§ 271. Same-First ten amendments no restraint on the states. The first ten amendments to the federal constitution contain no restraints on the powers of the states, but were intended to operate solely on the federal government, and their operation was not extended by the fourteenth amendment to the states. It has been contended on writ of error from the supreme court of the United States to the highest courts of the state, in many cases, civil and criminal, that the adoption of the fourteenth amendment had the effect to extend the operation of the first ten amendments to the states, and that all the restraints therein imposed upon the federal government have become restraints on the powers of the states, and that they can adopt no form of judicial procedure, nor make any thing "due process of law," except those forms of procedure which are allowed and permitted by the first ten amendments; but this contention has been overruled and repudiated by the supreme court in every case, criminal and civil, in which it has been presented. tation and tyranny, here they have become bulwarks also against arbitrary legislation; but, in that application, as it would be incongruous to measure and restrict them by the ancient customary English law, they must be held to guaranty not particular forms of procedure, but the very substance of individual rights of life, liberty and property. "Restraints that could be fastened upon executive authority with precision and detail, might prove obstructive and injurious when imposed on the just and necessary discretion of legislative power; and, while in every instance, laws, that violated express and specific injunctions and prohibitions, might, without embarrassment, be judicially declared to be void, yet, any general principle or maxim, founded on the essential nature of law, as a just and reasonable expression of the public will and of government, as instituted by popular consent and for the general good, can only be applied to cases coming clearly within the scope of its spirit and purpose, and not to legislative provisions merely establishing forms and modes of attainment. Such regulations, to adopt a sentence of Burke's, 'may alter the mode and application, but have no power over the substance of original justice." " Matthews, Justice, in Hurtado v. California, 110 U. S. 516, 558 (28:232). 90 Brown v. New Jersey, 175 U. S. 172, 177 (44:119) and authorities cited; Maxwell v. Dow, 176 U. S. 581, 617 (44:597); Hurtado v. California, 110 U. S. 516 (28:232); Bolln v. Nebraska, 176 U. S. 83. 92 (44:382); Hodgson v. Vermont, 168 U. S. 262, 273 (42:461); McNulty v. California, 149 U. S. 648 (37:883); Vincent v. California, 149 U. S. 648 (37:884). § 272. Same-Same-Criminal prosecution upon information. The criminal prosecution of a person in a state court, for a capital or other infamous crime, without indictment or presentment by a grand jury, upon an information made and filed by the duly authorized law officer of the state, in conformity with the constitution and laws of the state, resulting in his conviction, followed by the death sentence, does not deprive such person of his life without due process of law, nor of any right secured to him by any provision of the federal constitution or any amendment thereof.91 § 273. Same-Same-Criminal trial by a jury of less than twelve men. The trial in a state court of a person charged with an infamous crime by a jury of less than twelve men, and his conviction by such jury, and sentence to the state penitentiary, followed by execution of the sentence, in accordance with the constitution and laws of the state, do not deprive such person of his liberty without due process of law, nor of any right secured to him by any provision of the federal constitution or any amendment thereof."2 91 Hurtado v. California, 110 U. S. 516 (28:232); Bolln v. Nebraska, 176 U. S. 83, 92 (44:382); Hodgson v. Vermont, 168 U. S. 262, 273 (42:461); McNulty v. California, 149 U. S. 648 (37:883); Vincent v. California, 149 U. S. 648 (37:884); Davis v. Burke, 179 U. S. 399 (45:249). 92 Maxwell v. Dow, 176 U. S. 581, 617 (44:597). "It appears to us that the question whether a trial in criminal cases not capital shall be by a jury composed of eight instead of twelve jurors, and whether in case of an infamous crime a person shall only be liable to be tried after presentment or indictment of a grand jury, are eminently proper to be determined by the citizens of each state for themselves, and do not come within the clause of the amendment" (the due process clause of the four teenth amendment) "under consideration, so long as all persons within the jurisdiction of the state are made liable to be proceeded against by the same kind of procedure and to have the same kind of trial, and the equal protection of the laws is secured to them. It is emphatically the case of the people by their organic law providing for their own affairs, and we are of opinion they are much better judges of what they ought to have in these respects than anyone else can be. The reasons given in the learned and most able opinion of Mr. Justice Matthews, in the Hurtado case, for the judgment therein rendered, apply with equal force in regard to a trial by a jury of less than twelve jurors. The right to be proceeded against only by indictment, and the right to a trial by twelve jurors, are of the same na § 274. Same Same-Capital execution by electricity.—The capital execution of a person by electricity, under and by vir tue of the laws of a state, who has been duly and legally convicted of a capital crime in a court of the state, and in accordance with its constitution and laws, does not deprive such person of his life without due process of law, nor of any right. secured to him by any provision of the federal constitution or any amendment thereof.93 § 275. Same-Same-Confronting accused with witnesses.