Hurtado v. California, 110 U.S. 516 (1884)

HARLAN, J., dissenting.

The plaintiff in error, Joseph Hurtado, now under sentence of death pronounced in one of the courts of California, brings this writ of error upon the ground that the proceedings against him are in violation of the constitution of the United States. The crime charged, and of which he was found guilty, is murder. The prosecution against him is not based upon any presentment or indictment of a grand jury, but upon an information filed [110 U.S. 516, 539] by the district attorney of the county in which the crime was alleged to have been committed. His contention is that an information for a capital offense is forbidden by that clause of the fourteenth amendment of the constitution of the United States which declares that no state shall 'deprive any person of life, liberty, or property without due process of law.' As I cannot agree that the state may, consistently, with due process of law require a person to answer for a capital offense, except upon the presentment or indictment of a grand jury, and as human life is involved in the judgment rendered here, I do not feel at liberty to withhold a statement of the reasons for my dissent from the opinion of the court.

The phrase 'due process of law' is not new in the constitutional history of this country or of England. It antedates the establishment of our institutions. Those who had been driven from the mother country by oppression and persecution brought with them, as their inheritance, which no government could rightfully impair or destroy, certain guaranties of the rights of life, liberty, and property which had long been deemed fundamental in Anglo-Saxon institutions. In the congress of the colonies, held in New York in 1765, it was declared that the colonists were entitled to all the essential rights, liberties, privileges, and immunities confirmed by Magna Charta to the subjects of Great Britain. Hutch. Hist. Mas. Bay, Appendix F. 'It was under the consciousness,' says STORY, 'of the full possession of the rights, liberties, and immunities of British subjects that the colonists, in almost all the early legislation of their respective assemblies, insisted upon a declaratory act, acknowledging and confirming them.' 1 Story, Const. 165. In his speech in the house of lords, on the doctrine of taxation without representation, Lord CHATHAM maintained that the inhabitants of the colonies were entitled to all the rights and the peculiar privileges of Englishmen; that they were equally bound by the laws, and equally entitled to participate in the constitution of England. On the fourteenth of October, 1774, the delegates from the several colonies and plantations, in congress assembled, made a formal declaration of the rights to which their people were entitled, by the immutable laws [110 U.S. 516, 540] of nature, the principles of the English constitution, and the several charters or compacts under which the colonial governments were organized. Among other things, they declared that their ancestors who first settled the colonies were, at the time of their immigration, 'entitled to all the rights, liberties, and immunities of free and natural-born subjects within the realm of England;' that 'by such immigration they by no means forfeited, surrendered, or lost any of those rights, but that they were, and their descendants now are, entitled to the exercise and enjoyment of all such of them as their local and and other circumstances entitled them to exercise and enjoy;' and that 'the respective colonies are entitled to the common law of England, and more especially to the great and inestimable privilege of being tried by their peers of the vicinage, according to the course of that law.' 1 Jour. Cong. 27-29.

These declarations were susequently emphasized in the most imposing manner, when the doctrines of the common law respecting the protection of the people in their lives, liberties, and property were incorporated into the earlier constitutions of the original states. Massachusetts in its constitution of 1780, and New Hampshire in 1784, declared in the same language that 'no subject shall be arrested, imprisoned, despoiled or deprived of his property, immunities, or privileges, put out of the protection of the law, exiled or deprived of his life, liberty, or estate but by the judgment of his peers or the law of the land;' Maryland and North Carolina in 1776, and South Carolina in 1778, that 'no freeman of this state be taken or imprisoned, or disseized of his freehold, liberties, or privileges, outlawed, exiled, or in any manner destroyed or deprived of his life, liberty, or property but by the judgment of his peers or the law of the land;' Virginia, in 1776, that 'no man be deprived of his liberty except by the law of the land or the judgment of his peers;' and Delaware, in 1792, that no person 'shall be deprived of life, liberty, or property, unless by the judgment of his peers or the law of the land.' In the ordinance of 1789 for the government of the Northwestern territory, it was made one of the articles of compact between the original states and the people and states to be formed out of [110 U.S. 516, 541] that territory – 'to remain forever unalterable unless by common consent' – that 'no man shall be deprived of his life, liberty, or property but by the judgment of his peers or the law of the land.' These fundamental doctrines were subsequently incorporated into the constitution of the United States. The people were not content with the provision in section 2 of article 3 that 'the trial of all crimes, except in cases of impeachment, shall be by jury.' They desired a fuller and broader enunciation of the fundamental principles of freedom, and therefore demanded that the guaranties of the rights of life, liberty, and property, which experience had proved to be assential to the safety and security of the people, should be placed beyond all danger of impairment or destruction by the general government through legislation by congress. They perceived no reason why, in respect of those rights, the same limitations should not be imposed upon the general government that had been imposed upon the states by their own constitutions. Hence the prompt adoption of the original amendments, by the fifth of which it is, among other things, provided that 'no person shall be deprived of life, liberty, or property without due process of law.' This language is similar to that of the clause of the fourteeth amendment now under examination. That similarity was not accidental, but evinces a purpose to impose upon the states the same restrictions, in respect of proceedings involving life, liberty, and property, which had been imposed upon the general government.

