The herald., 1893-08-01


in the stocks was not considered
as necessarily infamous. And By
the first judiciary act Of the United
States whipping was clsesed with
moderate fines and short terms OF i'm
prisonment in limiting the, criminal
Jurisdiction of the district courts to
cases where no other punishment than
whipping, not exceeding 30 stripes,
fine not exceeding 500, or term OF I'M
prisonment not exceeding six months,
is to be inflicted : Act of September "a,
1889. ch. 20, 39;1 Stat. a.. But at the
present day either stocks or whipping
might be thought an infamous punish
ment. M fpi
ssFor more than O century, imprison-
ment at hard labor in the state prison or
penitentiary or other similar institution
has been considered an infamous pun
ishment in England and America.
"Among the punishments that con-
sist principally in their ignominy', Sir
William Blackstone classes hard labor,
| in the house OF correction or otherwise
as we'll as whipping. the pillory, or the
stocks. Bl. Com. 377. And Mr..
Dane, while treating it as doubtful
whether confinement in the stocks or In
the house OF correction is Infamous, says,
'Punishments, clearly infamous, are
death, gsllows, pillory, branding, whip
ping, confinement to hard labor, and
cropping Dane Alb. $50, $40.
"The same view has been forcibly ex-
pressed by Chief Justice Shaw. Speak
ing of imprisonment in the state prison,
which by the statutes of Massachusetts
was required to be at hard labor, he
said: Whether we consider the words
Infamous punishment in their popular
meaning. or as they are understood by
the constitution and laws, sem
tence to the state prison, for any
term of time, must be considered as
falling within them. The convict is
placed in public place Of punishment,
common to the whole state, subject to
solitary imprisonment, to have his hair
cropped, to be clothed in conspicuous
prison dress, subjected to hard labor
without pay, to hard fare, coarse and
meagre food, and to severe discipline.
Some of these convict In the house of
correction is subject to; but the house
of correction, under that and the various
names OF workhouse and bridewell, has
not the same character OF infamy at
tached to it. Besides, the stxte prison,
for any term of time, is now Sy law sub
| otitutOO lOt oil bho i8AOhlinOun Ruuicu-
ments formerly in use and, unless this
is infamous, then there is now no in
famous punishment other than capital.
Jones VS.. Robbins, Gray, 329-346. In
the same case, Mr. Justice Merrick,
while dissenting from the rest OF the
court upon the question whether under
| TIE words the law of the land in the
constitution OF Massachusetts, an indict-
ment by a grand jury was essential to a
prosecution for crime punishable by
imprisonment in the state prison, and
taking position upon that question
more accordant with the recent judg-
ment OF this court in Hutardo vs.. Cali
fornis, ITO U. 8. 516, yet concurred with
the other judges in holding that such
| imprisonment at hard labor was an in
famous punishment, Gray, 370-372.
"Imprisonment at hard labor, COM
pulsory and unpaid, is, in the strongest
sense of the words, involuntary servi-
tude for crime spoken OF in the pro-
vision of the ordinance of 1887, and OF
the thirteenth amendment of the con-
stitution, by which all other slavery was
abolished" .te
In the subsequent case OF Mackin vs.
United States, III U. g., 352, the court
said: "We cannot doubt thar at the
present day imprisonment N q state
prison or penitentisry, with or without
hard labor. ie an infamous punishment"
Such punishment, as has been said,
cannot be inflicted except for crime
committed and after due conviction
thereof. By subdivision 8 OF section 2
of article 8 OF the constitution of the
United States it is declared that, "The
triaE of all crimes, eHcspt i3 csSea of i'm
peach nsnt. shall bH by jursI'ht edt 10
Blythe sixth apaend msnto of ethics con
stitstion-it is dec4areie ioIn all criIni-
nal prosecu tiUns the aeoQsedIsbsil~enjoy
thesright to speedy and spablic trial,
by an impartial jury 5of the state and
district wherein the crime +, shall have
been committed, which district shall
have been previously ascertained by
law, and to be informed OF the nature
and cause OF the accusation to be con-
fronted with the witnesses against him !;
to have compulsory process for obtain
ing witnesses in his favor, and to have
the assistance OF counsel for his defense" I"
BY the fifth amendment 1t is provided
that ''no person shall be held to answer
for capital or other infamous crime
unless on presentment or indictment OF
q grand jury, except in cases arising in
bQ6 lduu VI hawai- lUICco, VI III tio ihiil-
tia, when in actual service in the time
of war or public danger"
The fifth amendment also provides
that 'tNo person shall be deprived oi
life, liberty or property without due
process OF law"
That portion OF section A of the act oi
May 5. 1892. known as the Geary act,
providing for the imprisonment at hard
labor for period not exceeding one
year of any Chinese person or person OF
i Chinese descent, convicted and adj
Judged by a commissioner to be not law.
fully entitled to be or remain in the
United States is, in my opinion, clearly
in conflict with the provisions of the
constitution of the United States above
cited. am unable to appreciate the
force of the suggestion made by the
district attorney that the provisions of
fthe federal constitution apply only to
citizens of the United States and to
aliens permissively therein, and that its
projections and safeguards cannot be
invoked by an alien who came into and
remains in tbe country in violation Of
the express laws of the country. One
obstacle in the way of adopting that view
ia that it assumes the very question to
be determined, namely, whether the
defendant did come and remain in the
country contrary to its laws. But above
and beyond that consideration, the con-
stitution, which has potency everywhere