In Colorado, laws are also to be published in Spanish and German.1 And in Louisiana, the legislature may provide for the publication of laws in the French language, and that judicial advertisements, in certain designated districts, may be made in French. So, in Missouri, certain characters, etc., in the German language. So, in Maryland, proposed amendments to the Constitution, in German.3 1 Col. 18, 8. 2 Mo. 9, 16. 3 Md. 14, 1. CHAPTER II BILL OF RIGHTS: CRIMINAL ARTICLE 12. RIGHTS BEFORE TRIAL 1 § 120. To Hear Accusation. By the Constitutions of nearly all the States, persons accused of crime have the right to hear the nature and cause of the accusation. And in many they are to have a copy of the accusation furnished them. In Georgia, also, to have a list of the witnesses on whose testimony the charge is founded.1 3 § 121. Bailable Offences. The Constitutions of most of the states provide that all persons shall, before conviction, be admitted to bail, upon giving sufficient sureties, except (where proof of their guilt is evident or the presumption great) for capital offences. Or for murder and treason, or offences punishable with death or im The wording of the text is that N. M. * 50, 7; 95, 1; O. 1, 10; Okla. of the Virginia Bill of Rights, and 1, 20; Ore. 1, 11; Pa. 1, 9; R. I. 1, 10; would apparently give the right to any S. C. 1, 18; S. D. 6, 7; Tenn. 1, 9; person arrested and accused before Tex. 1, 10; Utah 1, 12; Va. 1, 8; Vt. trial or indictment. U. S. Amt. 6 1, 10; Wash. 1, 22; W. Va. 3, 14; Wis. confines this right to criminal prosecu- 1, 7; Wy. 1, 10. tions. The former doctrine is preferable, and the principle is an old one, asserted by Coke in 1615, and probably independent of the right to habeas corpus: see § 125. 3 Ala.; Ark.; Ga. 1, 1, 5; Ill.; Ind.; Io.; Md.; Me.; Mon.; Neb.; O.; Okla.; Ore.; S. D.; Tenn.; Tex.; Utah; Wash.; Wy. Or of the indictment (Fla.). Compare § 135. "No man could be committed to prison but by a legal warrant specify- 5 Ala. 1, 16; Ariz.* Bill of Rts. 11; ing his offence; and by an usage nearly Ark. 2, 8; Cal. 1, 6; Col. 2, 19; Ct. 1, tantamount to constitutional right, 14; Del. 1, 12; Fla. Decln. of Rts. 9; he must be speedily brought to trial Ida. 1, 6; Ill. 2, 7; Io. 1, 12; Kan. by means of regular sessions of gaol delivery." (Taswell-Langmead, p. 294.) 2 Ala. 1, 6; Ark. 2, 10; Col. 2, 16; Ct. 1, 9; Del. 1, 7; Fla. Decln. Rts. 11; Ill. 2, 9; Ind. 1, 13; Io. 1, 10; Kan. Bill of Rts. 10; Ky. 11; La. 10; Mass. 1, 12; Md. Decln. Rts. 21; Me. 1,6; Mich. 6, 28; Minn. 1, 6; Miss. 26; Mo. 2, 22; Mon. 3, 16; N. C. 1, 11; Neb. 1, 11; N. H. 1, 15; N. J. 1, 8; Bill of Rts. 9; Ky. 16; La. 12; Me. Ind. 1, 17; Mich. 6, 29; Neb. 1, 9; 1 prisonment for life. And so, after conviction, except for capital or infamous offences in Louisiana. § 122. Excessive Bail. The Constitutions of all the States except Illinois provide that excessive bail shall not be required.3 § 123. Imprisonment of Parties Accused. In a few States the Constitution provides that no person arrested shall be treated with unnecessary rigor.1 5 § 124. Witnesses. In several States the Constitution provides that witnesses shall not be unreasonably detained; or that they shall not be imprisoned longer than may be necessary for securing their depositions; and thereafter shall be discharged on their own recognizance. Depositions so obtained may be used at the trial if the witness is dead or absent from the State. They shall not be confined in any room where individuals are actually imprisoned. Cf. § 135. 8 Contempts and their punishment are regulated by the Constitution in Oklahoma and two other States. See § 662. 1 R. I. 1, 9. 