'Due process of law,' within the meaning of the national constitution, does not import one thing with reference to the powers of the states and another with reference to the powers of the general government. If particular proceedings, conducted under the authority of the general government, and involving life, are prohibited because not constituting that due process of law required by the fifth amendment of the constitution of the United States, similar proceedings, conducted under the authority of a state, must be deemed illegal, as not being due process of law within the meaning of the fourteenth amendment. The words 'due process of law,' in the latter amendment, must receive the same interpretation they had at the common law from which they were derived, and which was given to them at the formation of the general government. What was that interpretation? [110 U.S. 516, 542] In seeking that meaning we are, fortunately, not left without authoritative directions as to the source, and the only source, from which the necessary information is to be obtained.

In Murray's Lessee v. Hoboken, etc., Co. 18 How. 276, 277, it was 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 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.'

Magna Charta – upon which rested the rights, liberties, and immunities of our ancestors – was called, said Coke, 'the charter of the liberties of the kingdom, upon great reason, because, liberos facit, it makes the people free.' Hallam characterizes the signing of it as the most important event in English history, and declares that the instrument is still the keystone of English liberty. 'To have produced it,' said Mackintosh, 'to have preserved it, to have matured it, constitute the immortal claim of England upon the esteem of mankind.' By that instrument the king, representing the sovereignty of the nation, declared that 'no freeman shall be taken, or imprisoned, or be disseized of his freehold, or liberties, or free customs, or be outlawed, or exiled, or any otherwise destroyed; nor will we [not] pass upon him, nor condemn him, but by lawful judgment of his peers, or by the law of the land.' [110 U.S. 516, 543] 'The words 'due process of law' were undoubtedly intended,' said this court, in Murray's Lessee v. Hoboken, etc., Co. 'to convey the same meaning as the words 'by the law of the land' in Magna Charta.' That the one is the equivalent of the other was recognized in Davidson v. New Orleans, 96 U.S. 97 . See also 2 Kent, 13; 2 Story, Const. 1789; Cooley, Const. Lim. 353; Pom. Const. Law, 245; Greene v. Briggs, 1 Curt. 311. Whether the phrase in our American constitutions, national or state, be 'law of the land' or 'due process of law,' it means in every case the same thing. Cooley, Const. Lim. 352.

Declining to follow counsel in their search for precedents in England, in support or in refutation of the proposition that the common law permitted informations in certain classes of public offenses, and conceding that in some cases (such as Prynn's Case, 5 Mod. 459, which was an information for a riot, tried before Chief Justice HOLT) the requirement of due process of law was met by that mode of procedure, let us inquire – and no other inquiry is at all pertinent – whether, according to the settled usages and modes of proceeding to which, this court has said, reference must be had, an information for a capital offense was, prior to the adoption of our constitution, regarded as due process of law.

Erskine, in his speech delivered in 1784 in defense of the dean of St. Asaph, said, in the presence of the judges of the king's bench: 'If a man were to commit a capital offense in the face of all the judges of England, their united authority could not put him upon his trial; they could file no complaint against him, even upon the records of the supreme criminal court, but could only commit him for safe custody, which is equally competent to every common justice of the peace. The grand jury alone could arraign him, and in their discretion might likewise finally discharge him, by throwing out the bill, with the names of all your lordships as witnesses on the back of it. If it be said that this exclusive power of the grand jury does not extend to lesser misdemeanors, which may be prosecuted by information, I answer, that for that reason it becomes doubly necessary to preserve the power of the other jury which [110 U.S. 516, 544] is left.' That this defender of popular rights against official oppression was not in error when saying that no person could be arraigned for a capital crime except upon the presentment or indictment of a grand jury is shown upon almost every page of the common law.

