Legal Quote of the Week: Trial by Combat | businesslawbasics.com Reset Password Legal Quote of the Week: Trial by Combat “The King to the sheriff, greetings. I command you that, without delay, you give possession to X of [description of land], concerning which there was a suit between him and Y in my court; because such land is adjudged to him in my court by battle.” -Standard instruction from a 13th-century English court to the county sheriff, reporting the outcome of a trial by combat. “The first combat was performed at the time and place accordingly with observation of all due ceremonies as so short a time would suffer, wherein both parties showed great courage by a desperate fight: In which Conor was slain and Teig hurt but not mortally, the more was the pity: Upon this Wednesday following Mortogh Cogge [O'Connor] appeared in the same place brought by the captains to the listes, and there stayed 2 hours making proclamation against his enemy by drum and trumpet, but he appeared not ...

The only thing we commend in this action was the diligent travail of Sir Lucas Dillon and the Master of the Rolls, who equally and openly seemed to countenance the champions, but secretly with very good concurrence, both with us and between themselves, with such regard of her Majesty's service, as giveth us cause to commend them to your Lordships.” -State papers Ireland 63/104/69, reporting what is believed to be the last trial by combat under the authority of an English monarch. “Can it be possible that this ‘wager of battle’ is being seriously insisted on? Am I to understand that this monstrous proposition as being propounded by the bar—that we, the judges of the Court of King's Bench—the recognized conservators of the public peace, are to become not merely the spectators, but the abettors of a mortal combat? Is that what you require of us?” -Chief Judge William Downes of the King’s Bench, in the case of O’Reilly v. Clancy (1815).

Few artifacts of legal history are derided as much as the “wager of battle,” the English legal term for what is more commonly known as “trial by combat.” But for several centuries, judicially-sanctioned dueling was one of the few tools at the court’s disposal to adjudicate disputed issues of fact where other methods (such as record-keeping) failed or (as with modern forensic science) were unavailable. It was used prominently in land disputes, which, in the pre-GPS era, were endemic. [1] In “Trial By Battle,” [2] Peter Leeson , Professor of Economics and Law at George Mason University , provides a legal and economic analysis of the wager of battle, and even a spirited defense: To modern observers trial by battle is an icon of medieval backwardness. Montesquieu called it ‘‘monstrous’’. The institution’s barbarity seems equaled only by its senselessness. As Richard Posner put it, ‘‘trial by battle’’ is one of those ‘‘legal practices that no one defends any more’’. Almost no one. This paper defends trial by battle.

It examines trial by battle in England as judges used it to decide property disputes from the Norman Conquest to 1179. I argue that judicial combat was sensible and effective. In a feudal world where high transaction costs confounded the Coase theorem, trial by battle allocated disputed property rights efﬁciently. [3] The entire paper can be found here . Also worth reading is Leeson’s defense of a related practice, the trial by ordeal, found in “ Ordeals .” [4] The last recorded trial by combat in English law took place in the 16th century. However, despite numerous proposals in Parliament to abolish the wager of battle during the 17th and 18th centuries, the practice remained on the books. It was successfully invoked by a defendant in an appeal of murder (a type of criminal prosecution for homicide conducted by a private party rather than the Crown) in 1818, in the case of Ashford v. Thornton . [5] When the prosecuting party failed to participate in the duel, the defendant was acquitted and set free. The following year, Parliament banned the wager of battle.

[6] However, the Thirteen Colonies adopted the entirety of English common law upon independence in 1776 (except where that law was subsequently modified by state or federal statute). Accordingly, it is an open question whether or not trial by combat is a valid form of dispute resolution under American law in states where it has not been expressly abolished by statute. [7] For further information, see Eric Jager, The Last Duel: A True Story of Crime, Scandal, and Trial by Combat in Medieval France (Random House, 2004); George Nielson, Trial by Combat (W. Hodge, 1890). [1] The wager of battle was not part of Anglo-Saxon common law, but was brought to England with the Normans in 1066. Related practices appear elsewhere in Continental, particularly Germanic, law. In early medieval Scandinavia, for example, a formalized type of duel called holmgang was used to settle many types of disputes.

Likewise, the 8th century Lex Alamannorum (in effect in parts of western and central Germany) and the capitularies of the Frankish kings prescribed trial by combat as a means of settling land disputes between families. It was largely unknown in Middle Eastern, Greek, and Roman law. [2] Journal of Legal Analysis, Vol. 3, No. 1 (Spring 2011). [3] Leeson (2011) 342 (internal citations omitted). [4] Journal of Law and Economics, Vol. 55 (August 2012). [5] Ashford v. Thornton, 106 ER 149 (1818). Trial By Combat - BOOK OF DAYS TALES BOOK OF DAYS TALES Apr 202016 On this date in 1819 Ashford v Thornton (106 ER 149), an English law case in the Court of King’s Bench was concluded.

The case was unusual in that it upheld the right of the defendant, on a private appeal from an acquittal for murder, to trial by combat – known in English law as “wager of battle (or battel).” In 1817, Abraham Thornton was charged with the murder of Mary Ashford. Thornton had met Ashford at a dance, and had walked with her from the event. The next morning, Ashford was found drowned in a pit, with little outward signs of violence. Although public opinion was heavily against Thornton, the jury quickly acquitted him, and also found him not guilty of rape. Mary’s brother, William Ashford, launched an appeal, and Thornton was rearrested. Thornton claimed the right to trial by combat, a medieval usage that had never been repealed by Parliament. Ashford argued that the evidence against Thornton was overwhelming, and that he was thus ineligible to wage battle. The court decided that the evidence against Thornton was not overwhelming, and that trial by battle was a permissible option under law; thus Thornton was granted trial by battle. Ashford declined the offer of battle and Thornton was freed from custody.

