Dissenting Opinion: Harlan, J.

Tried by these principles, we are unable to say that the substitution for a presentment or indictment by a grand jury of the proceeding by information, after examination and commitment by a magistrate, certifying to the probable guilt of the defendant, with the right on his part to the aid of counsel, and to the cross-examination of the witnesses produced for the prosecution, is not due process of law. It is, as we have seen, an ancient proceeding at common law, which might include every case of an offence of less grade than a felony, except misprision of treason; and in every circumstance of its administration, as authorized by the statute of California, it carefully considers and guards the substantial interest of the prisoner. It is merely a preliminary proceeding, and can result in no final judgment, except as the consequence of a regular judicial trial, conducted precisely as in cases of indictments.

In reference to this mode of proceeding at the common law, and which he says "is as ancient as the common law itself," Blackstone adds (4 Com. 305):

"And as to those offences in which informations were allowed as well as indictments, so long as they were confined to this high and respectable jurisdiction, and were carried on in a legal and regular course in His Majesty's Court of King's Bench, the subject had no reason to complain. The same notice was given, the same process was issued, the same pleas were allowed, the same trial by jury was had, the same judgment was given by the same judges, as if the prosecution had originally been by indictment.”

For these reasons, finding no error therein, the judgment of the Supreme Court of California is Affirmed.

MR. JUSTICE HARLAN, dissenting. The plaintiff in error, Joseph Hurtado, now under sentence of death pronounced in one of the courts of California, brings this writ of error upon the ground that the proceedings against him are in violation of the Constitution of the United States. The crime charged, and of which he was found guilty, is murder. The prosecution against him is not based upon any presentment or indictment of a grand jury, but upon an information filed

Dissenting Opinion: Harlan, J.

by the district attorney of the county in which the crime was alleged to have been committed. His contention is that an information for a capital offence is forbidden by that clause of the Fourteenth Amendment of the Constitution of the United States which declares that no State shall "deprive any person of life, liberty, or property without due process of law." As I cannot agree that the State may, consistently with due process of law, require a person to answer for a capital offence, except upon the presentment or indictment of a grand jury, and as human life is involved in the judgment rendered here, I do not feel at liberty to withhold a statement of the reasons for my dissent from the opinior of the court.

The phrase "due prciess of law" is not new in the constitutional history of this country or of England. It antedates the establishment of our institutions. Those who had been driven from the mother country by oppres on and persecution brought with them, as their inheritance, which no government could rightfully impair or destroy, certain guaranties of the rights of life and liberty, and property, which had long been deemed fundamental in Anglo-Saxon institutions. In the Congress of the Colonies held in New York in 1765, it was declared that the colonies were entitled to all the essential rights, liberties, privileges, and immunities, confirmed by Magna Charta to the subjects of Great Britain. Hutch. Hist. Mas. Bay, Appendix F. "It was under the consciousness," says Story, "of the full possession of the rights, liberties and immunities of British subjects, that the colonists in almost all the early legis lation of their respective assemblies insisted upon a declaratory act, acknowledging and confirming them." 1 Story Const. § 165. In his speech in the House of Lords, on the doctrine of taxation without representation, Lord Chatham maintained that the inhabitants of the colonies were entitled to all the rights and the peculiar privileges of Englishmen; that they were equally bound by the laws, and equally entitled to participate in the constitution of England. On the 14th of October, 1774, the delegates from the several Colonies and Plantations, in Congress assembled, made a formal declaration of the rights to which their people were entitled, by the immutable laws

Dissenting Opinion: Harlan, J.

of nature, the principles of the English Constitution, and the several charters or compacts under which the colonial governments were organized. Among other things, they declared that their ancestors who first settled the colonies were, at the time of their immigration, "entitled to all the rights, liberties, and immunities of free and natural born subjects within the realm of England;" that "by such immigration they by no means forfeited, surrendered, or lost any of those rights, but that they were, and their descendants now are, entitled to the exercise and enjoyment of all such of them as their local and other circumstances entitle them to exercise and enjoy ;" and that "the respective colonists are entitled to the common law of England, and more especially to the great and inestimable privilege of being tried by their peers of the vicinage, according to the course of that law." 1 Journal of Congress, 27-8-9.

