Dissenting Opinion: Field, J.

that it shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances. Some of them impliedly restrict the powers of Congress in prescribing or construing particular modes of procedure, such as require a presentment or an indictment of a grand jury for the trial of a capital or otherwise infamous crime, and the one that provides that in suits at common law, where the value involved exceeds twenty dollars, the right of trial by jury shall be preserved. Some of them are declaratory of certain rights of the people which cannot be violated, as their right to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures; that no one shall be subject for the same offence to be twice put in jeopardy of life or limb, nor be compelled in any criminal case to be a witness against himself; that in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed; and to be informed of the nature and cause of the accusation; and to be confronted with the witnesses against him; and to have compulsory process for obtaining witnesses in his favor; and that excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

The rights thus recognized and declared are rights of citizens of the United States under their Constitution which could not be violated by Federal authority. But when the late civil war closed, and slavery was abolished by the Thirteenth Amendment, there was legislation in the former slaveholding States inconsistent with these rights, and a general apprehension arose in a portion of the country — whether justified or not is immaterial—that this legislation would still be enforced and the rights of the freedmen would not be respected. The Fourteenth Amendment followed, which declares that" all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." The

Dissenting Opinion: Field, J.

freedmen thus became citizens of the United States and entitled in the future to all the privileges and immunities of such citizens. But owing to previous legislation many of those privileges and immunities, if that legislation was allowed to stand, would be abridged; therefore, in the same Amendment by which they were made citizens, it was ordained that "no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." thus nullifying existing legislation of that character, and prohibiting its enactment in the future.

While, therefore, the ten Amendments, as limitations on power, and, so far as they accomplish their purpose and find their fruition in such limitations, are applicable only to the Federal government and not to the States, yet, so far as they declare or recognize the rights of persons, they are rights belonging to them as citizens of the United States under the Constitution; and the Fourteenth Amendment, as to all such rights, places a limit upon state power by ordaining that no State shall make or enforce any law which shall abridge them. If I am right in this view, then every citizen of the United States is protected from punishments which are cruel and unusual. It is an immunity which belongs to him, against both state and Federal action. The State cannot apply to him, any more than the United States, the torture, the rack or thumbscrew, or any cruel and unusual punishment, or any more than it can deny to him security in his house, papers and effects against unreasonable searches and seizures, or compel him to be a witness against himself in a criminal prosecution. These rights, as those of citizens of the United States, find their recognition and guaranty against Federal action in the Constitution of the United States, and against state action in the Fourteenth Amendment. inhibition by that Amendment is not the less valuable and effective because of the prior and existing inhibition against such action in the constitutions of the several States. The Amendment only gives additional security to the rights of the citizen. It was natural that it should forbid the abridgment by any State of privileges and immunities which the

The

Dissenting Opinion: Field, J.

Constitution recognized and guaranteed as rights of citizens of the United States. A similar additional guaranty of private rights is found in other instances. An inhibition is contained in the several state constitutions against their legislatures passing a bill of attainder or an ex post facto law, and yet a like inhibition against state action is embodied in the Constitution of the United States.

When the objection was taken in the Supreme Court of Vermont that the punishment imposed by the county court was cruel and unusual and immunity from it was specially claimed, the answer of the court was that the punishment could not be said to be excessive or oppressive because the defendant had committed a great many offences; that if the penalty was unreasonably severe for a single offence the constitutional question might be urged, but that its unreasonableness was only in the number of offences which he had committed. I do not think this answer satisfactory. The inhibition is directed against cruel and unusual punishments, whether inflicted for one or many offences. A convict is not to be scourged until the flesh fall from his body and he die under the lash, though he may have committed a hundred offences, for each of which, separately, a whipping of twenty stripes might be inflicted. An imprisonment at hard labor for a few days or weeks for a minor offence may be within the direction of a humane government — but if the minor offences are numerous no authority exists to convert the imprisonment into one of perpetual confinement at hard labor such as would be appropriate only for felonies of an atrocious nature. It is against the excessive severity of the punishment, as applied to the offences for which it is inflicted, that the inhibition is directed.

