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CHAPTER III.: PERSONAL LIBERTY. - Christopher G. Tiedeman, A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 1 
A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint (St. Louis: The F.H. Thomas Law Book Co., 1900). Vol. 1.
Part of: A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, 2 vols.
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Personal liberty—How guaranteed.—
It is altogether needless in this connection to indulge in a panegyric upon the blessings of guaranteed personal liberty. The love of liberty, of freedom from irksome and unlawful restraints, is implanted in every human breast. In the American Declaration of Independence, and in the bills of rights of almost every State Constitution, we find that personal liberty is expressly guaranteed to all men equally. But notwithstanding the existence of these fundamental and constitutional guaranties of personal liberty, the astounding anomaly of the slavery of an entire race in more than one-third of the States of the American Union, during three-fourths of a century of natural existence, gave the lie to their own constitutional declarations, that “all men are endowed by their Creator, with certain inalienable rights, among which are the right to life, liberty, and the pursuit of happiness.” But, happily, this contradiction is now a thing of the past, and in accordance with the provisions of the thirteenth amendment to the Constitution of the United States, it is now the fundamental and practically unchangeable law of the land, that “neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.1
But to a practical understanding of the effect of these constitutional guaranties, a clear idea of what personal liberty consists is necessary. It is not to be confounded with a license to do what one pleases. Liberty, according to Montesquieu, consists “only in the power of doing what we ought to will, and in not being constrained to do what we ought not to will.” No man has a right to make such a use of his liberty as to commit an injury to the rights of others. His liberty is controlled by the oft-quoted maxim, sic utere tuo, ut alienum non lædas. Indeed liberty is that amount of personal freedom, which is consistent with a strict obedience to this rule. “Liberty,” in the words of Mr. Webster, “is the creature of law, essentially different from that authorized licentiousness that trespasses on right. It is a legal and refined idea, the offspring of high civilization, which the savage never understood, and never can understand. Liberty exists in proportion to wholesome restraint; the more restraint on others to keep off from us, the more liberty we have. It is an error to suppose that liberty consists in a paucity of laws. If one wants few laws, let him go to Turkey. The Turk enjoys that blessing. The working of our complex system, full of checks on legislative, executive and judicial power, is favorable to liberty and justice. Those checks and restraints are so many safeguards set around individual rights and interests. That man is free who is protected from injury.”1 While liberty does not consist in the paucity of laws, still it is only consistent with a limitation of the restrictive laws to those which exercise a wholesome restraint. “That man is free who is protected from injury,” and his protection involves necessarily the restraint of other individuals from the commission of the injury. In the proper balancing of the contending interests of individuals, personal liberty is secured and developed; any further restraint is unwholesome and subversive of liberty. As Herbert Spencer has expressed it, “every man may claim the fullest liberty to exercise his faculties compatible with the possession of like liberty by every other man.”1
The constitutional guaranties are generally unqualified, and a strict construction of them would prohibit all limitations upon liberty, if any other meaning but the limited one here presented were given to the word. But these guaranties are to be liberally construed, so that the object of them may be fully attained. They do not prohibit the exercise of police power in restraint of licentious trespass upon the rights of others, but the restrictive measures must be kept within these limits. “Powers, which can be justified only on this specific ground (that they are police regulations), and which would otherwise be clearly prohibited by the constitution, can be such only as are so clearly necessary to the safety, comfort and well-being of society, or so imperatively required by the public necessity, as to lead to the rational and satisfactory conclusion that the framers of the constitution could not, as men of ordinary prudence and foresight, have intended to prohibit their exercise in the particular case, notwithstanding the language of the prohibition would otherwise include it.”2
The restrictions upon personal liberty, permissible under these constitutional limitations, are either of a public or private nature. In consequence of the mental and physical disabilities of certain classes, in the law of domestic relations, their liberty is more or less subjected to restraint, the motive being their own benefit. The restraints are of a private nature, imposed under the law by private persons who stand in domestic relation to those whose liberty is restrained. This subject will be discussed in a subsequent connection.1 In this connection we are only concerned with those restraints which are of a public nature, i. e., those which are imposed by government. They may be subdivided under the following headings: 1. The police control of the criminal classes. 2. The police control of dangerous classes, other than by criminal prosecutions. 3. The regulation of domicile and citizenship. 4. Police control of morality and religion. 5. Police regulation of the freedom of speech and of the press. 6. Police regulation of trades and professions.
GOVERNMENT CONTROL OF CRIMINAL CLASSES.
The effect of crime on the rights of the criminal—Power of State to declare what is a crime.—
The commission of crime, in the discretion of the government, subjects all rights of the criminal to the possibility of forfeiture. Life, liberty, political rights, statutory rights, relative rights, all or any of them may be forfeited to the State, in punishment of a crime. When a man commits a crime he forfeits to a greater or less extent his right of immunity from harm. The forfeiture for crime is usually confined to life, liberty and property, and political rights, although all rights in the wisdom of the legislature may be subjected to forfeiture, and the forfeiture of liberty is the most common.
But, in order that there may be a constitutional forfeiture of any right, as a punishment for the doing of an act, that act must be one which the State may condemn and punish as a crime. The power of the State to declare what is a crime, and punishable as such, is not unlimited. We need not dwell upon Blackstone’s distinction between mala in se and mala prohibita, for that distinction is neither scientific nor safe as a guide in this case. On the one hand, it is an undoubted principle of constitutional law that an act innocent or innocuous per se cannot be prohibited and punished as a crime. And, on the other hand, that the State may enlarge the category of existing crimes, by the prohibition and punishment as crimes of acts, which at common law and under existing statutes were permitted to be done, subject to no penalty, civil or criminal, or which were not punishable as crimes.
This principle of constitutional law has recently been discussed and applied, in a case1 in which the constitutionality of a New York statute was questioned, which statute made it a criminal misdemeanor to be found in possession of the means of violating a law, and authorized the peremptory destruction of such means by any constable or peace officer.2 In holding the act to be constitutional, the Court of Appeals said, inter alia: “The legislature may not declare that to be a crime which in its nature is and must be under all circumstances innocent, nor can it in defining crimes, or in declaring their punishment, take away or impair any inalienable right secured by the constitution. But it may, acting within these limits (express limitations of constitutions, State and Federal) make acts criminal which before were innocent, and ordain punishments in future cases where before none could have been inflicted. This, in its nature, is a legislative power, which by the constitution of the State, is committed to the discretion of the legislative body. The act in question declares that nets set in certain waters are public nuisances, and authorize their summary destruction. The statute declares and defines a new species of public nuisance, not known to the common law, nor declared to be such by any prior statute. But we know of no limitation of legislative power which precludes the legislature from enlarging the category of public nuisances, or from declaring places or property used to the detriment of public interests or to the injury of the health, morals or welfare of the community, public nuisances, although not such at common law. There are, of course, limitations upon the exercise of this power. The legislature cannot use it as a cover for withdrawing property from the protection of the law, or arbitrarily, where no public right or interest is involved, declare property a nuisance for the purpose of devoting it to destruction. If the court can judicially see that the statute is a mere evasion, or was framed for the purpose of individual oppression, it will set it aside as unconstitutional, but not otherwise.”
A similar question, as to the power of the State to create new crimes by statute, was raised in respect to a California statute, which declared a husband guilty of a felony who “connives at, consents to, or permits,” his wife to be placed or left in a house of prostitution. The statute was held to be constitutional, notwithstanding the statutory crime there created was a mere operation of the mind, not evidenced by any overt act.1 It has also been held to be a constitutional exercise of police power to make it criminal for any person doing business as a banker to receive deposits after he knows that the bank is insolvent.2
There are, however, some express constitutional limitations upon the power of the State to declare that a crime, which may be held to create a civil liability. Thus, many of the State constitutions contain an express prohibition of imprisonment for debt. Difficulty is experienced in determining, when this constitutional provision is infringed, in those cases where the element of fraud enters into the case. The cases seem, generally, to agree that this constitutional protection from liability to imprisonment is intended solely for the honest but unsuccessful debtor, and cannot be invoked in behalf of the dishonest or fraudulent debtor. For example, in applying this question of constitutionality to the statutes, now very common, which provide for the punishment of hotel guests who fraudulently and with intent to cheat, refuse to pay their bills, a distinction is made by the courts between the honest and the fraudulent failures to pay such bills; holding that the statutes are only intended to punish those who willfully and fraudulently contract such bills, and hence do not come within the constitutional prohibition of imprisonment for debt.1
On the same general principle, it has been held that imprisonment, for refusal to obey the order of court, in bastardy proceedings, to pay an allowance to the mother of the child,2 or to pay over to another money which is in one’s possession, but under the control of the court,3 does not fall within the constitutional prohibition of imprisonment for debt. It has also been held to be constitutional for a city ordinance to provide imprisonment for employees of a water company, as a penalty for their violation of the contract between the city and the water company.1 On the other hand, it has been held to be a violation of the constitutional prohibition of imprisonment for debt, where a statute provides for the punishment by fine, and by imprisonment if he fails to pay the fine, of a banker who receives deposits after he knows himself to be in an insolvent condition.2 And it has, likewise, been held that a statute is unconstitutional which directs the imprisonment of a debtor who has disposed of all his property, with the intent to defraud his creditors.3 On the other hand, it has been held to be constitutional for a statute to provide for the arrest of debtors, who are removing and disposing of their property in fraud of creditors.4
Due process of law.—
But the forfeiture of rights is limited and controlled by constitutional restrictions, and it may be stated as a general proposition, that such a forfeiture, as a punishment for crime, can only be effected after a judicial examination and a conviction of the crime charged. In the Magna Charta, in the charter of Henry III., in the Petition of Right, in the Bill of Rights, in England, and in this country in all the constitutions, both State and national, it is substantially provided that no man shall be deprived of his life, liberty, or property, unless by the judgment of his peers or the law of the land. In some State constitutions, the clause “without due process of law” is employed in the place of “the judgment of his peers or the law of the land;” but the practical effect is the same in all cases, whatever may be the exact phraseology of this constitutional provision.5 Perhaps the scope of the limitation cannot be better explained than by the words of Mr. Webster: “By the law of the land is most clearly intended the general law; a law which hears before it condemns; which proceeds upon inquiry, and renders judgment only after trial. The meaning is that every citizen shall hold his life, liberty, property and immunities under the protection of the general rules which govern society. Everything which may pass under the form of an enactment is not therefore to be considered the law of the land. If this were so, acts of attainder, bills of pains and penalties, acts of confiscation, acts reversing judgments, and acts directly transferring one man’s estate to another, legislative judgments, decrees and forfeitures in all possible forms, would be the law of the land. Such a strange construction would render constitutional provisions of the highest importance completely inoperative and void. It would tend directly to establish the union of all powers in the legislature. There would be no general permanent law for courts to administer or men to live under. The administration of justice would be an empty form, an idle ceremony. Judges would sit to execute legislative judgments and decrees, not to declare the law or administer the justice of the country.”1
Bills of attainder.—
A further limitation is imposed by the constitution of the United States, which prohibits the enactment of bills of attainder by Congress and by the legislatures of the several States.2 A bill of attainder is a legislative conviction for crime, operating against a particular individual, or some one or more classes of individuals. According to the ancient English meaning of the term, it included only those legislative enactments, which pronounced the judgment of death. But a broader signification is given to the word in this constitutional limitation, and it includes all attempts on the part of Congress to inflict punishment and penalties upon individuals for alleged crimes of every description. The term bill of attainder is now used to include all bills of pains and penalties. “I think it will be found that the following comprise those essential elements of bills of attainder, in addition to the one already mentioned (which was that certain persons were declared attainted and their inheritable blood corrupted), which distinguish them from other legislation, and which made them so obnoxious to the statesmen who organized our government: 1. They were convictions and sentences pronounced by the legislative department of the government, instead of the judicial. 2. The sentence pronounced and the punishment inflicted were determined by no previous law or fixed rule. The investigation into the guilt of the accused, if any such were made, was not necessarily or generally conducted in his presence or that of his counsel, and no recognized rule of evidence governed the inquiry.”1
Since the formation of the Union, there has happily been but one occasion when there was any inducement to the enactment of such legislative judgments and convictions, and that was at the close of the late civil war. Congress provided by statute that in order that one may enter upon the performance of the duties of any office of trust or profit under the government of the United States, excepting the President of the United States, he shall theretofore take and subscribe an oath that he had not aided or given countenance to the rebellion against the United States. A second act was passed, prescribing a similar oath to be taken by candidates for admission to practice in any of the courts of the United States. The Supreme Court held that the latter statute was void, because it offended this constitutional provision, prohibiting the enactment of bills of attainder.1 Inasmuch as the right to hold a public office is a privilege and not a right, the former act of Congress, which provided the so-called “iron-clad” oath of office, would not be unconstitutional, unless the qualifications of the candidates for office, to which the statute applied, are stipulated in the constitution. Congress, or a legislature, has no power to change the qualifications for office, where they have already been determined by the constitution.2 It is, probably, for this reason that the office of President was excluded from the operation of this statute. In article I., section 1, of the constitution of the United States, the oath of office is prescribed which the President is required to take before entering upon the duties of his office.
