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It is not a case of unusual punishments and excessive fines to impose cumulative punishments for distinct offences in the same prosecution. Nor is it so, to pass a law inflicting greater punishment for an offence committed in one part of a State than in another. There may be good reason in the varying circumstances for such a distinction. It was decided in one case, that imprisonment at hard labor for two years for obtaining three dollars by means of a fraudulent device was not a cruel or unusual punishment.3 Congress has the power to impose forfeiture of citizenship as a punishment for crime. It has been decided in Virginia and Maryland that a statute inflicting stripes in the discretion of the court as a punishment is not repugnant to the Constitution.5 It would seem, however, that if such a punishment had become obsolete, the revival of it would be an unusual punishment in the sense of the Constitution.

While the Amendment under consideration applies solely to national action, the substance of it is repeated in a number of the State constitutions. It has been held by the highest court in New York that the infliction of the punishment of death by electricity is not a cruel and unusual punishment. It was conceded to be unusual, but denied on the evidence submitted to the court to be cruel, as all reasonable doubt was removed that the application of electricity to the vital parts of the human body in the manner contemplated by the act must result in instantaneous and painless death. Reference is made in a note to a case in a State court in which the subject of excessive fines is considered.8

More specific reference should be made to the word "bail" as used in this Amendment. The object of it is to secure the attendance of a person under charges at a trial, or obedience to a mandate of the court. A written instrument to that effect promising to be answerable to a specified amount is executed by the person of whom the bail is required with sureties, into whose custody he is assumed to be delivered. It is a matter of necessity that discretion should be reposed in magistrates or judges as to the amount of bail to be required. If it be excessive, an application may be made to have it reduced. It should not be fixed at a sum so large as purposely to prevent giving bail. Judges or male person under sentence for crime should be cut off to a uniform length of one inch from his scalp, the object of the law being to degrade and annoy Chinamen. Ho Ah Kow v. Nunan, 18 Am. Law Reg. N. s. 676.

1 State v. O'Neil, 58 Vt. 140, 165. 2 Matter of Bayard, 25 Hun, 546.

8 State v. Williams, 12 Mo. App. 415.

4 Huber v. Reily, 53 Pa. St. 112. 5 Commonwealth v. Wyatt, 6 Rand. (Va.) 693; Foote v. State, 59 Md. 264. 6 Pervear v. Commonwealth, 5 Wall.

475.

7 People v. Kemmler, 119 N. Y. 580. 8 Blydenburgh v. Miles, 39 Conn. 484. 9 United States v. Lawrence, 4 Cranch, C. Ct. 518.

magistrates who wilfully require excessive bail are liable to indictment or impeachment.1

(7.) Trials in the Federal courts in civil actions. In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any court of the United States, than according to the rules of the common law. (a) This clause is solely applicable to the Federal courts. The expression "common law" here means the common law proper. It does not include cases in equity, in which no jury has ever been resorted to. Nor does it include cases in admiralty unless a jury was in use when the Constitution was adopted. This clause by its very terms is merely conservative. Its object was to preserve trial by jury, and not to make innovations. Although, as has been stated, the United States has no common law, many cases may come before its courts, in which common-law questions are involved. This fact can readily be seen by the suggestion that a citizen of one State may sue a citizen of another State in a Federal court on any cause of action whatever. The jurisdiction of the court is absolutely unlimited when such parties are before it. It must then be, that if the question between these litigants be one at common law, a jury must be called; if it be an equity case, there will be no jury. It ought to be added that Congress has power to adopt the common law as a body of laws for the use of a territory over which it has exclusive legislation, as for example, the District of Columbia. In that case this clause includes all the common-law litigation of the District. Federal jurisprudence is pervaded by the common law for the purposes of the construction and interpretation of the Constitution itself, and statutes, treaties, etc., made under it, as well as the application of the authority entrusted to the general government to cases as they may arise. This is shown by the following recent expression of the Supreme Court: "There is one clear exception to the statement that there is no national common law. The interpretation of the Constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its history. The code of constitutional and statutory construction which, therefore, is gradually formed by the judgments of this court in the application of the Constitution, and the laws and treaties made in

Evans v. Foster, 1 N. H. 374.

2 See Parsons v. Bedford, 3 Pet. 433, 446, 447.

(a) Art. VII. of Amendments.

pursuance thereof, has for its basis so much of the common law as may be implied in the subject, and constitutes a common law resting on national authority." 1

RESTRICTIONS IN THE UNITED STATES CONSTITUTION UPON THE ACTION OF THE STATES.

Some of these restrictions are repetitions of those laid upon Congress, such as the prohibition against bills of attainder and ex post facto laws.2 It will not now be necessary to consider these further. Those to which attention will now be given are found in the Fourteenth Amendment.

The Fourteenth Amendment was adopted to dispose of questions growing out of the Civil War, and principally for the protection of those who had recently been emancipated from slavery. Still its provisions, so far as they concern the present inquiry, are not confined to them, but applicable generally to persons within the jurisdiction of the United States. Presumptively, all persons inhabiting a State are subject to its laws, and entitled to their protection. Whoever claims that an inhabitante. g., an Indian, because, for example, he is a member of a tribe is exempted from the "equal protection of the laws," is bound to prove the exception.3

Reference will only be made to the first and fifth sections of the amendment. Section 1. "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 they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." Section 5. "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article."

