Dissenting Opinion: Harlan, J.

stitution proposed at the same time, expressly recognize the right of persons to just compensation for private property taken for public use; their right, when accused of crime, to be informed of the nature and cause of the accusation against them, and to a speedy and public trial, by an impartial jury of the State and district wherein the crime was committed; to be confronted by the witnesses against them; and to have compulsory process for obtaining witnesses in their favor. Will it be claimed that these rights were not secured by the "law of the land" or by "due process of law," as declared and established at the foundation of our government? Are they to be excluded from the enumeration of the fundamental principles of liberty and justice, and, therefore, not embraced by "due process of law?" If the argument of my brethren be sound, those rights -although universally recognized at the establishment of our institutions as secured by that due process of law which for centuries had been the foundation of Anglo-Saxon libertywere not deemed by our fathers as essential in the due process of law prescribed by our Constitution; because,-such seems to be the argument-had they been regarded as involved in due process of law they would not have been specifically and expressly provided for, but left to the protection given by the general clause forbidding the deprivation of life, liberty, or property without due process of law. Further, the reasoning of the opinion indubitably leads to the conclusion that but for the specific provisions made in the Constitution for the security of the personal rights enumerated, the general inhibition against deprivation of life, liberty, and property without due process of law would not have prevented Congress from enacting a statute in derogation of each of them.

Still further, it results from the doctrines of the opinion—if I do not misapprehend its scope that the clause of the Fourteenth Amendment forbidding the deprivation of life or liberty without due process of law, would not be violated by a State regulation, dispensing with petit juries in criminal cases, and permitting a person charged with a crime involving life to be tried before a single judge, or even a justice of the peace, upon a rule to show'cause why he should not be hanged. I do no

Dissenting Opinion: Harlan, J.

injustice to my brethren by this illustration of the principles of the opinion. It is difficult, in my judgment, to over-estimate the value of the petit jury system in this country. A sagacious statesman and jurist has well said that it was "the best guardian of both public and private liberty which has been hitherto devised by the ingenuity of man," and that "liberty can never be insecure in that country in which the trial of all crimes is by the jury." Mr. Madison observed, that while trial by jury could not be considered as a natural right, but one resulting from the social compact, yet it was "as essential to secure the liberty of the people as any one of the pre-existent rights of nature." 1 Lloyd's Deb. 430. "When our more immediate ancestors," says Story, "removed to America, they brought this privilege with them, as their birthright and inheritance, as a part of that admirable common law, which had fenced round and interposed barriers on every side against the approaches of arbitrary power." Story's Const. § 1779. I submit, however, with confidence, there is no foundation for the opinion that, under Magna Charta or at common law, the right to a trial by jury in a capital case was deemed of any greater value to the safety and security of the people than was the right not to answer, in a capital case, upon a mere information filed by an officer of the government, without previous inquiry by a grand jury. While the former guards the citizen against improper conviction, the latter secures him against unfounded accusation. A State law which authorized the trial of a capital case before a single judge, perhaps a justice of the peace, would—if a petit jury in a capital case be not required by the fundamental principles of liberty and justice-meet all the requirements of due process of law, as indicated in the opinion of the court; for such a law would not prescribe a special rule for particular persons; it would be a general law which heard before it condemned, which proceeded upon inquiry, and under which judgment would be rendered only after trial; it would be embraced by the rule laid down by the court when it declares 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 public

Dissenting Opinion: Harlan, J.

good, which regards and preserves those principles of liberty and justice, must be held to be due process of law.

It seems to me that too much stress is put upon the fact that the framers of the Constitution made express provision for the security of those rights which at common law were protected by the requirement of due process of law, and, in addition, declared, generally, that no person shall "be deprived of life, liberty or property without due process of law." The rights, for the security of which these express provisions were made, were of a character so essential to the safety of the people that it was deemed wise to avoid the possibility that Congress, in regulating the processes of law, would impair or destroy them. Hence, their specific enumeration in the earlier amendments of the Constitution, in connection with the general requirement of due process of law, the latter itself being broad enough to cover every right of life, liberty or property secured by the settled usages and modes of proceeding existing under the common and statute law of England at the time our government was founded. Pomeroy's Municipal Law, 366, 372.

