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power to enact that they may be inferred or presumed from the silence of the party accused, or from his failure to answer under oath.... It is a constitutional right of the party charged with the commission of acts which, if true, constitute a crime or create a penalty or impose a forfeiture, to answer without verification. No law can be valid which directly or indirectly compels a party to accuse or incriminate himself, or to testify by affidavit or otherwise with respect to his guilt or innocence." The legislature may not invade his constitutional privilege to remain silent. Re Peck (1901) 167 N. Y. 391, 53 L. R. A. 888, 60 N. E. 775, construing the provision of the liquor tax law relating to the cancelation of a certificate. Re Cullinan (Kray Certificate) 82 App. Div. 445, 81 N. Y. Supp. 567, (1904) 97 App. Div. 122, 89 N. Y. Supp. 683. The same subject was considered in Thomas v. Harrop (1852) 7 How. Pr. 57; Gads. dem v. Woodward (1886) 103 N. Y. 242, 8 N. E. 653.
The act of 1867, chap. 194, providing for a constitutional convention, which required a person, if challenged, to take a prescribed oath of loyalty, violated this provision. “His refusal to testify that he is innocent operates to produce his conviction, and seals his guilt.
It is only an evasion of the provision cited to condemn a person for a refusal to swear to innocence." Greew v. Shumway (1868) 39 N. Y. 422.
Waiver.—This right may be waived, and is waived if the defendant becomes a witness as authorized by the act of 1869, chap. 678, relating to testimony in criminal cases. Connors v. People (1872) 50 N. Y. 240.
The act of 1869 is permissive only, and is constitutional. People v. Courtney (1884) 94 N. Y. 490.
The right is also waived by the holder of a liquor tax certificate who puts in a verified answer in a proceeding by petition for the cancelation of his certificate. He might have served an unverified
Re Cullinan (Micha Certificate) (1902) 76 App. Div. 362, 78 N. Y. Supp. 466; Brandon v. People (1870) 42 N. Y. 265.
This right is not violated where a person subpoenaed to produce a paper voluntarily surrenders the paper out of court before the return of the subpæna, and the paper is afterwards used as evidence against him. By thus delivering it he waives his constitutional privilege. People v. Sebring (1895) 14 Misc. 31, 35 N. Y. Supp. 237, Rumsey, J.
A person who, at his own request, appears before a grand jury and testifies on a charge of conspiracy, cannot afterwards be heard to allege that his constitutional privilege has been violated. People
v. Willis (1898) 23 Misc. 568, 52 N. Y. Supp. 808, Van Wyck, J.; affirmed in (1898) 32 App. Div. 626, 53 N. Y. Supp. IIII.
DUE PROCESS OF LAW.
The clause in this section—"nor be deprived of life, liberty, or property without due process of law”-is a brief summary of several provisions, some of which are of very ancient origin. Thus, the 39th Article of Magna Charta, 1215, states the following fundamental principle : "No freeman shall be seized, or imprisoned, or dispossessed, or outlawed, or in any way destroyed, nor will we condemn him, nor will we commit him to prison, excepting by the legal judgment of his peers, or by the laws of the land." This provision of Magna Charta was restated in another form by an act of Parliament passed in the 28th year of Edward III. 1354, which declared "that no man, of what estate or condition that he be, shall be put out of his land or tenement, nor taken, nor imprisoned, nor disherited, nor put to death, without being brought to answer by due process of law.” I think this was the earliest statutory use of the phrase "due process of law” now so common in our Constitutions and so frequently cited in judicial decisions involving the rights of citizens. These declarations were in substance repeated in the act passed in the reign of Charles I., 1628, in response to the Petition of Rights. This was succeeded by the famous Habeas Corpus act of 1679, and the Declaration of Right, of 1689. But six years prior to the declaration of William and Mary, the New York colonists, in their first assembly, 1683, asserted in the proposed Charter of Liberties the 39th article of Magna Charta, stating it in the following form: “No man, of what estate or condition soever, shall be put out of his lands or tenements, nor taken, nor imprisoned, nor disherited, nor banished, nor any ways destroyed, without being brought to answer by
due course of law;" and this was repeated in the Charter of Liberties, passed in 1691.
It has already been noted that the first section of our Constitution restates, in the form proposed by Gilbert Livingston in the first constitutional convention, some of the primary rights of citizens as declared in Magna Charta. It was the original plan of that convention to include a Bill of Rights in the Constitution, but this result was not accomplished, except as to a few items. In the first volume of this work I have quoted the New York act of 1787 concerning the rights of citizens. That statute contained a declaration of several principles which probably would have been included in a constitutional Bill of Rights had not the unhappy situation of the convention prevented the proper consideration of this subject in connection with the Constitution. That statutory Bill of Rights reiterated the 39th article of Magna Charta in another form, and declared the right of trial by jury, and the right to the presentment of a criminal charge by a grand jury, which have already been quoted. The provisions relating to the protection of life, liberty, and property are stated in this Bill of Rights as follows:
"No citizen of this state shall be taken or imprisoned, or be disseised of his or her freehold or liberties or free customs, or outlawed or exiled or condemned, or otherwise destroyed, but by lawful judgment of his or her peers, or by due process of law."
