Byers and Davis v. Commonwealth

• Decision Date: 01 January 1860
• Citation: 42 Pa. 89
• Parties: Byers and Davis versus The Commonwealth.
• Court: Pennsylvania Supreme Court

42 Pa. 89

Byers and Davis versus The Commonwealth.

Supreme Court of Pennsylvania.

CERTIORARI to Alderman David B. Beitler, of the city and county of Philadelphia.

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Edward H. Weil and Daniel Dougherty, for defendants, contended: That the act is unconstitutional, —

1. It violates that section of the Bill of Rights, which declares that trial by jury shall be as heretofore, and the right thereof remain inviolate.

2. It violates the section of the Bill of Rights, which declares that the accused shall have the right to demand the nature and cause of the accusation, and that he cannot be deprived of his life, liberty, or property, unless by the judgment of his peers or the law of the land.

3. It violates the section of the Bill of Rights, which declares that no person, for a criminal offence, shall be proceeded against criminally by information, except in cases arising under the land and naval forces, or for misdemeanor in office.

4. It violates the section of the Bill of Rights, which declares that all prisoners shall be bailable unless for capital offences.

5. It violates the section of the Bill of Rights, which declares that no commission of oyer and terminer or general jail delivery shall issue.

6. It violates the section in the Constitution of Pennsylvania, which declares that the judges of the Court of Common Pleas shall, by virtue of their offices, be judges of the Oyer and Terminer and general jail delivery.

7. It violates the section of the Bill of Rights, which declares that emigration from the state shall not be prohibited.

8. It violates the section in the Bill of Rights, in the Constitution of Pennsylvania, and in the Constitution of the United States, which declares that no ex post facto law shall be passed.

9. It vests in an inferior magistrate unheard of, extraordinary, oppressive, and dangerous powers.

10. It arrests upon suspicion of an intent, and for no offence known to the law.

11. It condemns upon suspicion of an intent, and for no offence which a human tribunal could ever try.

12. It removes, in the case of one who has been guilty of crime, any inducement to repent and reform.

13. If one should serve a term of imprisonment under this act, he could be at once arrested again for the same reason; and the punishment of the act is therefore, in effect, for life.

They referred to Const. of Penna., Bill of Rights, art. 9, § 6; Norman v. Heist, 5 W. & S. 173; Emerick v. Harris, 1 Binn. 424; Barter v. The Commonwealth, 3 Penrose & Watts 260; Ex parte Crouse, 4 Whart. 11; Black. Comm., book 3, pp. 379-80-81; Id., book 4, pp. 349-50; Bill of Rights, art. 9, § 9; Id., art. 5, 6; Magna Charta, cap. 29; Coke's Inst., part 2, cap. 29; Hawkins's Pleas of the Crown, book 2, chap. 1, p. 2; Hale's Pleas of the Crown, part 2, p. 151; and argued that the words "by the law of the land," as used in Magna Charta, meant due process of law, that is, by indictment or presentment of good and lawful men: 2 Kent's Comm. 13; 3 Story's Const., §§ 1773-1774; Sedgwick's Constitutional Law, p. 542; In re John and Cherry Streets, 19 Wend. 659; Barker v. The People, 3 Cowen 686; Taylor v. Porter, 4 Hill 145; Wynhammer v. The People, 3 Kernan 378; Mays v. Wilson, 1 N. H. 55; Budd v. The State, 3 Humph. 483; Jones v. Perry, 10 Yerg. 71; Kinney v. Beverly, 2 Hen. & Munf. 336; Carson v. Commonwealth, 1 A. K. Marsh. 290; Hughes v. Hughes, 4 Monroe 43; Armstrong v. Jackson, 1 Blackf. 375; Reed v. Wright, 2 Greene 22; James v. Reynolds, 2 Texas 251; Hoke v. Henderson, 4 Dev. 15; O'Neill v. The State, 2 Speer's R. 767, U. S. Circuit Cases; Arrowsmith v. Burlingen, 4 McLean 498; Greene v. Briggs, 1 Curtis 311; Ervine's Appeal, 4 Harris 263; Cathcart v. The Commonwealth, 1 Wright 108; Brown v. Hummell, 6 Barr 91; Bill of Rights, art. 9, § 10. That by the law of England there were but two modes of proceeding against a person criminally: 1st. By indictment; 2d. By information. The Constitution of Pennsylvania prohibits the latter mode, except in two classes of cases. They also cited Commonwealth v. Flanagan, 7 W. & S. 68; Foust v. The Commonwealth, 9 Casey 338; Const. of U. S., art. 1, § 9, clause 3.