Similar legislation was enacted in some of the States. In Missouri, the constitution of ’65 contained a clause, which required a similar oath to be taken by all voters, officers of State, county, town, or city, to be elected or already elected; attorneys at law, in order to practice law; clergymen, in order to teach, and preach or solemnize marriages; professors and teachers of educational institutions, etc. Although the State court, as it was then constituted, did not hesitate to pronounce these provisions valid, the Supreme Court of the United States has declared them void as being in violation of the national constitution, which prohibits the enactment of bills of attainder by the States.3
Coming under the head of bills of attainder, the New York statute (Laws of 1893, ch. 661, as amended by Laws of 1895, ch. 398) might be cited, which makes it a misdemeanor for any one to practice medicine, who has been convicted of a felony, where the statute is made to apply to persons who were convicted before it became a law. In a case, conveying these facts, the statute was declared to be unconstitutional because it was ex post facto.1
Ex post facto laws.—
Another constitutional provision, intended to furnish to individual liberty ample protection against the exercise of arbitrary power, prohibits the enactment of ex post facto laws by Congress as well as by the State legislatures.2 The literal meaning of the prohibition is that no law can be passed which will apply to and change the legal character of an act already done. But at a very early day in the history of the constitution, the clause was given a more technical and narrow construction, which has ever since limited the application of the provision. In the leading case,3 Judge Chase explains the meaning of the term ex post facto in the following language: “The prohibition in the letter is not to pass any law concerning or after the fact; but the plain and obvious meaning and intention of the prohibition is this: that the legislatures of the several States shall not pass laws after a fact done by a subject or citizen, which shall have relation to such fact, and punish him for having done it. The prohibition, considered in this light, is an additional bulwark in favor of the personal security of the subject, to protect his person from punishment by legislative acts having a retrospective operation. I do not think it was inserted to secure the citizen in his private rights of either property or contracts. The prohibitions not to make anything but gold and silver a tender in payment of debts, and not to pass any law impairing the obligation of contracts, were inserted to secure private rights; but the restriction not to pass any ex post facto law was to secure the person of the subject from injury or punishment, in consequence of such law. If the prohibition against making ex post facto laws was intended to secure personal rights from being affected or injured by such laws, and the prohibition is sufficiently extensive for that object, the other restraints I have enumerated were unnecessary, and therefore improper, for both of them are retrospective.
“I will state what laws I consider ex post facto laws, within the words and the intent of the prohibition. 1st. Every law that makes an action, done before the passing of the law, and which was innocent when done, criminal, and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment than the law annexed to the crime when committed. 4th. Every law that alters the legal rules of evidence, and receives less or different testimony than the law required at the time of the commission of the offense, in order to convict the offender. All these and similar laws are manifestly unjust and oppressive. In my opinion, the true distinction is between ex post facto laws and retrospective laws. Every ex post facto law must necessarily be retrospective, but every retrospective law is not an ex post facto law; the former only are prohibited. Every law that takes away or impairs rights vested, agreeably to existing laws, is retrospective, and is generally unjust, and may be oppressive; and there is a good general rule, that a law should have no retrospect; but there are cases in which laws may justly, and for the benefit of the community, and also of individuals, relate to a time antecedent to their commencement; as statutes of oblivion or of pardon. They are certainly retrospective, and literally both concerning and after the facts committed. But I do not consider any law ex post facto, within the prohibition that mollifies the rigor of the criminal law; but only those that create or aggravate the crime, or increase the punishment, or change the rules of evidence for the purpose of conviction. Every law that is to have an operation before the making thereof, as to commence at an antecedent time, or to save time from the statute of limitations, or to excuse acts which were unlawful, and before committed, and the like, is retrospective. But such laws may be proper or necessary, as the case may be. There is a great and apparent difference between making an unlawful act lawful, and the making an innocent action criminal, and punishing it as a crime. The expressions ex post facto are technical; they had been in use long before the revolution, and had acquired an appropriate meaning by legislators, lawyers and authors.”1 It is not difficult to understand the scope of the cosntitutional protection against ex post facto laws, except as to those cases, in which it is held that when a less punishment is inflicted the law is not ex post facto. The difficulty in these cases is a practical one, arising from an uncertainty concerning the relative grievousness and weight of different kinds of punishment. That a law is constitutional, which mitigates the punishment of crimes already committed, cannot be doubted.1 But all punishments are degrading, and in no case of an actual change of punishment, as for example from imprisonment to whipping, or vice versa, can the court with certainty say that the change works a mitigation of the punishment. But while the courts of many of the States have undertaken to decide this question of fact,2 the New York Court of Appeals has held that “a law changing the punishment for offenses committed before its passage is ex post facto and void, under the constitution, unless the change consists in the remission of some separable part of the punishment before prescribed, or is referable to prison discipline or penal administration, as its primary object.”3 Except in regard to the material changes in the rules of evidence which tend to make conviction easier, laws for the regulation of criminal procedure are always subject to repeal or amendment, and the new law will govern all prosecutions that are begun or are in progress after its enactment, it matters not when the offenses were committed. Such a law is not deemed an ex post facto law when applied to the prosecution of offenses committed before the change in the law.1
The principle involved in the prohibition of ex post facto laws, is also applicable to the rights and privileges of the convict in the penitentiary, wherever the new law tends to increase the hardship of the imprisonment.1 But a law is not ex post facto which mitigates these hardships, or which shortens the term of imprisonment under the so-called “merit” rule. Thus, it was held to be constitutional to provide for the reduction in the length of terms of imprisonment, on account of good behavior, according to a prescribed scale, but providing for less favorable consideration to those who were serving a second term. The fact that one, who had served a term prior to the enactment of the law, was discriminated against, did not make it an ex post facto law.2 Nor is it a case of ex post facto law when, under the so-called Habitual Criminals Acts, a heavier penalty is imposed for the second or third offense, where the first offense was committed and the penalty therefor inflicted and suffered, before this law was passed.3
Cruel and unusual punishment in forfeiture of personal liberty and rights of property.—
In preceding sections4 it has been explained how far the constitutional prohibition of cruel and unusual punishments control the power of the State to inflict capital and corporal punishment. Punishments, which do not restrict or interfere with one’s right of personal security, must involve the deprivation or restriction of one’s personal liberty or right of property, or of one’s civil rights. That any one of these rights may be taken away or restricted, as a punishment for crime, seems never to have been questioned except in one case,1 where the right of suffrage and the right to hold office, were taken away, as a penalty for gambling in violation of the laws of the State. But these were held not to be cruel and unusual punishments in the constitutional sense.
In recent decisions this constitutional provision has been invoked in resistance to the imposition of a new penalty for crime; rather, on the ground that the penalty was excessive in degree when the character of the offense was considered, than that it was inherently cruel and unusual. In all such cases, the new statute increased the severity of the punishment, and in all of them the courts held that the new penalties were not excessive or cruel in the constitutional sense.2 In other cases, this constitutional provision was appealed to as making a statute unconstitutional, which applied ordinary punishments,—fines and imprisonment—to actions, which have been made crimes by statute; in one case, the maintenance of a common nuisance,3 and in another, the killing of wild game in violation of the regulations of the game laws.4 The courts have held that these were not cruel and unusual punishments in the constitutional sense.