2 Compare Eng. Stat. 1 W. & M. Sess. 2; U. S. Amt. 8. Excessive bail was one of the abuses complained of in the Bill of Rights, and a usual method under the Stuarts of evading the habeas corpus. The right to bail was granted under the writ de odio et atia even before Magna Carta and was the means by which a person imprisoned on a charge of homicide could get released on bail to await the Iter of the King's Justices. the Constitution of Rhode Island declares that every man is presumed innocent until proved guilty by the law; and consequently no act of severity not necessary to secure the accused should be permitted. (R. I. 1, 14.) And in Delaware their friends and counsel must be allowed access to the accused. (Del. 1, 12.) "Theoretically torture was never part of the law of England" (Taylor II. 166), but was employed under Elizabeth and Henry VIII. to extort confessions from Roman Catholics by authority of the Privy Council. Coke says the rack was introduced by the Duke of Exeter under Henry VI. and adds: "There is no law to warrant tortures in this land, nor can they be justified by any prescription, being so lately brought in, and it was declined by the judges in the trial of Felton, the murderer of the Duke of Buckingham. (TaswellLangmead, p. 360.) 3 Ala. 1, 16; Ariz.* Bill of Rts. 10; Ark. 2, 9; Cal. 1, 6; Col. 2, 20; Ct. 1, 13; Del. 1, 11; Fla. Decln. of Rts. 8; Ga. 1, 1, 9; Ida. 1, 6; Ind. 1, 16; Jo. 1, 17; Kan. Bill of Rts. 9; Ky. 17; La. 12; Mass. 1, 26; Md. Decln. of Rts. 25; Me. 1, 9; Mich. 6, 31; Minn. 1,5; Miss. 29; Mo. 2, 25; Mon. 3, 20; N. C. 1, 14; N. D. 6; Neb. 1, 9; Nev. 1, 6; N. H. 1, 33; N. J. 1, 15; N. M.* 95, 1; 1851, July 12, § 11; N. Y. 1, 5; O. 1, 9; Okla. 2, 9; Ore. 1, 16; Pa. 1, 13; R. I. 1, 8; S. C. 1, 19; S. D. 6, 23; Tenn. 1, 16; Tex. 1, 13; Utah 1, 9; Va. 1, 9; Vt. 2, 33; Wash. 1, 14; W. Va. 3, 5; Wis. 1, 6; Wy. 1, 14. Ariz.* 4, 28; Ga. 1, 1, 9; Ind.1, 1, 12. 15; Ore. 1, 13; Tenn. 1, 13; Utah 1, 9; Wy. 1, 16. Compare § 140. So 5 Ariz. Bill of Rts. 10; Ark. 2, 9; Cal. 1, 6; Fla. Decln. of Rts. 8; Mich. 6, 31; N. D. 6; Nev. 1, 6; N. Y. 1, 5; S. C. 1, 19. • Col. 2, 17; Cal.; Mon. 3, 17; Wy. 7 Mon. 8 Cal., N. D., Wy. 125. Habeas Corpus. Three State Constitutions declare the writ of habeas corpus a writ of right. Two others declare that the writ or remedy ought not to be denied or delayed.3 In others, the legislature are to enact laws to render the remedy speedy and effectual. Or the privilege of the writ is to be enjoyed in the most easy, cheap, expeditious and ample manner. So, North Carolina declares that every person restrained of his liberty is entitled to a remedy to inquire into the lawfulness thereof, and to remove the same if unlawful. 126. Suspension of Habeas Corpus. By the Constitutions of most States, the writ can only be suspended where, in cases of The right to habeas corpus is 383.) The Constitution of the United contained in Magna Carta, C. 39. Its States, Art. 1, § 9 (2) providing that predecessor was known as the writ de the privilege of the writ of habeas odio et atia, which, however, was not corpus shall not be suspended, etc., granted as of right and was often only applies to action by the Federal refused except for a money payment. Government. (See § 126.) Io. 1, 13; N. C. 1, 18. • Tex., Vt. Fla.; Mass. 2, 6, 7; N. H. 2, 90. 6 N. C. 1, 18. Five centuries of effort to evade this 2 Fla. Decln. of Rts. 7; Tex. 1, 12; writ, the great guaranty of personal Vt. Amt. 12. liberty, ended in the Habeas Corpus Act of Charles II. which applies to any person committed and charged with crime and requires any judge at any time to issue the writ, returnable 7 Derived from U. S. C. 1,9 (2). immediately, and within two days to "The privilege of the writ of habeas discharge the prisoner if bailable. corpus shall not be suspended, unless This statute of Charles II. only covered when in cases of rebellion or invasion arrests on a criminal charge. This was the public safety may require it." only remedied by 56 Geo. III. c. 100. This of course only applies to the The right to personal liberty the Federal Government; but is most most precious of all rights is as old unfortunately ambiguous as it does as the Constitution itself. It rests not say who is to suspend the writ. upon the common law which was The better law is that the President merely defined and declared by Magna may not suspend the writ, but only Carta and the stream of statutes Congress; though they may perhaps which form that enactment (Taswell- authorize the President to suspend the Langmead, p. 488). An English sub- writ on finding a special state of facts. ject was always free from lawful It may be questioned, however, whether detention except upon a criminal an act would be constitutional which charge or conviction or for a civil authorized the President to suspend