final hearing herein your petitioner may be at Guthrie, Oklahoma, on the 16th day of discharged. George W. McNaught, By J. December, 1908, at 10 o'clock a. m., or as P. Cummings, F. P. Whistler, D. K. Cunning-soon thereafter as same can be heard by the ham, His Attorneys."

On December 7, 1908, the writ was allowed as prayed for, by the writer of this opinion, as one of the Judges of the Criminal Court of Appeals, and made returnable December 15, 1908. An order was also made restraining the sheriff from removing petitioner to the penitentiary pending the determination of this proceeding; and on the 15th day of December, 1908, the return of the sheriff of Kingfisher county was filed in this court, which, omitting the formal parts, is as follows, to wit:

court."

On December 22d and 23d, the case was orally argued, briefs filed, and the case submitted.

D. K. Cunningham, F. P. Whistler, and J. P. Cummings, for petitioner. M. W. Hinch, Bradley & Bradley, Charles West, Atty. Gen., and W. C. Reeves, Asst. Atty. Gen., for respondent.

DOYLE, J. (after stating the facts as above). The counsel for petitioner at the outset contend that his trial, conviction, and sentence and his restraint is in violation of his rights under the Constitution and the laws of the state of Oklahoma and the Constitution of the United States; that it appears upon the face of the judgment that the petitioner has never been legally or oth

"Comes now M. M. Tate, sheriff of Kingfisher county, Oklahoma, and for his return and answer to the writ served upon him herein, states: That he has not at this time the body of George W. McNaught before this court, for the reason that the production of said body has been waived by a certain in-erwise presented or indicted by a grand jury, strument of writing, hereto attached, marked 'Exhibit A,' and made a part of this return. Said sheriff further says that he has the body of said George W. McNaught in his custody by reason of a certain judgment and sentence of the district court of Kingfisher county, Oklahoma, and a commitment issued by said court, and the judgment thereof, in the case of the State of Oklahoma v. George W. McNaught, being the same case described in the petition of the applicant herein, which said judgment, sentence, and commitment is hereto attached, market 'Exhibit B,' and made a part hereof. That on the 21st day of November, 1908, an order was made by the judge of the district court of Kingfisher county, Oklahoma, extending the time within which to make and file a bail bond by said McNaught, for a period of forty (40) days, a copy of which order is hereto attached, marked 'Exhibit C,' and made a part hereof. M. M. Tate."

And said return was verified by the oath of the said M. M. Tate, sheriff of Kingfisher county, Okl. The attorneys for petitioner also filed a waiver of the presence of the petitioner as follows:

and that he was proceeded against by information made, verified, and filed by the county attorney of Kingfisher county after examination and commitment by a magistrate of the said county; that he has been tried and illegally found guilty of manslaughter in the first degree, and that the judgment rendered upon the verdict of the jury in said case was and is void, and, if executed, would deprive the petitioner of his liberty for life without "due process of law," on the ground that the proceedings, as had, are repugnant to the fifth amendment, and that clause of the fourteenth amendment to the Constitution of the United States which is in these words, "Nor shall any state deprive any person of life, liberty or property without due process of law"; and section 7, Bill of Rights, Const. Okl. (Bunn's Ed. § 16), which is as follows: "Section 7. No person shall be deprived of life, liberty, or property, without due process of law."

At common law the commission of crimes was charged either by indictment or information, depending in most instances upon the grade of the offense. The indictment was an accusation at the suit of the sover

county where the offense was committed. 2 Hawk. P. C. 287.

An information was a surmise, or sugges tion upon record made on behalf of the sov ereign, to a court of criminal jurisdiction, charging a person with a misdemeanor. S. v. Tureaud (C. C.) 20 Fed. 621.

U.

"We, D. K. Cunningham, one of the attor-eign, based on the oath of 12 men of the neys of record for petitioner, and M. W. Hinch, county attorney, and Bradley & Bradley, attorneys for the county of Kingfisher, Oklahoma, and C. W. West, Attorney General for the state of Oklahoma, M. M. Tate, sheriff of Kingfisher county, Oklahoma, do hereby expressly waive the production of the body of the said George W. McNaught before the Criminal Court of Appeals at the city of Guthrie, Oklahoma, and the personal appearance of said sheriff, on the return day of the writ issued herein, and also on the hearing of said matter for writ of habeas corpus before the said court, and agree that the same may be heard in the absence of said petitioner; and the petitioner hereto agrees that the hearing herein may be had

Informations under the ancient rule were of two kinds: First, such as were merely at the suit of the King; secondly, such as were partly at the suit of the King and partly at the suit of the party. 2 Hawk. P. C. 356.