A statute has, likewise, been held to be lawful, and free from constitutional objection, which provided that the receiver of stolen goods may be sentenced to the State penitentiary for a term not exceeding five years, or to the county jail for a term not exceeding six months, or both. Double punishment is not cruel or unusual.1
Preliminary confinement to answer for a crime—Commitment of witnesses.—
It is the benign principle of every system of jurisprudence that one is presumed to be innocent of all criminal accusations, until he is proven to be guilty, and that presumption is so strong that the burden is thrown upon the prosecution of proving the guilt beyond the shadow of a doubt, in order to secure a conviction. But, notwithstanding this general presumption of innocence, the successful prosecution and punishment of crimes require that the necessary precautions be taken to secure the presence of the accused during the trial and afterwards, in case of conviction, and the fear of a default in attendance becomes greater in porportion as the likelihood of conviction increases. In order, therefore, that the laws may be enforced, and the guilty be brought to trial and punishment, it is necessary that every one, against whom a charge of crime has been laid, should submit to arrest by the proper officer, whose duty it is to bring the accused before the court or officer by whom the order for arrest has been issued.
Another phase of preliminary confinement, which is permitted in the furtherance of justice, is the commitment of witnesses in criminal cases. When a witness is summoned in a criminal case, whether to appear before the grand jury, or in the actual trial of the case, and he refuses to testify, he may be committed to jail for contempt, unless he is exempted by privilege from the obligation to testify.2 So, also, where it is feared that a witness is likely to disappear before the trial, in order to escape his appearance on the witness stand, he may be required to enter into recognizance and give bond for his appearance; and if he refuses or is unable to do so, he may be committed to jail. There is no unconstitutional interference with personal liberty in such a commitment.1
Since the preliminary confinement is ordered only to insure the attendance of the accused at the trial, the confinement can only be continued as long as there is any reasonable danger of his default. Where, therefore, the punishment upon conviction will not exceed a fine or imprisonment of short duration, it became customary at an early day to release him upon giving a bond for his appearance, signed by sureties, in the sum which he will have to pay upon conviction, or in such a sum as would probably be sufficient to outweigh the impulse to flee from the threatened imprisonment. This was called giving bail. At common law, bail could not be demanded as a matter of right, except in cases of misdemeanor, and felonies were not bailable as a rule. But the severity of the common law in this regard has been greatly moderated, until at the present day, as a general rule, all offenses are bailable as a matter of course, except in cases of homicide and other capital cases. In all capital cases, it is usually provided that bail should be refused, where the evidence of guilt is strong or the presumption great, and in all such cases it is left to the discretion of the judge to whom application is made, whether bail should be granted or refused.2 When a person is bailed, he is released from the custody of the State authorities, but he is not remanded completely to his liberty. The one who has furnished the security, and is therefore responsible for his default, has in theory the custody of the accused in the place of the State, and he has in fact so much of a control over the accused, that he may re-arrest the latter, whenever he wishes to terminate his responsibility, and deliver the principal to the officers of the law. But the imprisonment by the bail can only be temporary and for the purpose of returning him to the custody of the law, and must be done with as little violence as possible. This can be done at any time before the forfeiture of the bond for non-appearance has been judicially declared; it may be done by the bail or by his duly constituted agent, and the arrest can be made wherever the accused can be found, even though it is without the State.1
Another instance, where bail is permitted to be allowed, in the discretion of the judge, is after conviction for a crime, which is not punishable by death, pending an appeal. But the circumstances, and conditions, under which bail will be allowable in such a case, are wholly within the control and discretion of the legislature; and the statute, regulating the same, cannot be successfully attacked, on the ground of unconstitutionality, because the statute permits bail only when there is a stay of proceedings, and a certificate is procured from a judge that there is reasonable doubt, whether the judgment should stand.2
In Pennsylvania, a statute requires bail absolute to be given for a debt and costs, where, in a suit before a magistrate for the recovery of wages for manual labor, an appeal is taken from the judgment in favor of the plaintiff. The act was held to be free from constitutional objections.3
The constitutions of most of the States, as well as the constitution of the United States, provide that excessive bail shall not be required. What constitutes excessive bail, must from the necessities of the case be left with the discretion of the judge or magistrate, to whom application for release on bail is made. Any misjudgment in such a case, or a willful requirement of excessive bail, could not be remedied, except by application to some other court or judge possessing jurisdiction over the case. That bail may be called reasonable, which will be sufficient to secure the attendance of the accused at the trial by outweighing or overcoming the inducement to avoid punishment by a default; and the court or judge, in determining the amount of the bail, must take into consideration all the circumstances which will increase or diminish the probability of a default, the nature of the offense, and of the punishment, the strength or weakness of the evidence, the wealth or impecuniosity of the accused, etc.
What constitutes a lawful arrest.—
As a general proposition, no one can make a lawful arrest for a crime, except an officer who has a warrant issued by a court or magistrate having the competent authority. If the process is fair on its face, that is, nothing appears upon its face to lead the officer to an inquiry into the jurisdiction of the court, then the officer who makes the arrest has acted lawfully, notwithstanding the court or magistrate which issued the process had no jurisdiction over the case.1
A distinction is made by the cases between courts of general and of inferior jurisdiction, in respect to what process is fair on its face. If the process issued from a court of general jurisdiction, the officer is allowed to indulge in the presumption that the case came within the jurisdiction of the court, and need make no inquiry into the details of the case, nor need the warrant contain recitals to show that the court had jurisdiction. But if the process issued from a magistrate or court of inferior and limited jurisdiction, the warrant must contain sufficient recitals to satisfy the officer that the case was within the jurisdiction of the court, in order to be fair on its face. This distinction is very generally recognized and applied.1
The question has been raised, whether an arrest, made, under a warrant lawfully issued by a State court or magistrate, is made unlawful, as not being due process of law, by the fact that the person arrested has been unlawfully brought by private persons within the jurisdiction of the court. It has been held that the two occurrences are distinct and separate, and that the arrest under a State warrant was “due process of law.”2
The officer is bound to know whether under the law the warrant is defective, and not fair on its face, and he is liable as a trespasser, if it does not appear on its face to be a lawful warrant. His ignorance is no excuse.1 It has been held in several of the States2 that where an officer has knowledge of the illegality of the warrant, although it is fair on its face, he can not with safety act under it, the protection of process fair on its face being granted to those who ignorantly rely upon its apparent validity. But the better opinion is that the officer is not required in any case to pass judgment upon the validity of a warrant that is fair on its face, and his knowledge of extra-judicial facts will not deprive him of the right to rely upon its apparent validity.3
Arrests without a warrant.—
Although it is the general rule of law that there can be no arrest without a warrant of the nature just described, yet there are cases in which the requirement of a warrant would so obstruct the effectual enforcement of the laws, that the ends of justice would be defeated. For public reasons, therefore, in a few cases, the personal security of the citizen is subjected to the further liability of being arrested by a police officer or private individual without a warrant. But the right thus to arrest without a warrant must be confined to the cases of strict public necessity. The cases are few in number and may be stated as follows:—
1. When a felony is being committed, an arrest may be made without warrant to prevent any further violation of the law.1
2. When the felony has been committed, and the officer or private individual is justified, by the facts within his knowledge, in believing that the person arrested has committed the crime.2
3. All breaches of the peace, in assaults and batteries, affrays, riots, etc., for the purpose of restoring order immediately.3
4. The arrest of all disorderly and other persons who may be violating the ordinary police regulations for the preservation of public order and health, such as vagrants, gamblers, beggars, who are found violating the laws in the public thoroughfares.4
The constitutional principle, that arrest without warrant is permissible only in cases of strict public necessity, is very clearly set forth in a case from the Michigan courts, which pronounces a statute of that State unconstitutional, in that it authorizes the recaption without warrant and imprisonment of a convict, who is charged with the violation of the conditions of his pardon. No public necessity required this summary arrest without warrant; and, consequently, his deprivation of liberty had not been procured by “due process of law.”1
The trial of the accused.—
“No man shall be deprived of his life, liberty, or property except by the judgment of his peers or the law of the land.” One who has committed a crime can be punished by man, not because he has violated the law of God, or the law of nature (if the two systems of law can be considered distinguishable), but because he has broken the law of man. In order that a man may be lawfully deprived of his life or liberty, he must be convicted of a breach of the human laws, and the conviction must be secured according to the provisions of these laws. If, according to the existing rules of the substantial and remedial law, one charged with a crime is not guilty or cannot be convicted of it, he stands free before the law notwithstanding he has violated the God-given rights of others; and to take away his life or his liberty would be as much an infringement of his constitutional rights, as would a like deprivation be of a man who leads a strictly moral life, and scrupulously respects the natural rights of his fellow-men. A man’s life, liberty, or property cannot be taken away, except by due process of law. It is not proposed to explain all the rules of law governing the conduct and management of criminal prosecutions, since the object of the present outline of the subject is simply to make a statement of the leading constitutional protections to personal liberty. The trial must be conducted in complete accordance with the rules of practice and the law of evidence, in order that a conviction may lawfully support an imprisonment for crime. But these rules of practice and pleading may be changed by the legislature to any extent, provided the constitutional limitations to be presently mentioned are not violated.
As already explained, a temporary confinement of one accused of crime is permissible, in fact necessary, for the purpose of insuring the presence of the alleged criminal at the trial; for in cases of felony no one can be tried and convicted in his absence, even though his absence is voluntary.1 But this confinement is only temporary, and can justifiably continue only for as long a time as is reasonably required by the prosecuting attorney to prepare the case of the State for trial.