I think the plaintiff in error should be allowed, under the 21st rule, to amend his assignment of errors, so as to present this objection for our consideration, or, that this court, under that rule, without any additional assignment, should take notice of the error, of its own motion; for if the denial by the court below of the immunity claimed against the cruel and unusual punishment imposed was an error, it was one of the gravest character, leaving the defendant to a life of mis

Dissenting Opinion: Field, J.

The

eryone of perpetual imprisonment and hard labor. right of the court to consider this alleged error of its own motion is within its authority under the 21st rule, and considering the unprecedented severity of the punishment — fiftyfour years' imprisonment at hard labor for these transactions, which no power of the human intellect can accurately describe except as transactions of interstate commerce-a punishment which makes the offences infamous crimes, I should have thought that the court would have been prompt to listen to anything which could be properly said for the relief of the defendant.

Here this dissenting opinion might close, as I have touched upon the two questions specially brought to the attention of the court below; but there are some expressions in the opinion of the court upon the procedure in the state courts to which I cannot assent, and these I will briefly notice.

The complaint against the accused describes, as I have said, only a single offence, that of selling, furnishing and giving away intoxicating liquor without authority. It designates no person or persons to whom such liquor was sold, furnished or given away, nor specifies any number of offences, but charges that the offence named was committed "at divers times." And yet he was tried and convicted under this complaint of three hundred and seven distinct offences, and punishment was imposed for each one. To the defective character of the complaint the majority of the court say, in their opinion, as though it was a sufficient answer, that the form of the complaint is authorized by the laws of Vermont, and that under it any number of offences may be proved; and that, as the accused did not take the point either before the justice of the peace or the county court that there was any defect or want of fulness in the complaint, such point was waived. To this I answer that the fact that the legislature of Vermont may have authorized the loose form of accusation used, and allowed the trial of a multitude of offences under an imperfect description of one, does not render the proceeding due process of law any more than if it had attempted to authorize trials of criminal offences without any accusation in writing. Due process

Dissenting Opinion: Harlan, Brewer, JJ.

of law required a specific description of all the offences for which the defendant was to be put on trial. Proceeding without it was not due process of law; and, in my judgment, no legislation of Vermont could make it so. And it is to me a surprising doctrine that a party can be tried for and convicted of a criminal offence not alleged against him, and afterwards, when the sentence is attempted to be enforced, can be prevented from taking the objection that no offence was charged in the accusation, because no defect of that kind was urged at the trial. So far from the defect being waived, or he being then estopped from insisting upon the objection by his previous silence, I think he could justly claim that the whole proceeding was a nullity, a mere mockery of justice.

It is the established rule of the common law, which has prevailed in England and in this country since the revolution of 1688, if not for a period anterior to it, that in all criminal prosecutions the accused must be informed of the nature and cause of the accusation against him. It is the law of every civilized community, and in no case can there be, in criminal proceedings, due process of law where the accused is not thus informed. The information which he is to receive is that which will acquaint him with the essential particulars of the offence, so that he may appear in court prepared to meet every feature of the accusation against him. As said by Chief Justice Gibson of the Supreme Court of Pennsylvania in Hartmann v. Common realth, 5 Penn. St. 60, 66: "Precision in the description of the offence is of the last importance to the innocent; for it is that which marks the limits of the accusation and fixes the proof of it. It is the only hold he has on the jurors, judges as they are of the fact and the law."

MR. JUSTICE HARLAN, with whom concurred MR. JUSTICE BREWER, dissenting.

I do not think that this writ of error should be dismissed for want of jurisdiction.

The Supreme Court of Vermont, at its October term, 1885, decided the following cases: State v. O'Neil, No. 27, the pres