William B. Mann and F. Carroll Brewster, for the Commonwealth, and Charles E. Lex, for the city of Philadelphia, defended the constitutionality of the statute, and cited Act of March 23d 1826, § 6, P. L. 1824-5-6, p. 133, and the 1st section of the Act of April 10th 1835, supplementary to the former, P. L. 1834-35, p. 133, which two acts were declared constitutional: Ex parte Crouse, 4 Whart. 9. They also cited the acts of 22d April 1794, § 4; 21st February 1761, §§ 1, 2; 22d March 1836, § 6, Str. & Bright. Purd. Dig. 829; Act of 1705, 1 Sm. 25; the New York statutes, 1 R. S. 673-4, Act of December 3d 1827, and 1 R. S. 640 Id.; the Virginia R. C., p. 389, Act of 26th December 1792, and R. C., p. 259, Id.; Statutes of Maryland, Dorsey's Laws, p. 340, Act of 1796; Massachusetts, R. S., p. 779, §§ 6, 7; Lewis's Crim. Law, p. 587; Michigan, R. S., p. 417-418, and R. S., chap. 162, §§ 2, 3, 4, 6, 15; 4 Black. Com. 280; 1 Archbold Cr. Pl. p. 59, note (1); 1 Eliz. c. 2, §§ 14, 24, 4 Burn's Just. 8; The Toleration Act, 30 Car. 2, Id. 5; 4 Edw. 4, c. 1; 13 & 14 Car 2, c. 15; 1 Anne 1, c. 18; 13 Geo. 2, c. 8; 4 Burn's Just. 155, 157, 163.

The statutes against swearing in England provide that justices of the peace shall try, and commit, without a jury: 19 Geo. 2, c. 2, §§ 2, 3, 4, 10; 17 Geo. 2, c. 5, § 7; 17 Geo. 2, c. 5, §§ 19, 23; 4 Burn's Just. 367, 375, 376.

The statutes of New York, creating a special sessions of justices for the trial of petty larceny without a jury, have been held constitutional: Murphy v. The People, 2 Cowen 815; Jackson v. Wood, Id. 819; Colt v. Eves, 12 Conn. 243. Also a similar statute in Tennessee: McGinnis v. The State, 9 Humph. 43.

The regulation of public municipal corporations, as well as all matters of police, are within the absolute control of the legislature: In re Northern Liberty Hose Company, 1 Harris 195.

They cited further the Act of February 8th 1766; Commonwealth v. Keeper, &c., 5 Binn. 516; 1 Bioren Laws of Penna. 423; Van Swartow v. Commonwealth, 12 Harris 133; Commonwealth v. McKeagy, 1 Ashm. 252.

The opinion of the court was delivered by, STRONG, J.

The plaintiffs in error having been convicted, and committed under an Act of Assembly passed March 13th 1862, sued out a habeas corpus and this certiorari, and their first assignment of error brings in question the constitutionality of the act under which the conviction took place. The act is contained in two sections. By the first, it is enacted, that "if any person shall be charged on oath or affirmation, before the mayor or police magistrate of the Central Station of the City of Philadelphia, with being a professional thief or pickpocket, and who shall have been arrested by the police authorities at any steamboat landing, railroad depot, church, banking institution, broker's office, place of public amusement, auction-room, store, or crowded thoroughfare in the city of Philadelphia, and it shall be proven to the satisfaction of the said mayor, or police magistrate appointed by the mayor for the Central Station, by sufficient testimony, that he or she was frequenting such place or places for an unlawful purpose, he or she shall be committed by the said mayor or said police magistrate, to the jail of the county of Philadelphia, for a term not exceeding ninety days, there to be kept at hard labour; or, in the discretion of the said mayor or police magistrate of said Central Station, he or she shall be required to enter security for his or her good behaviour for a term not exceeding one year." The second section gives to any person who may feel aggrieved at any such act, judgment, or determination of the mayor or police magistrate, the right to apply to any judge of the Court of Quarter Sessions for a writ of habeas corpus, and directs that on the return thereof, there shall be a rehearing of the evidence; and empowers the judge either to discharge, modify, or confirm the commitment. It is insisted that this act is repugnant to that clause in the declaration of rights in the constitution which guarantees "that trial by jury shall be as heretofore, and the right thereof remain inviolate." The objection is based upon a misconception of what that right of trial by jury was which is protected by the constitution. The founders of this state brought with them to their new abode the usages to which they had been accustomed in the land from which they emigrated. Among them was trial by jury. That mode of trial had long been considered the right of every Englishman, and it had come to be regarded as a right too sacred to be surrendered or taken away. Even in England it was fundamental or constitutional, so far as any right can be where there is no written frame of government. Its extent and its privileges, how and when it was to be enjoyed, were perfectly understood, and in bringing it with them the founders of the Commonwealth doubtless intended to bring it as they had enjoyed it. None of the frames of government or constitutions under which we have lived have contemplated any extension of the right beyond the limits within which it had been enjoyed previous to the settlement of the state or the adoption of the constitution. No intention to enlarge it appears in the laws agreed upon in England in 1682. Our first constitution, that of 1776, declared that "trials by jury shall be as heretofore." The Constitution of 1790, and the amended one of 1838, adopted substantially the same provision. Their language was, "trial by jury shall be as heretofore, and the right thereof remain inviolate." All looked to preservation, not extension. It is the old right, whatever it was, the one previously enjoyed, that must remain inviolable, alike in its mode of enjoyment and in its extent. What, then, was this right thus cherished and...