The trial must be speedy.—
It is, therefore, one of the constitutional limitations for the protection of personal liberty, that the trial be speedy. A man accused of a crime is entitled to a speedy trial, not merely because he is under a personal restraint, but also because his reputation is under a cloud, as long as the criminal accusation remains undisposed of. As a general proposition, the accused is entitled to a trial at the next term of the court after the commission of the crime, or after the accused has been apprehended; and if it should prove to be necessary for any cause, except the fault of the accused, to adjourn the court without bringing the prisoner to trial, in ordinary cases he would then be entitled to bail, although originally he was not. This is, however, largely a matter of discretion for the court.1 When the prisoner is ready for trial, the solicitor for the State is not entitled to delay, unless he satisfies the court that he has exercised due diligence, yet, for some cause, the shortness of time or the absence of material witnesses, etc., he is not prepared to proceed to trial.2 The continuance of cases must necessarily be largely left to the discretion and good faith of the prosecuting attorney, although it is the duty of the court to be watchful in behalf of the prisoners, who may through the carelessness or malice of the attorney for the State be kept in prison indefinitely awaiting a trial. The discretionary character of the duties of prosecuting attorneys furnishes them with powerful means of oppression, if they choose to employ them, and they are too often careless and indifferent to the suffering they cause to the accused, and too frequently ignore his legal right to a speedy trial.1
Trials must be public.—
The next constitutional requirement is that the trial must be public. The object of this provision is to prevent the establishment of secret tribunals of justice, which can be made effective instruments for the oppression of the people. But there is a difficulty in determining what amount of publicity in criminal trials would satisfy this requirement of the constitution. It would not do to say that every person has a constitutional right to attend every criminal trial, whether he had an interest in the prosecution or not, for that would necessitate the construction for judicial purposes of a much larger building than is really needed for the ordinary conduct of the courts. Then, too, since this constitutional requirement was established for the protection of the accused, it would not be violating any rights of his, if the courts should be closed, in the trial of causes in which great moral turpitude is displayed, to those who are drawn thither by no real interest in the prosecution or the accused, or for the performance of a public duty, but merely for the gratification of a prurient curiosity. The admission of such persons may justly be considered injurious to the public morals, and not at all required as a protection against the oppression of star chambers. But, while it is undoubtedly true that this constitutional requirement could be satisfied, notwithstanding the public generally is excluded from attendance upon trials, where on account of the nature of the case public morals would likely be corrupted by an unnecessary exposure of human depravity, still it must be conceded that the present public sentiment in America is opposed to any exclusion of the public from attendance upon the sessions of the criminal courts, and an attempt of that kind, even if the court possessed the power under the constitution and laws, and that seems questionable, would raise a most dangerous storm of public indignation against the offending judge. It is only through the action of the legislature that it would be possible to impose effectively the limitations proposed. In framing these limitations, numerous difficulties would present themselves; and it would finally be ascertained that but two methods were feasible, viz.: either to leave it to the discretion of the court who shall be admitted to witness the trial, or to exclude the public altogether, and admit only the officers of the court, including members of the bar and jurors, the parties to the suit, witnesses, and others who are personally interested in the accused or the subject of the suit, and those whose presence is requested by the parties to the cause. Such is believed to be the law prevailing in Germany.1 Such a provision would seem to make the trial sufficiently public in order to protect the individual against unjust and tyrannical prosecutions, and likewise furnish the community with abundant means for enforcing a proper administration of the courts.
In the same connection, it would be well, in carrying out the same object, to exclude the reporters of the ordinary newspapers. While, as a matter of course, the preservation and publication of criminal trials and statistics are necessary to the public good, it is not only unnecessary as a protection of personal liberty, that they should appear in the ordinary public print, but it is highly injurious to the public morals, as well as revolting to the sensibilities of any one possessing a fair degree of refinement. The most enterprising of the American journals of the larger cities present daily to their reading public a full history of the criminal doings of the previous day, and the length of the reports increases with the nastiness of the details. The amount of moral filth, that is published in the form of reports of judicial proceedings, renders the daily paper unfit to be brought into a household of youths and maidens. There is greater danger of the corruption of the public morals through the publication of the proceedings of our criminal courts, than through the permission of attendance upon the sessions of the court. Only a few will or can avail themselves of that privilege, whereas thousands get to learn through the press of the disgusting details of crime.
Accused entitled to counsel.—
The State, in all criminal prosecutions, is represented by a solicitor, learned in the law, and unless the accused was likewise represented by legal counsel, he would usually be at the mercy of the court and of the prosecuting attorney. The prosecution might very easily be converted into a persecution. It was one of the most horrible features of the early common law of England, that persons accused of felonies were denied the right of counsel, the very cases in which the aid of counsel was most needed; and it was not until the present century that in England the right of counsel was guaranteed to all persons charged with crime.1 But in America the constitutional guaranty of the right of counsel in all cases, both criminal and civil, is universal, and this has been the practice back to an early day. Not only is it provided that prisoners are entitled to counsel of their own appointment, but it is now within the power of any judge of a criminal court, and in most States it is held to be his imperative duty, to appoint counsel to defend those who are too poor to employ counsel; and no attorney can refuse to act in that capacity, although he may be excused by the court on the presentation of sufficient reasons.1
On the continent of Europe, the prisoner is allowed the aid of counsel during the trial, but until the prosecuting attorney is through with his inquisitorial investigation of the prisoner, and has, by alternately threatening, coaxing, and entrapping the accused into damaging admissions, procured all the attainable evidence for the State, he is denied the privilege of counsel. The counsel gains access to his client when the prosecuting attorney is satisfied that he can get nothing more out of the poor prisoner, who finding himself perhaps for the first time in the clutches of the law, and unable to act or to speak rationally of the charge against him, will make his innocence appear to be a crime. Not so with the English and American law. From the very apprehension of the prisoner, he is entitled to the aid of counsel, and while his admissions, freely and voluntarily made, are proper evidence to establish the charge against him, it is made the duty of all the officers of the law, with whom he may come into contact, to inform him that he need not under any circumstances say anything that might criminate him. Confessions of the accused, procured by promises or threats, are not legal testimony, and cannot be introduced in support of the case for the State.1
Indictment by grand jury or by information.—
The prevailing criminal procedure, throughout the United States, with perhaps a few exceptions, provides in cases of felony for accusations to be made by an indictment by a grand jury.2 But these are matters of criminal procedure that are subject to constant change by the legislature, and it cannot be doubted that no constitutional limitation would be violated, if the grand jury system were abolished.3 So, also, the form of the indictment may be very minutely regulated by statute, without infringing any constitutional provision.4
The plea of defendant.—
According to the early common law, it was thought that before the trial could proceed, the defendant had to plead to the indictment. In treason, petit felony, and misdemeanors, a refusal to plead or standing mute, was equivalent to a plea of guilty and the sentence was pronounced as if the prisoner had been regularly convicted. But in all other cases, it was necessary to have a plea entered, before judgment could be pronounced; and unless the defendant could be compelled to plead, the prosecution would fail. It was the custom in such cases to resort to tortures of the most horrible kind in order to compel the defendant to plead; and where the refusal was shown to be through obstinacy or a design to frustrate the ends of justice, and not because of some physical or mental infirmity (and these matters were determined by a jury summoned for that purpose), the court would pronounce the terrible sentence of “peine forte et dure.”1 But at the present day the necessity of a voluntary plea to the indictment does not seem to be considered so pressing, as to require the application of this horrible penalty. Respect for the common law requirement is manifested only by the court ordering the plea of not guilty to be entered, whenever the prisoner failed or refused to plead, and the trial then proceeds to the end as if he had voluntarily pleaded.
If upon arraignment, the prisoner should plead guilty, it would appear, from a superficial consideration of the matter, that no further proof need be required. But, strange as it may seem, there have been cases in which the accused has pleaded guilty, and it has afterwards been discovered that no crime had been committed. A tender regard for the liberty of the individual would suggest the requirement of extraneous evidence to prove the commission of a crime, and the plea of guilty be admittted only to connect the prisoner with the crime. This would be sufficient precaution in the ordinary criminal cases, but in capital cases it would be wise to authorize a refusal of all pleas of guilty; for a mistake in such cases would be irremediable.1
If the plea is not guilty, it becomes necessary for the State to show by competent, legal evidence, that the defendant has committed the crime wherewith he is charged. Except in a few cases, where the subject-matter of the testimony forms a part of a public record, or consists of the dying declaration of the murdered man in a case of homicide, which are made exceptions to the rule by the necessities of criminal jurisprudence, the evidence is presented to the court by the testimony of witnesses. It is the invariable rule of the criminal law, which is believed to be guaranteed by the constitutional limitations, that the testimony must be given in open court by the witnesses orally, so that the defendant will have an opportunity to cross-examine them.2
According to English and American law, the presumption of innocence of the accused, until that presumption is overthrown by evidence to the contrary, is generally held to require the prosecution to dissipate every reasonable doubt before the defendant can be justly pronounced guilty. But this principle of criminal law does not prevent the legislature from declaring by statute that certain facts when proven create a presumption of guilt, or shall be taken as prima facie evidence of guilt. It would, of course, be different if the statute created a conclusive presumption of guilt from the proof of certain facts. Such a conclusive presumption when created by statute, would be a violation of the constitutional requirement of “due process of law.”1
One of the most important constitutional requirements in this connection, and that which most distinguishes the common-law system of criminal procedure from that of the European continent, is that the accused can never be compelled to criminate himself by his evidence. Nor can he be compelled to testify to any degree whatever. On the continent of Europe he is compelled to answer every question that is propounded to him by the presiding judge. In England and America he may now testify in his own behalf, but the privilege of remaining silent is so strictly guarded, that it is very generally held to be error for the State to comment on, and to draw adverse inferences from, his failure to take advantage of the opportunity to testify in his own behalf. The Anglo-Saxon spirit of fair play requires the State to convict the accused without the aid of extorted confessions, and will not allow such criticisms on his silence.2 But if he goes upon the witness-stand, while he still has the privilege of deciding how far and as to what facts he shall testify, and may refuse to answer questions which may tend to criminate him, the State attorney may comment on the incompleteness of the evidence and his refusal to answer proper questions. Having put himself upon the stand, very little weight can be given to his testimony, if he does not tell the whole truth, as well as nothing but the truth.1
It is hardly necessary to state that a full opportunity must be given to the accused to defend himself against the charge of the State. Without such an opportunity, the proceeding would be only ex parte.2 For that reason, a State statute has been declared to be unconstitutional, which provides that the jury may return a verdict of guilty of embezzlement, on an indictment which charges the defendant with larceny.3
Trial by jury—Legal jeopardy.—
All prosecutions are tried at common law by a jury, and in some of our State constitutions the right of trial by jury is expressly guaranteed.4 Where the right is guaranteed without restriction, it means a common-law trial by jury; and where at common law certain offenses were triable by the court without the aid of a jury, the jury is not now required.1 Whether in the absence of an express guaranty of the trial by jury, it could be abolished by the legislature, is difficult to determine. If one can keep his judgment unbiased by the prevailing sentiment, which makes of the jury “the palladium of liberty,” “the nation’s cheap defender,” etc., it would seem that he must conclude that the jury is not needed to make the trial “due process of law;” and where the constitutional clause reads in the alternative, as it did in the Magna Charta, “by the judgment of his peers or the law of the law,” the presumption becomes irresistible that when the trial by jury is not expressly guaranteed the power of the legislature to abolish the jury system is free from constitutional restraint. But in the present temper of public opinion concerning the sacredness of the right of trial by jury, it would not be surprising if the courts should pronounce an express guaranty to be unnecessary.
