Wynehamer v People.pdf - The University of Texas at Austin

ALBANY, MARCH, 1856.445Wyneliamer against The People.who are required to give ample security not to violate anyprovision of the act, and yet, by force of the clause in question,every sale they make affords prima facie evideTce toconvict them. The act presumes against the innocence ofits own selected agent, and vill not permit this presumptionto be rebutted until such agent consents to makehimslf a witness in the case. This provision raises the vitalquestion, as to the value of that clause in the constitutionwhich secures to every man charged with crime a trial by"due process of law." The most important guarantees ofindividual right which our constitution affords are concentratedin this single phrase. As we have already seen, theexpression, " due process of law," first appeared in astatute of Edward III. as a paraphrase of the words, " bythe law of the land," per legem terra;, in Magna Charta ; andfrom that day to this both forms of expression have beenheld to refer to the common law, as distinguished fromstatutory enactment. Sir Matthew Hale says : " The commonlaw is sometimes called, by way of eminence, lex terree,as in the statute of Magna Charta {chap. 29), where certainlythe common law is principally intended by thosewords, aut per legem terrw, as appears by the expositionthereof in several subsequent statutes, and particularly inthe statute of 28 Edward III. (ch. 3), which is but an expositionand explanation of that statute." (1 Hale's Hist. Com.Law, 128.) Lord Coke also, in his commentary upon MagnaCharta, puts the same construction upon the words. (2 lw.s.,45, 50.) The courts in this country have held the same.Chief Justice Ruffin, speaking of this clause in the constitutionof North Carolina, in the case of Hoke v. Henderson(4 Dev., 1), says that "such legislative acts as profess inthemselves directly to puuish persons, or to deprive thecitizen of his property, without trial before the judicialtribunals, and a decision upon the matter of right, as determinedby the laws under which it vested, according to thesourse, mode and usage of the common law, as derived from