Appeals such as Ashford’s were abolished by statute in 1819, and with them the right to trial by combat. Trial by combat was a procedure which had been brought to Britain by the Normans; it was not present in Saxon law. It was authorized in “appeals of murder”, that is, retrials by private prosecution following an acquittal for murder. If the plaintiff (in an appeal of murder, the next-of-kin of the deceased) requested such a retrial, the defendant could respond with the “wager of battle,” requiring the plaintiff to settle the matter by combat, with the outcome to be ordained by God. Such an appeal, and such an offer of battle could also take place following an acquittal for treason or certain other felonies. Appeals of murder acquittals were uncommon, had to be brought within a year and a day of the death, and were generally tried by jury. In 1815, three years before Ashford v Thornton, an appeal of murder was brought in Dublin in O’Reilly v Clancy, and the defendant demanded the wager of battle.

Chief Judge William Downes (later Lord Downes), faced with this case, asked: Can it be possible that this “wager of battle” is being seriously insisted on? Am I to understand that this monstrous proposition as being propounded by the bar—that we, the judges of the Court of King’s Bench—the recognized conservators of the public peace, are to become not merely the spectators, but the abettors of a mortal combat? Is that what you require of us? No combat took place in Ireland; the case was settled as Clancy agreed to plead guilty and was transported for life. It is uncertain when the last actual trial by combat in Britain took place. While some references speak of such a trial being held in 1631, records indicate that King Charles I intervened to prevent the battle. A 1638 case is less clear; the King again stepped in and judges acted to delay proceedings. No record survives of the outcome of the case, but no contemporary account speaks of the trial by combat actually taking place. The last certain judicial battle in Britain was in Scotland in 1597, when Adam Bruntfield accused James Carmichael of murder, and killed him in battle.

The last in England occurred in 1446: a servant accused his master of treason. The master drank too much wine before the battle and was killed by the servant. The wager of battle was not always available to the defendant in an appeal of murder. If the defendant was taken in the mainour (that is, in the act of committing his crime), if he attempted to escape from prison, or if there was such strong evidence of guilt that there could be no effective denial, the defendant could not challenge. Similarly, if the plaintiff was a woman, above 60 years of age, a minor, lame or blind, he or she could decline the challenge, and the case would be determined by a jury. Peers of the realm, priests, and citizens of the City of London could also decline the battle if challenged. If the actual battle took place, it would occur in judicial lists, 60 feet (18 m) square, following the taking of oaths against witchcraft and sorcery. If the defendant was defeated, and if he was still alive, he was to be hanged on the spot; not even the King could pardon him from the divine judgment against him.

However, if he defeated his opponent, or if he were able to fend off his opponent from sunrise to sunset, he would go free. If the plaintiff said the word craven (“I am vanquished”), and gave up the fight, he was to be declared infamous, deprived of the privileges of a freeman, and was liable for damages to his successful opponent. Proposals to abolish trial by battle were made in the 17th century, and twice in the 18th, but were unsuccessful. In 1774, as part of the legislative response to the Boston Tea Party, Parliament considered a bill which would have abolished appeals of murder and trials by battle in the North American colonies. It was successfully opposed by MP John Dunning, who called the appeal of murder “that great pillar of the Constitution”. Writer and MP Edmund Burke, on the other hand, supported the abolition, calling the appeal and wager “superstitious and barbarous to the last degree”. Thornton The acquittal of Thornton was met with outrage in Warwickshire, and across the country. Newspapers published letters and comments which were extremely hostile toward Thornton.

The leading papers in this campaign were the Lichfield Mercury and the Independent Whig, but even The Times expressed delight when it learned that the case would be further pursued. Funds were obtained from contributors, and a local solicitor prevailed on Mary’s brother, William Ashford, to bring an appeal of murder against Thornton. William Ashford was described as “a plain country young man, about twenty-two years of age, of short stature, sandy hair, and blue eyes”. A writ of appeal was issued on 1 October 1817, and Thornton was arrested on a warrant issued pursuant to that writ. As the appeal was to be tried before the King’s Bench in London, Thornton was taken to London on 28 October. Supporters of the Ashford family did their best to find evidence to upset his alibi. They had little success. On 6 November, the case first came before the Court, but was quickly adjourned until the 17th when Thornton’s lawyer indicated that he had just been instructed, and needed more time to advise his client as to his plea. The initial hearing was little attended, apparently because the public did not realize the notorious Thornton would be there in person.

The Warwickshire magistrate, Bedford, was now acting as solicitor for William Ashford. At first, he saw no reason for uneasiness in the appeal. However, on 11 November, he wrote to his clerk, I am sorry to say that difficulties have been started likely to occasion much trouble and perhaps ultimate defeat. it seems the Appellee [Thornton] has the option of waging Battle and of challenging the Appellor [William Ashford] in single combat which if not accepted by the Appellor the suit is lost and, if accepted, and the Appellee can hold out from sun rise to sun set, then he wins the contest and claims his discharge, otherwise his election subjects him not only to a good threshing [sic] but also the pain of death into the bargain. It is rumoured here that is the plea intended to be set up by the Def. and unless we can devise any means by arguement to induce the Court not to allow it, I am very apprehensive our poor little Knight will never be able to contend the Battle with his brutish opponent.

