whether flowing from the legislative or executive branches of the government. It does not of course touch the right of the state to appropriate private property to public use upon making due compensation, which is fully recognized in another part of the constitution; but no power in the state can legally confer upon one person or class of persons, the property of another person or class, without their consent, whatever motives of policy may exist in favor of such transfer." To give this clause, " due process of law," its true and proper value to the citizen, it must be made to mean, that no person shall be deprived, by any form of legislation, or governmental action, of either life, liberty, or property, except as the consequence of some judicial proceeding, appropriately conducted. It follows, that a law, which by its own inherent force extinguishes rights of property, or compels their extinction, without any legal process whatever, comes directly in conflict with the constitution. a

The meaning of this provision, then, according to its best interpretation by judicial authority, as well as history is, that no member of the state shall be disfranchised, or deprived of any of his rights or privileges, unless the matter shall be adjudged against him upon trial had according to the course of the common law; he is to be secured the benefit of those rules by which judicial trials are regulated, and to place those rules beyond the reach of legislative subversion. It is thus, that these rules are incorporated into the constitution itself, and made thereby a part of the paramount law. Trials, therefore, at least such as are criminal, are to be regulated and conducted in their essential features, not by statute but by common law. This is the constitutional guaranty. "These are but the rules which reason applies to the investigation of truth, and are of course, unchangeable." There has been in England, and in this country, a concurrence of opinion and holding, that all those fundamental rules of practice and evidence, which have generally been deemed essential to the due administration of justice, and which have been acted upon and enforced by all their common law courts for centuries, should be placed by the constitution beyond the reach of legislation." b

a Wyndham v. The People, 13 N. Y. 434. b Id. 447.

So far as this provision includes the right of trial by jury in crininal cases, it is hardly necessary that it be further discussed. The express provisions in the fifth and sixth articles of the first amendment of the constitution of the United States, which contain the provision we have been examining, are all that need be said on that subject. The whole of which are as follows:

Article 5. "No person shall be held to answer for a capital o otherwise infamous crime, unless upon 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 offence, to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case, to be a witness against himself; nor be deprived of life, liberty, or property without due process of law; nor shall private property be taken for public use, without just compensa

tion."

Article 6. "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury, of the state and district wherein the crime shall have been committed; which district shall have been previously ascertained by law; and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor; and to have the assistance of counsel for his defence."

The mode of trial it is seen, in all criminal actions, is a trial by a jury, and is surrounded by certain safeguards, which are made as well by the constitution as by statutes, a part of the system; and which government cannot dispense with. Among these, is, that the accused shall have a speedy trial. Though this is a positive injunction of the constitution, it is to have a reasonable construction in favor of the accused. If when charged with crime he is willing to proceed at once to trial, no delay on the part of the prosecution should be held reasonable, except that which is necessary to secure the attendance of witnesses; and this reasonableness, is a matter which it is the province of the court to control. If the government officer, acting under the responsibility of his official oath, represents the excuse of absent, or foreign witnesses, or witnesses who by reason of sickness, or other temporary infir

mity, cannot be obtained at earliest possible day in court, it is with reason supposed to be the duty of the court, to grant some delay. So on the other hand, a judicious court, in view of the constitutional security in this respect intended for the accused; and in view of the immense power of oppression that may be brought by prosecuting officers. The courts will ever appreciate actual difficulties, and duly regard the rights of the accused, and especially, in cases where delay will result in keeping him in confinement.

In cases not capital, it seldom fails, that the accused can avoid confinement, by recognizance of bail; and here again, the constitution throws its protection around the accused, and commands that unreasonable bail shall not be required. This command, which the court is under the solemn obligation to obey, appeals to the sense of justice of the court or judge to regard, in fixing the amount of bail. No conscientious magistrate can, capriciously, allow this constitutional privilege of the accused to be set at naught.

