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 PUBLIC LAW 94-466—OCT. 8, 1976

90 STAT. 1995

ment of the wildlife recreation area. The Secretary may reimburse the Reimbursement. State for lands, waters, and interests therein which are acquired prior to the establishment of the wildlife recreation area if such lands, waters, and interests therein are contained within the area at the time of its establishment. Such grants shall be subject to such other terms Terms and and conditions as may be prescribed by the Secretary. Any grants conditions. made from the Land and Water Conservation Fund shall be subject to the provisions of section 6 of the Land and Water Conservation Fund Act, as amended (16 U.S.C. 4601-8). (b) LIMITATIONS.—Any payment made by the Secretary under this section shall be subject to the following condition: The conversion, use, or disposal of any lands, waters, and interests therein which are required by the State, directly or indirectly, with Federal financial assistance provided under this section, for purposes contrary to the purposes of this Act (as determined by the Secretary), shall create in the United States a right to compensation from the State in an amount equal to the fair market value of the land at the time of conversion, use or disposal, or an amount equal to the Federal payment for acquisition and development of the land, whichever is greater. SPOIL SITES

SEC. 8. The Secretary and the United States Corps of Engineers 16 USC 668qq. shall assist appropriate local authorities in the disposal of dredge material and in the designation of sites for deposit of dredge material, so as to minimize the disruption of wildlife and the reduction of scenic and recreational values and so as to assure the continuation of navigation on the riverway. The Secretary may acquire such alternative Alternative sites, sites, outside the boundary of the refuge-recreation area, as may be acquisition, necessary, in exchange for sites existing in the area on the date of enactment of this Act. The value of any properties so exchanged shall be approximately equal as determined by the Secretary or, if not, such value shall be equalized by the payment of cash, to the owners of the property within the refuge-recreation area or to the Secretary, as the circumstances require. The Secretary is authorized to expend not more than 20 per centum of the funds appropriated for acquisition of the refuge under section 10(a) of this Act to assist in the disposal of dredge material and to purchase alternative sites for deposit of dredge material as may be necessary outside the boundaries of the refuge and I'ecreation area. CONTINUED PUBLIC

SERVICES

SEC. 9. Nothing contained in this Act shall be construed as prohibit- 16 USC 668rr. ing or preventing the provision of vital public services, including— (1) the continuation of commercial navigation in the main navigation channel of the Minnesota River which lies within the refuge-recreation area; (2) the construction, improvement, and replacement of highways and bridges, whether or not the highway is a Federal-aid highway; or (3) any other activity which the Secretary determines to be necessary; if the provision of such services is otherwise in accordance with law. Any activity referred to in this section shall be carried out so as to minimize the disruption of the wildlife and the reduction of recreational and scenic values of the area, consistent with economic feasibility.

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Page:United States Statutes at Large Volume 90 Part 2.djvu/528

 90 STAT. 1996

PUBLIC LAW 94-466—OCT. 8, 1976 AUTHORIZATION FOR APPROPRIATIONS

16 USC 668ss.

SEC. 10. (a) ACQUISITION.—There are authorized to be appropriated such amounts as may be necessary for acquisition of lands, waters, and interests therein in the refuge-recreation area, pursuant to sections 4(b)(1) and (7)(a) of this Act, except that such sums shall not exceed a total of $14,500,000 for the period beginning October 1, 1977, and ending September 30, 1983. (b) DEVELOPMENT.—There are authorized to be appropriated such amounts as may be necessary for the development of the refuge-recreation area, except that such sums shall not exceed $6,000,000 for the period beginning October 1, 1977, and ending September 30, 1986. Not more than $500,000 of such sums shall be used for the development of the comprehensive plan pursuant to section 6 of this Act. Approved October 8, 1976.

LEGISLATIVE HISTORY: HOUSE REPORT No. 94-1470 (Comm. on Merchant Marine and Fisheries). SENATE REPORT No. 94-934 accompanying S. 2097 (Comm. on Commerce). CONGRESSIONAL RECORD, Vol 122 (1976): Sept. 20, considered and passed House. Sept. 24, considered and passed Senate.

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Page:United States Statutes at Large Volume 90 Part 2.djvu/529

 PUBLIC LAW 94-467—OCT. 8, 1976

90 STAT. 19!)7

Public Law 94-467 94th Congress An Act To amend title 18, United States Code, to Implement the "Convention To Prevent and Punish the Acts of Terrorism Taking the Form of Crimes Against Persons and Related Extortion That Are of International Significance" and the "Convention on the Prevention and Punishment of Crimes Against Internationaly Protected Persons, Including Diplomatic Agents", and for other purposes.