— The admission in evidence, against a person on trial, for an infamous crime, in a state court, of the deposition of a witness taken at the examining trial in the presence of the accused who then had an opportunity to cross-examine him, when it is shown that at the time of the trial the witness was a non-resident of the state and permanently absent and his attendance could not be procured, does not deny the accused due process of law, nor of any right secured by the federal constitution, where such deposition is admissible under the law of the state ture, and are subject to the same what ment or an information only, whether there shall be a jury of twelve or a lesser number, and whether the verdict must be unanimous or not. These are matters which have no relation to the character of the federal government. As was stated by Mr. Justice Brewer, in delivering the opinion of the court in Brown v. New Jersey (175 U. S. 172), the state has full control over the procedure in its courts, both in civil and criminal cases, subject only to the qualification that such procedure must not work a denial of fundamental rights or conflict with specific and applicable provisions of the federal constitution." Peckham, Justice, in Maxwell v. Dow, 176 U. S. 581, 617 (44:597). 93 Re Kemmler, 136 U. S. 436 (34:519); McIlvaine v. Brush, 142 U. S. 155 (35:971). 94 West v. Louisiana, 194 U. S. 258, 267 (48:965). 94 as declared by its highest court. At common law, the right existed to read a deposition upon the trial of the defendant, if such deposition had been taken when the defendant was present and when the defendant's counsel had an opportunity to cross-examine, upon proof being made to the satisfaction of the court that the witness was, at the time of the trial, dead, insane, too ill ever to be expected to attend the trial, or kept away by the connivance of the defendant.95 $276. Same Same Unreasonable searches and seizuresEvidence. The fact that papers and other subjects of evidence, such as gambling paraphernalia and other instruments of crime, may have been illegally taken from the possession of the party against whom they are offered, or otherwise unlawfully obtained, is no valid objection to their admissibility if they are pertinent to the issue. Evidence obtained by means of a search warrant is not inadmissible, either upon the ground that it is in the nature of an admission made under duress or that it is evidence which the defendant has been compelled to furnish against himself, or on the ground that the evidence has been unfairly or illegally obtained, even if it appears that the search warrant was illegally issued. If a search warrant be illegally issued, or if the officer serving it exceed his authority, the party on whose complaint the warrant issued, or the officer, would be responsible for the wrong done; but this would be no good reason for excluding from evidence papers seized, if they are pertinent to the issue. When papers are offered in evidence, the court can take no notice as to how they were obtained, whether lawfully or unlawfully, nor form a collateral issue to determine that question. Evidence which is pertinent to the issue is admissible, although it may have been procured in an irregular, or even in an illegal, manner. A trespasser may testify to pertinent facts observed by him, or may put in evidence pertinent articles or papers found by him while trespassing. For the trespass he may be held responsible civilly, or perhaps criminally, but his testimony is not thereby rendered incompetent.98 Due process of law is not 95 West v. Louisiana, supra. 96 Adams v. New York, 192 U. S. 585 (48:575); Commonwealth v. Dana, 2 Met. 329; Lagett v. Tollervy, 14 East, 302; Jordan v. Lewis, 14 East, 306; Commonwealth v. Tibbetts, 157 Mass. 519; Commonwealth v. Acton, 165 Mass. 11; Commonwealth v. Smith, 166 Mass. 730; Chastang v. State, 83 denied by the New York statute which provides that: "The possession, by any person other than a public officer, of any writing, paper, or document representing or being a record of any chance, share, or interest in numbers sold, drawn, or to be drawn, or in what is commonly called policy, or in the nature of a bet, wager, or insurance upon the drawing or drawn numbers of any public or private lottery, or any paper, print, writing, numbers, or device, policy slip, or article of any kind, such as is commonly used in carrying on, promoting, or playing the game commonly called policy, is presumptive evidence of possession thereof knowingly and in violation of a further statutory provision of the state for the violation of which a heavy penalty is imposed; nor is due process of law denied by the admission in evidence of documents seized under a search warrant not authorizing them to be seized, but which was issued for the seizure of certain gambling paraphernalia."7 § 277. Same-Same-Trial without jury in civil cases.-The seventh amendment to the federal constitution, providing that, "in suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved," relates only to trials in the courts of the United States; and the states, so far as this amendment is concerned, are left to regulate trials in their own courts in their own way. The states are forbidden by the fourteenth amendment to deprive any person of his property without due process of law; but this does not necessarily imply that all trials in the state. courts affecting the property of a person must be by jury. The requirement of the fourteenth amendment is met, if the trial is had according to the settled course of judicial proceedings in the state. Due process of law is process due according to the law of the land; and this process in the states is regulated by the law of the state, and the power of the United Ala. 29, 3 So. Rep. 304; State v. Flynn, 36 N. H. 64; State v. Edwards, 51 W. Va. 220, 59 L. R. A. 465, 41 S. E. 429; Shields v. State, 104 Ala. 35, 16 So. Rep. 85; Bacon v. United States, 38 C. C. A. 31, 79 Fed. Rep. 35; State v. Atkinson, 40 S. C. 363, 18 S. E. 1021; Williams v. State, 100 Ga. 511, 39 L. R. A. 269, 28 S. E. 624; State v. Pomeroy, 130 Mo. 489, 32 S. W. 1002; Gindrat v. People, 138 Ill. 103, 27 N. E. 1085; Trask v. People, 151 Ill. 523, 38 N. E. 248; Starchman v. State, 62 Ark. 538, 36 S. W. 940. 97 Adams v. New York, 192 U. S. 585 (48:575). |