The views which I have attempted to express are supported by the Supreme Judicial Court of Massachusetts, in Jones v. Robbins, 8 Gray, 329, reaffirmed in Nolan's Case, 122 Mass. 330, 332, and in Commonwealth v. Honeman, 127 Mass. 450. Among the questions there presented was whether a statute of Massachusetts which gave a single magistrate authority to try an offence punishable by imprisonment in the State prison, without the presentment by a grand jury, violated that provision of the State Constitution which declared that "no man shall be arrested, imprisoned, exiled, or deprived of his life, liberty, or estate, but by the judgment of his peers, or the law of the land." It was held that it did.

"This clause, in its whole structure," said Chief Justice Shaw, speaking for the court, "is so manifestly conformable to the words of Magna Charta, that we are not to consider it as a newly invented phrase, first used by the makers of our Constitution; but we are to look at it as the adoption of one of the great securities of private right, handed to us as among the liberties and privileges which our ancestors enjoyed at the time of

Dissenting Opinion: Harlan, J.

their emigration and claimed to hold and retain as their birthright.

"These terms, in this connection, cannot, we think, be used in their most bald and literal sense to mean the law of the land at the time of their trial; because the laws may be shaped and altered by the legislature, from time to time; and such a provision, intended to prohibit the making of any law impairing the ancient rights and liberties of the subject, would under such a construction be wholly nugatory and void. The legislature might simply change the law by statute, and thus remove the landmark and the barrier intended to be set up by this provision in the Bill of Rights. It must, therefore, have intended the ancient established law and course of legal proceedings, by an adherence to which our ancestors in England, before the settlement of this country, and the emigrants themselves and their descendants, had found safety for their personal rights." After recognizing "law of the land" in Magna Charta and in the Constitution of Massachusetts as having the same meaning as " due process of law," and after stating that the people of the original States deemed it essential for the better security of their rights of life, liberty, and property, that their Constitutions should set forth and declare the fundamental principles of free government, Chief Justice Shaw proceeds: "Most of the State Constitutions did contain these declarations, more or less detailed and explicit; but the general purpose was to assert and maintain the great rights of English subjects, as they had been maintained by the ancient laws, and the actual enjoyment of civil rights under them. The sense of America was,' says Chancellor Kent, 'more fully ascertained, and more explicitly and solemnly promulgated, in the memorable Declaration of Rights of the first Continental Bill of Rights, in October, 1774, and which was a representation of all the States except Georgia, That declaration contained the assertion of several great and fundamental principles of American liberty; and it constituted the basis of those subsequent bills of rights which, under various modifications, pervaded all our Constitutional charters' 2 Kent, 5, 6.

"The right of individual citizens to be secure from an open

Dissenting Opinion: Harlan, J.

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."

Chancellor Kent, referring to the rights of personal security, as guarded by constitutional provisions, which were transcribed into the Constitutions of this country from Magna Charta and other fundamental acts of the English Parliament, says: "And where express constitutional provisions on the subject appear to be wanting, the same principles are probably asserted by declaratory legislative acts; and they must be regarded as fundamental doctrines in every State, for the colonies were parties to the national declaration of rights in 1774, in which the trial by jury, and the other rights and liberties of English subjects, were peremptorily claimed as their undoubted inheritance and birthright. It may be received as a proposition, universally understood and acknowledged throughout this country, that no person can be taken or imprisoned, or disseized of his freehold or estate, or exiled or condemned, or deprived of life, liberty, or property, unless by the law of the land or the judgment of his peers. The words by the law of the land, as used originally in Magna Charta in reference to this subject, are understood to mean due process of law, that is, by indictment or presentment of good and lawful men; and this, says Lord Coke, is the true sense and exposition of these words." And Kent immediately adds: "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."

Because of this general definition of due process of law, that distinguished jurist, it seems is claimed as authority for the present decision. When Lord Coke said that indictment or presentment was due process of law, he had reference, of course, to proceedings in cases in which, by the law of the land, that kind of procedure was required. In no commentary upon Magna Charta is it more distinctly stated than in Coke's that