Blackstone says: 'But to find a bill there must be at least twelve of the jury agree; for, so tender is the law of England of the lives of the subjects, that no man can be convicted at the suit of the king of any capital offense, unless by a unanimous voice of twenty-four of his equals and neighbors; that is, by twelve at least of the grand jury, in the first place, assenting to the accusation, and afterwards by the whole petit jury of twelve more finding him guilty upon his trial.' 4 Bl. Comm. 306. The same author, after referring to prosecutions by information, describing their different kinds, and stating that the mode of prosecution by information (or suggestion) filed on record by the king's attorney general, or by his coroner or master of the crown office in the court of king's bench, was as ancient as the common law itself, proceeds: 'But these informations (of every kind) are confined by the constitutional law to mere misdemeanors only; for, wherever any capital offense is charged, the same law requires that the accusation be warranted by the oath of twelve men before the party shall be put to answer it.' Id. 309, 310. Again, in his discussion of the trial by jury, Blackstone, after saying that the English law has 'wisely placed this strong and twofold barrier, of a punishment and a trial by jury, between the liberties of the people and the prerogative of the crown,' says: 'The founders of the English law have, with excellent forecast, contrived that no man shall be called to answer the king for any capital crime, unless upon the peremptory accusation of twelve or more of his fellow-subjects, the grand jury; and that the truth of any accusation, whether preferred in the shape of indictment, information, or appeal, should afterwards be confirmed by the unanimous suffrage of twelve of his equals and neighbors, indifferently chosen and superior to all suspicion. So that the liberties of England cannot but subsist so long as this palladium remains sacred and inviolate, not only from all [110 U.S. 516, 545] open attacks, (which none will be so hardy as to make,) but also from all secret machinations which may sap and undermine it, by introducing new and arbitrary methods of trial, by justices of the peace, commissioners of the revenue, and courts of conscience. And however convenient these may appear at first, (as doubtless all arbitrary powers, well executed, are the most convenient,) yet let it be again remembered that delays and little inconveniences in the forms of justice are the price that all free nations must pay for their liberty in more substantial matters; that these inroads upon the sacred bulwark of the nation are fundamentally opposite to the spirit of our constitution; and that, though begun in trifles, the precedent may gradually increase and spread to the utter disuse of jurors in questions of the most momentous concern.' Id. 349, 350.

Hawkins in his Pleas of the Crown, (book 2, c. 26,) after saying that it is every-day practice to proceed by information in certain cases, says: 'But I do not find it anywhere holden that such an information will lie for any capital crime, or for misprision of treason.'

In Wooddeson's Lectures on the Laws of England, (Lect. 38,) it is said that 'informations cannot be brought in capital cases, nor for misprision of treason.'

Bacon, in his Abridgement, lays it down: 'But though, as my Lord HALE observes, in all criminal causes the most regular and safe way, and most consonant to the statute of Magna Charta, etc., is by presentment or indictment of twelve sworn men, yet he admits that, for crimes inferior to capital ones, the proceedings may be by information.' Tit. 'Information' A.

See, also, 2 Hal. Hist. P. C. c. 201; Jacobs, Law Dict. tit. 'Information;' 4 Broom, Com. Laws Eng. 396.

I omit further citations of authorities, which are numerous, to prove that, according to the settled usages and modes of proceeding existing under the common and statute law of England at the settlement of this country, information in capital cases was not consistent with the 'law of the land' or with due process of law.' Such was the understanding of the patriotic men who established free institutions upon this [110 U.S. 516, 546] continent. Almost the identical words of Magna Charta were incorporated into most of the state constitutions before the adoption of our national constitution. When they declared, in substance, that no person shall be deprived of life, liberty, or property except by the judgment of his peers or the law of the land, they intended to assert his right to the same guaranties that were given in the mother country by the great charter and the laws passed in furtherance of its fundamental principles.

