had no reference to a jury; they applied only to the pares regni, who were the constitutional judges in the court of exchequer and coram rege. Bac. Abr. 'Juries,' (7th Ed. Lond.) note; 2 Reeves, Hist. Eng. Law, 41. And as to the grand jury itself, we learn of its constitution and functions from the assize of Clarendon, (A. D. 1164,) and that of Northampton, (A. D. 1176;) Stubbs, Chart. 143-150. By the latter of these, which was a republication of the former, it was provided that 'if any one is accused before the justices of our lord the king of murder or theft or robbery, or of harboring persons committing those crimes, or of forgery or arson, by the oath of 12 knights of the hundred, or, if there are no knights, by the oath of 12 free and lawful men, and by the oath of four men from each township of the hundred, let him go to the ordeal of water, and, if he fails, let him lose one foot. And at Northampton it was added, for greater strictness of justice, (pro rigore justitioe,) that he shall lose his right hand at the same time with his foot, and adjure the realm and exile himself from the realm within 40 days. And, if he is acquitted by the ordeal, let him find pledges and remain in the kingdom, unless he is accused of murder or other base felony by the body of the country and the lawful knights of the country; but, if he is so accused as aforesaid, although he is acquitted by the ordeal of water, nevertheless he must leave the kingdom in 40 days, and take his chattels with him, subject to the rights of his lords, and he must adjure the kingdom at the mercy of our lord the king.' [110 U.S. 516, 530] 'The system thus established,' says Mr. Justice STEPHENS, (1 Hist. Crim. Law Eng. 252,) 'is simple. The body of the country are the accusers. Their accusation is practically equivalent to a conviction, subject to the chance of a favorable termination of the ordeal by water. If the ordeal fails, the accused person loses his foot and his hand. If it succeeds, he is, nevertheless, to be banished. Accusation, therefore, was equivalent to banishment, at least.' When we add to this that the primitive grand jury heard no witnesses in support of the truth of the charges to be preferred, but presented upon their own knowledge, or indicted upon common fame and general suspicion, we shall be ready to acknowledge that it is better not to go too far back into antiquity for the best securities for our 'ancient liberties.' It is more consonant to the true philosophy of our historical legal institutions to say that the spirit of personal liberty and individual right, which they embodied, was preserved and developed by a progressive growth and wise adaptation to new circumstances and situations of the forms and processes found fit to give, from time to time, new expression and greater effect to modern ideas of self-government.

This flexibility and capacity for growth and adaptation is the peculiar boast and excellence of the common law. Sir JAMES MACKINTOSH ascribes this principle of development to Magna Charta itself. To use his own language: 'It was a peculiar advantage that the consequences of its principles were, if we may so speak, only discovered slowly and gradually. It gave out on each occasion only so much of the spirit of liberty and reformation as the circumstances of succeeding generations required, and as their character would safely bear; for almost five centuries it was appealed to as the decisive authority on behalf of the people, though commonly so far only as the necessities of each case demanded.' 1 Hist. Eng. 221.

The constitution of the United States was ordained, it is true, by descendants of Englishmen, who inherited the traditions of the English law and history; but it was made for an [110 U.S. 516, 531] undefined and expanding future, and for a people gathered, and to be gathered, from many nations and of many tongues; and while we take just pride in the principles and institutions of the common law, we are not to forget that in lands where other systems of jurisprudence prevail, the ideas and processes of civil justice are also not unknown. Due process of law, in spite of the absolutism of continental governments, is not alien to that Code which survived the Roman empire as the foundation of modern civilization in Europe, and which has given us that fundamental maxim of distributive justice, suum cuique tribuere. There is nothing in Magna Charta, rightly construed as a broad charter of public right and law, which ought to exclude the best ideas of all systems and of every age; and as it was the characteristic principle of the common law to draw its inspiration from every fountain of justice, we are not to assume that the sources of its supply have been exhausted. On the contrary, we should expect that the new and various experiences of our own situation and system will mould and shape it into new and not useful forms.

