accord with the views herein expressed, it is necessarily overruled." And here reference may be appropriately made to the following cases in which it was held that the due process of law guaranteed by the Fourteenth Amendment was not involved in certain decisions by state courts as to the entry of a nolle proseque to those counts in an indictment of several courts upon which the jury could not agree (Cross v. North Carolina, 132 U. S. 131; as to the failure of an indictment to charge a specific offense; Caldwell v. Texas, 137 U. S. 692; Leeper v. Texas, 139 U. S. 462; In re Robertson, 156 U. S. 183; Bergemann v. Backer, 157 U. S. 655; Kohl v. Lehlback, 160 U. S. 297; Howard v. Fleming, 191 U. S. 126); as to a trial and conviction by a judge de facto of a court de jure, where the sentence pronounced was valid (In re Manning, 139 U. S. 506); as to the existence of flaws in the indictment and their waiver by the defendant (O'Neil v. Vermont, 144 U. S. 323); as to the presence of an alien on a trial jury, objection not having been made at the proper time under the law of the state (Kohl v. Lehback, 160 U. S. 297); as to the action of a state court in dismissing the appeal of the accused on account of his escape from jail and failure to surrender himself within a time prescribed by the court (Allen v. Georgia, 166 U. S. 138); as to the action of an appellate court in dismissing a writ of habeas corpus, when the commitment was not void, the committing court having jurisdiction (Tinsley v. Anderson, 171 U. S. 101); as to a decision by a state court that certain acts constituted an offense indictable at common law (Howard v. Fleming, 191 U. S. 126).

§ 312. Right of the accused to be present in a state court at every stage of his trial. Whether the accused has that right, as a part of the due process of law guaranteed by the Fourteenth Amendment, has long been considered an unsettled question. In his able work on "Due Process of Law," published in 1906, Professor McGehee (p. 167) says: "We have no direct adjudication as to

whether the right of pleading or the right of the accused to be present at the trial is guaranteed, as against the states, by the due process clause of the Fourteenth Amendment." That author at p. 165 says: "So, also, under the same provision (Fifth Amendment), the right of a person accused of felony to be present during the whole of the trial in the trial court, is a substantive right of which he can not be deprived without due process of law, even with his consent," citing Lewis v. United States, 146 U. S. 372. In Cooley's Constitutional Limitations, 2nd ed., 452, that great jurist says: "In cases of felony, where the prisoner's life or liberty is imperiled, he has the right to be present and must be present, during the whole of the trial and until the final judgment. If he be absent, either in prison or by escape, there is a want of jurisdiction over the person, and the court cannot proceed with the trial, or receive the verdict, or pronounce the final judgment." The right to try an accused person in his absence is peculiarly a Roman law institution, always held in abhorence by the English common law which established the opposing principle as an integral and necessary part of the system of trial by jury. In Rex v. Ladsingham, Sir T. Raym, 193, it was said: ""Tis intended that no privy verdict can be given in criminal cases which concern life, as felony, because the jury are commanded to look upon the prisoner when they give their verdict, and so the prisoner is to be there present at the same time;" and American authorities emphasize the fact that, "at the rendition of the verdict, the prisoner is entitled to have the jury polled, so that each one shall answer on his own responsibility, face to face with the prisoner, as to his guilt or innocence." Dunn v. Com., 6 Pa. St. 384; Temple v. Com., 14 Bush (Ky.) 769; Nolan v. State, 55 Ga. 522.

The Fifth Amendment does not guarantee to the accused, in express terms, the right to be present at every stage of his trial; there is not a word in that amendment on the subject. The right of the accused to be present in

