It is not necessary, to make a punishment infamous, that the law shall rt:lquire that the party should in terms be sentenced to hard labor. under the law, he may be sentenced to a state-prison or penitentiarYl either with or without hard labor, his punishment is infamous. So says, in eft'ect, Ex parte Wilson, BUpra, and so says, expressly, Mackin v. U. S.t 8upra. And why is not this a reasonable construction, when it is a fact of common knowledge that, by the laws and rules governing all stateprisons and penitentiaries, hard labor is exacted of those who are sen:tenced there, and the supreme court, in FJx parte Karstendick, 93 U. S. 396, that all United States convicts are subject to the same discipline and treatment as convicts sentenced by courts of the state? The punishri1ent is no less infamous when the convict may, under the law, be put to hard labor in the prison, although not in terms sentenced to it, than when the sentence, in obedience to the law, sets it out. The punishment is equally infamous in both cases. When the accused is in danger of being subjected to an infamous punishment, if convicted, the crime of which he is accused is an infamous crime. 114 U. S.417;,5 Sup. Ct. Rep. 935; 117 U. S. 348, 6 Sup. Ct. Rep. 777 j U. S. v. Tad, ,25 Fed. Rep. 815. When is he in such danger? Why, in every case where the court, under the law, might sentence to a state-prison or pen:itentiary. Section 5541 provides: "In every case where any person convicted of any offense against the United States is sentenced to imprisonment for a period longer than one year, the sentence is passed may order the same to be court by which any state jail or penittlntiary within the district or state where suchcourt is held, the use of which jail or penitentiary is allowed by the legislature of the state for that purpose. " .. Section 5546 provides that"All persons who ha,:e been, or who may hereafter be, convicted of crime, by allY court of the United States, whose pllniRhment is imprisonment in a district or territory whete at the time of conviction there may be no penitentiary or jail suitable for the confinement of convicts, or available therefor, Shall be confined during the. term for which they may have been or may be sentenced in some suitable jail OJ' penitentiary in a convenient sta,te or territory, to be designated by the attorney general." Of courSe, when so designated, it becomes the duty of the court to sentence the prisoners to the place so designated. The only difference between these two sections relates to the class of cases where the judge may designate the place of imprisonment, and the class where the attorney general may designate such place. The attorney general may designate the place of imprisonment in all cases where there is not a suitable jail or penitentiary for the confinement of prisoners in a district or territory where they may be convicted. Suppose the judge would, in a case where h& can designate, fail to designate a state jail or penitentiary, and send the parties, 8S he has done with McClusky in this case, to a local jail, would that take away the infamous character of the offense? If this were so, the same act might be an infamous crime in one district and not an infamous criPle in another; its character depending on thejudgea
FEDERAL REPORTER, . vol.
designated,. or failed to designate,:a state--prison OJ' penitentiary. So with aU l)aSeS where persons are tobe,·confined in designated by the attorney general. Hhe: would designate 'jl... state penitentiary as tbe place of oonfinement of persons convicted in one district, and fail to do so in another district, the same crime would be infamous in one case, while in :theother it would be entirely, free from.ithat ,character. The statement of these propositions shows they are not true. Neither the jUdge Inor the .attorney general can, at their pleasUre, determine the infamoWl\oharacter of an offense. .: The test is .thesta.tutes authorize the, court to award an infamous .,punishment,liQ\whether the punishment ul,timately awarded is infamdus,-whether the accused is .in danger ofbE'ing subjected to an infamous punishment. ' If convicted of larceny he is. under the power of the attorney general to designate the place of imprisonment; in such dllinger." .BY the rule established by the supreme court i11& parte WilBon and Mackin v. U. S., larceny;becomes an infamouaoffense. ·!twas infamous.at. the common law,not only becauEle it was '8 crime which exhibited particular turpitude andbl.Ul6ness of character,ibut.becltuse of the.natureof:its punishmentillsW'ell. UptQ 7& 8 Goo. ·IV., i,t waB,if the property stolen ,was over. the value of 12 pence, punishable with;deathl This was infamous punishment. Then by the above statute it was punished with transportation to a penal colony, or two years' imprisonment, and whipping, if a male., and that·Wascerta.inly .infamous punishment. This was::the condition:.oLthe common law of England atpthe time of theadQption of the,fifth ametldment to the con'stitution; ·. 