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formatious of every kiud are confined by the consti- cases of imprisoument for crime it applies not only to tutional law to misdemeanors only. 4 Bl. Com. 310." felonies but to misdemeanors and petty offenses, and Referring again to the passage from Lord Coke, he the conclusion would be iuevitable that informations says, page 343: “This may not be conclusive, but as a substitute for indictments would be illegal in all being a constructiou adopted by a writer of high au- cases. It was indeed so argued by Sir Francis Winthority before the emigration of our ancestors, it has vington in Prynn's case, 5 Mod. 457, from this very a tendency to show how it was then uuderstood.” language of Magna Charta, that all suits of the king
This passage from Coke seems to be the chief founda. must be by presentment or iudictmeut, and he cited tion of the opinion for which it is cited; but a critical Lord Coke as authority to that effect. He attempted examination and comparison of the text and coutext to show that informations had their origin in the act will show that it has been misunderstood; that it was of 11 Heu. 7, ch. 3, enacted in 1494, known as the innot intended to assert that an indictment or present- famous Empson and Dudley Act, which was repealed ment of a grand jury was essential to the idea of due by that of 1 Hev. 8, ch. 6, in 1509. But the argument process of law in the prosecution and punishment of was overruled, Lord Holt saying that to hold otherwise crimes, but was only mentioned as an example and "would be a reflection on the whole bar." Sir Barillustration of due process of law as it actually existed tholomew Shower, who was prevented from arguing in cases in which it was customarily used. In begin- in support of the informatiou, prints his intended arning his commentary on this chapter of Magna Charta gument in his report o': the case under the name of (2 Inst. 46), Coke says: “This chapter containeth nine King v. Berchet, 1 Sbow. 106, in which, with great several branches :
thoroughness, he arrays all the learning of the time ou “1. That no man may be taken or imprisoned but the subject. He undertakes to “evince that this per legem terroe, that is, by the common law, statute method of prosecution is noways contrariant to any law, or custom of England; for the words per legem fundamental rule of law, but agreeable to it." He terræ, being towards the end of this chapter, doe answers the objection that it is inconvenient and referre to all the precedent matters in this chapter, vexatious to the subject by saying (page 17): “ Here etc.
is no inconvenience to the people. Here is a trial per “2. No man shall be disseised, etc., unless it be by pais, fair notice, liberty of pleading dalatories as well the lawful judgment, that is, verdict of his equals as bars. Here is subpæna and attachment, as much (that is, of men of his own condition), or by the law of time for defense, charge, etc., for the prosecutor the land (that is, to speak it once for all), by the due makes up the record, etc.; then, in case of malicious course and process of law.”
prosecution, the person who prosecutes is kuown by He then proceeds to state, that 3, 210 man shall be the note to the coroner, according to the practice of outlawed, anless according to the law of the land ; 4, the court." He answers the argument drawn from wo man shall be exiled, unless according to the law of Magna Charta, and says, “that this method of prosethe land; 5, no mau shall be in any sort destroyed, cution no way contradicts that law, for we say this is "unless it be by the verdict of bis equals, or according per legem terræ et per communem legem terræ; for to the law of the land;" 6, “no man shall be con- otherwise there never had been so universal a practice demed at the king's suite, either before the king in of it in all ages." And referring to Coke's comment, his bench, where the pleas are coram rege (and so are that “no man sball be taken," L. e., restrained of the words nec super eum ibimus to be understood), nor liberty by petition or suggestion to the king or his before any other commissioner or judge whatsoever, council unless it be by indictment or presentment, he and so are the words nec super eum mittemus to be says (page 122): “By petition or suggestion can nerer understood, but by the judgment of his peers, that is, be meant of the King's Bench, for he himself had preequals, or according to the law of the land."