But, in enforcing the constitutional requirement of a trial by jury, the courts recognize the full right of the legislature to prescribe the mode and manner of conducting trials by jury, as long as the right itself has not been materially impaired thereby. It is, for example, permissible for the legislature to reduce the number of jurors in a panel, whether the change refers to the grand or petit juries.1
So, likewise, is the legislature empowered to regulate and change the grounds of challenge to jurors.2
So, also, a statute, authorizing struck juries, is not constitutionally objectionable, because it is a privilege of which very few can afford to avail themselves.3
It would, of course, be unconstitutional, if there was any discrimination, by law or by jury commissioners, in administering the law, against any race in making up the list of jurors, or in drawing the panels.4
The last constitutional requirement concerning criminal trials to be considered is that which declares that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb.” A person is said to have been in legal jeopardy when he is brought before a court of competent jurisdiction for trial, on a charge that is properly laid before the court, in the form of an indictment or an information, and a jury has been impaneled and sworn to try him. When this is done, the defendant is entitled to have the case proceed to a verdict, and if the prosecution should be dropped by the entry of a nolle prosequi against the defendant’s will, it is of the same effect as if the case had ended in acquittal of the defendant. There cannot be any second prosecution for the same offense.1 But if the prosecution should fail on account of some defect in the indictment, or for want of jurisdiction,2 or if for unavoidable reasons, the court has to adjourn and the jury be discharged without a verdict,1 as when the death of a judge or of a juror occurs,2 or the jury is unable, after a reasonable effort, to agree upon a verdict, and a mistrial has to be ordered.3 A second prosecution may also be instituted when a verdict is set aside, or the judgment reversed, on the ground of error.4
Right of appeal.—
In the English criminal law, no provision whatever is made for the review of criminal convictions by the higher or appellate courts; the only relief from an unjust verdict being an appeal to the Home Secretary of the government, who will recommend a pardon by the Crown, if the facts of the case warrant it. In this country, the right of appeal to the higher courts is generally provided for in criminal, as in civil, cases. So universal is this provision for an appeal in criminal cases, that there is a manifest disposition to claim the right of appeal to the courts of last resort as an inalienable constitutional right. But the cases, in which the claim is made, that any denial or limitation of the right of appeal is a violation of the constitutional guaranty of “due process of law,” have generally denied the claim, and maintained that a right of review in criminal cases by an appellate court “is not a necessary element of due process of law, but it is wholly within the discretion of each State to refuse it or grant it on any terms.”1
Imprisonment for crime—Hard labor—Control of convicts in prison.—
The most common mode of punishment for crime at the present day is confinement in some jail or penitentiary. The liberty of the convict is thus taken away for a specified period, the length of which is graded according to the gravity of the offense committed. What shall be the proper amount of imprisonment to be imposed as a reasonable punishment for a particular crime is a matter of legislative discretion, limited only by the vague and uncertain constitutional limitation, which prohibits the infliction of “cruel and unusual punishments.”2 Within the walls of the prison the convict must conduct himself in an orderly manner, and conform his actions to the ordinary prison regulations. If he should violate any of these regulations, he may be subjected to an appropriate punishment, and for serious cases of insubordination, corporal punishment is very often inflicted, even in those States in which the whipping-post has been abolished.3
For minor offenses, it is usual to confine the criminal in the county jail, and the punishment consists only of a deprivation of one’s liberty. But for more serious and graver offenses, the statutes provide for the incarceration of the convict in the penitentiary, where he is required to perform hard labor for the benefit of the State. The product of his labor is taken by the State in payment of the cost of his maintenance. It cannot be doubted that the State has a constitutional right to require its convicts to work during their confinement, and there has never been any question raised against the constitutionality of such regulations.1 The penitentiary system is now a well-recognized feature of European and American penology.
Convict lease system.—
An interesting question has lately arisen in this country, in respect to the State control of convicts. In many of the Southern States, instead of confining the convict at hard labor within the walls of the penitentiary, in order to get rid of the burden of maintaining and controlling them within the penitentiary, provision was made for leasing the convicts to certain contractors to be worked in different parts of the State, usually in the construction of railroads. The entire control of the convict was transferred to the lessee, who gave bond that he would take care and guard them, and promised to pay a penalty to the State for the escape of each convict. The frequency of the reports of heartless cruelty on the part of lessees towards the convicts, prompted by avarice and greed, and rendered possible by the most limited supervision of the State, has aroused public sentiment in opposition to the convict lease system in some of these States, and we may confidently expect a general abolition of the system at no very distant day. But it is still profitable to consider the constitutionality of the law, upon which the convict lease system is established. In Georgia, the constitutionality of the law was questioned, but sustained. In pronouncing the statute constitutional, the court said: “In the exercise of its sovereign rights for the purpose of preserving the peace of society, and protecting the rights of both person and property, the penitentiary system of punishment was established. It is a part of that police system necessary, as our lawmakers thought, to preserve order, peace and the security of society. The several terms of these convicts fixed by the judgments of the courts under the authority of the law, simply subject their persons to confinement, and to such labor as the authority may lawfully designate. The sentence of the courts under a violated law confers upon the State this power, no more; the power to restrain their liberty of locomotion, and to compel labor not only for the purposes of health, but also to meet partially or fully the expenses of their confinement. The confinement necessarily involved expenses of feeding, clothing, medical attention, guards, etc., and this has been in its past history a grievous burden upon the taxpayers of the State. Surely it was competent for the sovereign to relieve itself of this burden by making an arrangement with any person to take charge of these convicts and confine them securely to labor in conformity with the judgments against them for a time not exceeding their terms of sentence. It was a transfer by the State to the lessee of the control and labor of these persons in consideration that they would feed, clothe, render medical aid and safely keep them during a limited period.”1 It cannot be doubted that, as a general proposition, in the absence of express constitutional limitations as to the place of imprisonment and labor, the convict could be confined and compelled to labor in any place within the State, and in fact he may be compelled to lead a migratory life, going from place to place, performing the labor required of him by the law of the land.2 And the only case in which such a disposition of the convict may be questioned, would be where this law was made to apply to one, who had been convicted under a different law, the terms of which allowed or required the sentence to provide for confinement at hard labor within the walls of the penitentiary. A convict under such a sentence could not, in the enforcement of a subsequent statute, be taken out of the penitentiary and be compelled to work in other parts of the State. The application of the new law in such a case would give it a retrospective operation, and make it an ex post facto law. But ordinary constitutional limitations would not be violated in the application of such a law to those who may be convicted subsequently. The convict lease system is not open to constitutional objection, because it provides for the convict to be carried from place to place, performing labor wherever he is required. The objectionable feature of the system is the transfer to private persons, as a vested right, of the control over the person and actions of the convict. It is true that all the rights of the individual are subject to forfeiture as a punishment for crime, and the State government, as the representative of society, is empowered to declare the forfeiture under certain constitutional limitations. The State may subject the personal liberty of the convict to restraint, but it cannot delegate this power of control over the convict, any more than it can delegate to private individuals the exercise of any of its police powers. The maxim, delegatus non delegare potest finds an appropriate application, in this connection.1 Certainly, when we consider the great likelihood of cruel treatment brought about by the greed and avarice of the lessees of the convict, personal interest outweighing all considerations of humanity, it would not require any stretch of the meaning of words to declare the convict lease system a “cruel and unusual punishment.” The State may employ its convicts in repairing its roads, in draining swamp lands, and carrying on other public works; the State may even lease the convicts to labor, the lessee assuming the expense of maintaining and guarding them, provided the State through its officials has the actual custody of them; but the State cannot surrender them to the custody of private individuals. Such a system resembles slavery too much to be tolerated in a free State.
U. S. Const. Amend., art. XIII. It has been held that this provision of the United States Constitution, ipso facto and instantaneously abolished any existing slavery in the territory of Alaska, when it came by purchase under the jurisdiction of the United States. In re Sah Quah, 31 Fed. 327.
Webster’s Works, vol. II., p. 393.
Social Statics, p. 94. “Liberty as used in the provision of the fourteenth amendment to the Federal constitution, forbidding the States to deprive any person of life, liberty, or property without due process of law, includes, it seems, not merely the right of a person to be free from physical restraint, but to be free in the enjoyment of all his faculties in all lawful ways; to live and work where he will; to earn his livelihood by any lawful calling; to pursue any livelihood or avocation; and for that purpose to enter into all contracts which may be proper, necessary, and essential to carry out the purposes above mentioned.” Allgeyer v. State of Louisiana, 165 U. S. 578.
Christiancy, J., in People v. Jackson & Mich. Plank Road Co., 9 Mich. 285.
See post, ch. 12, 13, 14, and §§ 180-207.
Lawton v. Steele, 119 N. Y. 226; s. c. 152 U. S. 133.
See, also, to the same effect, Ford v. State, 85 Md. 465, in which it was held to be within the police power of a State to make the possession of a lottery outfit, or any part thereof, a misdemeanor.
People v. Bosquet, 116 Cal. 75.
Meadowcroft v. People, 163 Ill. 56.
Ex parte King, 102 Ala. 182; State v. Yardley, 95 Tenn. 546; Hutchinson v. Davis, 58 Ill. App. 358. In the last case, this distinction between honest and dishonest failures to pay hotel bills is clearly set forth. See also State v. Norman, 110 N. C. 484, applying the same principle to the general cases of fraudulently contracted debts.
State v. Wynne, 116 N. C. 981. So, also, where the court imprisons husband for refusing to pay alimony to his wife, under order of the court. Hurd v. Hurd (Minn.), 65 N. W. 728.
State ex rel. Audibert v. Mauberret, 47 La. Ann. 334.
Crosby v. City Council of Montgomery, 108 Ala. 498.
Carr v. State, 106 Ala. 35.
Drummer v. Nungesser, 107 Mich. 481.
Light v. Canadian Co. Bank, 2 Okl. 543 (37 P. 1075).
Cooley Const. Lim. *352, *353.
Dartmouth College Case, 4 Wheat. 519; Webster’s Works, vol. V., p. 487. For a full and exhaustive discussion and treatment of this constitutional limitation, see Cooley Const. Lim. *351-*413.
U. S. Const., art. I., §§ 9, 10.
Miller, J., in Ex parte Garland, 4 Wall. 333.