When the case came to be heard in the King’s Bench on 17 November, a huge crowd packed Westminster Hall to such an extent that counsel had great difficulty in entering. When Thornton was called upon for his plea, he responded, “Not guilty; and I am ready to defend the same with my body.” He then put on one of a pair of leather gauntlets. Thornton threw down the other for William Ashford to pick up and thus accept the challenge, which Ashford did not do. Instead, his counsel, Nathaniel Clarke, argued that Thornton should not be able to compound his murder of the sister with an attempt to murder the brother, to which the Lord Chief Justice, Lord Ellenborough responded, “It is the law of England, Mr Clarke; we must not call it murder.” Clarke then argued Ashford’s youth and lack of bodily strength as a reason not to allow the battle. Thornton’s lawyer, in reply, stated that Ashford’s counsel should not waste the Court’s time by arguing that trial by battle was unwise because of Ashford’s physical condition, but should file responsive pleadings and allow the case to move forward.

He also noted that he and his co-counsel had advised Thornton to wage battle out of concern that with the “extraordinary and unprecedented prejudice” against the defendant, a fair jury could not be obtained. The matter was adjourned to 22 November to allow Ashford’s counsel to file pleadings. At subsequent hearings, each side submitted replications (affidavits) with his version of the evidence. Ashford sought for the Court to rule that the evidence against Thornton was strong and that the defendant was thus ineligible to wage battle; Thornton sought the opposite. Much of the case was argued between 6 and 8 February 1818, but one of Ashford’s counsel, Joseph Chitty, asked for and received more time so he could reply to the other side’s arguments, and the matter was adjourned until 16 April. Chitty then responded but was so often interrupted in his argument by the judges that when he sat down, according to Sir John Hall in his book on the affair, “it was clear to everyone in Court that his client had lost his case”. The judges conferred for about a quarter of an hour, and then delivered judgment seriatim (one after the other).

All four ruled for Thornton, holding that the evidence against him was not so strong as to oust his right to battle. Lord Ellenborough stated that The discussion which has taken place here, and the consideration which has been given to the facts alleged, most conclusively show that this is not a case that can admit of no denial or proof to the contrary; under these circumstances, however obnoxious I am myself to the trial by battle, it is the mode of trial which we, in our judicial character, are bound to award. We are delivering the law as it is, and not as we wish it to be, and therefore we must pronounce our judgment, that the battle must take place. After the other judges delivered their judgments, Lord Ellenborough concluded, The general law of this land is in favour of the wager of battle, and it is our duty to pronounce the law as it is, and not as we may wish it to be. Whatever prejudices may exist therefore against this mode of trial, still as it is the law of the land, the Court must pronounce judgment for it. However, Lord Ellenborough indicated that Ashford could ask that Thornton be allowed “to go without a day”, that is, be released without obligation to return to court.

The matter was adjourned until 20 April for Ashford to consider his options, whether to allow Thornton’s release or meet him in battle. On 20 April, Ashford’s counsel indicated that he had no objection to Thornton’s discharge, so long as no action would be taken against his client. With the appellant reassured on that point, the appeal was dismissed. Thornton was then given a pro forma arraignment on the murder charge, to which he interposed a plea that he was acquitted previously. The plea being accepted, the case was ended, and Thornton was freed. With an angry mob outside, Thornton left (at Lord Ellenborough’s direction) through a side door. In June 1819, Lord Eldon, the Lord Chancellor, introduced a bill to abolish private appeals following acquittals, and also abolish trial by battle. The act passed in great haste, with all three of the required readings of the bill in the House of Lords passing on one night. According to Sir Robert Megarry, who wrote of Ashford v Thornton in 2005, the haste was due to a wager of battle being made in another case, though the names of the parties are not known.

The act, which was recorded as 59 Geo. III, Chapter 46, recited, “whereas appeals of murder, treason, felony, and other offences, and the manner of proceeding therein, have been found to be oppressive; and the trial by battle in any suit, is a mode of trial unfit to be used; and it is expedient that the same should be wholly abolished.” The Act abolished appeals of murder and other offences, and enacted in section 2: “that from and after the passing of this act, in any writ of right now depending, or which may hereafter be brought, instituted, or commenced, the tenant shall not be received to wage battel, nor shall issue be joined nor trial be had by battel in any writ of right; any law, custom, or usage to the contrary notwithstanding.” Scholars have argued that Ashford v Thornton inspired the judicial combat which is the climax of Sir Walter Scott’s Ivanhoe. Scott mentioned the case in his other writings, discussed it with his friends, and backdated the dedication to the book two years to the date of Thornton’s wager of battle.

An attempt was made in 1985 to claim trial by combat, brought by two brothers in Scotland who were accused of armed robbery, on the grounds that the abolition did not apply in Scotland. The attempt failed when the defendants could offer no evidence to defeat the statutory presumption that Parliamentary acts apply to the entire United Kingdom. In 2002, a 60-year-old man, faced with a £25 fine for a minor motoring offense, appeared before magistrates and demanded trial by combat against a champion to be nominated by the Driver and Vehicle Licensing Agency. He contended that trial by combat was still valid under European human rights legislation. Magistrates fined him £200, with £100 costs (presumably for being an idiot and wasting the court’s time). If you are going to do battle from sunrise to sunset, it would be a good idea to eat appropriately a and head of time. Carbohydrate loading, commonly referred to as carb-loading or carbo-loading, is a strategy used by endurance athletes, such as marathon runners, to maximize the storage of glycogen (energy source) in the muscles and liver. Carbohydrate loading is generally recommended for endurance events lasting longer than 90 minutes.

Many endurance athletes prefer foods with low glycemic indices for carb-loading due to their minimal effect on serum glucose levels. Low glycemic foods commonly include fruits, vegetables, whole wheat pasta, and grains. Many marathoners and triathlon participants have large pasta dinners the night before the race. Since muscles also use amino acids extensively when functioning within aerobic limits, meals should also include adequate protein. Large portions before a race can, however, decrease race-day performance if the digestive system has not had the time to process the food fully. If I get in the spirit of carb-loading I usually eat linguine with clam sauce. This is one of those recipes that I haul out routinely because it is quick and easy, although you can dress it up to make it fancier for guests if you want. My usual (simple) version is to set a large pot of salted water to boil and then cook the pasta until al dente. Linguine is my preference, but I’ll use whatever is on hand. This morning I made penne. Whilst the pasta is cooking put a jar of small clams plus their juice in a wide, deep pan and set it to simmer.