“No person, of what estate or condition soever, shall be taken or imprisoned, or disinherited, or put to death without being brought to answer by due process of law, and no person shall be put out of his or her franchise or freehold, or lose his or her life or limb, or goods and chattels, unless he or she be duly brought to answer, and be forejudged of the same by due course of law, and if any
thing be done contrary to the same it shall be void in law, and holden for none.'
All these numerous forms of expression, beginning with Magna Charta and ending with the New York Bill of Rights of 1787, were stated in the 5th Amendment to the Federal Constitution, 1789, in the simple declaration that "no person shall be deprived of life, liberty, or property without due process of law," and this was incorporated in the New York Constitution of 1821.
"Liberty, in its broad sense as understood in this country, means the right, not only of freedom from actual servitude, imprisonment, or restraint, but the right of one to use his faculties in all lawful ways, to live and work where he will, to earn his livelihood in any lawful calling, and to pursue any lawful trade or avocation." Re Jacobs (1885) 98 N. Y. 98, 50 Am. Rep. 636, quoting Justice Field's remark in Butchers' Union S. H. & L. S. L. Co. v. Crescent City L. S. L. & S. H. Co. (1884) U. S. 746, 28 L. ed. 585, 4 Sup. Ct. Rep. 652, "that among the inalienable rights as proclaimed in the Declaration of Independence is the right of men to pursue any lawful business or vocation in any manner not inconsistent with the equal rights of others, which may increase their property or develop their faculties so as to give them their highest enjoyment;" and also Justice Bradley's remark in the same case that "'the liberty of pursuit, the right to follow any of the ordinary callings of life, is one of the privileges of a citizen of the United States, of which he cannot be deprived without invading his right to liberty within the meaning of the Constitution.” And the opinion expressed in Live Stock Dealers & Butchers Asso. v. Crescent City L. S. L. & S. H. Co. i Abb. (U. S.) 388, 398, Fed. Cas. No. 8,408, that "there is no more sacred right of citizenship than the right to pursue unmolested a lawful employment in a lawful manner.
It is nothing more or less than the sacred right of labor."
"It is one of the fundamental rights and privileges of every American citizen to adopt and follow such lawful industrial pursuit, not injurious to the community, as he may see fit. ... The term liberty,' as protected by the Constitution, is not cramped into a mere freedom from physical restraint of the person of the citizen,
as by incarceration, but is deemed to embrace the right of man to be free in the enjoyment of the faculties with which he has been endowed by his Creator, subject only to such restraints as necessary for the common welfare." People v. Marx (1885) 99 N. Y. 377, 52 Am. Rep. 34, 2 N. E. 29; People v. Gillson (1888) 109 N. Y. 389, 4 Am. St. Rep. 465, 17 N. E. 343; People ex rel. McPike v. Van De Carr (1904) 91 App. Div. 20, 86 N. Y. Supp. 644.
The right to liberty includes the right to exercise his faculties and to follow a lawful avocation for the support of life. One may be confined in a constitutional sense, without putting his person in confinement. Bertholf v. O'Reilly (1878) 74 N. Y. 509, 30 Am. Rep. 323. "The word 'liberty'
has a broad meaning. It includes liberty of action, which is interfered with by a command to lay aside all business and excuses and appear at a designated place and give testimony. It embraces the right to keep secret one's books and papers, his business methods and his knowledge of his own affairs. Yet these constitutional rights may all be interfered with by due process of law when the general good requires it. By due course of law qualifications and limitations may be imposed and the natural rights of the citizen somewhat abridged, without infringing upon constitutional liberty. Organized society requires some sacrifice of personal liberty by its members, and the Constitution which organized the state government makes liberty subject to due process of law.” Re Davies (1901) 168 N. Y. 89, 56 L. R. A. 855, 61 N. E. 118, construing the anti-monopoly law of 1899, chap. 690. See Wright v. Hart (1905) 103 App. Div. 218, 93 N. Y. Supp. 60, as to statutes regulating sales of merchandise in bulk.
WHAT IS DUE PROCESS?
In Re John & C. Streets (1839) 19 Wend. 658, 676, Judge Cowen says that this clause is an enlargement and extension of the words in Magna Charta that “no freeman shall be disseised of his freehold, etc., but by the law of the land;" and quotes 'Lord Coke's remark, 2 Inst. 50, that these words were “properly rendered due process of law,' among which he mentions the writ original at the common law, the ordinary mode of commencing a suit to try the title.
Our Constitution adopts the very words of Coke, and means undoubtedly that, to work a change of property from one private person to another, some proceeding must be had in a court of justice or before magistrates; at least, that the legislature should have no power to deprive one of his property, and transfer it to