Opinion of Chief Justice Spencer,
in the case of
"A motion has been made to discharge the defendant, on the ground that it appears by the return to the certiorari, that he was once tried, and, therefore, cannot legally be tried again. He was indicted in the Sessions in New-York for manslaughter; the trial continued for five days, and the jury having received the charge of the court, retired to consider of their verdict, were kept together seventeen hours, and declaring there was no probability of their agreeing in their verdict, were discharged after eleven o clock, on the last day in which the court could sit. It appears that the jury had, in the mean time, between their receiving the charge of the court and their discharge, come into court, and on being asked if they had agreed on their verdict, answered, through their foreman, that they had agreed, and that they found the prisoner guilty; but recommended him to mercy; but, on being polled, the third juror called upon declared his disagreement to the verdict. These are all the facts material to be noticed in considering the present motion.
"The defendant's counsel rely principally on the fifth article of the amendment to the constitution of the United States, which contains this provision: "Nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb." It has been urged by the prisoner's counsel, that this constitutional provision operates upon state courts proprio vigore. This has been denied on the other side. I do not consider it material whether this provision be considered as extending to the state tribunals or not; the principle is a sound and fundamental one of the common law, that no man shall be twice put in jeopardy life or limb for the same offence. I am, however inclined to the opinion, that the article in question does extend to all judicial tribunals in the United States, whether constituted by the congress of the United States, or the states individually. The provision is general in its nature, and unrestricted in its terms; and the sixth article of the constitution declares, that that constitution should be the supreme law of the land, and the judges in every state shall be bound thereby, any thing in the constitution or laws in any state to the contrary notwithstanding. These general and comprehensive expressions, extend the provisions of the constitution of the United States, to every article which is not confined by the subject matter to the national government, and is equally applicable to states. Be this as it may, the principle is undeniable, that no person can be twice put in jeopardy of life or limb for the same offence.
"The expression, jeopardy of limb, was used in reference to the nature of the offence, and not to designate the punishment for an offence; for no such punishment as loss of limb was inflicted by the laws any of the states at the adoption of the constitution. Punishment by deprivation of the limbs of the offender, would be abhorrent to the feelings and opinions of enlightened age in which the constitution was adopted, and it had grown into disuse in England for a long period antecedently. We must understand the terms, jeopardy of limb, as referring to offences which in former ages, were punishable by dismemberment, and as intending to comprise the crimes denominated in the law, felonies.
"The crime of manslaughter is undoubtedly a felony; and, therefore, the prisoner is entitled to the protection afforded by the article of the constitution, whether regard it as binding upon us by its force, or as an acknowledged axiom of common law.
"The question then recurs--what is the meaning of the rule, that no person be subject, for the same offence, to be twice put in jeopardy of life or limb. Upon the fullest consideration which I have able to bestow on the subject, I am satisfied that it means no more than this:-- That no man shall be twice tried for same offence. Should it be said that we can scarcely conceive that a principle universally acknowledged and so interwoven in our institutions, should need an explicit and solemn recognition in the fundamental principles of the of the United States, we need recur only to the history of that period, and to some other of the amendments, in proof of assertion, that there existed such a jealousy, or extreme caution, on the part the state governments, as to require an explicit avowal in that instrument, of some of the plainest and best established principles, in relation to the rights of the citizens and the rules of the common law. The first article of the amendments prohibits congress from making any law respecting an establishment of religion, or prohibiting the free exercise thereof; abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition government for a redress of grievances. The second secures the right of the people to bear arms; and indeed without going into them minutely, nearly all the amendments of that instrument indicate either great caution in defining the powers of the national government, and the rights of people, and the states, or they evince a jealousy and apprehension that their fundamental rights might be infringed, so as leave no doubt, that by the article under consideration, no new principle was intended to be introduced."--[THE NEW YORK REPORTER FOR AUGUST, 1820. CONTAINING REPORTS OF TRIALS AND DECISIONS IN THE DIFFERENT COURTS OF JUDICATURE BY BARENT GARDENIER, ESQ. COUNSELLOR AT LAW Si quid novisti, rectius istis, Candidus imperti; si non his utere mecum. Horat. NEW YORK: Published and for sale by the Editor, No. 7 Frankfort-street; and also by Stephen Gould, Law Bookseller, Wall-street corner of Broad street. Printed by G.L. Birch & Co. No. 59 1/2 Frankfort-street. 1820.]