Add one or two cloves of garlic minced fine, some fresh parsley chopped small, and a little extra virgin olive oil. Simmer very gently as the pasta cooks. The proportions are up to you. I like a lot of garlic. Drain the pasta and add it to the clam sauce. Remove from the heat and stir to mix thoroughly. Serve in a heated bowl. It is not customary to add cheese but you can add a few flakes of dried hot peppers to individual servings. If you want a fancier dish, use fresh whole clams. Poach them in a little clam juice in a covered pan until they open. Add garlic, parsley and olive oil to the poaching water. Remove the clams with a slotted spoon and add the cooked, drained pasta to the liquid. Serve the pasta with the clams in their shells on top. Posted by admin at 11:56 am Leave a Reply Hurtado v. California | US Law | LII / Legal Information Institute Dissent, Harlan Syllabus 1. The words "due process of law" in the Fourteenth Amendment of the Constitution of the United States do not necessarily require an indictment by a grand jury in a prosecution by a State for murder. 2.

The Constitution of California authorizes prosecutions for felonies by information, after examination and commitment by a magistrate, without indictment by a grand jury, in the discretion of the legislature. The Penal Code of the State makes provision for an examination by a magistrate, in the presence of the accused, who is entitled to the aid of counsel [p517] and the right of cross-examination of witnesses, whose testimony is to to reduced to writing and upon a certificate thereon by the magistrate that a described offence has been committed and that here is sufficient cause to believe the accused guilty thereof, and an order holding him to answer thereto, requires an information to be filed against the accused in the Superior court of the county in which the offence is triable in the form of an indictment for the same offence. Held, that a conviction upon such an information for murder in the first degree and a sentence of death thereon are not illegal by virtue of that clause of the Fourteenth Amendment to the Constitution of the United States which prohibits the States from depriving any person of life, liberty or property without due process of law.

The Constitution of the State of California, adopted in 1879, in article I., section 8, provides as follows: Offences heretofore required to be prosecuted by indictment shall be prosecuted by information, after examination and commitment by a magistrate, or by indictment, with or without such examination and commitment, as may be prescribed by law. A grand jury shall be drawn and summoned at least once a year in each county. Various provisions of the Penal Code regulate proceedings before the examining and committing magistrate in cases of persons arrested and brought before him upon charges of having committed public offences. These require, among other things, that the testimony of the witnesses shall be reduced to writing in the form of depositions, and section 872 declares that, if it appears from the examination that a public offence has been committed, and there is sufficient cause to believe the defendant guilty thereof, the magistrate must indorse on the depositions an order, signed by him, to that effect, describing the general nature of the offence committed, and ordering that the defendant be held to answer thereto.

Section 809 of the Penal Code is as follows: When a defendant has been examined and committed, as provided in section 872 of this Code, it shall be the duty of the district attorney, within thirty days thereafter, to file in the Superior Court of the county in which the offence is triable an information charging the defendant with such offence. The information shall [p518] be in the name of the people of the State of California, and subscribed by the district attorney, and shall be in form like an indictment for the same offence. In pursuance of the foregoing provision of the Constitution, and of the several sections of the Penal Code of California, the district attorney of Sacramento County, on the 20th day of February, 1882, made and filed an information against the plaintiff in error, charging him with the crime of murder in the killing of one Jose Antonio Stuardo. Upon this information, and without any previous investigation of the cause by any grand jury, the plaintiff in error was arraigned on the 22d day of March, 1882, and pleaded not guilty.

A trial of the issue was thereafter had, and, on May 7th, 1882, the jury rendered its verdict in which it found the plaintiff in error guilty of murder in the first degree. On the 5th day of June, 1882, the Superior Court of Sacramento County, in which the plaintiff in error had been tried, rendered its judgment upon said verdict that the said Joseph Hurtado, plaintiff in error, be punished by the infliction of death, and the day of his execution was fixed for the 20th day of July, 1882. From this judgment, an appeal was taken, and the Supreme Court of the State of California affirmed the judgment. On the 6th day of July, 1883, the Superior Court of said county of Sacramento ordered that the plaintiff in error be in court on the 11th day of July, 1883, in order that a day for the execution of the judgment in said cause should be fixed.

In pursuance of said order, plaintiff in error, with his counsel, appeared at the bar of the court, and thereupon the judge asked him if he had any legal reason to urge why said judgment should not be executed, and why an order should not then be made fixing the day for the execution of the same. Thereupon, the plaintiff in error, by his counsel, objected to the execution of said judgment and to any order which the court might make fixing a day for the execution of the same, upon the grounds: 7th. That it appeared upon the face of the judgment that the [p519] plaintiff in error had never been legally, or otherwise, indicted or presented by any grand jury, and that he was proceeded against by information made and filed by the district attorney of the county of Sacramento, after examination and commitment by a magistrate of the said county. 8th. That the said proceedings, as well as the laws and Constitution of California, attempting to authorize them, and the alleged verdict of the jury, and judgment of the said Superior Court of said county of Sacramento, were in conflict with and prohibited by the Fifth and Fourteenth Articles of Amendment of the Constitution of the United States, and that they were therefore void.