The concessions of Magna Charta were wrung from the king as guaranties against the oppressions and usurpations of his prerogative. It did not enter into the minds of the barons to provide security against their own body or in favor of the commons by limiting the power of parliament; so that bills of attainder, ex post facto laws, laws declaring forfeitures of estates, and other arbitrary acts of legislation which occur so frequently in English history, were never regarded as inconsistent with the law of the land; for notwithstanding what was attributed to Lord COKE in Bonham's Case, 8 Reporter, 115, 118a, the omnipotence of parliament over the common law was absolute, even against common right and reason. The actual and practical security for English liberty against legislative tyranny was the power of a free public opinion represented by the commons. In this country written constitutions were deemed essential to protect the rights and liberties of the people against the encroachments of power delegated to their governments, and the provisions of Magna Charta were incorporated into bills of [110 U.S. 516, 532] rights, They were limitations upon all the powers of government, legislative as well as executive and judicial. It necessarily happened, therefore, that as these broad and general maxims of liberty and justice hald in our system a different place and performed a different function from their position and office in English constitutional history and law, they would receive and justify a corresponding and more comprehensive interpretation. Applied in England only as guards against executive usurpation and tyranny, here they have become bulwarks also against arbitrary legislation; but in that application, as it would be incongruous to measure and restrict them by the ancient customary English law, they must be held to guaranty, not particular forms of procedure, but the very substance of individual rights to life, liberty, and property. Restraints that could be fastened upon executive authority with precision and detail, might prove obstructive and injurious when imposed on the just and necessary discretion of legislative power; and while, in every instance, laws that violated express and specific injunctions and prohibitions might without embarrassment be judicially declared to be void, yet any general principle or maxim founded on the essential nature of law, as a just and reasonable expression of the public will, and of government as instituted by popular consent and for the general good, can only be applied to cases coming clearly within the scope of its spirit and purpose, and not to legislative provisions merely establishing forms and modes of attainment. Such regulations, to adopt a sentence of Burke's 'may alter the mode and application, but have no power over the substance of original justice.' Tract on Popery Laws, 6 Burke's Works, (Ed. Little & Brown,) 323.

Such is the often repeated doctrine of this court. In Munn v. Illinois, 94 U.S. 113-134, the chief justice, delivering the opinion of the court, said: 'A person has no property, no vested interest, in any rule of the common law. That is only one of the forms of municipal law, and is no more sacred than any other. Rights of property which have been created by the common law cannot be taken [110 U.S. 516, 533] away without due process; but the law itself, as a rule of conduct, may be changed at the will or even at the whim of the legislature, unless prevented by constitutional limitations. Indeed, the great office of statutes is to remedy defects in the common law as they are developed, and to adapt it to the changes of time and circumstances.' And in Walker v. Sauvinet, 92 U.S. 90 , the court said: 'A trial by jury in suits at common law pending in state courts is not, therefore, a privilege or immunity of national citizenship which the states are forbidden by the fourteenth amendment to abridge. A state cannot deprive a person of his property without due process of law; but this does not necessarily imply that all trials in the state courts affecting the property of persons must be by jury. This requirement of the constitution is met if the trial is had according to the settled course of judicial proceedings. Due process of law is process according to the law of the land. This process in the states is regulated by the law of the state.' In Kennard v. Louisiana ex rel. 92 U.S. 480 , the question was whether a mode of trying the title to an office, in which was no provision for a jury, was due process of law. Its validity was affirmed. The chief justice, after reciting the various steps in the proceeding, said: 'From this it appears that ample provision has been made for the trial of the contestation before a court of competent jurisdiction; for bringing the party against whom the proceeding is had before the court and notifying him of the case he is required to meet; for giving him an opportunity to be heard in his defense; for the deliberation and judgment of the court; for an appeal from this judgment to the highest court of the state, and for hearing and judgment there. A mere statement of the facts carries with it a complete answer to all the constitutional objections urged against the validity of the act.' And Mr. Justice MILLER, in Davidson v. New Orleans, 96 U.S. 97-105, after showing the difficulty, if not the impossibility, of framing a definition of this constitutional phrase which [110 U.S. 516, 534] should be 'at once perspicuous, comprehensive, and satisfactory,' and thence deducing the wisdom '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,' says, however, that 'it is not possible to hold that a party has, without due process of law, been deprived of his property, when, as regards the issues affecting it, he has by the laws of the state fair trial in a court of justice, according to the modes of proceeding applicable to such a case.' See, also, Missouri v. Lewis, 101 U.S. 22-31; Ex parte Wall, 107 U.S. 288-290; [2 SUP. CT. REP. 569.]

