Dissenting Opinion: Harlan, J. "The words due 'process of law' were undoubtedly intended," said this court, in Murray's Lessees v. Hoboken, &c., "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's Const. Lim. 353; Pomeroy's Const. Law, § 245; Greene v. Briggs, 1 Curtis, 325. 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's 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 offences, and conceding that in some cases, such as Mr. 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 offence was, prior to the adoption of our Constitution, regarded as due process of law. Erskine, in his speech delivered in 1784, in defence 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 offence 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 Dissenting Opinion: Harlan, J. 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 offence 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 offence, unless by an 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. Com. 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 offence 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." 4 Bl. Com. 309-10. Again, in his discussion of the trial by jury, Blackstone, after observing that the English law has "wisely placed this strong and two-fold barrier, of a presentment 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 an 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 Dissenting Opinion: Harlan, J. 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.” 4 Bl. Com. 349-50. Hawkins, in his Pleas of the Crown (Bk. 2, chap. 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 Abridgment, 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, &c., 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." Title Information A. See also 2 Hal. Hist. P. C. c. 201; Jacobs' Law Dictionary, Title Information; Broom's Com. Laws England, vol. 4, p. 396; Story's Const. § 1784. 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 conti VOL. CX-35 Dissenting Opinion: Harlan, J. nent. 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 should 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 offence involving life. By what authority is that exclusion made? Is it justified by the settled usages and modes of proceedure 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 offence, 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 offence, 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 offence, 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 Dissenting Opinion: Harlan, J. 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 offence 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 requirement 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 offence, nor compelled in a criminal case to testify against one's selfrights 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 Con |