9th. That the said plaintiff in error had been held to answer for the said crime of murder by the district attorney of the said county of Sacramento, upon an information filed by him, and had been tried and illegally found guilty of the said crime without any presentment or indictment of any grand or other jury, and that the judgment rendered upon the alleged verdict of the jury in such case was and is void, and, if executed, would deprive the plaintiff in error of his life or liberty without due process of law. Thereupon the court overruled the said objections and fixed the 30th day of August, 1883, as the time for the execution of the sentence. From this latter judgment, the plaintiff in error appealed to the Supreme Court of the State. On the 18th day of September, 1883, the Supreme Court of the State affirmed the said judgment, to review which the present writ of error was allowed and has been prosecuted. Opinion MATTHEWS, J., Opinion of the Court MR. JUSTICE MATTHEWS delivered the opinion of the court.

After reciting the facts in the foregoing language, he continued: It is claimed on behalf of the prisoner that the conviction and sentence are void on the ground that they are repugnant to that clause of the Fourteenth Article of Amendment of the Constitution of the United States which is in these words: [p520] Nor shall any State deprive any person of life, liberty, or property without due process of law. The proposition of law we are asked to affirm is that an indictment or presentment by a grand jury, as known to the common law of England, is essential to that "due process of law," when applied to prosecutions for felonies, which is secured and guaranteed by this provision of the Constitution of the United States, and which, accordingly, it is forbidden to the States respectively to dispense with in the administration of criminal law. The question is one of grave and serious import, affecting both private and public rights and interests of great magnitude, and involves a consideration of what additional restrictions upon the legislative policy of the States has been imposed by the Fourteenth Amendment to the Constitution of the United States. The Supreme Court of California, in the judgment now under review, followed its own previous decision in Kalloch v.

Superior Court, 56 Cal. 229, in which the question was deliberately adjudged. Its conclusion was there stated as follows: This proceedings, as [it] is regulated by the Constitution and laws of this State, is not opposed to any of the definitions given of the phrases "due process of law" and "the law of the land," but, on the contrary, it is a proceeding strictly within such definitions, as much so in every respect as is a proceeding by indictment. It may be questioned whether the proceeding by indictment secures to the accused any superior rights and privileges, but certainly a prosecution by information takes from him no immunity or protection to which he is entitled under the law. And the opinion cites and relies upon a decision of the Supreme Court of Wisconsin in the case of Rowan v. The State, 30 Wis. 129. In that case, the court, speaking of the Fourteenth Amendment, says: But its design was not to confine the States to a particular mode of procedure in judicial proceedings, and prohibit them from [p521] prosecuting for felonies by information instead of by indictment, if they chose to abolish the grand jury system.

And the words "due process of law" in the amendment do not mean, and have not the effect, to limit the powers of State governments to prosecutions for crime by indictment, but these words do mean law in its regular course of administration, according to prescribed forms and in accordance with the general rules for the protection of individual rights. Administration and remedial proceedings must change, from time to time, with the advancement of legal science and the progress of society, and if the people of the State find it wise and expedient to abolish the grand jury and prosecute all crimes by information, there is nothing in our State Constitution and nothing in the Fourteenth Amendment to the Constitution of the United States which prevents them from doing so.

On the other hand, it is maintained on behalf of the plaintiff in error that the phrase "due process of law" is equivalent to "law of the land," as found in the 29th chapter of Magna Charta; that, by immemorial usage, it has acquired a fixed, definite, and technical meaning; that it refers to and includes not only the general principles of public liberty and private right which lie at the foundation of all free government, but the very institutions which, venerable by time and custom, have been tried by experience and found fit and necessary for the preservation of those principles, and which, having been the birthright and inheritance of every English subject, crossed the Atlantic with the colonists and were transplanted and established in the fundamental laws of the State; that, having been originally introduced into the Constitution of the United States as a limitation upon the powers of the government, brought into being by that instrument, it has now been added as an additional security to the individual against oppression by the States themselves; that one of these institutions is that of the grand jury, an indictment or presentment by which against the accused in cases of alleged felonies is an essential part of due process of law in order that he may not be harassed

 or destroyed by prosecutions founded only upon private malice or popular fury.

This view is certainly supported by the authority of the [p522] great name of Chief Justice Shaw and of the court in which he presided, which, in Jones v. Robbins, 8 Gray 329, decided that the 12th article of the Bill of Rights of Massachusetts, a transcript of Magna Charta in this respect, made an indictment or presentment of a grand jury essential to the validity of a conviction in cases of prosecutions for felonies. In delivering the opinion of the court in that case, Merrick, J., alone dissenting, the Chief Justice said: The right of individual citizens to be secure from an open and public accusation of crime, and from the trouble, expense, and anxiety of a public trial before a probable cause is established by the presentment and indictment of a grand jury, in case of high offences, is justly regarded as one of the securities to the innocent against hasty, malicious, and oppressive public prosecutions, and as one of the ancient immunities and privileges of English liberty. . . .

It having been stated, he continued, by Lord Coke, that, by the "law of the land" was intended a due course of proceeding according to the established rules and practice of the courts of common law, it may, perhaps, be suggested that this might include other modes of proceeding sanctioned by the common law, the most familiar of which are by informations of various kinds by the officers of the crown in the name of the King. But, in reply to this, it may be said that Lord Coke himself explains his own meaning by saying "the law of the land," as expressed in Magna Charta, was intended due process of law, that is, by indictment or presentment of good and lawful men. And further it is stated, on the authority of Blackstone, that informations of every kind are confined by the constitutional law to misdemeanors only. 4 Bl.Com. 310. Referring again to the passage from Lord Coke, he says, p. 343: This may not be conclusive, but, being a construction adopted by a writer of high authority before the emigration of our ancestors, it has a tendency to show how it was then understood.

