CHAPTER XXI. "DUE PROCESS OF LAW" IN RELATION TO CONSTRUCTIVE OFFENSES. PART IV. Certainty Required By Modern Authorities. The modern authorities are quite as definite as the older ones in insisting upon absolute certainty in the definition of that which is penalized, and we will now proceed to a mere compilation of authoritative utterances bearing upon the requirement of statutory certainty. Most of these quotations are from cases construing punitive statutes. In others, however, we find the principle definitely applied to the end of declaring uncertain statutes to be unconstitutional. First will be collected some of the authorities which show that the historical interpretation of "law," which requires certainty in the meaning of penal statutes before they can constitute "law," was perpetuated by our constitutional guarantees of "due process of law." After that will be quoted some judicial opinions which specifically declare that the destruction of all arbitrariness of courts, by the certainty of meaning in the statutory statement of the criteria of guilt, is a prerequisite without which penal statutes do not furnish "due process of law." For the benefit of the lazy and the very busy man, I violate my ideals of what a legal argument ought to be and pursue the method of merely compiling quotations from judicial opinions, which are deemed more or less material to the contention which I am making. If I merely cited the opinions instead of quoting them, I fear not many of them would be read. THE HISTORICAL AND SCIENTIFIC INTERPRETATION OF "LAW" IS PERPETUATED BY OUR CONSTITUTIONS. In reading the following quotations it is necessary always to bear in mind that the "settled maxims"-"the principles which were before the constitutions"-"the ancient rights and liberties of the subject," from the time of Magna Charta down, always included the protection of those accused of crime by insistance upon the maxim "Ubi jus incertum, ibi jus nullum” (where the law is uncertain there is no law). "Due process of law" means "an exercise of the powers of government as the settled maxims of the law permit and sanction, under such safeguards as these maxims prescribe for the class of cases to which the one in question belongs." "Even in judicial proceedings we do not ascertain from the constitution what is lawful process but we must test their action by principles which were before the constitution and the benefit of which we assume that the constitution was intended to perpetuate. 9937 "These phrases [of the Constitution] did not mean merciful nor even just laws but they did mean equal and general laws, fixed and certain. * The English colonies in America were familiar with the conflict between customary law and arbitrary prerogative and claimed the protection of these charters. When they came to form independent governments, they sought to guard against arbitrary and unequal governmental action by inserting the same phrase in their constitutions. * * * It does not follow that every statute is 'the law of the land,' nor that every process authorized by a legislature is 'due process of law." "38 "No man shall be arrested, imprisoned or exiled or deprived of his life, liberty or estate, but by the judgment of his peers, or the law of the land, 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 greatest securities of private right, handed down to us among the liberties and privileges which our ancestors enjoyed at the time of their emigration, and claimed to hold and retain as their birthright. These terms, in this connection, cannot, we think, be used in their most bold and literal senses to mean the law of the land at the time of the 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 "State v. Board of Med. Exams. 34 Minn. 887-389, Meyer's Vested Rights, "Weimer v. Bunbury, 30 Mich., 801 (213) State v. Doherty, 60 Me., 504. Eames v. Savage, 77 Me., 212 (220, 221), 1885; Meyer's Vested Rights, P. 196. P. 192. 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 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."* This would include the requirement of certainty in tests of guilt, as laid down by Coke, Blackstone and others, as quoted in the "Historic Interpretation of 'Law,'" and the maxim, "where the law is uncertain there is no law." "By 'due process of law' is meant such general and legal forms and course of proceeding as were known either at common law or were generally recognized at the time of the adoption of the provision."40 "The words, 'due process of law,' were undoubtedly intended to convey the same meaning as the words, 'by the law of the land' in Magna Charta. Lord Coke in his commentary on these words (2 Inst., 50) says they mean due process of law. It is manifest that it was not left to the legislative power to enact any process which might be devised. The article is a restraint on the legislative as well as the executive and judicial powers of the government, and cannot be so construed as to leave Congress free to make any process 'due process of law,' by its mere will. We must look to those settled usages and modes of proceeding existing in the common and statute law of England, before the emigration of our ancestors, and which are shown not to have been unsuited to their civil and political conditions by having been acted on by them after the settlement of this country."41 These authorities sufficiently show that the Federal and State constitutions guaranteeing "Due Process of Law," adopted the conception of "Law" which requires from the lawmaking power an absolute certainty in the statement of its criteria of guilt before a penal statute is the law of the land. This still further vindicates the historical interpretation of "Tones v. Robbins, 8 Gray (74 Mass.), 829 (342, 848); Meyer's Vested *Gibson v. Mason, 5 Nev., 288 (302); McCarrol v. Weeks, 5 Hayw. (Tenn.), "Murry v. Hoboken, etc., 18 How., 272 (276), (U. S., 1855); Davidson v. New Orleans, 96 U. S., 97 (1877). Rights, 195. 