John Marshall Harlan: Dissent in Hurtado v. California


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According to the settled usages and modes of proceeding existing under the common and statute law of England at the settlement of this country, information in capital cases was not consistent with the “law of the land” or with “due process of law.” Such was the understanding of the patriotic men who established free institutions upon this continent. Almost the identical words of Magna Charta were incorporated into most of the state constitutions before the adoption of our national constitution. When they declared, in substance, that no person shall be deprived of life, liberty, or property except by the judgment of his peers or the law of the land, they intended to assert his right to the same guaranties that were given in the mother country by the great charter and the laws passed in furtherance of its fundamental principles.

My brethren concede that there are principles of liberty and justice lying at the foundation of our civil and political institutions which no...

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John Marshall Harlan (Library of Congress)

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