Blackstone, speaking of criminal informations in discussing the two kinds exhibited in the name of the King, observes: First, those which are truly and properly his own

suits, and filed ex officio by his own im- | harassed the subject and shamefully enrichmediate officer, the Attorney General; sec-ed the crown." Blackstone, Com. 310.

ondly, those in which, though the King is the common prosecutor, yet it is at the relation of some private person or the common informer, and they are filed by the King's coroner and attorney in the Court of King's Bench, usually called the Master of the Crown Office, who is for this purpose the standing officer of the public.

"It was the feeling undoubtedly entertained by the citizens of this country, that a violation of the rights of personal liberty as produced in England in the reign of King Henry VII might possibly be repeated to their injury, that prompted Congress to propose and secure the adoption of the fifth amendment to the Constitution of the United States, as this amendment was never intended to limit the power of the states in respect to their own people, but was designed to operate on the national government only." State v. Guglielmo, 46 Or. 250, 79 Pac. 577, 80 Pac. 103, 69 L. R. A. 466; Spies v. Illinois, 123 U. S. 131, 8 Sup. Ct. 21, 22, 31 L. Ed. 80; Bolln v. Nebraska, 176 U. S. 83, 20 Sup. Ct. 287, 44 L. Ed. 382.

In the reign of Henry VII, the remedy by information, exhibited by leave of the court by the Master of the Crown Office, became the means of great oppression to the subjects of England, and so continued with little abatement until St. 4 & 5 W. & M. c. 11, § 18, which provided, in effect, that the clerk of the crown, in the Court of the King's Bench, should not, without express authority to be given by the court when in session, exhibit, receive, or file any information for any of the causes for which it was allowed, nor issue any process thereon, without taking a recognizance from the person procur-trict attorney informed against him for that ing such information to be exhibited; but that the act should not extend to any other information than such as should be exhibited in the Court of the King's Bench by the Master of the Crown Office. 2 Hawk. P. C. 358.

Sir James Fitz James Stevens, in his history of the Criminal Law of England (vol. 1, p. 296), in referring to the act of 1692 regulating informations exhibited by the Master of the Crown Office, says: "The practical result of this statute has been to make a move for a criminal information practically equivalent to a proceeding before magistrates in order to the committal of the accused." This distinguished jurist, on the page of his valuable work preceding that from which the foregoing excerpt is taken, in referring to the statute of 1494, 2 Henry VII, c. 3, remarks: "This act was the one under which Empsom and Dudley earned their obscure infamy."

Blackstone, alluding to the act last referred to, and also to another ordained in the reign of the same sovereign, makes the following statement: "But when the statute 3 Henry VII, c. 3, had extended the jurisdiction of the Court of Star Chamber, the members of which were the sole judges of the law, the fact, and the penalty, and when the statute Henry VII, c. 3, had permitted informations to be brought by any informer upon any penal statute, not extending to life or member, at the assizes, or before justices of the peace, who were to hear and determine the same according to their own discretion, then it was that the legal and orderly jurisdiction of the Court of King's Bench fell into disuse and oblivion, and Empsom and Dudley (the wicked instruments of King Henry VII), by hunting out obsolete penalties and this tyrannical mode of prosecution,

In the case of Hurtado v. People of California, 110 U. S. 516, 4 Sup. Ct. 111, 28 L. Ed. 232, the plaintiff in error having been examined and committed for murder, the dis

crime, and he was convicted and sentenced to death, and the question was whether this was "due process of law." That eminent jurist, Justice Matthews, in delivering the opinion of the court (Justice Harlan alone dissenting), construing a provision of the Constitution of California, adopted in 1879, being article 1, § 8, which provides as follows: "Offenses heretofore required to be prosecuted by indictment shall be prosecuted by information after examination and commitment by a magistrate, or by indictment, with or without such examination and commitment, as may be prescribed by law. A grand jury shall be drawn and summoned at least once a year in each county"-in part says:

"The proposition of law we are asked to affirm is that an indictment or presentment by a grand jury, as known to the common law of England, is essential to that 'due process of law,' when applied to prosecutions for felonies, which is secured and guaranteed by this provision of the Constitution of the United States, and which accordingly it is forbidden to the states respectively to dispense with in the administration of criminal law.

"The question is one of grave and serious import, affecting both private and public rights and interests of great magnitude, and involves a consideration of what additional restrictions upon the legislative policy of the states have been imposed by the fourteenth amendment to the Constitution of the United States.