Ex parte Garland, 4 Wall. 333; Drehman v. Stifle, 8 Wall. 595.
See Cooley Const. Lim. *64, note.
Cummings v. Missouri, 4 Wall. 277; s. c. State v. Cummings, 36 Mo. 263. The constitutional provision was likewise upheld in the following cases: State v. Garesche, 36 Mo. 256, in its application to an attorney; State v. Bernoudy, 36 Mo. 279, in the case of the recorder of St. Louis. In State v. Adams, 44 Mo. 570, after the Cummings case had been decided by the Supreme Court of the United States against the State, and after also a change in the personnel of the State court, a legislative act, which declared the Board of Curators of St. Charles College deprived of their office, for failure to take the oath of loyalty, was held to be void as being a bill of attainder. A statute of this kind was likewise passed by the legislature of West Virginia, and although sustained at first by the Supreme Court of the State (Beirne v. Brown, 4 W. Va. 72; Pierce v. Karskadon, 4 W. Va. 234), it was subsequently held by the Supreme Court of the State, and of the United States, that the act was unconstitutional. Kyle v. Jenkins, 6 W. Va. 371; Lynch v. Hoffman, 7 W. Va. 553; Pearce v. Karskadon, 16 Wall. 234.
People v. Hawker, 14 App. Div. 188; 43 N. Y. S. 516.
U. S. Const., art. I., §§ 9 and 10.
Calder v. Bull, 3 Dall. 386, 390.
See Fletcher v. Peck, 6 Cranch, 87; Ogden v. Saunders, 12 Wheat. 213; Satterlee v. Matthewson, 2 Pet. 380; Watson v. Mercer, 8 Pet. 88; Charles River Bridge v. Warren Bridge, 11 Pet. 420; Carpenter v. Pennsylvania, 17 How. 456; Hopt v. Utah, 110 U. S. 574; Lock v. Dane, 9 Mass. 360; Woart v. Winnick, 3 N. H. 473; Dash v. Van Kleek, 7 Johns. 477; Moore v. State, 43 N. J. 203; Perry’s Case, 3 Gratt. 632; Evans v. Montgomery, 4 Watts & S. 218; Huber v. Reilly, 53 Pa. St. 115. See In re Jaehne, 35 Fed. 357; People v. O’Neill, 109 N. Y. 251, in which it was held that the Penal Code, N. Y., § 72, was not ex post facto, for the reason that this provision, from the effect given to it by § 2143 of the consolidation act of New York City, impliedly repeals § 58 of the consolidation act, which latter section prescribed a less punishment for the same offense. In Lovett v. State, 33 Fla. 389, a statute changing the degrees of homicide could not be made to apply to offenses already committed when the statute became a law. But a retrospective law will be ex post facto, notwithstanding it does not provide for a criminal prosecution. The exaction of any penalty for the doing of an act, which before the law was altogether lawful, makes the law ex post facto. Falconer v. Campbell, 2 McLean, 195; Wilson v. Ohio, etc., R. R. Co., 64 Ill. 542. A statute has also been held to be ex post facto, which makes it a misdemeanor for one to practice medicine who has been convicted of a felony, so far as the statute is made to apply to persons who were convicted prior to its enactment. People v. Hawker, 14 App. Div. 188; 43 N. Y. S. 516.
Woart v. Winnick, 3 N. H. 179; State v. Arlin, 39 N. H. 179; Hartung v. People, 22 N. Y. 95, 105; Shepherd v. People, 25 N. Y. 124; State v. Williams, 2 Rich. 418; Boston v. Cummings, 16 Ga. 102; Strong v. State, 1 Blackf. 193; Clarke v. State, 23 Miss. 261; Maul v. State, 25 Tex. 166; Turner v. State, 40 Ala. 21. It has thus been held that a law is not ex post facto, which repeals or changes the minimum punishment, if the maximum punishment remains unchanged. People v. Hayes, 140 N. Y. 484; Commonwealth v. Brown, 167 Mass. 144. So, also, an act of Congress, which extended the time for the registration of Chinese laborers, was held not to be ex post facto, because it excepted from its provisions those who had been theretofore convicted of felony. United States v. Chew Cheong, 61 Fed. 200.
See State v. Arlin, 39 N. H. 179; State v. Williams, 2 Rich. 418; Strong v. State, 1 Blackf. 193; Herber v. State, 7 Tex. 69.
Davies, J., in Ratzky v. People, 29 N. Y. 124. See Shepherd v. People, 25 N. Y. 406. “In my opinion,” says Denio, J., in Hartung v. People, 22 N. Y. 95, 105, “it would be perfectly competent for the legislature, by a general law, to remit any separable portion of the prescribed punishment. For instance, if the punishment were fine and imprisonment, a law which should dispense with either the fine or the imprisonment might, I think, be lawfully applied to existing offenses; and so, in my opinion, the term of imprisonment might be reduced, or the number of stripes diminished, in cases punishable in that manner. Anything which, if applied to an individual sentence, would fairly fall within the idea of a remission of a part of the sentence, would not be liable to objection. And any change which should be referable to prison discipline or penal administration, as its primary object, might also be made to take effect upon past as well as future offenses; as changes in the manner or kind of employment of convicts sentenced to hard labor, the system of supervision, the means of restraint, or the like. Changes of this sort might operate to increase or mitigate the severity of the punishment of the convict, but would not raise any question under the constitutional provision we are considering. The change wrought by the act of 1860, in the punishment of the existing offenses of murder, does not fall within either of these exceptions. It is to be construed to vest in the governor a discretion to determine whether the convict should be executed or remain a perpetual prisoner at hard labor, this would only be equivalent to what he might do under the authority to commute a sentence. But he can, under the constitution, only do this once for all. If he refuses the pardon, the convict is executed according to the sentence. If he grants it, his jurisdiction of the case ends. The act in question places the convict at the mercy of the governor in office at the expiration of one year from the time of the conviction, and of all of his successors during the lifetime of the convict. He may be ordered to execution at any time, upon any notice, or without notice. Under one of the repealed sections of the Revised Statutes, it was required that a period should intervene between the sentence and the execution of not less than four, no more than eight weeks. If we stop here, the change effected by the statute is between an execution within a limited time, to be prescribed by the court, or a pardon or commutation during that period, on the one hand, and the placing the convict at the mercy of the executive magistrate for the time, and his successors, to be executed at his pleasure at any time after one year, on the other. The sword is indefinitely suspended over his head, ready to fall at any time. It is not enough to say, if ever that can be said, that most persons would probably prefer such a fate to the former capital sentence. It is enough to bring the law within the condemnation of the constitution, that it changes the punishment after the commission of the offense, by substituting for the prescribed penalty a different one. We have no means of saying whether one or the other would be the most severe in a given case. That would depend upon the disposition and temperament of the convict. The legislature can not thus experiment upon the criminal law. The law, moreover, prescribes one year’s imprisonment, at hard labor in the State prison, in addition to the punishment of death. In every case of the execution of a capital sentence, it must be preceded by the year’s imprisonment at hard labor. * * * It is enough, in my opinion, that it changes it (the punishment) in any manner, except by dispensing with divisible portions of it; but upon the other definition announced by Judge Chase, where it is implied that the change must be from a less to a greater punishment, this act cannot be sustained.”
Gut v. State, 9 Wall. 35; State v. Learned, 47 Me. 426; State v. Corson, 59 Me. 137; Commonwealth v. Hall, 97 Mass. 570; Commonwealth v. Dorsey, 103 Mass. 412; State v. Wilson, 48 N. H. 398; Walter v. People, 32 N. Y. 147; Stokes v. People, 53 N. Y. 164; Warren v. Commonwealth, 37 Pa. St. 45; Rand v. Commonwealth, 9 Gratt. 738; State v. Williams, 2 Rich. 418; Jones v. State, 1 Ga. 610; Hart v. State, 40 Ala. 32; State v. Manning, 14 Tex. 402; Dowling v. Mississippi, 13 Miss. 664; Walton v. Commonwealth, 16 B. Mon. 15; Lasure v. State, 10 Ohio St. 43; McLaughlin v. State, 45 Ind. 338; Brown v. People, 29 Mich. 232; People v. Olmstead, 30 Mich. 431; Sullivan v. Oneida, 61 Ill. 242; State v. Ryan, 13 Minn. 370; State v. O’Flaherty, 7 Nev. 153. In State v. Tatlow (Mo.), 38 S. W. 552, an act relating to the change of venue was held to be applicable to crimes committed prior to the enactment of the law. So, likewise, it is not ex post facto, to apply to existing offenses a law, enacted subsequently, which shortens the time for making challenges. State v. Duestrow, 137 Mo. 44. In State v. Bates (Utah), 47 P. 78, and State v. Covington (Utah), 50 P. 526, a similar conclusion was reached, where, a constitutional provision, reducing the number of jurors in criminal prosecutions to less than twelve, was made to apply to the trial for a crime which had been committed before the constitutional provision took effect.
Thus, it was held that, where a State statute provided for the reward of good behavior of the convict by an annual reduction of the term of confinement, this privilege became a vested right, which could not be taken away or abridged by subsequent legislation. In re Canfield, 98 Mich. 644.
In re Miller, 110 Mich. 676.
Blackburn v. State, 50 Ohio St. 428; Commonwealth v. Graves, 155 Mass. 163; Sturtevant v. Commonwealth, 158 Mass. 598.
§§ 11, 12a.
Harper v. Commonwealth, 93 Ky. 290.
State v. Reid, 106 N. C. 714; Ex parte Mitchell, 70 Cal. 1; State v. White, 44 Kan. 514; People v. Morris, 80 Mich. 634.
State v. Becker, 3 S. D. 29.
State v. De Lano, 80 Wis. 259.
People v. Perini, 94 Cal. 573.
In re Clark, 65 Conn. 17.
In re Petrie, 1 Kan. App. 184 (40 P. 118).
United States v. Hamilton, 3 Dall. 17; State v. Rockafellow, 6 N. J. 332; Com. v. Semmes, 11 Leigh, 665; State v. Summons, 19 Ohio, 139; Allery v. Com., 8 B. Mon. 3; Moore v. State, 36 Miss. 137; Foley v. People, 1 Ill. 31; Shore v. State, 6 Mo. 640; People v. Smith, 1 Cal. 9.