1: conclude that the,. crilnESlof larceny 'is an infamous 'crime, . by presentment of a grana Jury. . '., . ' . . . Can a party waive the rigM to be charged by-indictment or presentplea, of too.. charge, in an informntloti,''nt>tll,pthoJ.'1zedby t.hePtw a wIi1yer,Of. hIS rIght to be ao'C}used. by'. .-AVarli' ·waiv,W" tutiona1.. right .when its efffl¢tnistogivea Qourtjl1Jri/>diction· .};(awes,Jur.. §§ 11,12, ·The· fifth am.end1Il.ent, lathe constLtution,. that DO person shall be held to answer for a capital oJ:' otherwisE:' infamous crime unless on a pre-sentment or indictment of agraild' jttry, proviaell for a requisite to jurisdictiQn. lJ9;l,parte Bain,12t U:S.l,7 Sup. Ct. Rep. 781; Parkinson.v.U. 8.1,121U. S. 281, 7 Sup. Ct. Rep., ;896. Hthecrime is of a nature; that' an indictment. to warrant a .prosecution of the .crime.is required by the law',. the court has no jurisdiction :tatty without· stich il.9.dictment. Can ,S;' party' consent to jurisdiction?, ·. Can ·.he, by: an, ,agreement with the surrender his liberty for a Has any person the right to surrenderbis liberty ,violation·ofa fnndamentalright,secured to him for the protection ofthe liberty"ofsucp!pel'lSon by the fiftp.atnendment to,the constitution,oBhe i1\Inii1ed!Stateft.?J"No man the right to take awayanoth6r'sliberty,: ev.enthough withcollsent, except by dueproces8. of law. Due,'l'rocess of law, in a case like the. one. charged against. petitioners, by tpe.governmentowith a fundamental requisite, such
as that the p'arty shaUhe charged 'in the way provided by the constitutiQn and laws ofthe United States. Liberty, undersl,lch constitutionaild laws, is an irlalienable prerogative, of which no man by mere agreement can divest himself. Any divestiture not occurring by dl,le process oflaw is null. 1 Whart. Orim. Law, (9th Ed.) § 145.' Mr. Oooley, in Constitutional Limitations, (page 182,) says: "A party may consent to waive of property, but the trial and ptmishment for public offenses are not within the province of individual consent or agreement." This means that, by individual consent or agreement, fundamental fights cannot be waived. The substantial constitution of the legal tribunal and the fundamental mode of its are not within the power of the parties. Q'he court of appeals of New York, in Glncemi v. People, 18 N. Y. 136,sajd: / "Criminal prosecutions involve public wrongs, a breach and violation of publicnllhts and duties. which affect the whole community. considered as a community. in its social and aggregate capacity. The penalties or punish:' ment, for the enforcement of which they are a means to the end. are not within the discretion or control of the parties accused; for no one has aright, by his 9wn voluntary act, to surrender his liberty. or part with his life. The state--,the pUblic-have an interest in the prt'servation of the libertiElsand lives of the citizens. and will not allow them to be taken away witboutdue process of law. when forfeited. as they may be as a punishment for crimes. Criminal prosecutions proceed on the assumption of such a forfeiture; Which. to sustain them. must be ascertained and declared as the law has prescribed. These considerations make it al,paren t that the right of a defendant. in a crirninal to affect. by consent. the conduct of the case, should be made more than in civll actioDs. It shoulq.. not be pel;mitted to extend so far 81'1 to make radical changes in great and leading provisions, as to the organization oftlletribuDals. or the mode of proceet:Jing pl"eScribed bythe constitution and Effect may justly and safely be given to such consent In many particulars, and the law does, in respect to vadous matters. regard and act upon It as valid. Objections to juries may be waived. The court may be substituted for triers to dispose of challenges to juries. Secondary. in place of primary. evidence may be received. Admissions of facts are allowed; and. in similar particulars. as well as in relation to mere formal proceedings generally. consent will render valid what. without it. would be erroneous. A plea of guilty to any indictment. Whatever may be the grade of the crime, will be receiveel and acied upon. if it is made clearly to appear that the nature and effect are understood by the accused. In such a the preliminary investigation of a grand jury. with the admission of the accusation. the indictment. is supposed to be a sufficient safe-guard to the public interests." The above decision most clearly declares the law governing a case wher.e a fundamental right of the citizen is. to be affected by acriminal proceeding, such right being one regulating the method of that proceeding. Blackstone (4 Comm. 189) says: "The king has an interest in· the preservation of all his subjects." In this country the state and the law have such a great interest in the life and liberty of the citizen as to ,seij to it. that such life or liberty shall not be taken away, even with the consent of the citizen, in violation of one of the great constitutional rtinda.tnental requisites, regulating the method to be ad9pted to deprive the citizen of his life or his liberty. Mr. Blackstone (1Comm.