ferred several here; that is meant only of the king Recurring to the first clause of the chapter, he con alone, or in council, or in the star chamber. In the tinues :
King's Bench the information is not a suggestion to “1. No man shall be taken (that is) restrained of the king, but to the court upon record;" and he liberty by petition or suggestion to the king, or to his quotes 3 Inst.136, where Coke modifies the statement by councill, unless it be by indictment or presentment of saying, “The king cannot put any to answer, but his good and lawfull men, where such deeds be done. This court must be apprized of the crime by indictment, branch and divers other parts of this act have been
presentment, or other matter of record,” which notably explained by divers acts of parliament, etc., Shower says, includes an information. quoted in the margent." The reference is to various So it has been recontly held that upon a coroner's acts during the reign of Edward III. And reaching inquisition taken concerning the death of a man and again the words "nisi per legem terræ," he' continues : a verdict of guilty of murder or manslaughter is re“But by the law of the land. For the true sense and turued, the offender may be prosecuted and tried exposition of these words see the statute of 37 E. 3, without the intervention of a grand jury. Regina v. cap. 8, where the words, by the law of the land, are Ingham, 5 B. & S. 257. And it was said by Buller, J., rendered, without due proces of the law, for there it in Rex v. Joliffe. 4 T. R. 285-293, that is to an action for is said, though it be contained in the Great Charter, slander in charging the plaiutiff with felony a justifithat no man be taken, imprisoned, or put out of his cation is pleaded which is found by the jury, that of freehold without proces of the law, that is, by indict- itself amounts to an indictment, as it it had been ment of good and lawful men, where such deeds be found by the grand jury, and is sufficient to put the done in due manner, or by writ originall of the com- party thus accused on his trial. mon law. Without being brought in to answere but The language of Lord Coke applies only to forfeiture by the due proces of the common law. No mau be of life and liberty at the suit of the king, and hence put to answer without presentment before justices, or appeals of murder, which were prosecutions by prithing of record, or by due proces, or by writ originall, vate persons, were never regarded as contrary to according to the old law of the land. Wherein it is to Magna Charta. On the contrary, the appeal of death be observed that this chapter is but declaratory of the was by Lord Holt "esteemed a noble remedy and a old law of England."
badge of the rights and liberties of an Englishman." It is quite apparent from these extracts that the in- Rex v. Toler, 1 Ld. Raymond, 557 ; 12 Mod. 375; Holt, terpretation usually put upon Lord Coke's statement 483. We are told that in the early part of the last is too large, because if an indictment or presentment century, in England, persons who had been acquitted by a grand jury is essential to due process of law in all on indictments for murder were often tried, couvicted
and executed on appeals. Kendall on trial by Battel in conflict with any of its provisions. If not found to (3d ed.), 447. An appeal of murder was brought in be so, we must look to those settled usages and modes England as lately as 1817, but defeated by the appel- of proceeding existing in the common and statute law laut's declining to accept the wager of battle. Ash- of England before the emigration of our ancestors, and ford v. Thornton, 1 B. & Ald. 403. The English statutes which are shown not to have been unsuited to their concerning appeals of murder were in force in the civil and political condition by having been acted on provinces of Pennsylvania and Maryland. Report of by them after the settlement of this country." Judges, 6 Binn. 599-604; Kilty on Marylaud statutes, This, it is argued, furnishes an indispensable test of 141, 143, 158. It is said that no such appeal was ever what constitutes “due process of law:” that any brought in Pennsylvania; but in Maryland, in 1765, a proceeding otherwise authorized by law, which is not negro was couvicted and executed upon such an ap- thus sanctioned by usage, or which supersedes and peal. Soper v. Tom, 1 Har. & McHen. 227. See note displaces one that is, cannot be regarded as due process to Paxton's case, Quincy (Mass.), 53, by Mr. Justice of law. Gray.