See Commonwealth v. Brickett, 8 Pick. 138; Parker v. Bidwell, 3 Conn. 84; Reed v. Case, 4 Conn. 166 (10 Am. Dec. 110); Niccolls v. Ingersoll, 7 Johns. 145; Harp v. Osgood, 2 Hill, 216.
McKane v. Durston, 153 U. S. 684.
Foster v. Strayer (Com. Pl.), 6 Pa. Dist. Rep. 333; 27 Pittsb. Leg. J. (n. s.) 390.
Cooley on Torts, 172, 173, 460. See State v. McNally, 34 Me. 210; State v. Weed, 21 N. H. 262; Underwood v. Robinson, 106 Mass. 296; Neth v. Crofut, 30 Conn. 580; Warner v. Shed, 10 Johns. 138; Brainard v. Head, 15 La. Ann. 489. See, also, generally, as to what process is fair on its face: Erskine v. Hohnbach, 14 Wall. 613; Watson v. Watson, 9 Conn. 140; Tremont v. Clarke, 33 Me. 482; Colman v. Anderson, 10 Mass. 105; Howard v. Proctor, 7 Gray, 128; Williamston v. Willis, 15 Gray, 427; Rice v. Wadsworth, 27 N. H. 104; Sheldon v. Van Buskirk, 2 N. Y. 473; Alexander v. Hoyt, 7 Wend. 89; Webber v. Gay, 24 Wend. 485; Chegaray v. Jenkins, 5 N. Y. 376; Moore v. Alleghany City, 18 Pa. St. 55; Billings v. Russell, 23 Pa. St. 189; Cunningham v. Mitchell, 67 Pa. St. 78; State v. Jervey, 4 Strob. 304; State v. Lutz, 65 N. C. 503; Gore v. Martin, 66 N. C. 371; Bird v. Perkins, 33 Mich. 28; Loomis v. Spencer, 1 Ohio St. 153; Noland v. Busby, 28 Ind. 154; Lott v. Hubbard, 44 Ala. 593; Brother v. Cannon, 2 Ill. 200; Shaw v. Dennis, 10 Ill. 405; McLean v. Cook, 23 Wis. 364; Orr v. Box, 22 Minn. 485; Turner v. Franklin, 29 Mo. 285; State v. Duelle, 48 Mo. 282; Walden v. Dudley, 49 Mo. 419. The officer cannot receive the warrant signed in blank by the judge or magistrate, and fill up the blanks himself. Such a warrant would be void. Pierce v. Hubbard, 10 Johns. 405; People v. Smith, 20 Johns. 63; Rafferty v. People, 69 Ill. 111; s. c. 72 Ill. 37 (18 Am. Rep. 601).
Cooley on Torts, pp. 173, 464.
In re Mahon, 34 Fed. 525.
Grumon v. Raymond, 1 Conn. 39; Lewis v. Avery, 8 Vt. 287; Clayton v. Scott, 45 Vt. 386. But where the matter of jurisdiction is a question of fact and not a question of law, upon which the court issuing the warrant has pronounced judgment, the officer is protected by the warrant, and is not responsible for any error of the court. Clarke v. May, 2 Gray, 410; Mather v. Hood, 8 Johns. 447; Sheldon v. Wright, 5 N. Y. 497; State v. Scott, 1 Bailey, 294; Wall v. Trumbull, 16 Mich. 228.
Barnes v. Barber, 6 Ill. 401; Guyer v. Andrews, 11 Ill. 494; Leachman v. Dougherty, 81 Ill. 324; Sprague v. Birchard, 1 Wis. 457, 464; Grace v. Mitchell, 31 Wis. 533, 539.
Wilmarth v. Burt, 7 Met. 257; Twitchell v. Shaw, 10 Cush. 46; Grumon v. Raymond, 1 Conn. 40; Watson v. Watson, 9 Conn. 140, 146; Webber v. Gay, 24 Wend. 485; Cunningham v. Mitchell, 67 Pa. St. 78; Wall v. Trumbull, 16 Mich. 228; Bird v. Perkins, 33 Mich. 28; Brainard v. Head, 15 La. Ann. 489; Richards v. Nye, 5 Ore. 382. But he may, if he chooses, refuse to serve such a warrant, and waive the protection which he may claim from its being fair on its face. Horton v. Hendershot, 1 Hill, 118; Cornell v. Barnes, 7 Hill, 35; Dunlap v. Hunting, 2 Denio, 643; Earl v. Camp, 16 Wend. 562. See Davis v. Wilson, 61 Ill. 527; Hill v. Wait, 5 Vt. 124.
Ruloff v. People, 45 N. Y. 213; Keenan v. State, 8 Wis. 132. But see Somerville v. Richards, 37 Mich. 299.
But the belief must be a reasonable one. If the facts within his knowledge do not warrant his belief in the guilt of the innocent person whom he has arrested, he will be liable in an action for false imprisonment. State v. Holmes, 48 N. H. 377; Holly v. Mix, 3 Wend. 350; Reuck v. McGregor, 32 N. J. 70; Commonwealth v. Deacon, 8 Serg. & R. 47; State v. Roane, 2 Dev. 58; Long v. State, 12 Ga. 233; Eames v. State, 6 Humph. 53. Less particularity, in respect to the reasonableness of the suspicions against an individual, is required of an officer who makes an arrest without warrant, than of a private person. The suspicions must be altogether groundless, in order to make the officer liable for the wrongful arrest. See Marsh v. Loader, 14 C. B. (n. s.) 535; Lawrence v. Hedger, 3 Taunt. 14; Rohan v. Sawin, 5 Cush. 281; Holley v. Mix, 3 Wend. 350; Burns v. Erben, 40 N. Y. 463; Dreunan v. People, 10 Mich. 169.
Philips v. Trull, 11 Johns. 477; Respublica v. Montgomery, 1 Yeates, 419; City Council v. Payne, 2 Nott & McCord, 475; Vandeveer v. Mattocks, 3 Ind. 479.
See Mitchell v. Lemon, 34 Md. 176, in which it was held that one may be arrested without a warrant, who was found violating the rules laid down by the city board of health for the preservation of the public health. In Burroughs v. Eastman, 101 Mich. 419, it was held that an ordinance did not contravene the constitutional requirement of “due process of law,” which authorized police officers to arrest without warrant persons who were violating any of the ordinances in their presence, even in those cases in which the offense committed did not amount to a breach of the peace. But see contra, State v. Hunter, 106 N. C. 796.
People v. Moore, 62 Mich. 496.
Winchell v. State, 7 Cow. 525; Maurer v. People, 43 N. Y. 1; Jacobs v. Cone, 5 Serg. & R. 335; State v. Alman, 64 N. C. 364; Andrews v. State, 2 Sneed, 550; Jackson v. Commonwealth, 19 Gratt. 656. In capital cases, the record must show affirmatively that the accused was present throughout the trial, and particularly when the verdict is brought in and sentence pronounced. Dougherty v. Commonwealth, 69 Pa. St. 286. But it seems that the accused need not always be personally present at the trial for misdemeanors. Cooley Const. Lim. 390.
See Ex parte Caplis, 58 Miss. 358, and State v. Hodgson, 66 Vt. 134. In the latter case it would seem that a law, which took away or materially reduced the discretion of the court in granting continuances or entering a nolle prosequi, would be unconstitutional. The provisions of the statute in question were designed to prevent continuances for the purpose of delay, and to insure a speedy trial; but the court held that they did not invade the province of the court.
Cooley Const. Lim. 311, 312.
While I am writing, an account of a most flagrant case of official disrespect of private rights of this character has come to my ears. In my neighborhood a man has been allowed to linger in jail on the charge of burglary, for many days, awaiting his preliminary examination, because the prosecuting attorney was in attendance upon political picnics.
The writer remembers how, on one occasion, while he was a student of the law at the University of Gottingen, he was bidden to leave the criminal court, because the case about to be tried was one involving deep moral turpitude. This has now become a rather common practice in this country; especially in large cities like New York, in order to exclude minors and women, who are drawn thither by a prurient curiosity.
In 1836, by Stat. 6 and 7 Will. IV., ch. 114. Before this date, English jurists indulged in the pleasing fiction that the judge will be counsel for the prisoner. “It has been truly said that, in criminal cases, judges were counsel for the prisoners. So, undoubtedly, they were, as far as they could be, to prevent undue prejudice, to guard against improper influence being excited against prisoners; but it was impossible for them to go further than this, for they could not suggest the course of defense prisoners ought to pursue; for judges only saw the deposition so short a time before the accused appeared at the bar of their country, that it was quite impossible for them to act fully in that capacity.” Baron Garrow in a charge to a grand jury, quoted in Cooley Const. Lim. *332, n. 2.
Wayne Co. v. Waller, 60 Pa. St. 99 (35 Am. Rep. 636); Bacon v. Wayne Co., 1 Mich. 461; Vise v. Hamilton Co., 19 Ill. 18.
Commonwealth v. Taylor, 5 Cush. 605; Commonwealth v. Curtis, 97 Mass. 574; Commonwealth v. Sturtivant, 117 Mass. 122; Commonwealth v. Mitchell, 117 Mass. 431; People v. Phillips, 42 N. Y. 200; People v. McMahon, 15 N. Y. 385; State v. Guild, 10 N. J. 163 (18 Am. Dec. 404); Commonwealth v. Harman, 4 Pa. St. 269; State v. Bostick, 4 Harr. 563; Thompson v. Commonwealth, 20 Gratt. 724; State v. Roberts, 1 Dev. 259; State v. Lowhorne, 66 N. C. 538; State v. Vaigneur, 5 Rich. 391; Frain v. State, 40 Ga. 529; State v. Garvey, 28 La. Ann. 955 (26 Am. Rep. 123); Boyd v. State, 2 Humph. 655; Morehead v. State, 9 Humph. 635; Austine v. State, 51 Ill. 236; State v. Brockman, 46 Mo. 566; State v. Staley, 14 Minn. 105.
In some of the States all accusations are now made by information filed by the prosecuting attorney, and probably in all of the States prosecutions for minor misdemeanors are begun by information.
Kallock v. Superior Court, 56 Cal, 229. State v. Sureties of Krohne (Wyo.), 34 P. 3; In re Boulter (Wyo.), 40 P. 520; State v. Bates (Utah), 47 P. 78; State v. Carrington (Utah), 50 P. 526; Hurtado v. People of California, 110 U. S. 516; McNulty v. People of California, 149 U. S. 645; Vincent v. People of California, 149 U. S. 648. But the United States Constitution requires indictment by grand jury in those cases in which it was required at common law. See United States Const., Amend., art. V.; Eilenbecker v. Dist. Court, 134 U. S. 31.