a Federal court at every stage of his trial is strictly a creation of judge-made law; it is the result of the interpretation of the Fifth Amendment given by the Supreme Court in accordance with the rule laid down by Chief Justice Marshall in United States v. Burr, 4 Cranch 470. That great jurist determined in that case that whenever it becomes necessary to interpret any part of our organic law, which was borrowed from the mother country, it is to be assumed that the framers of American constitutions took it with the meaning attached to it in the land from which it was drawn. And so when in Hopt v. Utah, 110 U. S. 574, the court speaking through Mr. Justice Harlan, undertook to establish the right in question in Federal courts as a part of the due process clause of the Fifth Amendment, it was said: ""The natural life', says Blackstone, 'cannot legally be disposed of or destroyed by any individual, neither by the person himself nor by any other of his fellow creatures, merely upon their own authority.' 1 Bl. Com. 133. The public has an interest in his life and liberty. Neither can be lawfully taken except in the mode prescribed by law. That which the law makes essential in proceedings involving the deprivation of life or liberty can not be dispensed with or affected by the consent of the accused; much less by his mere failure, when on trial and in custody to object to unauthorized methods. The great end of punishment is not the expiation or atonement of the offense committed, but the prevention of future offenses of the same kind. 4 Bl. Com. 11. . . . If he (the accused) be deprived of his life or liberty without being so present, such deprivation would be without that due process of law required by the Constitution." While in Schwab v. Berggren, 143 U. S. 442, it was held that the rule relating to the presence in court of the accused did not require his presence at the time of the affirmance of his conviction on appeal, the Court was careful to say (p. 448): "The personal presence of the accused, from the beginning to the end of a trial for felony, involving life or liberty, as well as at the time final judgment is

rendered against him, may be, and must be assumed to be, vital to the proper conduct of his defense, and can not be dispensed with." The more complete statement on that subject made in Hopt v. Utah, 110 U. S. 574, was then quoted and approved. In Lewis v. United States, 146 U. S. 370, it was again held, even with great emphasis, that in cases of felony, it is not in the power of the prisoner, either by himself or counsel, to waive the right to be personally present at every stage of his trial; and that the record must show affirmatively that he was so present. In Dowdell v. United States, 221 U. S. 331, the Court said: "In Hopt v. Utah, 110 U. S. 574, this court held that due process of law required the accused to be present at every stage of the trial." In Diaz v. United States, 223 U. S. 442, the Court said: "In cases of felony our courts, with substantial accord, have regarded it as extending to every stage of the trial, inclusive of the empanelling of the jury and the reception of the verdict, and as being scarcely less important to the accused than the right of trial itself. And with like accord they have regarded an accused who is in custody and one who is charged with a capital offense as incapable of waiving the right." In support of its assertion that in "cases of felony our courts, with substantial accord, have regarded it as extending to every stage of the trial," the Court then says that "The reasoning upon which this rule of decision rests is clearly indicated in Barton v. State, 67 Ga. 653, where it is said by the Supreme Court of Georgia: 'It is the right of the defendant in cases of felony, to be present at all stages of the trial, especially at the rendition of the verdict; and if he be in such custody and confinement as not to be present unless sent for and relieved by the court, the reception of the verdict during such compulsory absence is so illegal as to necessitate the setting it aside. The principle thus ruled is good sense and sound law; because he can not exercise the right to be present at the rendition of the verdict when in jail, unless the officer of the court brings him into the

court by its order." The law as thus expounded by the Supreme Court of Georgia is in perfect accord with like decisions, too numerous for citation, rendered by the highest courts of Alabama, Arkansas, California, Colorado, Connecticut, Florida, Georgia, Illinois, Kansas, Kentucky, Louisiana, Massachusetts, Minnesota, Mississippi, Missouri, Nebraska, New Jersey, New York, North Carolina, Ohio, Oklahoma, Pennsylvania, South Carolina, Tennessee, Texas, Virginia, West Virginia and Wisconsin.

In the original title deed to the New World, represented by James I's charter of April 10, 1606, it was provided "that all and every the persons being our subjects, which shall dwell and inhabit within every or any of the said several colonies and plantations, and every of their children, which shall happen to be born within any of the Jimits and precincts of the said several colonies and plantations, shall have and enjoy all liberties, franchises, and immunities, within any of our other dominions, to all intents and purposes as if they had been abiding and born within their own realm of England or any other of our said dominions." Charters and Constitutions, part II, pp. 1891-1892. We know that long before that charter was issued, long before the first English settlements in the New World were made, the general right in question had become, by the law of the land, the birth-right of every Englishman "abiding and born within their own realm of England or any other of our said dominions." Sir James F. Stephen, in his description of the procedure in criminal trials, "which took place between 1554 and 1637," says: "When the case was considered ripe for trial the prisoner was arraigned and the jury sworn, after which the trial began by the speeches of the counsel for the crown." Hist. of the Crim. Law, I, p. 325. From "Coke upon Littleton," 227f, whose author died in 1634, we learn: "But in criminal cases of life or member, the jury can give no privy verdict, but they must give it openly in court."

From Dominus Rex v. Ladsingham, Sir T. Raym. 193