But this inference is unwarranted. The real syllaThis view of the meaning of Lord Coke is the one bus of the passage quoted is, that a process of law, taken by Merrick, J., in his dissenting opinion in which is not otherwise forbidden, must be taken to be Jones v. Robbins, 8 Gray, 329, who states his conclu- due process of law, if it cau show the sanction of set. sions in the words: “It is the forensic trial, under a tled usage both in England and in this country; but it broad and general law, operating equally upon every by no means follows that nothing else can be due promember of our community, which the words, ‘by the cess of law. The point in the case cited arose in referlaw of the land,' in Magna Charta, and in every subse- ence to a summary proceeding, questioned on that acquent declaration of rights which has borrowed its count, as not due process of law. The answer was, how. phraseology, make essential to the safety of the citizen, ver exceptional it may be, as tested by definitions and securing thereby both his liberty and his property, by principles of ordinary procedure, nevertheless this in preventing the unlawful arrest of his person or any substance has been immemorially the actual law of the unlawful interference with his estate." See also State land, and therefore is due process of law. But to bold v. Starling, 15 Rich. S. C. Law, 120.
that such a characteristic is essential to due process of Mr. Reeve,in 2 History of Eng. Law, 43, translates the law would be to deny every quality of the law but its phrase, nisi per legale judicium parium suorum vel per age, and to render it incapable of progress or improvelegem terræ, " but by the judgment of his peers, or by ment. It would be to stamp upon our jurisprudence some other legal process or proceeding adapted by law the unchangeableness attributed to the laws of the to the nature of the case."
Medes and Persians. Chancellor Kent, 2 Com. 13, adopts this mode of This would be all the more singular and surprising, construing the phrase. Quoting the language of in this quick and active age, when we consider that, Magua Charta, and referring to Lord Coke's comment owing to the progressive development of legal ideas upon it, he says: “The better and larger definition of and institutions in England, the words of Magia due process of law is that it means law in its regular Charta stood for very different things at the time of course of administration through courts of justice." tbe separation of the American colonies from what This accords with what is said in Westervelt v. Gregy, they represented originally. For at first the words nisi 12 N. Y. 202, by Denio, J., p. 212: “The provision was per legale judicium parium had no reference to a jury; designed to protect the citizen against all mere acts of they applied only to the pares regni, who were the power, whether flowing from the legislative or execu- constitutional judges in the Court of Exchequer and tive branches of the governmeut." The principle and coram rege. Bac. Abr. Juries (7th ed., Lond.), note, true meaning of the phrase have never been more Reere, H. L. 41. And as to the grand jury itself, we tersely or accurately stated than by Mr. Justice learn of its Constitution and functions from the Johnson, in Bank of Columbia v. Okeley, 4 Wheat. 235- Assize of Clarendon (A. D. 1164), and that of North244: “ As to the words from Magua Charta, incorpo- | ampton (A. D. 1176), Stubbs Chart. 143-150. By the latrated into the Constitution of Maryland,after volumes ter of these, which was a republication of the former, spoken and written with a view to their exposition, it was provided, that “if any one is accused before the the good sense of mankind has at last settled down justices of our lord the king of murder, or theft, or to this: that they were intended to secure the indi- robbery, or of harboring persons committing those vidual from the arbitrary exercise of the powers of crimes, or of forgery or arson, by the oath of twelve government, unrestrained by the established principles knights of the hundred, or if there are no knights, by of private right and distributive justice.” And the the oath of twelve free and lawful men, and by the conclusion rightly deduced is, as stated by Mr. Cooley, oath of four men from each township of the hundred, Const. Lim. 356: "The principles, then, upon which let him go to the ordeal of water, and if he fails, let the process is based are to determine whether it is
him lose one foot. And at Northampton it was added, due process' or not, and pot any considerations of for greater strictness of justice (pro rigore justitiæ), mere form. Administrative and remedial process that he shall lose his right hand at the same time with may be changed from time to time, but only with due his foot, and abjure the realm and exile himself from regard to the landmarks established for the protection the realm within forty days. And if he is acquitted of the citizen.”
