Hurtado v. California
United States Supreme Court
110 U.S. 516; 4 S.Ct. 111; 28 L.Ed. 232 (1884)
In this historic case, the Supreme Court considers whether the grand jury requirement of the Fifth Amendment is applicable to state criminal prosecutions by way of the Fourteenth Amendment. The facts are contained in Justice Matthews’s majority opinion.
Mr. Justice Matthews delivered the Opinion of the Court:
The Constitution of the State of California adopted in 1879, in article I, section 8, provides as follows:
Offenses 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 [California] Penal Code regulate proceedings before the examining and committing magistrate in cases of persons arrested and brought before them upon charges of having committed public offenses. These require, among other things, that the testimony of the witnesses shall be reduced to writing in the form of deposition; and section 872 declares that if it appears from the examination that a public offense 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 offense committed, and ordering that the defendant be held to answer thereto. Sec. 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 offense is triable, an information charging the defendant with such offense. The information shall 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 offense.
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 7, 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 July, 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.
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 guarantied 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.
We are to construe this phrase in the 14th Amendment by the usus loquendi of the Constitution itself. The same words are contained in the 5th Amendment. That article makes specific and express provision for perpetuating the institution of the grand jury, so far as relates to prosecutions, for the most aggravated crimes under the laws of the United States. It declares that “[n]o 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 offense to be twice put in jeopardy of life or limb; nor shall he be compelled in any criminal case to be a witness against himself.” It then immediately adds: “nor 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 irresistible, that when the same phrase was employed in the 14th 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 5th 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 14th 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.
For these reasons, finding no error therein, the judgment of the Supreme Court of California is affirmed.
Mr. Justice Harlan, dissenting.
. . . “Due process of law,” within the meaning of the national Constitution, does not import one thing with reference to the powers of the States, and another with reference to the powers of the general government. If particular proceedings conducted under the authority of the general government, and involving life, are prohibited, because not constituting that due process of law required by the Fifth Amendment of the Constitution of the United States, similar proceedings, conducted under the authority of a State, must be deemed illegal as not being due process of law within the meaning of the Fourteenth Amendment. What, then, is the meaning of the words, “due process of law” in the latter amendment? . . .
According to the settled usages and modes of proceeding existing under the common and statute law of England at the settlement of this country, information in capital cases was not consistent with the “law of the land,” or with “due process of law.” Such was the understanding of the patriotic men who established free institutions upon this continent. Almost the identical words of Magna Charta were incorporated into most of the State Constitutions before the adoption of our national Constitution. When they declared, in substance, that no person should be deprived of life, liberty or property, except by the judgment of his peers of the law of the land, they intended to assert his right to the same guaranties that were given in the mother country by the great charter and the laws passed in furtherance of its fundamental principles. . . .
But it is said that the framers of the Constitution did not suppose that due process of law necessarily required for a capital offence the institution and procedure of a grand jury, else they would not in the same amendment prohibiting the deprivation of life, liberty, or property, without due process of law, have made specific and express provision for a grand jury where the crime is capital or otherwise infamous; therefore, it is argued, the requirement by the Fourteenth Amendment of due process of law in all proceedings involving life, liberty, and property, without specific reference to grand juries in any case whatever, was not intended as a restriction upon the power which it is claimed the States previously had, so far as the express restrictions of the national Constitution are concerned, to dispense altogether with grand juries.
This line of argument, it seems to me, would lead to results which are inconsistent with the vital principles of republican government. If the presence in the Fifth Amendment of a specific provision for grand juries in capital cases, alongside the provision for due process of law in proceedings involving life, liberty, or property, is held to prove that “due process of law” did not, in the judgment of the framers of the Constitution, necessarily require a grand jury in capital cases, inexorable logic would require it to be, likewise, held that the right not to be put twice in jeopardy of life and limb for the same offense, nor compelled in a criminal case to testify against one’s self—rights and immunities also specifically recognized in the Fifth Amendment—were not protected by that due process of law required by the settled usages and proceedings existing under the common and statute law of England at the settlement of this country. More than that, other amendments of the Constitution 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 liberty—were 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. . . .
Mr. Justice Field did not take part in the decision of this case.