My brethren concede that there are principles of liberty and justice lying at the foundation of our civil and political institutions which no state can violate consistently with that due process of law required by the fourteenth amendment in proceedings involving life, liberty, or property. Some of these principles are enumerated in the opinion of the court. But for reasons which do not impress my mind as satisfactory, they exclude from that enumeration the exemption from prosecution, by information, for a public offense involving life. By what authority is that exclusion made? Is it justified by the settled usages and modes of proceeding existing under the common and statute law of England at the emigration of our ancestors, or at the foundation of our government? Does not the fact that the people of the original states required an amendment of the national constitution, securing exemption from prosecution for a capital offense, except upon the indictment or presentment of a grand jury, prove that, in their judgment, such an exemption was essential to protection against accusation and unfounded prosecution, and therefore was a fundamental principle in liberty and justice? By the side of that exemption, in the same amendment, is the declaration that no person shall be put twice in jeopardy for the same offense, nor compelled to criminate himself, nor shall private property be taken for public use without just compensation. Are not these principles fundamental in every free government established to maintain liberty and justice? If it be supposed that immunity from prosecution for a capital offense, except upon the presentment or indictment of a grand jury, was regarded at the common law any less secured by the law of the land, or [110 U.S. 516, 547] any less valuable, or any less essential to due process of law, than the personal rights and immunities just enumerated, I take leave to say that no such distinction is authorized by any adjudged case, determined in England or in this country prior to the adoption of our constitution, or by any elementary writer upon the principles established by Magna Charta and the statutes subsequently enacted in explanation or enlargement of its provisions.

But it is said that the framers of the constitution did not suppose that due process of law necessarily required for a capital offense the institution and procedure of a grand jury, else they would not in the same amendment prohibiting the deprivation of life, liberty, or property without due process of law, have made specific and express provision for a grand jury where the crime is capital or otherwise infamous; therefore, it is argued, the requirment by the fourteenth amendment of due process of law in all proceedings involving life, liberty, and property, without specific reference to grand juries in any case whatever, was not intended as a restriction upon the power which it is claimed the states previously had, so far as the express restrictions of the national constitution are concerned, to dispense altogether with grand juries. This line of argument, it seems to me, would lead to results which are inconsistent with the vital principles of republican government. If the presence in the fifth amendment of a specific provision for grand juries in capital cases, alongside the provision for due process of law in proceedings involving life, liberty, or property, is held to prove that 'due process of law' did not, in the judgment of the framers of the constitution, necessarily require a grand jury in capital cases, inexorable logic would require it to be likewise held that the right not to be put twice in jeopardy of life and limb, for the same offense, nor compelled in a criminal case to testify against one's self, – rights and immunities also specifically recognized in the fifth amendment, – were not protected by that due process of law required by the settled usages and proceedings existing under the common and statute law of England at the settlement of this country. More than that, other amendments of the [110 U.S. 516, 548] constitution proposed at the same time expressly recognize the right of persons to just compensation for private property taken for public use; their right, when accused of crime, to be informed of the nature and cause of the accusation against them, and to a speedy and public trial, by an impartial jury of the state and district wherein the crime was committed; to be confronted with the witnesses against them; and to have compulsory process for obtaining witnesses in their favor. Will it be claimed that none of these rights were secured by the 'law of the land' or 'due process of law,' as declared and established at the foundation of our government? Are they to be excluded from the enumeration of the fundamental principles of liberty and justice, and, therefore, not embraced by 'due process of law?' If the argument of my brethren be sound, those rights – although universally recognized at the establishment of our institutions as secured by that due process of law which for centuries had been the foundation of Anglo-Saxon liberty – were not deemed by our fathers essential to the due process of law prescribed by our constitution; because, – such seems to be the argument, – had they been regarded as involved in due process of law they would not have been specifically and expressly provided for, but left to the protection given by the general clause forbidding the deprivation of life, liberty, or property without due process of law. Further, the reasoning of the opinion indubitably leads to the conclusion that but for the specific provisions made in the constitution for the security of the personal rights enumerated, the general inhibition against deprivation of life, liberty, and property without due process of law would not have prevented congress from enacting a statute in derogation of each of them. Still further, it results from the doctrines of the opinion – if I do not misapprehend its scope – that the clause of the fourteenth amendment forbidding the deprivation of life or liberty without due process of law would not be violated by a state regulation dispensing with petit juries in criminal cases, and permitting a person charged with a crime involving life to be tried before a single judge, or even a justice of the peace, upon a rule to show cause why he should not be be hanged.