by the ordeal, let bim find pledges and remain in the It is urged upon us, however, in argument, that the kingdom, unless he is accused of murder or other base claim made in behalf of the plaintiff in error is sup- felony by the body of the country and the lawful ported by the decision of this court in Murray's knights of the country; but if he is so accused as aforeLessee v. Hoboken Land, etc., Co., 18 How. 272. There, said, although he is acquitted by the ordeal of water, Mr. Justice Curtis delivering the opiuiou of the court, nevertheless he must leave the kingdom in forty days after showing, page 276, that due process of law must and take his chattels with him, subject to the rights mean something more than the actual existing law of of his lords, and he must abjure the kingdom at the the laud, for otherwise it would be no restraint upon mercy of our lord the king.” “The system thus eslegislative power, proceeds as follows: “To what tablished," says Mr. Justice Stephens (1 Hist. Crim. principle, then, are we to resort to ascertain whether Law of England, 252), “is simple. The body of the this process, enacted by Congress, is due process? To country are the accusers. Their accusation is practithis the answer must be twofold. We must examine cally equivalent to a conviction, subject to the chance the Constitution itself to see whether this process be of a favorable termination of the ordeal by water. If the ordeal fails, the accused person loses his foot and tive tyranny was the power of a free public opinion his hand. If it succeeds, he is nevertheless to be ban- represented by the Commons. ished. Accusation therefore was equivalent to ban- In this country written Constitutions were deemed ishment, at least.” When we add to this that the essential to protect the rights and liberties of the peoprimitive grand jury heard no witness in support of ple against the encroachmeuts of power delegated to the truth of the charges to be preferred, but presented their governments, and the provisions of Magna upon their own knowledge, or indicted upon common Charta were incorporated into bills of rights. They fame and general suspicion, we shall be ready to ac- were limitations upon all the powers of goverument, knowledge that it is better pot to go too far back into legislative as well as executive and judicial. antiquity for the best securities for our "ancient lib- It necessarily happened therefore that as these broad erties.” It is more consonant to the true philosophy and general maxims of liberty and justice held in our of our historical legal institutions to say that the system a different place and performed a different spirit of personal liberty and individual right, which function from their position and office in English conthey embodied, was preserved and developed by a pro- stitutional history and law, they would receive and gressive growth and wise adaptation to new circum- justify a corresponding and more comprehensive instances and situations of the forms and processes terpretation. Applied in Englaud only as guards found fit to give, from time to time, new expression against executive usurpation and tyranny, here they and greater effect to modern ideas of self-govern- have become bulwarks also against arbitrary legislament.
tion; but in that application, as it would be incongruThis flexibility and capacity for growth and adapta- ous to measure and restrict them by the ancient custion is the peculiar boast and excellence of the com- tomary English law, they must be held to guarantee mon law. Sir James Mackintosh ascribes this prin- not particular forms of procedure, but the very subciple of development to Magna Charta itself. To use stance of individual rights to life, liberty, and prophis own language. “It was a peculiar advantage that erty. the consequences of its principles were, if we may so Restraints that could be fastened upon executive auspeak, only discovered slowly and gradually. It gave thority with precision and detail might prove obout on each occasion only so much of the spirit of lib-structive and injurious when imposed on the just and erty and reformation as the circumstances of succeed- necessary discretion of legislative power; and while in ing generations required and as their character would every instance, laws that violated express and specific safely bear. For almost five centuries it was appealed injunctions and prohibitions might, without embarto as the decisive authority on behalf of the people, rassment, be judicially declared to be void, yet any though commonly so far only as the necessities of each general principle or maxim, founded on the essential case demanded." 1 Hist. of Eugland, 221.