This passage from Coke seems to be the chief foundation of the opinion for which it is cited; but a critical examination and [p523] comparison of the text and context will show that it has been misunderstood; that it was not intended to assert that an indictment or presentment of a grand jury was essential to the idea of due process of law in the prosecution and punishment of crimes, but was only mentioned as an example and illustration of due process of law as it actually existed in cases in which it was customarily used. In beginning his commentary on this chapter of Magna Charta, 2 Inst. 46, Coke says: This chapter containeth nine several branches: 1. That no man be taken or imprisoned but per legem terrae, that is, by the common law, statute law, or custom of England; for the words per legem terrae, being towards the end of this chapter, doe referre to all the precedent matter in the chapter, etc. 2.

No man shall be diseised, etc., unless it be by the lawful judgment, that is, verdict of his equals (that is, of men of his own condition) or by the law of the land (that is to speak it once for all) by the due course and process of law. He then proceeds to state that, 3, no man shall be outlawed, unless according to the law of the land; 4, no man shall be exiled, unless according to the law of the land; no man shall be in any sort destroyed, "unlesse it be by the verdict of his equals, or according to the law of the land;" 6, no man shall be condemned at the King's suite, either before the King in his bench, where the pleas are coram rege (and so are the words nec super eum mittemus to be understood) nor before any other commissioner or judge whatsoever, and so are the words nec super eum mittemus to be understood, but by the judgment of his peers, that is, equals, or according to the law of the land. Recurring to the first clause of the chapter, he continues: 1.

No man shall be taken (that is) restrained of liberty by petition or suggestion to the King or to his council, unless it be by indictment or presentment of good and lawfull men, where such deed be done. This branch and divers other parts of this act have been notably explained by divers acts of Parliament, &c., quoted in the margent. The reference is to various acts during the reign of Edward [p524] III. And reaching again the words "nisi per legem terrae," he continues: But by the law of the land. For the true sense and exposition of thee words, see the statute of 37 E. 3, cap. 8, where the words "by the law of the land" are rendered, without due process of the law, for there it is said, though it be contained in the Great Charter, that no man be taken, imprisoned, or put out of his freehold without process of the law, that is, by indictment of good and lawful men, where such deeds be done in due manner, or by writ original of the common law. Without being brought in to answere but by due process of the common law.

No man be put to answer without presentment before justices, or thing of record, or by due process, or by writ original, according to the old law of the land. Wherein it is to be observed that this chapter is but declaratory of the old law of England. It is quite apparent from these extracts that the interpretation usually put upon Lord Coke's statement is too large, because, if an indictment or presentment by a grand jury is essential to due process of law in all cases of imprisonment for crime, it applies not only to felonies, but to misdemeanors and petty offences, and the conclusion would be inevitable that informations as a substitute for indictments would be illegal in all cases. It was indeed so argued by Sir Francis Winninton in Mr. Prynn's Case, 5 Mod. 459, from this very language of Magna Charta, that all suits of the King must be by presentment or indictment, and he cited Lord Coke as authority to that effect. He attempted to show that informations had their origin in the act of 11 Hen. 7, c. 3, enacted in 1494, known as the infamous Empson and Dudley act, which was repealed by that of 1 Hen.

8, c. 6, in 1509. But the argument was overruled, Lord Holt saying that to hold otherwise "would be a reflection on the whole bar." Sir Bartholomew Shower, who was prevented from arguing in support of the information, prints his intended argument in his report of the case under the name of The King v. Berchet, 1 Show. 106, in which, with great thoroughness, he arrays all the learning of the time on the subject. He undertakes to "evince that this method of prosecution is noways contrariant [p525] to any fundamental rule of law, but agreeable to it." He answers the objection that it is inconvenient and vexatious to the subject by saying (p. 117): Here is no inconvenience to the people. Here is a trial per pais, fair notice, liberty of pleading dilatories as well as bars. Here is subpoena and attachment, as much time for defence, charge, &c., for the prosecutor makes up the record, &c.; then, in case of malicious prosecution, the person who prosecutes is known by the note to the coroner, according to the practice of the court.

He answers the argument drawn from Magna Charta, and says: That this method of prosecution no way contradicts that law, for we say this is per legem terrae et per communem legem terrae, for otherwise there never had been so universal a practice of it in all ages. And referring to Coke's comment, that "no man shall be taken," i.e., restrained of liberty by petition or suggestion to the King or his Council unless it be by indictment or presentment, he says (p. 122): . By petition or suggestion can never be meant of the King's Bench, for he himself had preferred several here; that is meant only of the the King alone, or in Council, or in the Star Chamber. In the King's Bench, the information is not a suggestion to the King, but to the court upon record. And he quotes 3 Inst. 136, where Coke modifies the statement by saying, "The King cannot put any to answer, but his court must be apprized of the crime by indictment, presentment, or other matter of record," which, Shower says, includes an information.

So it has been recently held that, upon a coroner's inquisition taken concerning the death of a man and a verdict of guilty of murder or manslaughter is returned, the offender may be prosecuted and tried without the intervention of a grand jury. Reg. v. Ingham, 5 B. & S. 257. And it was said by Buller, J., in [p526] Rex v. Joliffe, 4 T.R. 28-293, 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.) 447. 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, operating 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. [p527] Mr. Reeve, in 2 History of Eng.Law, 43, translates the phrase, nisi per legale judicium parium suorum vel per legem terrae, But by the judgment of his peers, or by some other legal process or proceeding adapted by the law to the nature of the case.

