Ex parte Wilson (114 U.S. 417)/Opinion of the Court

by Horace Gray

Mr. Justice Gray, after stating the facts in the foregoing language, delivered the opinion of the court.

It is well settled by a series of decisions that this court, having [p421] no jurisdiction of criminal cases by writ of error or appeal, cannot discharge on habeas corpus a person imprisoned under the sentence of a circuit or district court in a criminal case, unless the sentence exceeds the jurisdiction of that court, or there is no authority to hold him under the sentence. Ex parte Watkins, 3 Pet. 193, and 7 Pet. 568; Ex parte Lange, 18 Wall. 163; Ex parte Parks, 93 U.S. 18; Ex parte Siebold, 100 U.S. 371; Ex parte Curtis, 106 U.S. 371; Ex parte Carll, 106 U.S. 521; Ex parte Yarbrough, 110 U.S. 651; Ex parte Crouch, 112 U.S. 178; Ex parte Bigelow, 113 U.S. 328.

None of the grounds on which the petitioner relies, except the first, require extended discussion.

The provision of Rev. Stat. § 1022, derived from the Civil Rights Act of May 30, 1870, ch. 114, § 8, authorizing certain offenses to be prosecuted either by indictment or by information, does not preclude the prosecution by information of other offenses of such a grade as may be so prosecuted consistently with the Constitution and laws of the United States.

The objection of variance between the conviction and the sentence is not sustained by the record. The first count is for unlawfully having in possession, with intent to sell, an obligation engraved and printed after the similitude of securities issued under authority of the United States, and the copy annexed and referred to in that count is of such an obligation. Both the verdict and the sentence are general, and therefore valid if one count is good. United States v. Snyder, [[112 U.S. 216]]. The mis-recital of the verdict, in the statement of the intermediate inquiry whether the prisoner had aught to say why sentence should not be pronounced against him, is no more than an irregularity, or error, not affecting the jurisdiction of the court.

The omission of the record to state, as in Ex parte Karstendick, 93 U.S. 396, that there was no suitable penitentiary within the state, and that the Attorney-General had designated the House of Correction at Detroit as a suitable place of imprisonment outside the state, is even less material.

The certified copy of the record of the sentence to imprisonment in the Detroit House of Correction, if valid upon its [p422] face, is sufficient to authorize the keeper to hold the prisoner, without any warrant or mittimus. People v. Nevins, 1 Hill (N.Y.) 154.

But if the crime of which the petitioner was accused was an infamous crime, within the meaning of the Fifth Amendment of the Constitution, no court of the United States had jurisdiction to try or punish him, except upon presentment or indictment by a grand jury.

We are therefore necessarily brought to the determination of the question whether the crime of having in possession, with intent to sell, an obligation engraved and printed after the similitude of a public security of the United States, punishable by fine of not more than $5,000, or by imprisonment at hard labor not more than 15 years, or by both, is an infamous crime, within the meaning of this Amendment of the Constitution.

The first provision of this Amendment, which is all that relates to this subject, is in these words: "No person shall be held to answer for a capital or otherwise infamous crime, unless on a 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."

The scope and effect of this, as of many other provisions of the Constitution, are best ascertained by bearing in mind what the law was before.

Mr. William Eden (afterwards Lord Auckland) in his Principles of Penal Law, which passed through three editions in England and at least one in Ireland within six years before the declaration of independence, observed: "There are two kinds of infamy: the one founded in the opinions of the people respecting the mode of punishment; the other in the construction of law respecting the future credibility of the delinquent." Eden's Principles of Penal Law, ch. 7, § 5.

At that time, it was already established law, that the infamy which disqualified a convict to be a witness depended upon the character of his crime, and not upon the nature of his punishment. Pendock v. Mackinder, Willes, 665; Gilb. Ev 143; 2 Hawk. ch. 46, § 102; The King v. Priddle, 1 Leach, (4th ed.) [p423] 442. The disqualification to testify appears to have been limited to those adjudged guilty of treason, felony, forgery, and crimes injuriously affecting by falsehood and fraud the administration of justice, such as perjury, subornation of perjury, suppression of testimony by bribery, conspiring to accuse one of crime, or to procure the absence of a witness, and not to have been extended to cases of private cheats, such as the obtaining of goods by false pretenses, or the uttering of counterfeit coin or forged securities. 1 Greenl. Ev. § 373; Utley v. Merrick, 11 Metc. 302; Fox v. Ohio, 5 How. 410, 433, 434.