nature of law, as a just and reasonable expression of The Constitution of the United States was ordained, the public will and of government, as instituted by it is true, by descendants of Englishmen, who inher- popular consent and for the general good, can only be ited the traditions of English law and history; but it applied to cases coming clearly withiu the scope of its was made for an undefined and expanding future, and spirit and purpose, and not to legislative provisions for a people gathered, and to be gathered, from merely establishing forms and modes of attainment. many nations and of many tongues. And while Such regulations, to adopt a sentence of Burke's, we take just pride in the principles and insti- “may alter the mode and application but have no tutions of the common law, we are not to for- power over the substance of original justice.” Tract get that in lands where other systems of juris- ou Popery Laws, 6 Burke's Works, ed. Little & Brown, prudence prevail, the ideas and processes of civil jus- 323. tice are also not unknown. Due process of law, in Such is the often repeated doctrine of this court. In spite of the absolutism of continental governments, is Munn v. Illinois, 94 U. S. 113-134, the chief justice, denot alien to that code which survived the Roman Em-livering the opinion of the court, said: “A person has pire as the foundation of modern civilization in no property, no vested interest, in any rule of the comEurope, and which bas given us that fundamental mon law. That is only one of the forms of municipal maxim of distributive justice-suum cuique tribuere. law, and is no more sacred than any other. Rights of There is nothing in Magna Charta, rightly construed property which have been created by the common law as a broad charter of public right and law, which cannot be taken away without due process; but the ought to exclude the best ideas of all systems and of law itself, as a rule of conduct, may be changed at the every age; and as it was the characteristic principle of will or even at the whim of the Legislature, unless prethe common law to draw its inspiration from every vented by constitutional limitations. Indeed the fountain of justice, we are not to assume that the great office of statutes is to remedy defects in the comsources of its supply have been exhausted. On the mon law as they are developed, and to adapt it to the contrary, we should expect that the new and various changes of time and circumstances.” And in Walker experiences of our own situation and system will v. Sauvinet, 92 U. S. 90, the court said: "A trial by mould and shape it into new and not less useful jury in suits at common law pending In State courts is forms.
not therefore a privilege or immunity of National The concessions of Magna Charta were wrung from citizenship which the States are forbidden by the the king as guaranties against the oppressions and fourteenth amendment to abridge. A State cannot usurpations of his prerogative. It did not enter into deprive a person of his property without due process the minds of the barons to provide security against of law; but this does not necessarily imply that all their own body or in favor of the commons by limit- trials in the State courts affecting the property of pering the power of Parliament; so that bills of attainder, sons must be by jury. This requirement of the Conex post facto laws, laws declaring forfeitures of estates,stitution is met if the trial is had aocording to the setand other arbitrary acts of legislation which occur so tled course of judicial proceedings. Due process of frequently in English history were never regarded as law is process according to the law of the land. This inconsistent with the law of the land; for notwith-process in the States is regulated by the law of the standing what was attributed to Lord Coke in Bon- State." ham's case, 8 Rep. 115, 118 a, the omnipotence of Par- In Kennard v. Louisiana, 92 U. S. 480, the question liament over the common law was absolute, even was whether a mode of trying the title to an office, in against common right and reason. The actual and which was no provision for a jury, was due process of practical security for English liberty against legisla- law. Its validity was affirmed. The chief justice,
after reciting the various steps in the proceeding, said: liberty and justice which lie at the base of all our civil “From this it appears that ample provision has been and political institutions, and the greatest security for made for the trial of the contestation before a court of which resides in the right of the people to make their competent jurisdiction; for bringing the party against own laws, and alter them at their pleasure. whom the proceeding is had before the court and noti- fourteenth amendment," as was said by Mr. Justice fying him of the case he is required to meet; for giv- Bradley in Missouri v. Leuis, 101 U. 8. 