133) again declares that the "natural life, being an immediate donation of the Great Creator, cannot legally be disposed of or destroyed by any individual, neither by the person nor by any other of his fellowcreatures, merely upon their own authority." So it is with the liberty of the citizen. It is a donation, of the Great Creator, and cannot be taken by persons upon their own authority, even with the consent of the citi'zen, whose liberty is taken; but it must be taken by due process of law. None of the fundamental requisites to the proceeding, which make up due process oflaw, can be so waived as to deprive the person whose liberty is taken from him of afterwards, resorting to legal means, to obtain his liberty. In such a case as the;onecharged against these petitioners, the fundamental law of the land-the constitution of the United States ":'-requires that the charge be preferred by an indictment found by a Iegalgralld jury. , ,The infirmity in the proceeding, which resulted in their being sentenced to prison, is that the, proceeding is one against the con,. "stitution and laws of t\1e UriitedStates; one unknown to such laws; one :created by the ,mere voluntary act of the parties;d and it is, in effect, an p.ttempt to adopt a species of arbitration to settle the question whether the 'petitionershave be6n guilty ofoffenses against the United This is not the to ascertain this fact. From the principles of this law 'which Ihaye out, as well as the reasons for these principles, which 1 think are sustained by all the authorities which declare the law on the these petitioners could not be legally deprived of their liberty ,by their pleading guilty to the charge of larceny preferred by an information, and by So doing they did not deprive themselves of the right to regain their liberty by habeas, corpus. It must, therefore, be held that they are restrained oftheir liberty without due process oflaw, and against 'the. constitutioriarid laws of the United States. Therefore the writ must .issUlIt and ,the parties are entitled to a discharge by it from custody.
UNITED STATES, 11. HormiHAUER
(CirCuit Court,]). New Jer8(}jJ. September lU, 1889.}
An indictment for violating Rev. St. U. S. § 5344. which provides tbat "every " * * or other person employed on any steam-boat or vessel, by whose , ,misconduct, negligence, or inattention to his duties *.. * the life of any paJ;": sdn 1s destroyed;"" .. .. shall be deemed guilty of manslaughter, " need not 'allege ; ':' offeuslls charged were committed at a place under the exclusive jurisdic. " "t1ta'ont United States, or on the ltigh seas, aul1 outside the jurisqiction of any
CRIMINAL NEGLIGENOE-OFFICERS OJ' VkllSELS-JURISDICTioN.
A ,count in such indictment which :charges tbat bydefcndant$' negligenoe,'mis-, destroyed,with. 'conduct, and inattention to their l1uties a certain person's1;.fe ,'. ;out setting out the facts ,on which suoh charge is based, is defective.': " '
,', ':,," ','
B'ut Ii. connt charging defendants took on board their vessel more passengers !tha,n,'were,lill,owe,d bY, la,w, oy reason of which it bellame unmanageable, and that ,I' 41ll1otl). by dl"owning was caus,ed thereby; is sufficien.t.: " : , ' . '
ONI'rED STATES'll. HOLTZHAUllllL
lt is not necessary that suoh indiotment should expressly charge defendants with having committed the crime of manslaughter.
A pilot cannot be convicted under a clause of such statute making "every owner, inspector, or other public officer, through whose' fraud, connivance, " etc., the life of any person is destroyed, guilty of manslaughter.
On Motion to Quash Indictment. Sa'Ylll. Kalisch and Chauncy H. Beasley, for defendant. Geo. S. Duryea, U. S. Dist. Atty., alid Wm. D. Daly, Asst. U. S. Dist. Atty. Before McKENNAN and WALES, JJ. PER CURIAM. The defendants are jointly indictffi for a violation of section 5344 of the Revised Statutes of the United States, which readll as follows:
"Every captain, engineer, pilot, or other person employed on any steamboat or vessel, by whose misconduct, negligence, or inattention to his duties on such vessel the life of any person is destroyffi, and every owner, inspector, 01' , other pnblic officer, through whose fraud, connivance, misconduct, orviolation ,of law the life of any persanisdestroyed,shall be deemed g!1ilty.o,f manslauglJter, and, upon conviction thereof before any circuit court nited States, shall be," etc. " .