But the object and the very terms of the provision in the Fifth Amendment show that incompetency to be a witness is not the only test of its application.

Whether a convict shall be permitted to testify is not governed by a regard to his rights or to his protection, but by the consideration whether the law deems his testimony worthy of credit upon the trial of the rights of others. But whether a man shall be put upon his trial for crime without a presentment or indictment by a grand jury of his fellow-citizens depends upon the consequences to himself if he shall be found guilty.

By the law of England, informations by the Attorney-General, without the intervention of a grand jury, were not allowed for capital crimes, nor for any felony, by which was understood any offense which at common law occasioned a total forfeiture of the offender's lands or goods, or both. 4 Bl. Com. 94, 95, 310. The question whether the prosecution must be by indictment, or might be by information, thus depended upon the consequences to the convict himself. The Fifth Amendment, declaring in what cases a grand jury should be necessary, and, in effect, affirming the rule of the common law upon the same subject, substituting only, for capital crimes or felonies, "a capital or otherwise infamous crime," manifestly had in view that rule of the common law, rather than the rule on the very different question of the competency of witnesses.

The leading word "capital" describing the crime by its punishment only, the associated words "or otherwise infamous crime" must, by an elementary rule of construction, include crimes subject to any infamous punishment, even if they should [p424] be held to include also crimes infamous in their nature, independently of the punishment affixed to them.

A reference to the history of the proposal and adoption of this provision of the Constitution confirms this conclusion. It had its origin in one of the Amendments, in the nature of a bill of rights, recommended by the convention by which the State of Massachusetts in 1788 ratified the original Constitution, and as so recommended was in this form: "No person shall be tried for any crime by which he may incur an infamous punishment or loss of life, until he be first indicted by a grand jury, except in such cases as may arise in the government and regulation of the land and naval forces." Journal Massachusetts Convention 1788, (ed. 1856) 80, 84, 87; 2 Elliot's Debates, 177. As introduced by Mr. Madison in 1789 at the first session of the House of Representatives of the United States, it stood thus: "In all crimes punishable with loss of life or member, presentment or indictment by a grand jury shall be an essential preliminary." Being referred to a committee, of which Mr. Madison was a member, it was reported back in substantially the same form in which it was afterwards approved by congress, and ratified by the States. 1 Annals Cong. 435, 760.

Mr. Dane, one of the most learned lawyers of his time, and who as a member of the Continental Congress took a principal part in framing the Ordinance of 1787, for the government of the Northwest Territory, assumes it as unquestionable that, by virtue of the amendment of the Constitution, informations "cannot be used where either capital or infamous punishment is inflicted." 7 Dane Ab. 280. Judge Cooley has expressed a similar opinion. Cooley, Principles of Constitutional Law, 291.

The only mention of informations in the first Crimes Act of the United States is in the clause providing that no person "shall be prosecuted, tried, or punished, for an offense not capital, nor for any fine or forfeiture under any penal statute, unless the indictment or information for the same shall be found or instituted within two years from the time of committing the offense, or incurring the fine or forfeiture." Act of April [p425] 30, 1790, ch. 9, § 32, 1 Stat. 119. For very many years afterwards informations were principally, if not exclusively, used for the recovery of fines and forfeitures, such as those imposed by the revenue and embargo laws. Acts of July 31, 1789, ch. 5, § 27, 1 Stat. 43; March 26, 1804, ch. 40, § 3, and March 1, 1809, ch. 24, § 18, 2 Stat. 290, 532; United States v. Hill, 1 Brock. 156, 158; United States v. Mann, 1 Gallison 3, 177; Walsh v. United States, 3 Woodb. & Min. 341. Mr. Justice Story, writing in 1883, said: "This process is rarely recurred to in America, and it has never yet been formally put into operation by any positive authority of congress, under the national Government in mere cases of misdemeanor; though common enough in civil prosecutions for penalties and forfeitures." Story on the Constitution § 1780.