There are in the first section, several important propositions. One broadly defines citizenship of the United States and of a State. (a) Another declares that the privileges and immunities of a citizen of the United States shall not be abridged by a State. The third is of still wider scope. It is not confined to citizens. It em

1 Smith v. Alabama, 124 U. S. 478, 479; citing Moore v. United States, 91 U. S. 270.

(a) By U. S. Rev. St. § 1993 (1878), children born abroad of American citizens

2 Art. I. § 10, cl. 1, Constitution.

3 State v. Ta-cha-na-tah, 64 N. C. 614.

are declared to be citizens of the United States. See post, p. 126.

braces all persons, whether citizens or aliens, whether natural persons or corporations. The shield of the Constitution protects any one who is a "person" in the eye of the law, so that he shall not be deprived by a State, of life, liberty, or property, without due process of law, nor be denied the equal protection of the laws.

It is proposed now to consider two points: deprivation by a State of life or liberty without due process of law; and denial of the equal protection of the laws. Deprivation of property by a State will be considered at a later stage.

The expression "due process of law" in the Fourteenth Amendment would naturally bear substantially the same meaning as in the Fifth Amendment, though a far larger number of instances would arise under the former, owing to the great number of States, and the width and scope of State, as compared with Federal legislation. A great mass of decisions will accordingly accumulate around this restriction both in the State and Federal courts. The leading decisions construing this clause are subjoined.

(1) The expression "due process of law" does not in criminal cases make an indictment by a grand jury imperative. Even felonies may be presented, if the State law so provide, by information by the prosecuting officer, without an indictment.1 (2) The expression does not in any way interfere with the "police power" reserved to the States. Whatever power of this sort the States had before the adoption of the Fourteenth Amendment, they still retain. The "police power" includes a great variety of rules adopted from time to time by the States, regulating on public grounds trades and occupations, and the use and management of property. Regulations of this kind are peremptory, require no judicial proceedings, and may seriously interfere with liberty in the broadest sense and the enjoyment of property. It is the province of the court to determine as cases arise whether the State action is included in the police power and is accordingly lawful, or whether it is violative of the requirement of "due process of law" in the sense of the Constitution.

(3) Unless the "police power" in some way permit, it is unconstitutional for a State to prevent persons having the general power to contract, from entering into such contracts as they may see fit. Such a proceeding is an unwarrantable interference with the liberty to follow one's business. An example is a statute prohibiting workmen from receiving wages in goods (store orders) instead of money,2 or a seller of goods from giving a "prize" to

1 Hurtado v. California, 110 U. S. 516; Rowan v. State, 30 Wis. 129; State v. Boswell, 104 Ind. 541.

2 Godcharles v. Wigeman, 113 Pa. St. 431.

a purchaser,1 or the occupants of tenement houses from making cigars in their apartments.2 (a)

(4) The phrase "due process of law" looks more to substance than to form. The great point secured is, that there must be an opportunity accorded to every person to have a judicial hearing according to the nature of the case, before he can be deprived of his fundamental rights to life, liberty, or property. If this opportunity be afforded, it will not be unconstitutional to provide that a class of cases shall be made to precede all others, and be disposed of with the utmost dispatch consistent with a reasonable opportunity to be heard.*

(5) Under this Amendment, a State is not prohibited from having one set of rules in one part of its territory and another system in another part, provided that there is no encroachment in other respects upon constitutional restrictions. It is not necessary that the laws should be territorially uniform.5 Thus the State, within the area of large cities, may have a larger number of peremptory challenges of jury men in criminal cases than in the rest of its territory.6

(6) There may be special reasons of a public nature justifying special rules. Examples are methods of confining the insane, and summary proceedings to punish taxpayers who wilfully refuse to pay taxes upon personal property.8 (b).

(7) The constitutional rule that there must be "equal protection of the laws" extends to domestic private corporations as well as to private individuals. Such a corporation is a "person" within the Amendment.9 (c) This principle cannot be applied to a foreign corporation, including one established in another State, since it is lawful in general to impose conditions on the right of such a

1 People v. Gillson, 109 N. Y. 389. 2 Matter of Jacobs, 98 N. Y. 98.

8 This is discussed in Clark v. Mitchell, 64 Mo. 564. See also Portland v. Bangor, 65 Me. 120.

4 Kennard v. Louisiana, 92 U. S. 480. 5 Missouri v. Lewis, 101 U. S. 22.

(a) An act of the legislature prohibiting persons engaged in mining from issuing for the payment of labor any order or paper except such as is specified in the act is unconstitutional. State v. Goodwill, 33 W. Va. 179; see also State v. F. C. Coal & Coke Co., Id. 188. The following cases, though not decided under the Fourteenth Amendment, but under a like provision in State constitutions, may also be cited. Millett v. People, 117 Ill. 294; Commonwealth

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