22-31, " does ing him an opportunity to be heard in his defense; for not profess to secure to all persons in the United the deliberation and judgment of the court; for an States the benefit of the same laws and the same appeal from this judgment to the highest court of the remedies. Great diversities in these respects may State, and for hearing and judgment there. A mere exist in two States separated only by an imaginary statement of the facts carries with it a complete line. On one side of this line there may be a right of answer to all the constitutional .objections urged trial by jury, and on the other side no such right. against the validity of the act." And Mr. Justice Each State prescribes its own modes of judicial proMiller, in Davidson v. New Orleans, 96 U. S. 97-105, ceeding." after showing the difficulty, if not the impossibility of But it is not to be supposed that these legislative framing a definition of this constitutional phrase, powers are absolute and despotic, and that the amend which should be “at once perspicuous, comprehen- ment prescribing due process of law is too vague and sive, and satisfactory," and thence deducing the wis- indefinite to operate as a practical restraint. It is not dom “in the ascertaining of the intent and applica- every act, legislative in form, that is law. Law is tion of such an important phrase in the Federal Con- something more than mere will exerted as an act of stitution, by the gradual process of judicial inclusion power. It must be not a special rule for a particular and exclusion, as the cases presented for decision shall person or a particular case, but in the language of Mr. require " says however that “it is not possible to hold Webster, in his familiar definition, “the general law, that a party has, without due process of law, been de- a law which hears before it condemns, which proceeds prived of his property, when as regards the issues af- upon inquiry, and renders judgment only after trial," fecting it, he has by the laws of the State a fair trial so “that every citizen shall hold his life, liberty, propin a court of justice, according to the modes of pro- erty, and immunities under the protection of the genceeding applicable to such a case." See also Missouri eral rules which govern society," and thus excluding 1. Lewis, 101 U. S. 22-31; Ex parte Wall, 107 id. 288- as not due process of law, acts of attainder, bills of 290.
pains and penalties, acts 'of confiscation, acts reWe are to construe this phrase in the fourteenth versing judgments, and acts directly transferring amendment by the usus loquendi of the Constitution one man's estate to another, legislative judge itself. The same words are contained in the fifth ments and decrees, and other similar special, amendment. That article makes specifio and express partial and arbitrary exertions of power under the provision for perpetuating the institution of the grand forms of legislation. Arbitrary power, enforcing its jury, so far as relates to prosecutions for the more ag- edicts to the injury of the persons and property of its gravated crimes under the laws of the United States. subjects, is not law, whether manifested as a decree of It declares that “no person shall be held to answer for a personal monarch or of an impersonal multitude. a capital or otherwise infamous crime, unless on a And the limitations imposed by our constitutional presentment or indictment of a grand jury, except in law upon the action of the governments, both State cases arising in the land or naval forces, or in the and National, are essential to the preservation of pubmilitia when in actual service in time of war or public lic and private rights, notwithstanding the represendanger; nor shall any person be subject for the same tative character of our political institutions. The enoffense to be twice put in jeopardy of life or limb; nor
forcement of these limitations by judicial process is shall he be compelled in any criminal case to be a wit- the device of self-governing communities to protect ness against himself.” It then immediately adds: “nor the rights of individuals and minorities, as well against be deprived of life, liberty, or property, without due the power of numbers, as against the violence of pubprocess of law.” According to a recognized canon of lio agents transcending the limits of lawful authority interpretation, especially applicable to formal and even when acting in the name and wielding the force solemn instruments of constitutional law, we are for- of the government. bidden to assume, without clear reason to the con- The Supreme Court of Mississippi, in a well-considtrary, that any part of this most important amend- ered case, Brown v. Levee Commissioners, 50 Miss. 468, ment is superfluous. The natural and obvious infer- speaking of the meaning of the phrase "due process of ence is, that in the sense of the Constitution, “due law,” says: “The principle does not demand that the process of law” was not meant or intended to include, laws existing at any point of time sball be irrepealable ex vi termini, the institution and procedure of a grand or that any forms of remedies shall necessarily conjury in any case. The conclusion is equally irresisti. tinue. It refers to certain fundamental rights which ble, that when the same phraso was employed in the that system of jurisprudence, of which ours is a defourteenth amendment to restrain the action of the rivative, has always recognized. If any of