I do no [110 U.S. 516, 549] injustice to my brethren by this illustration of the principles of the opinion. It is difficult, in my judgment, to overestimate the value of the petit jury system in this country. A sagacious statesman and jurist has well said that it was 'the best guardian of both public and private liberty which has been hitherto devised by the ingenuity of man,' and that 'liberty can never be insecure in that country in which the trial of all crimes is by the jury.' Mr. Madison observed that while trial by jury could not be considered as a natural right, but one resulting from the social compact, yet it was 'as essential to secure the liberty of the people as any one of the pre-existent rights of nature.' 1 Lloyd, Deb. 430. 'When our more immediate ancestors,' says STORY, 'removed to America, they brought this privilege with them as their birthright and inheritance, as a part of that admirable common law which had fenced round and interposed barriers on every side against the approaches of arbitrary power.' Story, Const. 1779. I submit, however, with confidence, there is no foundation for the opinion that, under Magna Charta or at common law, the right to a trial by jury in a capital case was deemed of any greater value to the safety and security of the people than was the right not to answer, in a capital case, upon information filed by an officer of the government, without previous inquiry by a grand jury. While the former guards the citizen against improper conviction, the latter secures him against unfounded accusation. A state law which authorized the trial of a capital case before a single judge, perhaps a justice of the peace, would – if a petit jury in a capital case be not required by the fundamental principles of liberty and justice – meet all the requirements of due process of law, as indicated in the opinion of the court, for such a law would not prescribe a special rule for particular persons; it would be a general law which heard before it condemned; which proceeded upon inquiry; and under which judgment would be rendered only after trial. It would be embraced by the rule laid down by the court when it declares that any legal proceeding enforced by public authority, whether sanctioned by age and custom or newly devised in the descretion of the legislative power, in furtherance of the public [110 U.S. 516, 550] good, which regards and preserves those principles of liberty and justice, must be held to be due process of law.

It seems to me that too much stress is put upon the fact that the framers of the constitution made express provision for the security of those rights which at common law were protected by the requirement of due process of law, and, in addition, declared, generally, that no person shall 'be deprived of life, liberty, or property without due process of law.' The rights, for the security of which these express provisions were made, were of a character so essential to the safety of the people that it was deemed wise to avoid the possibility that congress, in regulating the processes of law, would impair or destroy them. Hence, their specific enumeration in the earlier amendments of the constitution, in connection with the general requirement of due process of law, the latter itself being broad enough to cover every right of life, liberty, or property secured by the settled usages and modes of proceedings existing under the common and statute law of England at the time our government was founded. Pom. Mun. Law, 373, 366.

The views which I have attempted to maintain are supported by the supreme judicial court of Massachusetts in Jones v. Robbins, 8 Gray, 329. Among the questions there presented was whether a statute giving a single magistrate authority to try an offense punishable by imprisonment in the state prison, without the presentment by a grand jury, violated that provision of the state constitution which declared that 'no man shall be arrested, imprisoned, exiled, or deprived of his life, liberty, or estate but by the judgment of his peers or the law of the land.' It was held that it did. 'This clause, in its whole structure,' said Chief Justice SHAW, speaking for the court, 'is so manifestly conformable to the words of Magna Charta that we are not to consider it as a newly-invented phrase, first used by the makers of our constitution, but we are to look at it as the adoption of one of the great securities of private right handed to us as among the liberties and privileges which our ancestors enjoyed at the time of [110 U.S. 516, 551] their emigration, and claimed to hold and retain as their birthright. These terms, in this connection, cannot, we think, be used in their most bald and literal sense to mean the law of the land at the time of their trial; because the laws may be shaped and altered by the legislature from time to time; and such a provision, intended to prohibit the making of any law impairing the ancient rights and liberties of the subject, would, under such a construction, be wholly nugatory and void. The legislature might simply change the law by statute, and thus remove the landmark and the barrier intended to be set up by this provision in the bill of rights. It must, therefore, have intended the ancient, established law and course of legal proceedings, by an adherence to which our ancestors in England, before the settlement of this country, and the emigrants themselves and their descendants, had found safety for their personal rights.' After recognizing the 'law of the land' in Magna Charta and in the constitution of Massachusetts as having the same meaning as 'due process of law,' and after stating that the people of the original states deemed it essential for the better security of their rights of life, liberty, and property that their constitutions should set forth and declare the fundamental principles of free government, Chief Justice SHAW proceeds: 'Most of the state constitutions did contain these declarations, more or less detailed and explicit; but the general purpose was to assert and maintain the great rights of English subjects, as they had been maintained by the ancient laws, and the actual enjoyment of civil rights under them. 'The sense of America was,' says Chancellor KENT, 'more fully ascertained, and more explicitly and solemnly promulgated, in the memorable declaration of rights of the first continental bill of rights, in October, 1774, and which was a representation of all the states except Georgia. That declaration contained the assertion of several great and fundamental principles of American liberty, and it constituted the basis of those subsequent bills of rights which, under various modifications, pervaded all our constitutional charters.' 2 Kent, 5, 6. The right of individual citizens to be secure from an open [110 U.S. 516, 552] 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 the securities to the innocent against hasty, malicious, and oppressive public prosecutions, and as one of the ancient immunities and privileges of English liberty.'