"The Supreme Court of California, in the judgment now under review, followed its own previous decision in Kalloch v. Superior Ct., 56 Cal. 229, in which the question was deliberately adjudged. Its conclusion was there stated as follows:

""This proceeding, as (it) is regulated by the Constitution and laws of this state, is not

phrases "due process of law" and "the law of | cutions founded only upon private malice or the land"; but on the contrary, it is a pro- popular fury. ceeding strictly within such definitions, as "This view is certainly supported by the much so in every respect as is a proceeding authority of the great name of Chief Justice by indictment. It may be questioned whether | Shaw and of the court in which he presided, the proceeding by indictment secures to the which in Jones v. Robbins, 8 Gray (Mass.) accused any superior rights and privileges; | 329, decided that the twelfth article of the but certainly a prosecution by information Bill of Rights of Massachusetts, a transcript takes from him no immunity or protection to of Magna Charta in this respect, made an inwhich he is entitled under the law.' dictment or presentment of a grand jury esasential to the validity of a conviction in cases of prosecutions for felonies.

"And the opinion cites and relies upon decision of the Supreme Court of Wisconsin in the case of Rowan v. State, 30 Wis. 129, "Chancellor Kent, 2 Com. 13, adopts this 11 Am. Rep. 559. In that case the court, mode of construing the phrase. Quoting the speaking of the fourteenth amendment, says: language of Magna Charta and referring to 'But its design was not to confine the states Lord Coke's comment upon it, he says: "The to a particular mode of procedure in judicial better and larger definition of due process of proceedings for felonies by information in-law is that it means law in its regular course stead of by indictment, if they chose to of administration through courts of justice.' abolish the grand jury system. And the This accords with what is said in Westervelt words "due process of law" in the amendment v. Gregg, 12 N. Y. 202, 62 Am. Dec. 160, by do not mean and have not the effect to limit Denio, J. (page 212): "The provision was de the powers of state governments to prosecu- signed to protect the citizen against all mere tions for crime by indictment; but these acts of power, whether flowing from the legwords do mean law in its regular course of islative or executive branches of the governadministration according to prescribed forms ment.' The principle and true meaning of and in accordance with the general rules for the phrase have never been more tersely or the protection of individual rights. Adminis- accurately stated than by Mr. Justice Johntration and remedial proceedings must change, son, in Bank v. Okely, 4 Wheat. 235-244, 4 from time to time, with the advancement L. Ed. 559: 'As to the words from Magna of legal science and the progress of society; Charta incorporated into the Constitution of and, if the people of the state find it wise Maryland, after volumes spoken and written and expedient to abolish the grand jury and with a view to their exposition, the good prosecute all crimes by information, there sense of mankind has at last settled down to is nothing in our state Constitution and noth- this: that they were intended to secure the ing in the fourteenth amendment to the Con- individual from the arbitrary exercise of the stitution of the United States which prevents powers of government, unrestrained by the them from doing so.', established principles of private right and distributive justice.' And the conclusion rightly deduced is, as stated by Mr. Cooley, Const. Lim. 356: The principles, then, upon which the process is based, are to determine whether it is "due process" or not, and not any considerations of mere form. Adminis

from time to time, but only with due regard to the landmarks established for the protection of the citizen.'

"On the other hand, it is maintained on behalf of the plaintiff in error that the phrase 'due process of law' is equivalent to 'law of the land,' as found in the twenty-ninth chapter of Magna Charta; that, by immemorial usage, it has acquired a fixed, definite and technical meaning; that it refers to and in-trative and remedial process may be changed cludes not only the general principles of public liberty and private right, which lie at the foundation of all free government, but the very institutions which, venerable by time "It is urged upon us, however, in argument, and custom, have been tried by experience that the claim made in behalf of the plaintiff and found fit and necessary for the preserva- in error is supported by the decision of this tion of those principles, and which, having court in Murray v. Land & I. Co., 18 How. been the birthright and inheritance of every 272, 15 L. Ed. 372. There, Mr. Justice Curtis, English subject, crossed the Atlantic with the delivering the opinion of the court, after colonists and were transplanted and estab- showing (18 How. [U. S.] 276, 15 L. Ed. 374) lished in the fundamental laws of the state; that due process of law must mean something that, having been originally introduced into more than the actual existing law of the the Constitution of the United States as a land, for otherwise it would be no restraint limitation upon the powers of the govern- upon legislative power, proceeds as follows: ment, brought into being by that instrument, 'To what principle, then, are we to resort it has now been added as an additional se- to ascertain whether this process, enacted by curity to the individual against oppression by Congress, is due process? To this the anthe states themselves; that one of these in-swer must be twofold. We must examine stitutions is that of the grand jury, an indictment or presentment by which is an essential part of due process of law, in order that he may not be harassed and destroyed by prose

the Constitution itself to see whether this process be in conflict with any of its provisions. If not found to be so, we must look to those settled usages and modes of proceed

ing existing in the common and statute law of England before the emigration of our ancestors, and which are shown not to have been unsuited to their civil and political condition by having been acted on by them after the settlement of this country.'