The informations which passed without objection in United States v. Isham, 17 Wall. 496, and United States v. Buzzo, 18 Wall. 125, were for violations of the stamp laws, punishable by fine only. And the offense which Mr. Justice Field and Judge Sawyer held in United States v. Waller, 1 Sawyer, 701, might be prosecuted by information, is there described as "an offence not capital or otherwise infamous," and, as appears by the statement of Judge Deady in United States v. Block, 4 Sawyer, 211, 213 was the introduction of distilled spirits into Alaska, punishable only by fine of not more than $500, or imprisonment not more than six months. Act of July 27, 1868, ch. 273, § 4; 15 Stat. 241.

Within the last fifteen years, prosecutions by information have greatly increased, and the general current of opinion in the circuit and district courts has been towards sustaining them for any crime, a conviction of which would not at common law have disqualified the convict to be a witness. United States v. Shepard, 1 Abbott U.S. 431; United States v. Maxwell, 3 Dillon, 275; United States v. Block, 4 Sawyer, 211; United States v. Miller, 3 Hughes, 553; United States v. Baugh, 4 Hughes, 501; United States v. Yates, 6 Fed. Rep. 861; United States v. Field, 21 Blatchford, 330; In re Wilson, 18 Fed. Rep. 33.

But, for the reasons above stated, having regard to the object [p426] and the terms of the first provision of the Fifth Amendment, as well as to the history of its proposal and adoption, and to the early understanding and practice under it, this court is of opinion that the competency of the defendant, if convicted, to be a witness in another case is not the true test; and that no person can be held to answer, without presentment or indictment by a grand jury, for any crime for which an infamous punishment may be imposed by the court.

The question is whether the crime is one for which the statutes authorize the court to award an infamous punishment not whether the punishment ultimately awarded is an infamous one. When the accused is in danger of being subjected to an infamous punishment if convicted, he has the right to insist that he shall not be put upon his trial, except on the accusation of a grand jury.

Nor can we accede to the proposition, which has been sometimes maintained, that no crime is infamous, within the meaning of the Fifth Amendment, that has not been so declared by congress. See United States v. Wynn, 3 McCrary, 266, and 11 Fed. Rep. 57; United States v. Petit, 11 Fed. Rep. 58; United States v. Cross, 1 McArthur, 149. The purpose of the Amendment was to limit the powers of the legislature, as well as of the prosecuting officers, of the United States. We are not, indeed, disposed to deny that a crime, to the conviction and punishment of which congress has superadded a disqualification to hold office, is thereby made infamous. United States v. Waddell, 112 U.S. 76, 82. But the Constitution protecting every one from being prosecuted, without the intervention of a grand jury, for any crime which is subject by law to an infamous punishment, no declaration of Congress is needed to secure or competent to defeat the constitutional safeguard.

The remaining question to be considered is whether imprisonment at hard labor for a term of years is an infamous punishment.

Infamous punishments cannot be limited to those punishments which are cruel or unusual, because, by the Seventh Amendment of the Constitution, "cruel and unusual punishments" are wholly forbidden, and cannot therefore be lawfully [p427] inflicted even in cases of convictions upon indictments duly presented by a grand jury.

By the first Crimes Act of the United States, forgery of public securities, or knowingly uttering forged public securities with intent to defraud, as well as treason, murder, piracy, mutiny, robbery, or rescue of a person convicted of a capital crime, was punishable with death; most other offenses were punished by fine and imprisonment; whipping was part of the punishment of stealing or falsifying records, fraudulently acknowledging bail, larceny of goods, or receiving stolen goods; disqualification to hold office was part of the punishment of bribery; and those convicted of perjury or subornation of perjury, besides being fined and imprisoned, were to stand in the pillory for one hour, and rendered incapable of testifying in any court of the United States. Act of April 30, 1790, ch. 9; 1 Stat. 112–117; Mr. Justice Wilson's Charge to the Grand Jury in 1791, 3 Wilson's Works, 380, 381.