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, 1 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, 36: The principles, then, upon which the process is based are to determine whether it is "due process" or not, and not any considerations of mere form. Administrative and remedial process may [p528] 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. 276, that due process of law must mean something more than 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 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. 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 procedure, nevertheless, this, in substance, has been immemorially the actual law of the land, and therefore is due process of law. [p529] 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 functions 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 anyone 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 justitiae), 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 kingdom at the mercy of our Lord the King. [p530] "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. 1 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 undefined [p531] and expanding future, and for a people gathered and to be gathered from many nations and of may tongues. And while we take just pride in the principles and institutions of the common law, we are not to forget that, in lands where other systems of jurisprudence prevail, the ideas and processes of civil justice are also not unknown. Due process of law, in spite of the absolutism of continental governments, is not alien to that code which survived the Roman Empire as the foundation of modern civilization in Europe, and which has given us that fundamental maxim of distributive justice suum cuique tribuere.

There is nothing in Magna Charta, rightly construed as a broad charter of public right and law, which ought to exclude the best ideas of all systems and of every age, and as it was the characteristic principle of the common law to draw its inspiration from every fountain of justice, we are not to assume that the sources of its supply have been exhausted. On the contrary, we should expect that the new and various experiences of our own situation and system will mould and shape it into new and not less useful forms. The concessions of Magna Charta were wrung from the King as guaranties against the oppressions and usurpations of his prerogative. It did not enter into the minds of the barons to provide security against their own body or in favor of the Commons by limiting the power of Parliament; so that bills of attainder, ex post facto laws, laws declaring forfeitures of estates, and other arbitrary acts of legislation which occur so frequently in English history were never regarded as inconsistent with the law of the land, for, notwithstanding what was attributed to Lord Coke in Bonham's Case, 8 Rep.

115, 118a, the omnipotence of Parliament over the common law was absolute, even against common right and reason. The actual and practical security for English liberty against legislative tyranny was the power of a free public opinion represented by the Commons. In this country, written constitutions were deemed essential to protect the rights and liberties of the people against the encroachments of power delegated to their governments, and the provisions of Magna Charta were incorporated into Bills of [p532] Rights. They were limitations upon all the powers of government, legislative as well as executive and judicial. It necessarily happened, therefore, that, as these broad and general maxims of liberty and justice held in our system a different place and performed a different function from their position and office in English constitutional history and law, they would receive and justify a corresponding and more comprehensive interpretation. Applied in England only as guards against executive usurpation and tyranny, here they have become bulwarks also against arbitrary legislation; but, in that application, as it would be incongruous to measure and restrict them by the ancient customary English law, they must be held to guarantee not particular forms of procedure, but the very substance of individual rights to life, liberty, and property.

Restraints that could be fastened upon executive authority with precision and detail might prove obstructive and injurious when imposed on the just and necessary discretion of legislative power; and while, in every instance, laws that violated express and specific injunctions and prohibitions might, without embarrassment, be judicially declared to be void, yet any general principle or maxim, founded on the essential nature of law as a just and reasonable expression of the public will and of government as instituted by popular consent and for the general good, can only be applied to cases coming clearly within the scope of its spirit and purpose, and not to legislative provisions merely establishing forms and modes of attainment. Such regulations, to adopt a sentence of Burke's, "may alter the mode and application, but have no power over the substance of original justice." Tract on the Popery Laws, 6 Burke's Works, ed. Little & Brown, 33. Such is the often-repeated doctrine of this court. In Munn v. Illinois, 94 U.S. 113 -134, the Chief Justice, delivering the opinion of the court, said: A person has no property, no vested interest, in any rule of the common law.

That is only one of the form of municipal law, and is no more sacred than any other. Right of property which have been created by the common law cannot be taken [p533] away without due process; but the law itself, as a rule of conduct, may be changed at the will or even at the whim of the legislature, unless prevented by constitutional limitations. Indeed, the great office of statutes is to remedy defects in the common law as they are developed, and to adapt it to the changes of time and circumstances. And in Walker v. Sauvinet, 92 U.S. 90 , the court said: A trial by jury in suits at common law pending in State courts is not, therefore, a privilege or immunity of national citizenship which the States are forbidden by the Fourteenth Amendment to abridge. A State cannot deprive a person of his property without due process of law; but this does not necessarily imply that all trials in the State courts affecting the property of persons must be by jury. This requirement of the Constitution is met if the trial is had according to the settled course of judicial proceedings. Due process of law is process according to the law of the land.

This process in the States is regulated by the law of State. In Kennard v. Louisiana ex rel. Morgan, 92 U.S. 480 , the question was whether a mode of trying the title to an office, in which was no provision for a jury, was due process of law. Its validity was affirmed. The Chief Justice, after reciting the various steps in the proceeding, said: From this it appears that ample provision has been made for the trial of the contestation before a court of competent jurisdiction; for bringing the party against whom the proceeding is had before the court and notifying him of the case he is required to meet; for giving him an opportunity to be heard in his defence; for the deliberation and judgment of the court; for an appeal from this judgment to the highest court of the State, and for hearing and judgment there. A mere statement of the facts carries with it a complete answer to all the constitutional objections urged against the validity of the act. And Mr. Justice Miller, in Davidson v. New Orleans, 96 U.S.

97 -105, after showing the difficulty, if not the impossibility, of framing a definition of this constitutional phrase, which [p534] should be "at once perspicuous, comprehensive, and satisfactory," and thence deducing the wisdom in the ascertaining of the intent and application of such an important phrase in the Federal Constitution, by the gradual process of judicial inclusion and exclusion, as the cases presented for decision shall require, says, however, that: It is not possible to hold that a party has, without due process of law, been deprived of his property when, as regards the issues affecting it, he has, by the laws of the State, a fair trial in a court of justice, according to the modes of proceeding applicable to such a case. See also Missouri v. Lewis, 101 U.S. 22 -31; Ex parte Wall, 107 U.S. 288 -290. We are to construe this phrase in the Fourteenth Amendment by the usus loquendi of the Constitution itself. The same words are contained in the Fifth Amendment.