"This, it is argued, furnishes an indispensable test of what constitutes 'due process of law'; that any proceeding otherwise authorized by law, which is not thus sanctioned by usage, or which supersedes and displaces one that is, cannot be regarded as due process of law.

the absolutism of continental governments, is not alien to that Code which survived the Roman Empire as the foundation of modern civilization in Europe, and which has given us that fundamental maxim of distributive justice, suum cuique tribunere. There is nothing in Magna Charta, rightly construed as a broad charter of public right and law, which ought to exclude the best ideas of all systems and of every age; and, as it was the characteristic principle of the common law to draw its inspiration from every fountain of justice, we are not to assume that the sources of its supply have been exhausted. On the contrary, we should expect that the new and various experiences of our own situ ation and system will model and shape it into new and not less useful forms.

"But this inference is unwarranted. The real syllabus of the passage quoted is that a process of law, which is not otherwise forbidden, must be taken to be due process of law, if it can show the sanction of settled usage both in England and in this country: but it by no means follows that nothing else can be due process of law. The point in the case cited arose in reference to a summary proceeding, questioned on that account, as not due process of law. The answer was: However exceptional it may be, as tested by definitions and principles of ordinary procedure, nevertheless this, in substance, has been immemorially the actual law of the land, and, therefore, is due process of law. But to hold that such a characteristic is essential to due process of law would be to deny every quality of the law but its age, and to render it incapable of progress or Improvement. It would be to stamp upon our jurisprudence the unchangeableness at-practical security for English liberty against tributed to the laws of the Medes and Persians.

"This would be all the more singular and surprising, in this quick and active age, when we consider that, owing to the progressive development of legal ideas and institutions in England, the words of Magna Charta stood for very different things at the time of the separation of the American Colonies from what they represented originally. For at first the words, 'Nisi per legale judicium parium,' had no reference to a jury; they applied only to the pares regni, who were the constitutional judges in the Court of Exchequer and coram rege. Bac. Abr. Juries (7th Ed.) Lond. n., Reeve, H. L. 41. And as to the grand jury itself, we learn of its Constitution and functions from the Assize of Clarendon, A. D. 1164, and that of Northampton, A. D. 1176, Stubbs, Charters, 143–150.

"The Constitution of the United States was ordained, it is true, by descendants of Englishmen, who inherited the traditions of English law and history; but it was made for an undefined and expanding future, and for a people gathered and to be gathered from many nations and of many tongues. And while we take just pride in the principles and institutions of the common law, we are not to forget that, in lands where other systems of jurisprudence prevail, the ideas and processes of civil justice are also

"The concessions of Magna Charta were wrung from the King as guaranties against the oppressions and usurpations of his prerogative. It did not enter into the minds of the barons to provide security against their own body or in favor of the commons by limiting the power of Parliament; so that bills of attainder, ex post facto laws, laws declaring forfeitures of estates, and other arbitrary acts of legislation were never regarded as inconsistent with the law of the land; for notwithstanding what was attributed to Lord Coke in Bonham's Case, 8 Coke, 115, 118a, the omnipotence of Parliament over the common law was absolute, even against common right and reason. The actual and

legislative tyranny was the power of a free public opinion represented by the commons.

"In this country written constitutions were deemed essential to protect the rights and liberties of the people against the encroachments of power and delegated to their governments, and the provisions of Magna Charta were incorporated into bills of rights. They were limitations upon all the powers of government, legislative as well as executive and judicial.

"It necessarily happened, therefore, that, as these broad and general maxims of liberty and justice held in our system a different function from their position and office in English constitutional history and law, they would receive and justify a corresponding and more comprehensive interpretation. Applied in England only as guards against executive usurpation and tyranny, here they have become bulwarks also against arbitrary legislation; but in that application, as it would be incongruous to measure and restrict them by the ancient customary English law, they must be held to guaranty not particular forms of procedure, but the very substance of individual rights to life, liberty, and property.