By that act, no provision was made for imprisonment at hard labor. But the punishment of both fine and imprisonment at hard labor was prescribed by later statutes, as, for instance, by the act of April 21, 1806, ch. 49, for counterfeiting coin, or uttering or importing counterfeit coin; and by the act of March 3, 1825, ch. 65, for perjury, subornation of perjury, forgery, and counterfeiting, uttering forged securities or counterfeit money, and other grave crimes. 2 Stat. 404; 4 Stat. 115. Since the punishments of whipping and of standing in the pillory were abolished by the act of February 28, 1839, ch. 36, § 5; 5 Stat. 322; imprisonment at hard labor has been substituted for nearly all other ignominious punishnents, not capital. And by the act of March 3, 1825, ch. 65, § 15, re-enacted in Rev. Stat. § 5542, any sentence of imprisonment at hard labor may be ordered to be executed in a state prison or penitentiary. 4 Stat. 118.

What punishments shall be considered as infamous may be affected by the changes of public opinion from one age to another. In former times, being put in the stocks was not considered as necessarily infamous. And by the first judiciary act of the United States, whipping was classed with moderate [p428] fines and short terms of imprisonment in limiting the criminal jurisdiction of the District Courts to cases "where no other punishment than whipping, not exceeding thirty stripes, a fine not exceeding one hundred dollars, or a term of imprisonment not exceeding six months, is to be inflicted." Act of September 24, 1789, ch. 20, § 9; 1 Stat. 77. But at the present day either stocks or whipping might be thought an infamous punishment.

For more than a century, imprisonment at hard labor in the state prison or penitentiary or other similar institution has been considered an infamous punishment in England and America.

Among the punishments "that consist principally in their ignominy," Sir William Blackstone classes "hard labor, in the house of correction or otherwise," as well as whipping, the pillory, or the stocks. 4 Bl. Com. 377. And Mr. Dane, while treating it as doubtful whether confinement in the stocks or in the house of correction is infamous, says, "Punishments, clearly infamous, are death, gallows, pillory, branding, whipping, confinement to hard labor, and cropping." 2 Dane, Ab. 569, 570.

The same view has been forcibly expressed by Chief Justice Shaw. Speaking of imprisonment in the state prison, which by the statutes of Massachusetts was required to be at hard labor, he said: "Whether we consider the words 'infamous punishment' in their popular meaning, or as they are understood by the Constitution and laws, a sentence to the State prison, for any term of time, must be considered as falling within them. The convict is placed in a public place of punishment, common to the whole State, subject to solitary imprisonment, to have his hair cropped, to be clothed in conspicuous prison dress, subjected to hard labor without pay, to hard fare, coarse and meager food, and to severe discipline. Some of these a convict in the house of correction is subject to; but the house of correction, under that and the various names of work-house and bridewell, had not the same character of infamy attached to it. Besides, the State prison, for any term of time, is now by law substituted for all the ignominious punishments formerly in use; and, unless this is infamous, [p429] then there is now no infamous punishment other than capital." Jones v. Robbins, 8 Gray, 329, 349. In the same case, Mr. Justice Merrick, while dissenting from the rest of the court upon the question whether under the words "the law of the land" in the Constitution of Massachusetts an indictment by a grand jury was essential to a prosecution for a crime punishable by imprisonment in the state prison, and taking a position upon that question more accordant with the recent judgment of this court in Hurtado v. California, 110 U.S. 516, yet concurred with the other judges in holding that such imprisonment at hard labor was an infamous punishment. 8 Gray, 370–372.

Imprisonment at hard labor, compulsory and unpaid, is, in the strongest sense of the words, "involuntary servitude for crime," spoken of in the provision of the Ordinance of 1787, and of the Thirteenth Amendment of the Constitution, by which all other slavery was abolished.

Deciding nothing beyond what is required by the facts of the case before us, our judgment is that a crime punishable by imprisonment for a term of years at hard labor is an infamous crime, within the meaning of the Fifth Amendment of the Constitution; and that the District Court, in holding the petitioner to answer for such a crime, and sentencing him to such imprisonment, without indictment or presentment by a grand jury, exceeded its jurisdiction, and he is therefore entitled to be discharged.

Writ of habeas corpus to issue.