246. "law" as herein before made, and aids us to resurrect and revivify the ancient maxim, "Where the law is uncertain there is no law." It is hoped that thus may be destroyed all those tyrannous laws whose meanings no one knows until after trial, and as to which no lawyer can advise, because they are born of a stupid moral sentimentalism, fathered by those whose dense ignorance of the meaning of law and liberty is evidenced in the fact that mere question-begging vituperative epithets, so often expressing only diseased emotions, supplant the necessary statutory definitions of that which is prohibited. Next we shall examine the judicial utterances in so far as they may bear upon the required certainty in statute law. CERTAINTY IN CIVIL AND POLITICAL STATUTES. These disquisitions were primarily designed to discuss the requirement of certainty in penal statutes. In the foregoing essays it seemed necessary to the clarification of our thinking to point out how and why certainty is equally a requisite of those statutes which seek to do something else than merely to declare and enforce natural justice. As confirming that part of my speculations which asserts that "law" presupposes the abolition of all arbitrary power such as unavoidably results from the enforcement of uncertain statutes, as well as to emphasize the importance of the maxim, "Where the law is uncertain there is no law," a few opinions in civil cases will be quoted, in which the principle of the maxim is applied to nonpenal statutes. "It is impossible for a man to regulate his conduct by a rule that has no existence; it therefore follows of necessity that laws can influence the conduct of men only after they are made." 9942 "An act may be passed and published by legislatures national, state and territorial, with all the usual formalities and appendages, and yet be pronounced no law when put to the judicial test. ** * Strip this act of its outside appendages, leave it solitary and alone, is it possible for any human being to tell by what authority the seat of Government of Washington Territory was to be removed from Olympia to Vancouver?" (On the implied negative the legislative act was annulled.) Davis v. Ballard, 1 Marshall (Ky.), 577. Seat of Government Case, 1 Wash. Ter. Rep., 128. "The word equity in the oath administered to the special jury is synonymous with law, and does not mean some undefined and undefinable notion which the jury may entertain of the justice of the case, but a system of jurisprudence governed by established rules and bound down by fixed precedents. The special jury is sworn to try the cause according to equity and the opinion they entertain of the evidence, and not their opinion of equity, as well as the evidence."" "Every duty becomes such because the law makes it so. It is fixed and certain. Unless fixed and certain it cannot be a duty," said in civil action for damages from negligence.45 "Unless then the description [in an act of Congress] is so clear and accurate as to refer to a particular patent [or unerringly describe the characteristics which make the book ‘obscene'] so as to be incapable of being applied to any other, the mistake is fatal." "We cannot make the language for the law-making power, when the means of construing the language used, in any other than its literal and grammatical sense, is not furnished by the act itself or unmistakably indicated by the circumstances. It [the legislative act] is void because it cannot be ascertained from its terms, with any reasonable certainty, what territory is assigned to Dallas County." 9947 These decisions sufficiently demonstrate that as to those civil and political statutes which create or enforce artificial rights, it is unavoidable that we apply the old maxim, "Where the law is uncertain there is no law," or else submit to the arbitrary tyranny of judicial legislation. THE TEXT-BOOK WRITERS ON CERTAINTY IN PENAL STATUTES. "The penal law is intended to regulate the conduct of people of all grades of intelligence within the scope of responsibility. It is therefore essential to its justice and humanity that it be expressed in language which they can easily comprehend, that it be held obligatory only in the sense in which all can understand it, and this consideration presses with increasing weight according to the severity of the penalty. Hence every provision affecting any element of a criminal offense involving "Thornton v. Lane, 11 Ga., 461-538. Evansville St. Ry. Co. v. Meadows, 18 Ind. App. Ct., 159. Blanchard v. Sprague, Fed. Case 1517, v. 3, p. 647, and cases. Bittle v. Stuart, 84 Ark., 229-232; see also, Ferrett v. Attwill, 1 Blatchford, 157; Henry v. Evans, 97 Mo., 47. |