*

"Such is the often-repeated doctrine of this court. In Munn v. Ill., 94 U. S. 113-134, 24 L. Ed. 77, the Chief Justice, delivering the opinion of the court, said: 'A person has no

the common law. That is only one of the criminal case to be a witness against himforms of municipal law, and is no more sacred than any other. Rights of property which have been created by the common law cannot be taken away without due process; but the law itself, as a rule of conduct, may be changed at the will or even at the whim of the Legislature, unless prevented by constitutional limitations. Indeed, the great office of statutes is to remedy defects in the common law as they are developed, and to adapt it to the changes of time and circumstances.' And in Walker v. Sauvinet, 92 U. S. 90, 23 L. Ed. 678, the court said: ‘A trial by a jury in suits at common law pending in state courts is not, therefore, a privilege or immunity of national citizenship which the states are forbidden by the fourteenth amendment to abridge. A state cannot deprive a person of his property without due process of law; but this does not necessarily imply that all trials in the state courts affecting the property of persons must be by jury. This requirement of the Constitution is met if the trial is had according to the settled course of judicial proceedings. Due process of law is according to the law of the land. This process in the states is regulated by the law of the state.'

self.' It then immediately adds, 'nor be deprived of life, liberty or property, without due process of law.' According to a recognized canon of interpretation, especially applicable to formal and solemn instruments of constitutional law, we are forbidden to assume, without clear reason to the contrary. that any part of this most important amendment is superfluous. The natural and obvious inference is that, in the sense of the Constitution, 'due process of law' was not meant or intended to include, ex vi termini, the institution and procedure of a grand jury in any case. The conclusion is equally irresistible that, when the same phrase was employed in the fourteenth amendment to restrain the action of the states, it was used in the same sense and with no greater extent; and that if, in the adoption of that amendment, it had been part of its purpose to perpetuate the institution of the grand jury in all the states, it would have embodied, as did the fifth amendment, express declarations to that effect. Due process of law in the latter refers to that law of the land, which derives its authority from the legislative powers conferred upon Congress by the Constitution of the United States, exercised within the limits therein prescribed, and interpreted according to the principles of the common law. In the fourteenth

"And Mr. Justice Miller, in Davidson v. N. O., 96 U. S. 97, 105, 24 L. Ed. 616, after showing the difficulty if not the impossibility of framing a definition of this constitutional amendment, by parity of reason, it refers phrase, which should be 'at once perspicuous, comprehensive, and satisfactory,' and thence deducing the wisdom in the ascertaining of the intent and application of such an important phrase in the federal Constitution, by the gradual process of judicial inclusion and exclusion, as the cases presented for decision shall require,' says, however, that 'it is not possible to hold that a party has, without due process of law, been deprived of his property, when, as regards the issues affecting it, he has by the laws of the state a fair trial in a court of justice, according to the modes of proceeding applicable to such a case.' See, also, Mo. v. Lewis, 101 U. S. 2231, 25 L. Ed. 989; Ex parte Wall, 107 U. S. 288-290, 2 Sup. Ct. 590, 27 L. Ed. 552.

to that law of the land in each state, which derives its authority from the inherent and reserved powers of the state, exerted within the limits of those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions, and the greatest security for which resides in the right of the people to make their own laws, and alter them at their pleasure. "The fourteenth amendment,' as was said by Mr. Justice Bradley in Mo. v. Lewis, supra, 'does not profess to secure all persons in the United States the benefit of the same laws and the same remedies. Great diversities in these respects may exist in two states separated only by an imaginary line. On one side of this line there may be a right of trial by jury, and on the other side no such right. Each state prescribes its own modes of judicial proceeding.'

"We are to construe this phrase in the fourteenth amendment by the usus loquendi of the Constitution itself. The same words are contained in the fifth amendment. That "But it is not to be supposed that these article makes specific and express provision | legislative powers are absolute and despotic, for perpetuating the institution of the grand jury, so far as relates to prosecutions, for the more aggravated crimes under the laws of the United States. It declares that 'No person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia when in actual service in time of war or public danger; nor shall any person be subject for the same of fense to be twice put in jeopardy of life or limb; nor shall he be compelled in any

and that the amendment prescribing due process of law is too vague and indefinite to operate as a practical restraint. It is not every act, legislative in form, that is law. Law is something more than mere will exerted as an act of power. It must be not a special rule for a particular person or a particular case, but in the language of Mr. Webster, in his familiar definition, "The general law, a law which hears before it condemns, which proceeds upon inquiry, and renders judgment only after trial,' so 'that every citizen shall hold his life, liberty, property,