So too, there is the further security to the accused, that the trial shall be public. By this it is not meant that every person who sees fit, shall in all cases be permitted to attend criminal trials, because there are many cases where, from the character of the charge, and the nature of the evidence by which it is to be supported, the motives to attend the trial on the part of portions of the community would be of the worst character, and where a regard to public morals and public decency, would demand the exclusion at least of the young from the hearing, and of witnessing the evidence of human depravity, which the trial must necessarily bring to light. The requirement of a public trial, is for the benefit of the accused, that the public may see that he is fairly dealt by and not unjustly condemned, and the presence of interested spectators may keep his triers keenly alive to a sense of their responsibility, and to the importance of their functions. This requirement is fairly met, if, without partiality or favoritism, a reasonable proportion of the public is suffered to be present, notwithstanding those persons whose presence could be of no service to the accused, and who would only be drawn thither by a prurient curiosity, are excluded altogether. a

a Cooley on Const. Lim. 312.

But a far more important requirement is, that the proceeding to establish guilt, shall not be inquisitorial, and the criminal shall not, in a criminal case, "be compelled to be a witness against himself," and in this state, as a still further protection to the accused, the legislature have provided by a statute, a "that in the trial of all indictments, complaints, and other proceedings against persons charged with the commission of crimes or offences; and in all proceedings in any and all courts, and before any and all officers and persons acting judicially; the person so charged, shall. at his own request, but not otherwise, be deemed a competent witness; but the neglect or refusal of any such person to testify, shall not create any presumption against him." There is a still further security and protection to the accused upon his preliminary examination, which the statute directs shall not be on oath; and before it is commenced, the accused shall be informed of the charge made against him; and he shall be allowed a reasonable time to send for and advise with counsel; and if he desires it, he may have his counsel present during his examination, and during the examination of the complainant and the witnesses on the part of the prosecution. b And it is made the duty of the examining magistrate to inform the accused of his privilege to refuse to answer any question that may be put to him, c and in case he answers, the interrogatories put to him shall be reduced to writing by the magistrate, or under his direction, and they shall be read to the accused, who is entitled to correct and add to them until they are made conformable to what he declares is the truth before they are certified and signed by the magistrate. All these preliminary proceedings are connected with, and incident to the system of trial by jury.

But as we have seen, except in criminal cases, this constitutional guarantee is to be reasonably interpreted. It was not intended by this provision, as may be learned from its language, to tie up the hands of the legislature in every conceivable case, so that no matter can be judicially settled except by a jury trial, and, as will appear, it has been frequently decided, there are matters that come before courts, referees, and commissioners for adjudication, where a Laws of N. Y. 1869, Chap. 678. b Rev. Stat. 708, §14

c Id., § 15.

this provision of the constitution is not impaired, even though a jury trial, in the technical sense of the term, is not given.

"Due process of law," therefore, includes every process and proceeding which any of the guarantees of the national or state constitutions confer. The first article of the constitution of this state declares, that "no member of this state shall be disfranchised, or deprived of any of the rights or privileges secured to any citizen, unless by the law of the land, or, the judgment of his peers." And also by section two, that "the trial by jury in all cases in which it has heretofore been used, shall remain inviolate forever." Due process of law, not only includes these guarantees, but also as we have shown, includes the right to have the prosecution conducted according to the prescribed forms, as used in judicial proceedings.

Questions have arisen, both in criminal and civil proceedings in the courts of this state, as to what constituted a jury within the meaning of the constitution of this state, for the trial of criminal offences, below the grade of capital and infamous offences; and also, for obtaining compensation in civil cases, for private property taken for public use.

It is conceded, that the jury referred to in the above constitutional provision, is a common law jury of twelve men, a but the explanatory words, "as heretofore used,"-means, as used prior to the adoption of that constitution. By article 7, § 2, of the constitution of 1821, the provision as to trial by jury was in substance the same, as in that of 1846 above cited. The statutes of the state previous to the adoption of the constitution of 1821, as well as subsequent, expressly authorized the trial of petit larceny, and offences not infamous in their character, under the degree of grand larceny without indictment, without a jury, where the accused neglected to give security to appear at the next court of general sessions. b And the first law authorizing a trial by jury in any case, in a court of special sessions, for such offences, was passed subsequent to the adoption of the constitution of 1846. c

The conflict that arose under these provisions, was, from the

a Wyndham v. The People, 13 N. Y. 484.

b 1 Greenleaf Laws, N. Y. 422, R. L. 1813, 504, 7.

• Duffy v. The People, 6 Hill, 78.