We are to construe this phrase in the fourteenth amendment by the usus loquendi of the constitution itself. The same words are contained in the fifth amendment. That article makes specific and express provision for perpetuating the institution of the grand jury, so far as relates to prosecutions for the more aggravated crimes under the laws of the United States. It declares that '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 any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall he be compelled in any criminal case to be a witness against himself.' It then immediately adds: 'nor be deprived of life, liberty, or property without due process of law.' According to a recognized canon of interpretation, especially applicable to formal and solemn instruments of constitutional law, we are forbidden to assume, without clear reason to the contrary, that any part of this most important amendment is superfluous. The natural and obvious inference is that, in the sense of the constitution, 'due process of law' was not meant or intended to include, ex vi termini, the institution and procedure of a grand jury in any case. The conclusion is equally [110 U.S. 516, 535] irresistible, that when the same phrase was employed in the fourteenth amendment to restrain the action of the states, it was used in the same sense and with no greater extent; and that if in the adoption of that amendment it had been part of its purpose to perpetuate the institution of the grand jury in all the states, it would have embodied, as did the fifth amendment, express declarations to that effect. Due process of law in the latter refers to that law of the land which derives its authority from the legislative powers conferred upon congress by the constitution of the United States, exercised within the limits therein prescribed, and interpreted according to the principles of the common law. In the fourteenth amendment, by parity of reason, it refers to that law of the land in each state which derives its authority from the inherent and reserved powers of the state, exerted within the limits of those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions, and the greatest security for which resides in the right of the people to make their own laws, and alter them at their pleasure. 'The fourteenth amendment,' as was said by Mr. Justice BRADLEY in Missouri v. Lewis, 101 U.S. 22-31, 'does not profess to secure to all persons in the United States the benefit of the same laws and the same remedies. Great diversities in these respects may exist in two states separated only by an imaginary line. On one side of this line there may be a right of trial by jury, and on the other side no such right. Each state prescribes its own modes of judicial proceeding.'

But it is not to be supposed that these legislative powers are absolute and despotic, and that the amendment prescribing due process of law is too vague and indefinite to operate as a practical restraint. It is not every act, legislative in form, that is law. Law is something more than mere will exerted as an act of power. It must be not a special rule for a particular person or a particular case, but, in the language of Mr. Webster, in his familiar definition, 'the general law, a law which hears before it condemns, which proceeds upon inquiry, and renders judgment only after trial,' so 'that every citizen shall [110 U.S. 516, 536] hold his life, liberty, property, and immunities under the protection of the general rules which govern society,' and thus excluding, as not due process of law, acts of attainder, bills of pains and penalties, acts of confiscation, acts reversing judgments, and acts directly transferring one man's estate to another, legislative judgments and decrees, and other similar special, partial, and arbitrary exertions of power under the forms of legislation. Abritrary power, enforcing its edicts to the injury of the persons and property of its subjects, is not law, whether manifested as the decree of a personal monarch or of an impersonal multitude. And the limitations imposed by our constitutional law upon the action of the governments, both state and national, are essential to the preservation of public and private rights, notwithstanding the representative character of our political institutions. The enforcement of these limitations by judicial process is the device of self-governing communities to protect the rights of individuals and minorities, as well against the power of numbers, as against the violence of public agents transcending the limits of lawful authority, even when acting in the name and wielding the force of the government.