the debt, and the habeas corpus was in writ at his discretion. Habeas corpus theory always a writ of right, but it will issue from a Federal court to a was doubtful whether it could be State court or other authority, but only issued by a single judge during vaca- on the ground that the person detained tion, and it was only issued by the is deprived of a right secured to him by Court of King's Bench. The Habeas or under the Constitution of the United Corpus Act of Charles II. fixed no limit States. The President was authorized on the amount of bail which might be to suspend the writ by Act of Congress demanded, which defect was remedied in 1863, 1866, 1867 (McClain, p. 331), by the Bill of Rights in 1689, and it but there is no general act to that did not provide against falsehood in effect in Revised Statutes. the return. (See II. Taylor, pp. 328– invasion or rebellion, the public safety requires it.' In others, it can never be suspended in any case." "Martial law" of course would suspend it.3 The writ can only be suspended by the legislature. In other States this is implied by the general provision of § 392; and it is a general constitutional principle. 4 The manner of its suspension is left to the legislature to determine by law. 5 8 9 § 127. Indictment. In most States, the Constitution provides that no person shall be held to answer for a capital crime or a crime punishable by imprisonment for life or infamous crime or felony or any criminal offence 1o except on indictment or presentment of a grand jury. So, in others, that no person, for any indictable 11 10 effect of a habeas corpus is in most cases to make one necessary. Informations were, however, always unpopular and are rendered very unusual by the effect of recent statutes (4 Blackstone, 311) requiring express directions from the Court of King's Bench. The constitutional provisions of California and other code States would seem to revive the information in all criminal cases. 1 Ariz.* Bill of Rts. 9; Ark. 2, 11; constitutional provision requiring an Cal. 1, 5; Col. 2, 21; Ct. 1, 14; Del. indictment in England, though the 1, 13; Fla. Decln of Rts. 7; Ida. 1, 5; Ill. 2, 7; Ind. 1, 27; Io. 1, 13; Kan. Bill of Rts. 8; Ky. 16; La. 13; Me. 1, 10; Mich. 4, 44; Minn. 1, 7; Miss. 21; Mon. 3, 21; N. D. 5; Neb. 1, 8; Nev. 1, 5; N. J. 1, 11; N. M.* 95, 1; 1851, July 12, § 10; N. Y. 1, 4; O. 1, 8; Ore. 1, 23; Pa. 1, 14; R. I. 1, 9; S. C. 1, 23; S. D. 6, 8; Tenn. 1, 15; Utah 1, 5; Va. 58; Wash. 1, 13; Wis. 1, 8; Wy. 1, 17. 2 Ala. 1, 17; Ga. 1, 1, 11; Md. 3, 55; Mo. 2, 26; N. C. 1, 21; Okla. 2, 10; Tex. 1, 12; Vt. Amt. 12; W. Va. 3, 4. Or can only be suspended on the most urgent occasions, and for a tioned except Ct. and La.; and also limited time (not exceeding in Massa- in Cal., Col., Mo., N. D., and the chusetts twelve months, and in New U. S. Const. Amt. 5 as applying to Hampshire three months. Mass. 2, 6, Federal courts. An indictment is 7; N. H. 2, 90). 3 Compare §§ 293, 392. 7 Ct., Fla., La., Me., Nev., N. M.*, N. Y., O., Okla., R. I. See Note 7 below. 8 Ct. All the States previously men not necessary to due process of law and consequently is not required by • Ark, Ct., Ida., Md., Mich., the Federal Constitution in the State Miss., N. H., R. I., Tenn. 5 Ida. 1, 5; Neb. courts under the Fourteenth Amendment. • Compare U. S. Amt. 5. A present- 10 Ark., Ill., Io., Ky., Minn., ment is the notice taken by a grand N. C., Neb., N. J., Okla., S. C., jury of an offence of their own knowl- S. D., Tenn., Tex., W. Va. edge without an indictment. Informa- 11 Ariz.* Bill of Rts. 14; Ark. 2, 8; tion is a complaint against a person Col. 2, 8; Ct. 1, 9; Fla. Decln. of Rts. for some criminal or penal offence, 10; Ill. 2, 8; Io. 1, 11; La. 9; Me. 1, filed by the proper officer, on behalf 7; Minn. 1, 7; Mo. 2, 12; Amt. 1899, of the people, at his own discretion, on p. 382; N. C. 1, 12; N. D. 8; N. M.* the relation of some private person; 50, 6; 1851, July 12, § 8; Neb. 1, 10; not founded on the oath of a jury, Nev. 1, 8; N. J. 1, 9; N. Y. 1, 6; 0. although the subsequent proceedings 1, 10; Okla. 2, 17; R. I. 1, 7; S. C. 1, are the same. (Stimson's Law Glos- 17; Tenn. 1, 14; Tex. 1, 10; W. Va. sary.) There does not appear to be any 3, 4; Wy. 1, 13. |