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.

Footnotes 

[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.