Chancellor KENT, referring to the rights of personal security, as guarded by constitutional provisions, which were transcribed into the constitutions of this country from Magna Charta and other fundamental acts of the English parliament, says: 'And where express constitutional provisions on the subject appear to be wanting, the same principles are probably asserted by declaratory legislative acts; and they must be regarded as fundamental doctrines in every state, for the colonies were parties to the national declaration of right in 1774, in which the trial by jury, and the other rights and liberties of English subjects, were peremptorily claimed as their undoubted inheritance and birthright. It may be received as a proposition, universally understood and acknowledged throughout this country, that no person can be taken or imprisoned, or disseized of his freehold or estate, or exiled, or condemned, or deprived of life, liberty, or property unless by the law of the land or the judgment of his peers. The words 'by the law of the land,' as used originally in Magna Charta, in reference to this subject, are understood to mean due process of law, that is, by indictment or presentment of good and lawful men; and this, says Lord COKE, is the true sense and exposition of these words.' And KENT immediately adds: '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.'

Because of this general definition of due process of law that distinguished jurist is claimed as authority for the present decision. When Lord COKE said that indictment or presentment was due process of law, he had reference, of course, to the class of cases in which, by the law of the land, that kind of procedure was required. In no commentary upon Magna Charta is it more distinctly stated than in Coke's that [110 U.S. 516, 553] informations were consistent with the law of the land in certain cases, and no one has more emphatically declared that, in capital cases, informations are not allowed by that law, and was not due process of law. He referred to indictments and presentments to illustrate what was due process of law in prosecutions against persons accused of the higher grades of crime, and not for the purpose of giving a full definition of the phrase 'due process of law' as applicable to both civil and criminal cases. The definition by Kent of 'due process of law' was therefore better and larger, because it embraced cases civil and criminal, in rem and in personam, and included proceedings affecting every right, whether of life, liberty, or property, guarantied by the law of the land. He was very far from saying that every proceeding, involving new methods of trial, was due procees of law because declared by the legislature to be such, or because it may be regular in the sense that it is established by a general statute.