That article makes specific and express provision for perpetuating the institution of the grand jury so far as relates to prosecutions for the more aggravated crimes under the laws of the United States. It declares that: No person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia when in actual service in time of war or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall he be compelled in any criminal case to be witness against himself. [It then immediately adds:] or be deprived of life, liberty, or property, without due process of law. According to a recognized canon of interpretation especially applicable to formal and solemn instruments of constitutional law, we are forbidden to assume, without clear reason to the contrary, that any part of this most important amendment is superfluous. The natural and obvious inference is that, in the sense of the Constitution, "due process of law " was not meant or intended to include, ex vi termini, the institution and procedure of a grand jury in any case.

The conclusion is equally [p535] irresistible that, when the same phrase was employed in the Fourteenth Amendment to restrain the action of the States, it was used in the same sense and with no greater extent, and that, if in the adoption of that amendment it had been part of its purpose to perpetuate the institution of the grand jury in all the States, it would have embodied, as did the Fifth Amendment, express declarations to that effect. Due process of law in the latter refers to that law of the land which derives its authority from the legislative powers conferred upon Congress by the Constitution of the United States, exercised within the limits therein prescribed and interpreted according to the principles of the common law. In the Fourteenth Amendment, by parity of reason, it refers to that law of the land in each State which derives its authority from the inherent and reserved powers of the State, exerted within the limits of those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions, and the greatest security for which resides in the right of the people to make their own laws, and alter them at their pleasure. The Fourteenth Amendment [as was said by Mr. Justice Bradley in Missouri v.

Lewis, 101 U.S. 22 -31] does not profess to secure to all person in the United States the benefit of the same law and the same remedies. Great diversities in these respects may exist in two States separated only by an imaginary line. On one side of this line, there may be a right of trial by jury, and, on the other side, no such right. Each State prescribe its own mode of judicial proceeding. But it is not to be supposed that these legislative powers are absolute and despotic, and that the amendment prescribing due process of law is too vague and indefinite to operate as a practical restraint. It is not every act, legislative in form, that is law. Law is something more than mere will exerted as an act of power. It must be not a special rule for a particular person or a particular case, but, in the language of Mr.

Webster, in his familiar definition, "the general law, a law which hears before it condemns, which proceeds upon inquiry and renders judgment only after trial," so "that every citizen shall [p536] hold his life, liberty, property and immunities under the protection of the general rules which govern society," and thus excluding, as not due process of law, acts of attainder, bills of pains and penalties, acts of confiscation, acts reversing judgments, and acts directly transferring one man's estate to another, legislative judgments and decrees, and other similar special, partial and arbitrary exertions of power under the forms of legislation. Arbitrary power, enforcing its edicts to the injury of the persons and property of its subjects, is not law, whether manifested as the decree of a personal monarch or of an impersonal multitude. And the limitations imposed by our constitutional law upon the action of the governments, both State and national, are essential to the preservation of public and private rights, notwithstanding the representative character of our political institutions.

The enforcement of these limitations by judicial process is the device of self-governing communities to protect the rights of individuals and minorities, as well against the power of numbers as against the violence of public agents transcending the limits of lawful authority, even when acting in the name and wielding the force of the government. The Supreme Court of Mississippi, in a well considered case, Brown v. Levee Commissioners, 50 Miss. 468, speaking of the meaning of the phrase "due process of law," says: The principle does not demand that the laws existing at any point of time shall be irrepealable, or that any forms of remedies shall necessarily continue. It refers to certain fundamental rights which that system of jurisprudence, of which ours is a derivative, has always recognized. If any of these are disregarded in the proceedings by which a person is condemned to the loss of life, liberty, or property, then the deprivation has not been by "due process of law." This court, speaking by Mr. Justice Miller in Loan Association v. Topeka, 20 Wall. 655-662, said: It must be conceded that there are such rights in every free government beyond the control of the State.

A government [p537] which recognized no such rights, which held the lives, the liberty, and the property of its citizens subject at all times to the absolute disposition and unlimited control of even the most democratic depository of power, is, after all, but a despotism. It is true, it is a despotism of the many, of the majority, if you choose to call it so, but it is nevertheless a despotism. It may be doubted, if a man is to hold all that he is accustomed to call his own, all in which he has placed his happiness and the security of which is essential to that happiness, under the unlimited dominion of others, whether it is not wiser that this power should be exercised by one man than by many. It follows that any legal proceeding enforced by public authority, whether sanctioned by age and custom, or newly devised in the discretion of the legislative power, in furtherance of the general public good, which regards and preserves these principles of liberty and justice, must be held to be due process of law.

The Constitution of Connecticut, adopted in 1818 and in force when the Fourteenth Amendment took effect, requires an indictment or presentment of a grand jury only in cases where the punishment of the crime charged is death or imprisonment for life, and yet it also declares that no person shall "be deprived of life, liberty, or property but by due course of law." It falls short, therefore, of that measure of protection which it is claimed is guaranteed by Magna Charta to the right of personal liberty, notwithstanding which it is no doubt justly said in Swift's Digest 17, that This sacred and inestimable right, without which all others are of little value, is enjoyed by the people of this State in as full extent as in any country on the globe, and in as high a degree as is consistent with the nature of civil government. No individual or body of men has a discretionary or arbitrary power to commit any person to prison; no man can be restrained of his liberty, be prevented from removing himself from place to place as he chooses, be compelled to go to a place contrary to his inclination, or be in any way imprisoned or confined unless by virtue of the express laws of the land.

[p538] 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.

Question: What right of a defendant was last used in "Ashford v Thornton", an 1818 English legal case that was a private appeal from an acquittal for murder?
Answer: Trial by combat