These declarations were subsequently emphasized in the most imposing manner, when the doctrines of the common law respecting the protection of the people in their lives, liberties and property were incorporated into the earlier constitutions of the original States. Massachusetts, in its Constitution of 1780, and New Hampshire in 1784, declared in the same language that "no subject shall be arrested, imprisoned, despoiled, or deprived of his property, immunities, or privileges, put out of the protection of the law, exiled, or deprived of his life, liberty, or estate, but by the judgment of his peers or the law of the land;" Maryland and North Carolina in 1776 and South Carolina in 1778, that "no freeman of this State be taken or imprisoned, or disseized of his freehold, liberties, or privileges, outlawed, exiled, or in any manner destroyed or deprived of his life, liberty, or property, but by the judgment of his peers or the law of the land;" Virginia in 1776, that "no man be deprived of his liberty except by the law of the land or the judgment of his peers;" and Delaware, in 1792, that no persoon "shall be deprived of life, liberty, or property, unless by the judgment of his peers or the law of the land." In the or di nance of 1789 for the government of the Northwestern Ter. [itory, it was made one of the articles of compact between int the original States and the people and States to be formed oiled it of

Dissenting Opinion: Harlan, J.

that Territory-" to remain forever unalterable unless by common consent"-that "no man shall be deprived of his life, liberty, or property, but by the judgment of his peers or the law of the land." These fundamental doctrines were subsequently incorporated into the Constitution of the United States. The people were not content with the provision in section 2 of article 3, that "the trial of all crimes, except in cases of impeachment, shall be by jury." They desired a fuller and broader enunciation of the fundamental principles of freedom, and therefore demanded that the guaranties of the rights of life, liberty, and property, which experience had proved to be essential to the safety and security of the people, should be placed beyond all danger of impairment or destruction by the general government through legislation by Congress. They perceived no reason why, in respect of those rights, the same limitations should not be imposed upon the general government that had been imposed upon the States by their own Constitutions. Hence the prompt adoption of the original amendments, by the Fifth of which it is, among other things, provided that "no person shall be deprived of life, liberty, or property, without due process of law." This language is similar to that of the clause of the Fourteenth Amendment now under examination. That similarity was not accidental, but evinces a purpose to impose upon the States the same restrictions, in respect of proceedings involving life, liberty and property, which had been imposed upon the general government.

"Due process of law," within the meaning of the national Constitution, does not import one thing with reference to the powers of the States, and another with reference to the powers of the general government. If particular proceedings conducted under the authority of the general government, and involving life, are prohibited, because not constituting that due process of law required by the Fifth Amendment of the Constitution of the United States, similar proceedings, conducted under the authority of a State, must be deemed illegal as not being due process of law within the meaning of the Fourteenth Amendment. What, then, is the meaning of the words "due process of law" in the latter amendment?

Dissenting Opinion: Harlan, J.

In seeking that meaning we are, fortunately, not left without authoritative directions as to the source, and the only source, from which the necessary information is to be obtained. In Mur ray's Lessees v. Hoboken, &c., 18 How. 272, 276–7, it was said: "The Constitution contains no description of those processes which it was intended to allow or forbid. It does not .even declare what principles are to be applied to ascertain whether it be due process. It is manifest that it was not left to the legislative power to enact any process which might be devised. The article is a restraint on the legislative as well as on the executive and judicial powers of the government, and cannot be so construed as to leave Congress free to make any process 'due process of law' by its mere will. To what principles are we to resort to ascertain whether this process enacted by Congress is due process? To this the answer must be two-fold. We must examine the Constitution itself to see whether this process be in conflict with any of its provisions. If not found to be so, we must look to those settled usages and modes of proceeding existing in the common and statute law of England before the emigration of our ancestors, and which are shown not to have been unsuited to their civil and political condition by having been acted on by them after the settlement of this country."

Magna Charta-upon which rested the rights, liberties and immunities of our ancestors-was called, said Coke, "the Charter of the Liberties of the Kingdom, upon great reason, because liberos facit, it makes the people free." Hallam characterizes the signing of it as the most important event in English history, and declares that the instrument is still the keystone of English liberty. "To have produced it," said Mackintosh, "to have preserved it, to have matured it, constitute the immortal claim of England upon the esteem of mankind." By that instrument the King, representing the sovereignty of the nation, declared that "no freeman shall be taken, or imprisoned, or be disseized of his freehold, or liberties, or free customs, or be outlawed, or exiled, or any otherwise destroyed; nor will we [not] pass upon him, nor condemn him, but by lawful judgment of his peers, or by the law of the land."