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Opinion of the Court.
Rex v. Joliffe, 4 T. R. 285–293, that if to an action for slander in charging the plaintiff with felony a justification is pleaded which is found by the jury, that of itself amounts to an indictment, as if it had been found by the grand jury, and is sufficient to put the party thus accused on his trial.
The language of Lord Coke applies only to forfeitures of life and liberty at the suit of the King, and hence appeals of murder, which were prosecutions by private persons, were never regarded as contrary to Magna Charta. On the contrary, the appeal of death was by Lord Holt“ esteemed a noble remedy and a badge of the rights and liberties of an Englishman.” Rex v. Toler, 1 Ld. Raymond, 555–557; 12 Mod. 375; Holt, 483. We are told that in the early part of the last century, in England, persons who had been acquitted on indictments for murder were often tried, convicted and executed on appeals. Kendall on Trial by Battel (3d Ed.), 44-47. An appeal of murder was brought in England as lately as 1817, but defeated by the appellant's declining to accept the wager of battel. Ashford v. Thornton, 1 B. & Ald. 405. The English statutes concerning appeals of murder were in force in the Provinces of Pennsylvania and Maryland. Report of Judges, 3 Binn. 599–604; Kilty on Maryland Statutes, 141, 143, 158. It is said that no such appeal was ever brought in Pennsylvania; but in Maryland, in 1765, a negro was convicted and executed upon such an appeal. Soper v. Tom, 1 Har. & McHen. 227. See note to Paxton's Case, Quincy's Mass. Rep. 53, by Mr. Justice Gray.
This view of the meaning of Lord Coke is the one taken by Merrick, J., in his dissenting opinion in Jones v. Robbins, 8 Gray, 329, who states his conclusions in these words :
“It is the forensic trial, under a broad and general law, operat ing equally upon every member of our community, which the words, 'by the law of the land,' in Magna Charta, and in every subsequent declaration of rights which has borrowed its phraseology, make essential to the safety of the citizen, securing thereby both his liberty and his property, by preventing the unlawful arrest of his person or any unlawful interference with his estate." See also State v. Starling, 15 Rich. (S. C.) Law, 120.
Opinion of the Court.
Mr. Reeve, in 2 History of Eng. Law, 43, translates the phrase, nisi per legale judicium parium suorum vel per legem terra,
“But by the judgment of his peers, or by some other legal process or proceeding adapted by the law to the nature of the
Chancellor Kent, 2 Com. 13, adopts this mode of construing the phrase. Quoting the language of Magna Charta, and referring to Lord Coke's comment upon it, he says:
“ The better and larger definition of due process of law is that it means law in its regular course of administration through courts of justice.”
This accords with what is said in Westervelt v. Gregg, 12 N. Y. 202, by Denio, J., p. 212:
“ The provision was designed to protect the citizen against all mere acts of power, whether flowing from the legislative or executive branches of the government."
The principal and true meaning of the phrase has never been more tersely or accurately stated than by Mr. Justice Johnson, in Bank of Columbia v. Okely, 4 Wheat. 235–244:
“As to the words from Magna Charta, incorporated into the Constitution of Maryland, after volumes spoken and written with a view to their exposition, the good sense of mankind has at last settled down to this : that they were intended to secure the individual from the arbitrary exercise of the powers of government, unrestrained by the established principles of private right and distributive justice.”
And the conclusion rightly deduced is, as stated by Mr. Cooley, Constitutional Limitations, 356 :
“ The principles, then, upon which the process is based, are to determine whether it is due process' or not, and not any consida'ations of mere form. Administrative and remedial process may Opinion of the Court.
be changed from time to time, but only with due regard to the landmarks established for the protection of the citizen.”
It is urged upon us, however, in argument, that the claim made in behalf of the plaintiff in error is supported by the decision of this court in Murray's Lessee v. Hoboken Land & Improvement Company, 18 How. 272. There Mr. Justice Curtis, delivering the opinion of the court, after showing, p.
the actual existing law of the land, for otherwise it would be no restraint upon legislative power, proceeds as follows:
“To what principle, then, are we to resort to ascertain whether this process, enacted by Congress, is due process? To this the answer must be twofold. 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.”
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.
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 pro cedure, nevertheless, this, in substance, has been immemorially the actual law of the land, and, therefore, is due process of law. Opinion of the Court.
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 attributed 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., note, Reeve, H. L. 41. And as to the grand jury itself, we learn of its constitution and func tions from the Assize of Clarendon, A. D. 1164, and that of Northampton, A. D. 1176, Stubbs' Charters, 143-150. By the latter of these, which was a republication of the former, it was provided, that “if any one is accused before the justices of our Lord the King of murder, or theft, or robbery, or of harbouring persons committing those crimes, or of forgery or arson, by the oath of twelve knights of the hundred, or, if there are no knights, by the oath of twelve free and lawful men, and by the oath of four men from each township of the hundred, let him go to the ordeal of water, and, if he fails, let him lose one foot. And at Northampton it was added, for greater strictness of justice (pro rigore justitiæ), that he shall lose his right hand at the same time with his foot, and abjure the realm and exile himself from the realm within forty days. And if he is acquitted by the ordeal, let him find pledges and remain in the kingdom, unless he is accused of murder or other base felony by the body of the country and the lawful knights of the country; but if he is so accused as aforesaid, although he is acquitted by the ordeal of water, nevertheless he must leave the kingdom in forty days and take his chattels with him, subject to the rights of his lords, and he must abjure the king. dom at the mercy of our Lord the King."
Opinion of the Court.
« The system thus established,” says Mr. Justice Stephens, 1 Hist. Crim. Law of England, 252, “ is simple. The body of the country are the accusers. Their accusation is practically equivalent to a conviction, subject to the chance of a favorable termination of the ordeal by water. If the ordeal fails, the accused person loses his foot and his hand. If it succeeds, he is nevertheless to be banished. Accusation, therefore, was equivalent to banishment, at least."
When we add to this that the primitive grand jury heard no witnesses in support of the truth of the charges to be preferred, . but presented upon their own knowledge, or indicted upon common fame and general suspicion, we shall be ready to acknowledge that it is better not to go too far back into antiquity for the best securities for our “ ancient liberties.” It is more consonant to the true philosophy of our historical legal institutions to say that the spirit of personal liberty and individual right, which they embodied, was preserved and developed by a progressive growth and wise adaptation to new circumstances and situations of the forms and processes found fit to give, from time to time, new expression and greater effect to modern ideas of self-government.
This flexibility and capacity for growth and adaptation is the peculiar boast and excellence of the common law. Sir James Mackintosh ascribes this principle of development to Magna Charta itself. To use his own language :
“ It was a peculiar advantage that the consequences of its principles were, if we may so speak, only discovered slowly and gradually. It gave out on each occasion only so much of the spirit of liberty and reformation as the circumstances of succeeding generations required and as their character would safely bear. For almost five centuries it was appealed to as the decisive authority on behalf of the people, though commonly so far only as the necessities of each case demanded.” i Hist. of England, 221.
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 un