(1671), we learn that ""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." (1736-1766.)

From Bacon's Abridgement, Title "Verdict," page 308, we learn that "It is in one book laid down, that a privy verdict cannot be given in a case of life or member. 1 Inst. 227.

"In two other books it is laid down, that a privy verdict cannot be given in a case of felony; because the jury are directed, and ought, in such case, to look upon the prisoner when they give their verdict." Raym. 193, Rex v. Ladsingham; 1 Ventr. 97.

From 2 Hale's Pleas of the Crown 300 (1739), we learn that, "In a case of felony or treason the verdict must be given in open court, and no privy verdict can be given. Co. Lit. 227 b. Co. P. C. 110."

From 4 Blackstone's Commentaries, 360 (1758), we learn that "When the evidence on both sides is closed, and indeed when any evidence hath been given, the jury cannot be discharged (unless in cases of evident necessity) till they have given in their verdict; but are to consider it, and deliver it in, with the same forms as upon civil causes; only they cannot, in a criminal case which touches life or member, give a privy verdict. 2 Hal. P. C. 300. 2 Hawk. P. C. 439."

From 1 Chitty Cr. L. 636, we learn: "Of the verdict. The verdict, whatever may be its effect, must, in all cases of felony and treason, be delivered in the presence of the defendant, in open court, and cannot be either privily given, or promulgated while he is absent. Co. Lit. 227 b.; 3 Inst. 110; Sir T. Raym. 193; 2 Hale 300; Hawk. p. 2, c. 47, s. 2; 4 Bla. Com. 360. Bac. Abr. verdicts, B. Burn, J. Jurors, V. Williams, J. Juries, VII." In the light of these precedents who can doubt that the fullfledged right in question was one of the most clearly defined and generally recognized "privileges and immuni

Due Process-36

ties" vested, by the law of the land, in every citizen of each of the original thirteen states at the time of their severance from the mother country; that in each of those states it was, at that time (1776), regarded as an indispensable element in due process of law. Upon no other theory or assumption can be supported the line of decisions of the Supreme Court of the United States, headed by Hopt v. Utah, 110 U. S. 574, in which it has been held that, by intendment and implication the right in question is imbedded in the due process law clause of the Fifth Amendment, because in the English conception of due process as reproduced in this country it is inherent. For the same reason it is equally certain that it is inherent in the due process of law clause of the Fourteenth Amendment; and in Hibben v. Smith, 191 U. S. 310, it was solemnly declared, as it should have been: "The Fourteenth Amendment, it has been held, legitimately operates to extend to the citizens and residents of the states the same protection against arbitrary state legislation affecting life, liberty, and property as is offered by the Fifth Amendment against similar legislation by Congress." Where then can room be found for doubt that the due process clause of the Fourteenth Amendment, when properly construed, protects the right of the accused to be present in a state court at every stage of his trial against state action, just as the corresponding clause in the Fifth Amendment protects the same right against the action of the Federal Government.

§ 313. Duty of an accused person to exhaust all of his remedies in the state courts. It is well settled that while the power to issue writs of habeas corpus to state courts, which are proceeding in disregard of rights secured by the Constitution and laws of the United States, exists, the practice of exercising such power before the question has been raised or determined in the state court is one that ought not to be encouraged. In Cook v. Hart, 146 U. S. 183, the Court said: "While the Federal courts have

the power and may discharge the accused in advance of his trial, if he is restrained of his liberty in violation of the Federal Constitution or laws, they are not bound to exercise such power after a state court has finally acted upon the case, but may, in their discretion, require the accused to sue out his writ of error from the highest court of the state, or even from the Supreme Court of the United States." See also, Ex parte Rozale, 117 U. S. 241; Ex parte Fonda, 117 U. S. 516; Re Wood, 140 U. S. 278; Cook v. Hart, 146 U. S. 183; Re Frederich, 149 U. S. 70; New York v. Eno, 155 U. S. 89; Whitten v. Tomlinson, 160 U. S. 231. Under the principles of that case the Federal court should not issue the writ to the state court before the latter has passed upon the point set up. In Pepke v. Cronan, 155 U. S. 100, it was held that where the validity of a sentence of a state court can be tested by the supreme court of the state, or a writ of error from the Supreme Court of the United States applied for, the United States district court should not sustain a writ of habeas corpus to discharge the person convicted. In Whitten v. Tomlinson, 160 U. S. 231, it was held that a prisoner in custody under the authority of a state should not, except in a case of peculiar urgency, be discharged by a court or judge of the United States upon a writ of habeas corpus, in advance of any proceedings in the courts of the state to test the validity of his arrest and detention. In Tinsley v. Anderson, 171 U. S. 101, dismissing a writ issued before trial, it was held that the dismissal of a writ of habeas corpus by the highest court of the state having jurisdiction of the case is reviewable by the Supreme Court of the United States on writ of error, if it denies the prisoner any right specially set up and claimed by him under the Constitution, laws, or treaties of the United States. See Fitts v. McGhee, 172 U. S. 516; Markuson v. Boucher, 175 U. S. 184; Minnesota v. Brundage, 180 U. S. 499. Unless fundamental rights specially secured by the Federal Constitution are involved, the Federal courts will not interfere with the administration of