these are States, it was used in the same sense and with no disregarded in the proceedings by which a person is greater extent; and that if in the adoption of that condemned to the loss of life, liberty, or property, amendment it had been part of its purpose to perpetu- then the deprivation has not been by 'due process of ate the institution of the grand jury in all the States, law.'" it would have embodied, as did the fifth amendment, “It must be conceded,” said this court, speaking by express declarations to that effect. Due process of law Mr. Justice Miller, in Loan Association v. Topeka, 16 in the latter refers to that law of the land which de- Wall. 655-662, “that there are such rights in every free rives its authority from the legislative powers con- government beyond the coutrol of the State. A govferred upon Congress by the Constitution of the ernment which recognized no such rights, which held United States, exercised within the limits therein pre- the lives, the liberty, and the property of its citizens scribed, and interpreted according to the principles of subject at all times to the absolute disposition and untbe common law. In the fourteenth amendment, by limited control of even the most democratic depository parity of reason, it refers to that law of the land in of power, is after all but a despotism. It is true it is a each State which derives its authority from the in-depotism of the many, of the majority, if you choose herent and reserved powers of the State, exerted to call it so, but it is nevertheless a despotism. It may within the limits of those fundamental principles of be doubted, if a man is to hold all that he is accustomed to call his own, all in which he has placed his
BEFORE EXPIRATION OF TIME NOT VOID – REDEMPhappiness and the security of which is essential to TION-LACHES.-(1) The purchaser of the property of a that happiness, under the unlimited dominion of judgment debtor, held not entitled to enjoiu the judgothers, whether it is not wiser that this power should
ment in equity where he was unable to show that debe exercised by one man than by many."
fendant bad a good defense upon the merits. Hair . It follows that any legal proceeding enforced by pub- Labuzau, 19 Ala. 224; Pierce v. Oluey, 20 Conn., 544; lic authority, whether sanctioned by age and custom,
Abelman v. Roth, 12 Wis. 90. (2) The rendition of a or newly devised in the discretion of the legislative judgment before the time for filing defendant's answer power, in furtherance of the general public good,
has expired, does not render the judgment void. Its which regards and preserves these principles of lib.
rendition is simply erroneous and nothing more. The erty and justice, must be held to be due process of
court having jurisdiction to render the judgment, and law.
having rendered it, the law, when the judgment is The Constitution of Conneoticut, adopted in 1818,
collaterally attacked, will make all presumptions necesand in force when the fourteenth amendment took sary to sustain it. Grignon's Lessee v. Astor, 2 How. effect, requires an indictment or presentment of a
319. “It is of no avail,'' said the court in Cooper 5. grand jury only in cases where the punishment of the Reynolds, 10 Wall. 308, “to show that there are errors crime charged is death or imprisonment for life, and in the record, unless they be such as prove that the yet it also declares that no person shall “ be deprived
court had no jurisdiction of the case, or that the judg. of life, liberty, or property but by due course of law." ment rendered was beyond its power. This principle It falls short therefore of that measure of protection
has been often held by this court and by all courts, which it is claimed is guaranteed by Magna Charta to
and it takes rank as an axiom of law." And in Corthe right of personal liberty ; notwithstanding which
vett v. Williams, 20 Wall. 226, it was declared that it is no doubt justly said in Swift's Digest, 17, that
“the settled rule of law is, that jurisdiction having “this sacred aud inestimable right, without which all attached in the origual case, every thing done within others are of little value, is enjoyed by the people of
the power of that jurisdiction, when collaterally questhis State in as full extent as in any country on the
tioned, is to be held conclusive of the rights of the globe, and in as high a degree as is consistent with the parties, unless impeached for fraud." See, also, vature of civil government. No individual or body of Kempe's Lessee v. Kennedy, 5 Cranch, 173; Thompson men has a discretionary or arbitrary power to commit
v. Talmie, 2 Pet. 157; Vorhees v. Bank of United any person to prison; no may can be restrained of his States, 10 id. 449; Grignon v, Astor, 2 How. 319; liberty, be prevented from removing himself from
Florentine v. Barton, 2 Wall. 210; McGoon v. Scales, 9 place to place as he chooses, be compelled to go to a
id. 23; Glover v. Holman, 3 Heisk, 519; West v. Wilplace contrary to his inclination, or be in any way im- liamson, 1 Swan (Tenn.) 277. (3) When one entitled to prisoned or confined, unless by virtue of the express
redeem under a sale upon execution and who kuows laws of the land."