In re Krug, 79 Fed. 308.
Which was as follows: “That the prisoner be remanded to the prison from whence he came; and put into a low dark chamber; and there be laid on his back, on the bare floor, naked, unless where decency forbids; that there be placed upon his body, as great a weight of iron as he could bear, and more; that he have no sustenance, save only, on the first day three morsels of the worst bread; and, on the second day, three draughts of standing water, that should be nearest to the prison door; and in this situation such should be alternately his daily diet till he died, or (as anciently the judgment ran) till he answered.” 4 Bl. Com. 423.
In Stringfellow v. State, 26 Miss. 155, a confession of murder was held not sufficient to warrant conviction, unless supported by other evidence showing the death of the man supposed to have been murdered. See, also, People v. Hennesy, 15 Wend. 147.
Jackson v. Commonwealth, 19 Gratt. 656; Johns v. State, 55 Md. 350; State v. Thomas, 64 N. C. 74; Bell v. State, 2 Tex. App. 216 (28 Am. Rep. 429); Goodman v. State, Meigs, 197. But if there has been a preliminary examination before a coroner or magistrate, or a previous trial, when the defendant had an opportunity to cross-examine the witness, it will be allowable to make use of the minutes of the previous examination in all cases where the witness is since deceased, has become insane, or is sick, or is kept away by the defendant. Commonwealth v. Richards, 18 Pick. 434; State v. Hooker, 17 Vt. 658; Brown v. Commonwealth, 73 Pa. St. 321; Summons v. State, 5 Ohio St. 325; O’Brien v. Commonwealth, 6 Bush, 503; Pope v. State, 22 Ark. 371; Davis v. State, 17 Ala. 354; Kendricks v. State, 10 Humph. 479; People v. Murphy, 45 Cal. 137.
State v. Beach, 147 Ind. 74; State v. Anderson, 5 Wash. St. 350 (31 P. 969); Floeck v. State (Tex. Cr. App.), 30 S. W. 794; Wooten v. State, 23 Fla. 335; People v. Cannon, 139 N. Y. 32; People v. Quinn, Ib.; People v. Bartholf, Ib.
See Commonwealth v. Bonner, 97 Mass. 587; Commonwealth v. Morgan, 107 Mass. 109; Commonwealth v. Nichols, 114 Mass. 285 (19 Am. Rep. 346); Commonwealth v. Scott, 123 Mass. 239 (25 Am. Rep. 87); State v. Cameron, 40 Vt. 555; Brandon v. People, 42 N. Y. 265; Connors v. People, 50 N. Y. 240; Stover v. People, 56 N. Y. 315; Devries v. Phillips, 63 N. C. 53; Bird v. State, 50 Ga. 585; Calkins v. State, 18 Ohio St. 366; Knowles v. People, 15 Mich. 408; People v. Tyler, 36 Cal. 522. See, contra, State v. Bartlett, 55 Me. 200; State v. Lawrence, 57 Me. 375; State v. Cleaves, 59 Me. 298 (8 Am. Rep. 422).
State v. Ober, 52 N. H. 459 (13 Am. Rep. 88); State v. Wentworth, 65 Me. 234 (20 Am. Rep. 688; Connors v. People, 50 N. Y. 240.
In re Roberts (Kan. App.), 45 P. 942.
Howland v. State, 58 N. J. L. 18.
State v. Craig, 80 Me. 85; State v. Pugsley, 75 Iowa, 742; City of Creston v. Nye, 74 Iowa, 369; Grand Rapids & I. Ry. Co. v. Sparrow, 36 F. 210; Jester v. State, 26 Tex. App. 369; Conners v. Burlington, etc., Ry. Co., 74 Iowa, 383; Thomas v. Hilton (Wash.), 17 P. 882; State v. Cottrill, 31 W. Va. 162.
What are the common-law characteristics of a jury trial, are so fully set forth and explained in books of criminal procedure, that any statement of them in this connection is unnecessary. State v. Churchill, 48 Ark. 426. It is not a violation of the constitutional guaranty of a trial by jury, if in the enforcement of city ordinances, juries are not required. State v. City of Topeka, 36 Kan. 76; Wong v. City of Astoria, 13 Oreg. 538. So, also, in enforcing the subpoenas of the United States Interstate Commission. Interstate Commerce Commission v. Brimson, 154 U. S. 447.
State v. Bates (Utah), 47 P. 78; State v. Thompson (Utah), 50 P. 409; State v. Carrington (Utah), 50 P. 526; Fant v. Buchanan (Miss.), 17 So. 371. But see contra, as to grand juries, State v. Hartley (Nev.), 40 P. 372.
Spies v. People, 122 Ill. 1; People v. Ah Lee Doon, 97 Cal. 171.
Lommen v. Minneapolis Gaslight Co., 65 Minn. 196.
State v. Joseph, 45 La. Ann. 903. This case was one of alleged discrimination against the colored race in the trial of a colored person. It was held that the mere absence of negroes from the general venire did not prove unconstitutional discrimination, where it was not shown that the names of negroes were excluded from the general venire box, from which the venire was drawn.
Commonwealth v. Tuck, 20 Pick. 365; People v. Barrett, 2 Caines, 304; State v. Alman, 64 N. C. 364; Nolan v. State, 55 Ga. 521; Grogan v. State, 44 Ala. 9; State v. Connor, 5 Cold. 311; Mounts v. State, 14 Ohio, 295; Baker v. State, 12 Ohio St. 214; State v. Callendine, 8 Iowa, 288. But see State v. Champeau, 53 Vt. 313 (36 Am. Rep. 754), in which a nolle prosequi at this stage is held not to constitute a bar to a second prosecution. See, generally, as to what constitutes a legal jeopardy: State v. Garvey, 42 Conn. 232; People v. McGowan, 17 Wend. 386; Commonwealth v. Alderman, 4 Mass. 477; State v. Little, 1 N. H. 257; Williams v. Commonwealth, 2 Gratt. 568; Hoffman v. State, 20 Md. 475; State v. Spier, 1 Dev. 491; McFadden v. Commonwealth, 23 Pa. St. 12; State v. Ned, 7 Port. 217; Lee v. State, 26 Ark. 260 (7 Am. Rep. 611); O’Brian v. Commonwealth, 9 Bush, 333 (15 Am. Rep. 715); Price v. State, 19 Ohio, 423; Wright v. State, 5 Ind. 292; State v. Nelson, 26 Ind. 366; People v. Cook, 10 Mich. 164; State v. Green, 16 Iowa, 239; People v. Webb, 28 Cal. 467; State v. Richardson, 47 S. C. 166. A civil suit after criminal prosecution does not constitute a second jeopardy in the constitutional sense. State v. Roby, 142 Ind. 168.
Commonwealth v. Bakeman, 105 Mass. 53; Black v. State, 36 Ga. 447; Kohlheimer v. State, 39 Miss. 548; Mount v. Commonwealth, 2 Duv. 93; Gerard v. People, 4 Ill. 363; Commonwealth v. Goddard, 13 Mass. 455; People v. Tyler, 7 Mich. 161.
See United States v. Perez, 9 Wheat. 579; Commonwealth v. Boden, 9 Mass. 194; Hoffman v. State, 20 Md. 425; State v. Wiseman, 68 N. C. 203; State v. Battle, 7 Ala. 259; Taylor v. State, 35 Tex. 97; Wright v. State, 5 Ind. 290; Price v. State, 36 Miss. 533. The result is the same if the adjournment without a verdict is ordered with the express or implied consent of the defendant. Commonwealth v. Stowell, 9 Met. 572; State v. Slack, 6 Ala. 676.
Nugent v. State, 4 Stew. & Port. 72; Commonwealth v. Fells, 9 Leigh, 620; Mahala v. State, 10 Yerg. 532; State v. Curtis, 5 Humph. 601; Hector v. State, 2 Mo. 166.
People v. Goodwin, 18 Johns. 187; State v. Prince, 63 N. C. 529; Lester v. State, 33 Ga. 329; Moseley v. State, 33 Tex. 671; State v. Walker, 26 Ind. 346; Commonwealth v. Olds, 5 Lit. 140; Dobbins v. State, 14 Ohio St. 493; Ex parte McLaughlin, 41 Cal. 211; 10 Am. Rep. 272.
See State v. Lee, 10 R. 1. 494; Casborus v. People, 13 Johns. 329; McKee v. People, 32 N. Y. 239; State v. Norvell, 2 Yerg. 24; Kendall v. State, 65 Ala. 492; State v. Redman, 17 Iowa, 329.
Andrews v. Swartz, 156 U. S. 272; Allen v. State of Georgia, 166 U. S. 138; Ex parte Kinnebrew, 35 Fed. 52. But see contra, In re Roberts (Kan. App.) 45 P. 942.
As to the meaning of this limitation, see ante, §§ 11, 12.
See ante, § 13. It is lawful for the legislature to provide for the reduction in the term of service as a reward for good conduct, and this provision creates in the convicts a vested right, which cannot be taken away by subsequent legislation. In re Canfield, 98 Mich. 644. This is, likewise, the case with the provision for letting convicts out on their parole, in the discretion of the prison board, and their subsequent discharge from further custody, upon their continued maintenance of their record for good behavior for a stated period. George v. People, 167 Ill. 417.
See City of Topeka v. Boutwell, 53 Kan. 20, where the question was raised but decided in favor of the regulations. See, also, Bronk v. Barckley, 13 App. Div. 72; 43 N. Y. S. 400, where the right to compel convicts to work for the profit of the State, and to regulate, limit and control such work, was not only conceded; but it was further held that, where the managers of a State prison had made a contract for convict labor, such contract cannot be impaired by subsequent constitutional or statutory legislation, limiting or prohibiting such convict labor.
Georgia Penitentiary Co. v. Nelms, 65 Ga. 499 (38 Am. Rep. 793).
Holland v. State, 23 Fla. 123; City of Topeka v. Boutwell, 53 Kan, 20.
It is held in Arkansas that the lessee of the State penitentiary cannot hire out the convicts to others. Arkansas Industrial Co. v. Neel, 48 Ark. 283.