It is said by the court that the constitution of the United States was made for an undefined and expanding future, and that its requirement of due process of law, in proceedings involving life, liberty, and property, must be so interpreted as not to deny to the law the capacity of progress and improvement; that the greatest security for the fundamental principles of justice resides in the right of the people to make their own laws and alter them at pleasure. It is difficult, however, to perceive anything in the system of prosecuting human beings for their lives, by information, which suggests that the state which adopts it has entered upon an era of progess and improvement in the law of criminal procedure. Even the statute of Henry VII. c. 3, allowing informations, and under which, it is said, Empson and Dudley, and an arbitrary star chamber, fashioned the proceedings of the law into a thousand tyrannical forms, expressly declared that it should not extend 'to treason, murder, or felony, or to any other offense wherefor any person should lose life or member.' So great, however, were the outrages perpetrated by those men that this statute was repealed by 1 Henry VIII. c. 6. Under the local statutes in question, even the district attorney of the county is deprived of any discretion in the premises; for [110 U.S. 516, 554] if in the judgment of the magistrate before whom the accused is brought – and, generally, he is only a justice of the peace – a public offense has been committed, it becomes the duty of the district attorney to proceed against him, by information, for the offense indicated by the committing magistrate. Thus, in California nothing stands between the citizen and prosecution for his life except the judgment of a justice of the peace. Had such a system prevailed in England, in respect of all grades of public offenses, the patriotic men who laid the foundation of our government would not have been so persistent in claiming, as the inheritance of the colonists, the institutions and guaranties which had been established by her fundamental laws for the protection of the rights of life, liberty, and property. The royal governor of New York would not have had occasion to write in 1697 to the home government that the members of the provincial legislature were 'big with the privileges of Englishmen and Magna Charta.' 3 Bancroft, 56. Nor would the colonial congress of 1774, speaking for the people of 12 colonies, have permitted, as it did, the journal of their proceedings to be published with a medallion on the title page 'representing Magna Charta as the pedestal on which was raised the column and cap of liberty, supported by twelve hands, and containing the words ' Hanc Tuemur, Hac Nitimur." Hurd, Hab. Corp. 108. Anglo-Saxon liberty would, perhaps, have perished long before the adoption of our constitution had it been in the power of government to put the subject on trial for his life whenever a justice of the peace, holding his office at the will of the crown, should certify that he had committed a capital crime. That such officers are, in some of the states, elected by the people, does not add to the protection of the citizen; for one of the peculiar benefits of the grand-jury system, as it exists in this country, is that it is composed, as a general rule, of private persons who do not hold office at the will of the government, or at the will of voters. In most, if not all of the states, civil officers are disqualified to sit on grand juries. In the secrecy of the investigations by grand juries, the weak and helpless – proscribed, perhaps, because of their race, or pursued by an unreasoning [110 U.S. 516, 555] public clamor – have found, and will continue to find, security against official oppression, the cruelty of mobs, the machinations of falsehood, and the malevolence of private persons who would use the machinery of the law to bring ruin upon their personal enemies. 'The grand juries perform,' says STORY, 'most important public functions, and are a great security to the citizens against vindictive prosecutions, either by the government or by political partisans, or by private enemies.' Story, Const. 1785.

To the evidence already adduced of the necessity and value of that system, I may add the testimony of Mr. Justice WILSON, formerly of this court, and one of the foremost of the great men who have served the cause of constitutional government. He said that 'among all the plans and establishments which have been devised for securing the wise and uniform execution of the criminal laws, the institution of grand juries holds the most distinguished place. This institution is, at least in the present times, the peculiar boast of the common law. The era of its commencement, and the particulars attending its gradual progress and improvement, are concealed behind the thick veil of a very remote antiquity. But one thing concerning it is certain: In the annals of the world there is not found another institution so well adapted for avoiding all the inconveniences and abuses which would otherwise arise from malice, from rigor, from negligence, or from partiality in the prosecution of crimes.' 3 Wilson's Works, 363, 364.

Mr. Justice FIELD, referring to the ancient origin of the grand jury system in England, said that it was, 'at the time of the settlement of this country, an informing and accusing tribunal, without whose previous action no person charged with a felony could, except in certain special cases, be put upon his trial. And in the struggles which at times arose in England between the powers of the king and the rights of the subject, it often stood as a barrier against persecution in his name, until, at length, it came to be regarded as an institution by which the subject was rendered secure against oppression from unfounded prosecutions of the crown. In this country, from the popular character of our institutions, there has seldon been any contest [110 U.S. 516, 556] between the government and the citizen, which required the existence of the grand jury as a protection against oppressive action of the government. Yet the institution was adopted in this country, and is continued from considerations similar to those which give to it its chief value in England, and is designed as a means, not only of bringing to trial persons accused of public offenses upon just grounds, but also as a means of protecting the citizen against unfounded accusation, whether it comes from government or be prompted by partisan passion or private enmity.' 2 Sawy. 668, 669. He quoted with approval the observations of a distinguished judge to the effect that 'into every quarter of the globe in which the Anglo-Saxon race have formed settlements they have carried with them this time-honored institution, ever regarded it with the deepest veneration, and connecting its perpetuity with that of civil liberty.' 'In their independent action,' said the same jurist, 'the persecuted found the most fearless protectors, and in the records of their doings are to be discovered the noblest stands against the oppressions of power, the virulence of malice, and the intemperance of prejudice.'