his rights, neglects and refuses to redeem within the Tried by these principles, we are unable to say that
time limited by law, he loses his right to redeem unthe substitution for a presentment or indictment by a
less he is able to show some fraud or wrong by which a grand jury of the proceeding by information, after ex.
redemption was prevented. Without such showing he amination and commitment by a magistrate, certify.
is not entitled to relief in equity. Hay v. Baugh, 77 IL. ing to the probable guilt of the defendant, with the right
501. White v. Crow. Opinion by Woods, J. on his part to the aid of counsel, and to the cross-ex
MUNICIPAL BONDS — VALIDITY OF RAILROAD AID amination of the witnesses produced for the prosecu- BONDS-STATUTORY CONSTRUCTION.- A city of Illinois tion, is not due process of law. It is, as we have seen, not having authority by its charter to issue bonds or an ancient proceeding at common law, which might to hold an election for authorizing such issue in 1868, include every case of an offense of less grade than a by popular vote, authorized the issue of railroad aid felony, except misprision of treason; and in every cir- bonds to a specified amount in aid of a specified rail. cumstauce of its administration, as authorized by the
road company. Subsequently the Legislature of statute of California, it carefully considers and guards Illinois passed an act which declared legal and binding the substantial interest of the prisoner. It is merely all elections before that time held in reference to aid a preliminary proceeding, and can result in no final to said railroad company, and authorized the corporate judgment, except as the consequence of a regular ju- authorities of any such city to issue bonds to the dicial trial, conducted precisely as in cases of indict
amount voted. Thereafter, the Constitution of ments.
Illinois adopted in 1870, provided that “no county, In reference to this mode of proceeding at the com- city, town, township, or other municipality shall ever mon law, and which he says “is as ancient as the com- become subscribers to the capital stock of any railroad mon law itself,” Blackstone adds (4 Com. 305): “And or private corporation, or make donation to or loan as to those offenses in which informations were allowed its credit in aid of such corporation : Provided, horoas well as indictments, so long as they were confined to
ever, that the adoption of this article shall not be conthis high and respectable jurisdiction, and were car- strued as affecting the right of any such municipality ried on in a legal and regular course in his majesty's to make such subscriptions where the same have been Court of King's Bench, the subject had no reason to authorized, under existing laws, by a vote of the peo. complain. The same notice was given, the same pro- ple of such municipalities prior to such adoption." cess was issued, the same pleas were allowed, the same After this and in 1871, the city authorities of the city trial by jury was had, the same judgment was given by named authorized the issue of bonds to the amount the same judges, as if the prosecution had originally specified in aid of the railroad named, and issued such been by indictment.”
bonds, which were sold for value. Held, that the bonde For these reasons, finding no error therein, the judg- were valid against the city. The Legislature of ment of the Supreme Court of California is
Illinois had authority to validate the action taken by Affirmed. the people of the city in respect to the issue of the
bonds. It has been frequently decided by the UNITED STATES SUPREME COURT AB
Supreme Court of that State—and upon that point STRACT.
there has been no disagreement between that tribunal
and the courts of the Union--that prior to the adopJANUARY 21, 1884.
tion of the Illinois Constitutiou of 1870, an incorporaJUDGMENT--WHEN PURCHASER FROM DEBTOR NOT ted city, its corporate authorities being thereunto aqENTITLED ENJOIN - JUDGMENT
thorized by the Legislature, could make a subscription