The supreme court of Mississippi, in a well-considered case, (Brown v. Levee Com'rs, 50 Miss. 468,) speaking of the meaning of the phrase 'due process of law,' says: 'The principle does not demand that the laws existing at any point of time shall be irrepealable, or that any forms of remedies shall necessarily continue. It refers to certain fundamental rights which that system of jurisprudence, of which ours is a derivative, has always recognized. If any of these are disregarded in the proceedings by which a person is condemned to the loss of life, liberty, or property, then the deprivation has not been by 'due process of law."

'It must be conceded,' said this court, speaking by Mr. Justice MILLER, in Loan Ass'n v. Topeka, 20 Wall. 655-662, 'that there are such rights in every free government beyond the control of the state. A government [110 U.S. 516, 537] which recognized no such rights, – which held the lives, the liberty, and the property of its citizens subject at all times to the absolute disposition and unlimited control of even the most democratic depository of power, – is after all but a despotism. It is true, it is a despotism of the many, – of the majority, if you choose to call it so, – but it is nevertheless a despotism. It may be doubted, if a man is to hold all that he is accustomed to call his own, all in which he has placed his happiness, and the security of which is essential to that happiness, under the unlimited dominion of others, whether it is not wiser that this power should be exercised by one man than by many.'

It follows that any legal proceeding enforced by public authority, whether sanctioned by age and custom, or newly devised in the discretion of the legislative power in furtherance of the general public good, which regards and preserves these principles of liberty and justice, must be held to be due process of law.

The constitution of Connecticut, adopted in 1818 and in force when the fourteenth amendment took effect, requires an indictment or presentment of a grand jury only in cases where the punishment of the crime charged is death or imprisonment for life, and yet it also declares that no person shall 'be deprived of life, liberty or property but by due course of law.' It falls short, therefore, of that measure of protection which it is claimed is guarantied by Magna Charta to the right of personal liberty; notwithstanding which it is no doubt justly said in Swift's Digest, 17, that 'this sacred and inestimable right, without which all others are of little value, is enjoyed by the people of this state is as full extent as in any country on the globe, and in as high a degree as is consistent with the nature of civil government. No individual or body of men has a discretionary or arbitrary power to commit any person to prison; no man can be restrained of his liberty, be prevented from removing himself from place to place as he chooses, be compelled to go to a place contrary to his inclination, or be in any way imprisoned or confined, unless by virtue of the expressed laws of the land.' [110 U.S. 516, 538] Tried by these principles, we are unable to say that the substitution for a presentment or indictment by a grand jury of the proceeding by information after examination and commitment by a magistrate, certifying to the probable guilt of the defendant, with the right on his part to the aid of counsel, and to the cross-examination of the witnesses produced for the prosecution, is not due process of law. It is, as we have seen, an ancient proceeding at common law, which might include every case of an offense of less grade than a felony, except misprision of treason; and in every circumstance of its administration, as authorized by the statute of California, it carefully considers and guards the substantial interest of the prisoner. It is merely a preliminary proceeding, and can result in no final judgment, except as the consequence of a regular judicial trial, conducted precisely as in cases of indictments. In reference to this mode of proceeding at the common law, and which he says 'is as ancient as the common law itself,' Blackstone adds, (4 Comm. 305:) 'And as to those offenses in which informations were allowed as well as indictments, so long as they were confined to this high and respectable jurisdiction, and were carried on in a legal and regular course in his majesty's court of king's bench, the subject had no reason to complain. The same notice was given, the same process was issued, the same pleas were allowed, the same trial by jury was had, the same judgment was given by the same judges, as if the prosecution had originally been by indictment.'

For these reasons, finding no error therein, the judgment of the supreme court of California is affirmed.

Dissenting Opinion by Harlan | Commentary by Roland