The morning call., 1892-05-08
ANOTHER LoopH0LE.

1t may, perhaps, be well for the committee
of thirty, before proceeding further with the
trial Of Bruner, who was lately arrested on
information filed by the District Attorney,
to devote some consideration to the recent
judgment of the Supreme Court in the case
of 0'Neill against the State of Vermont. In
order to understand the opinion filed in that
case by justices Field, Harlan and Brewer,
il is necessary to go back to the letter Of the
amendments to the constitution. The four
teenth amendment declares
All persons born or naturalized In the United
States and subject to the jurisdiction thereof are
citizens Of the United States and OF the State
wherein hey reside. No State shall make or
enforce any law which shall abridse the privi-
Ieges and immunitles OF citizens Of the United
States.
The object of this amendment was to pro-
tect freedmen against oppressive legislation
by the States in which they lived. But the
language of the amendment is more sweep.
ing than its purpose; aud a court in inter-
preting it is bound. not by what it intended
to say but by what it did say. Under that
amendment nc citizen of the United States,
white or black, can b. deprived by State
legislation of any of the privileges or i'm =
munities which he enjoyed under the con-
stitutiOn Of the United States and its amend
ments.
Now the fifth amendment, which was
adopted by Congress in 1889, went into
force on December 10, 1871, and has never
been repealed, declares:
No person shall be held to answer for a capital
or otherwise infamous crime, unless on pre-
sentiment or Indictment of a grand jury except
In arising in the land OF naval forces or in
the militia when in actual service in time OF war
or public danger.
1t would thus appear that the fifth and
fourteenth amendments, when construed
together, forbid the trial of citizen of the
United States for an infamous crime, eX-
cept on an indictment by Grand Jury, and
that the statute of the State of California,
permitting the trial of such citizens on an
information filed by a District Attorney,
may be null and void, and may be so de-
clared whenever the opinion of Justices
Field Harlan and Brewer, becomes the
opinion of a majority of the court. If there
fore Bruner should be tried on the present
information and convicted, there is con-
siderable chance that the conviction might
be Quashed by the Supreme Court On the
ground that he had never been indicted
especially as two grand juries before whom
the facts had been laid had failed TO indict
him.
II is not at a Il desirable that there should
be any more failures of justice. The pee
pie probably long ago made up their minds
on the question of Burners guilt or innO-
cence and the upshot of the recent attempt
to bring him TO trial has convinced most
people OF the necessity for a reorganization
Of the Judiciary. If now it appears to be
the law that no criminal can be brought to
! trial except by the assent of a majority Of
such grand jures as the lie Count body, ii
will become necessary to reform the law as
well as the courts. A law which the Su-
preme Court is prepared to pronounce void
only cumbers the statute book. We must
| have laws which are valid and not void if
justice IS to be properly administered.
1t may be argued that the Fed eral power
Travelled out of its province when it under
took to regulate the machinery by which
! crime should be punished in the States, but
| the constitution is a fnality. There is no
! appeal from what it says except TO the
! power which made it. The Supreme Court
may pronounce an act of Congress void, but
it can only do so on the ground that it is
iTrecOneiiable with the constitution and its
amendments. Over tie organic instrument
itself it has no supervision wbateYer. This
may involve inconvenience, but it must be
borne If Justices Field, Brewer and Har-
Ian have placed correct Interpretation
upon the fifth and the fourteenth amend
ments criminal in California who is con-
Ycted of murder or an infamous crime on
! an information fled by District Attorney
may appeal hopefully to the Supreme Court,
/ and Rruuer in spite of all the evidence
which may be addueed against him, may
score another triumph in the defeat Of the
committee of thirty.