a state's criminal-law, by habeas corpus. Rogers v. Peck, 199 U. S. 425. In Urquhart v. Brown, 205 U. S. 179, the right of a Federal court to determine the jurisdiction of a state court in a criminal case by writ of habeas corpus was recognized; and in Hunter v. Wood, 209 U. S. 205, it was held that a railway ticket agent could be discharged on habeas corpus (U. S. Rev. Stat. 753) from imprisonment under a conviction in a state court for disobeying certain state legislation, as such agent was acting in obedience to an order of a Federal circuit court, which had enjoined, as repugnant to the Federal Constitution, the enforcement by the state corporation commission and the attorney general of state legislation reducing rates. See also, Glasgow v. Moyer, 225 U. S. 420; Re Spencer, 228 U. S. 652; Frank v. Mangum, 237 U. S. 309; Collins v. Johnston, 237 U. S. 502; Henry v. Henkel, 238 U. S. 219.

§ 314. When habeas corpus is the proper remedy to test the validity of a detention under state law. In Shibuya Jugiro v. Brush, 140 U. S. 291, it was held that a habeas corpus proceeding can not reach errors committed in a criminal case by a state court of competent jurisdiction, proceeding under statutes that do not conflict with the Federal Constitution. In Minnesota v. Barber, 136 U. S. 313, it had been held that in such a proceeding the court would discharge the petitioner when it ascertains that the state statute for a violation of which he was convicted was unconstitutional. When a person is imprisoned under a judgment of conviction of a state court, which had jurisdiction to try the case, and jurisdiction over the person of the accused, and did not lose such jurisdiction during the trial, Federal courts have no right to interfere by habeas corpus. Felts v. Murphy, 201 U. S. 123. When a person has been convicted of first degree murder in a state court, Federal courts will not release upon habeas corpus on the theory that the court lost its jurisdiction to proceed in the trial because it charged the

jury in accordance with the admission of counsel for the accused; that the only question for their consideration was the degree of murder of which the prisoner was guilty. Valentina v. Mercer, 201 U. S. 131. In Re Chapman, 156 U. S. 211, Mr. Chief Justice Fuller said: "In the case before us, the question as to the jurisdiction of the Supreme Court of the District of Columbia has indeed already been passed upon by that court and also by the court of appeals, upon a demurrer to the indictment, but the case has not gone to final judgment in either court, and what the result of a trial may be cannot be assumed. We are impressed with the conviction that the orderly administration of justice will be better subserved by our declining to exercise appellate jurisdiction in the mode desired until the conclusion of the proceedings. If judgment goes against petitioner and is affirmed by the court of appeals and a writ of error lies, that is the proper and better remedy for any cause of complaint he may have. If, on the other hand, a writ or error does not lie to this court, and the Supreme Court of the District was absolutely without jurisdiction, the petitioner may then seek his remedy through application for a writ of habeas corpus. We discover no exceptional circumstances which demand our interposition in advance of adjudication by the courts of the district upon the merits of the case before them."

In Harlan v. McGourin, 218 U. S. 442, Mr. Justice Day said: "The learned counsel for the appellants rely upon a number of cases which are said to warrant the court in habeas corpus proceedings in examining the bill of exceptions with a view to determining such matters as are herein presented. But an examination of these cases will Ishow that where collateral attacks have been sustained through the medium of a writ of habeas corpus, the grounds were such as attacked the validity of the judg ments, and the objections sustained were such as rendered the judgment not merely erroneous, but void. No objection is made to the constitutionality of the statute or