The first COlmt of the indictment charges that the defendants, Holtz.. hauer and Dauer, on the 23d of June, 1888, being the captain and pilot, respectively, of the steam-boat called the "Olivette," whichwas plying andsailingjn and upon the waters of Newark bay, a common highwai of comqlerce, open to general navigation, and within the territorial and ,maritime jurisdiction of the United States, it was their duty to conduct and manage the said steam-boat carefully, prudently, and safely,so that ,the life of any person being a passenger thereon should be safe,' and not destroyed; and that, while Augusta Weaver was a passenger on said boat, on the day and year ,and in the place aforesaid, the:defendllnts "so careand negligently managed and conducted and performed their duties on said steam-boat and vessel so that, by and through their said misconduct, incompetency, unskillfullness, negligence" and inattElDtion to their duties on said steam-boat and vessel, the said ,steam-boat vessel was by them. ,run in and upon a certain dyke, orjetty, situate in the waters of the said Newark bay aforesaid, and the said vessel was then and there overturned and upset, and. then and there the life of the said Weaver. a passenger thereon as aforesaid, was destroyed, she A then and there being drowned; and she, the said Augusta Weaver, then anll there died,contrary. to the form of the aeL," etc. The second count sets forti} thntit was the duty of the defendants to conduct, manage,and sail said steam.boat "according to law, and not in violation tp.ereof, so tha,tthe life ofany person being a passengeron said steam-boat.and vesBel should be safe, and not destroyed;" was a pas,senger thereon; and then charges that the .defendants "did in violation said steam-boa(ll.1ld
.. FEDEiuL REPOR'1'ER, vol. 40-'
was allowed by la.Wi they being allowed by law to take on board and carry twelve persons, when in truth and in fact they did taki,3?o P9ard and carry the number of twenty persons to sail in the waters of the said Newark bay aforesaid., and did sail thereon in said steamboat and vessel with said excesS of passengers and persons, and that by reason thereof then and there the said steam-boat and vessel was overloaded and overcrowded" was then and there unmanageable, and the said, was then and there overturned and upset; and then and there thEllifc' of the said Augusta WeaV'er, passenger' thereon as' aforesaid, was destroyed, shE! being then and there. drowned. and she, the said Augusta Weaver, then and there died, contrary ,to the form of the act," etc. To this indictment, the substance,and form of which have been stated, 'several.'oojectionsare madeoD behalf of the defendants. The first objection-r"that the indictment does not set out sufficient jurisdictional facts-is not tenable. Section 5344 was enacted by congress in the ,proper exercise of its power "to regulate commerce with foreignnatioos and among the several states," and it was early decided by the supreme court of the United States that this power included the navigation as connected with thecomrnerce of foreign nali9rl$ and among the states·. S. v. Ooombs, 12 Pet. 72;, citing and reatnrDiing Gibbons v. Ogden, 9 Wheat. 189. Counselfor the defendants are il,1 error in cpntending that this section is in pari materia with preceding'sectiolls, under the title. of "Crimes arising within the territorial -and maritime jurisdiction of the United States," and confer juris.:dictiOl:f.ori: the courts of the United States to try and punish those offenses 'orilYWhich"hnve been committed at certain places within the jurisdiction 'of the United States and "outside oNhe jurisdiction of any state." Their pl'op'Ositi'orii's that, as the charged against the defendants were committed. within the body of ,EsSex county, in the stRte of New Jersey, thecourt8 'of that state alone cau'tt!:ke judicial cognizance of them. It -is undoubtedly these defendants might be liable to prosecution atcornJiJbnjawiit the courts of NtlwJersey, but that fact of itself does 'not oust the oHhis and it is not necessary, therefore, that the indlCtrnijntshould show that the offenses charged were com':mifted at aplllqeunder the exclusive jurisdiction of the United States, aron tl:\e high seas, and outsideafthe jurisdiction of any state. Section '5344 is a 'separate and independent statute, and must be construed ae,cording to itSOWll terms, without reference to any other statute, so far a/'lthe' questiolrof jurisdiction is concerned. It is silent as to the place 'where the offense must be committed in order to confer jurisdiction. Its :purpose was toestahlish a supervision over the conduct of the officers and other'persOtxs employed ()n any steam-boat or V'essel navigating the waters of, the 'United .States, and· to make each officer or peroon so em.ployed personally and criminally responsible for any misconduct or neglect ofdtltyb'n):iis part in of which a human life should be '1'0 provide for thesElcurity of the lives of passengers, ,'and toregnlatenavigation,congress has enacted Iiume'rou8 la:we pertain:ng futhe 1i6ellSe'andenrolImentand measuremelit ofsteam":boats and