We have already seen that for centuries before the adoption of our present constitution, due process of law, according to the maxims of Magna Charta and the common law, – the interpreters of constitutional grants of power, – which even the British parliament with all its authority could not rightfully disregard, (Cooley, Const. Lim. 175,) absolutely forbade that any person should be required to answer for his life except upon indictment or presentment of a grand jury. And we have seen that the people of the original states deemed it of vital importance to incorporate that principle into our own constitution, not only by requiring due process of law in all proceedings involving life, liberty, or property, but by specific and express provision giving immunity from prosecution, in capital cases, except by that mode of procedure.

To these considerations may be added others of very great significance. When the fourteenth amendment was adopted all the states of the Union – some in terms, all substantially – declared, in their constitution, that no person shall be deprived [110 U.S. 516, 557] of life, liberty, or property otherwise than 'by the judgment of his peers or the law of the land,' or 'without due process of law.' When that amendment was adopted the constitution of each state, with few exceptions, contained, and still contains, a bill of rights, enumerating the rights of life, liberty, and property, which cannot be impaired or destroyed by the legislative department. In some of them, as in those of Pennsylvania, Kentucky, Ohio, Alabama, Illinois, Arkansas, Florida, Mississippi, Missouri, and North Carolina, the rights so enumerated were declared to be embraced by 'the general, great, and essential principles of liberty and free government;' in others, as in those of Connecticut, in 1818, and Kansas, in 1857, to be embraced by 'the great and esssential principles of free government.' Now, it is a fact of momentous interest in this discussion, that, when the fourteenth amendment was submitted and adopted, the bill of rights and the constitutions of 27 states expressly forbade criminal prosecutions, by information, for capital cases;[1] while in the remaining 10 states such prosecutions were impliedly forbidden by a general clause declaring that no person should be deprived of life otherwise than by 'the judgment of his peers or the law of the land,' or 'without due process of law.'[2] It may be safely affirmed that, when that amendment was adopted, a criminal prosecution, by information, for a crime involving life, was not permitted in any one of the states composing the Union. So that the court, in this case, while conceding that the requirement [110 U.S. 516, 558] of due process of law protects the fundamental principles of liberty and justice, adjudges, in effect, that an immunity or right, recognized at the common law to be essential to personal security, jealously guarded by our national constitution against violation by any tribunal or body exercising authority under the general government, and expressly or impliedly recognized, when the fourteenth amendment was adopted, in the bill of rights or constitution of every state in the Union, is yet not a fundamental principle in governments established, as those of the states of the Union are, to secure to the citizen liberty and justice, and therefore is not involved in due process of law as required by that amendment in proceedings conducted under the sanction of a state. My sense of duty constrains me to dissent from this interpretation of the supreme law of the land.


[1] Ala. 1867, art. 1, 10; Ark. 1868, art. 1, 9; Cal. 1849, art. 1 , 8; Conn. 1818, art. 1, 9; Del. 1831, art. 1, 8; Fla. 1868, art. 1 , 9; Ill. 1848, art. 13, 10; Iowa, 1857, art. 1, 11; Ky. 1850, art. 13, 13; Me. 1820, art. 1, 7; Mass. 1780, pt. 1, art. 12, as contained in Jones v. Robbins, 8 Gray, 329; Minn. 1857, art. 1, 7; Miss. 1868, art. 1, 31; Mo. 1865, art. 1, 24; Neb. 1866-67, art. 1, 8; Nev. 1864, art. 1, 8; N. J. 1844, art. 1, 9; N. Y. 1846, art. 1, 6; N. C. 1868, art. 1, 12; Ohio, art. 1, 10; Penn. 1838, art. 9, 10; R. I. 1842, art. 1 , 7; S. C. 1868, art. 1, 19; Tenn. 1834, art. 1, 14; Tex. 1868, art. 1, 8; W. Va. 1861-63, art. 2, 1; Wis. 1848, art. 1, 8.

[2] Ga. 1868, art. 1, 3; Ind. art. 1, 12; Kan. 1859, bill of rights, 18; La. 1868, Telle. 1, art. 10; Md. 1867, declaration of rights, art. 23; Mich. 1850, art. 6, 32; N. H. 1792, pt. 1, art. 15; Or. 1857, art. 1, 10; Vt. 1793, c. 2, art. 10.

Majority Opinion by Matthews | Commentary by Roland