Be it eimcted by the Senate and House of Representatives of the United States of America in Congress assembled, That this Act may be cited as the "Act for the Prevention and Punishment of Crimes Against Internationaly Protected Persons". SEC. 2. Section 1116 of title 18, United States Code, is amended to read as follows: '^§1116. Murder or manslaughter of foreign officials, official guests, or internationaly protected persons " (a) Whoever kills or attempts to kill a for e i ^ official, official guest, or internationaly protected person shall be punished as provided under sections 1111, 1112, and 1113 of this title, except that any such person who is found guilty of murder in the first degree shall be sentenced to imprisonment for life, and any such person who is found guilty of attempted murder shall be imprisoned for not more than twenty years. "(b) For the purposes of this section: "(1) 'Family' includes (a) a spouse, parent, brother or sister, child, or person to whom the foreign official or internationaly protected person stands in loco parentis, or (b) any other person living in his household and related to the foreign official or internationaly protected person by blood or marriage. "(2) 'Foreign government' means the government of a foreign country, irrespective of recognition by the United States. "(5) 'Foreign official'means— " (A) a Chief of State or the political equivalent. President, Vice President, Prime Minister, Ambassador, Foreign Minister, or other officer of Cabinet rank or above of a foreign government or the chief executive officer of an international organization, or any person who has previously served in such Capacity, and any member of his family, while in the United States; and " (B) any person of a foreign nationality who is duly notified to the United States as an officer or employee of a foreign government or international organization, and who is in the United States on official business, and any member of his family whose presence in the United States is in connection with the presence of such officer or employee. "(4) 'Internationaly protected person'means-j"(A) a Chief of State or the political equivalent, head of government, or Foreign Minister whenever such person is in a country other than his own and any member of his family accompanying him; or "(B) any other representative, officer, employee, or agent of the United States Government, a foreign government, or

Oct. 8, 1976 [H.R. 15552]

Act for the Prevention and Punishment of Crimes Againsit IntemationaUy Protected Persons. 18 USC 112 note. 18 USC 11111113. Definitions.

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 90 STAT. 1998

18 USC 5, 7. Assistance for Attorney General.

PUBLIC LAW 94-467—OCT. 8, 1976 international organization who at the time and place concerned is entitled pursuant to international law to special protection against attack upon his person, freedom, or dignity, and any member of his family then forming part of his household. "(5) 'International organization' means a public international organization designated as such pursuant to section 1 of the International Organizations Immunities Act (22 U.S.C. 288). "(6) 'Official guest' means a citizen or national of a foreign country present in the United States as an official guest of the Government of the United States pursuant to designation as such by the Secretary of State. "(c) If the victim of an offense under subsection (a) is an internationaly protected person, the United States may exercise jurisdiction over the offense if the alleged offender is present within the United States, irrespective of the place where the offense was committed or the nationality of the victim or the alleged offender. As used in this subsection, the United States includes all areas under the jurisdiction of the United States including any of the places within the provisions of sections 5 and 7 of this title and section 101(34) of the Federal Aviation Act of 1958, as amended (49 U.S.C. 1301 (34)). "(d) In the course of enforcement of this section and any other sections prohibiting a conspiracy or attempt to violate this section, the Attorney General may request assistance from any Federal, State, or local agency, including the Army, Navy, and Air Force, any statute, rule, or regulation to the contrary notwithstanding.". SEC. 3. The analysis at the beginning of chapter 51 of title 18, United States Code, relating to section 1116 is amended to read as follows: "1116. Murder or manslaughter of foreign oflScials, oflacial guests, or internationaly protected persons.".

Ante, p. 1997.

Punishment. Jurisdiction.

18 USC 5, 7. Assistance for Attorney General.

SEC. 4. Section 1201 of title 18, United States Code, is amended as follows: (a) by deleting subsection (a)(4) and inserting in lieu thereof the following: "(4) the person is a foreign official, an internationaly protected person, or an official guest as those terms are defined in section 11-16 (b) of this title,"; and (b) by adding at the end thereof new subsections (d), (e), and (f) as follows: "(d) Whoever attempts to violate subsection (a)(4) shall be punished by imprisonment for not more than twenty years. "(e) If the victim of an offense under subsection (a) is an internationaly protected person, the United States may exercise jurisdiction over the offense if the alleged offender is present within the United States, irrespective of the place where the offense was committed or the nationality of the victim or the alleged offender. As used in this subsection, the United States includes all areas under the jurisdiction of the United States including any of the places within the provisions of sections 5 and 7 of this title and section 101(34) of the Federal Aviation Act of 1958, as amended (49 U.S.C. 1301(34)). "(f) In the course of enforcement of subsection (a)(4) and any other sections prohibiting a conspiracy or attempt to violate subsection (a)(4), the Attorney General may request assistance from any Federal, State, or local agency, including the Army, Navy, and Air Force, any statute, rule, or regulation to the contrary notwithstanding.".

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 PUBLIC LAW 94-467—OCT. 8, 1976

90 STAT. 1999

SEC. 5. Section 112 of title 18, United States Code, is amended to read as follows: ^'§112. Protection of foreign officials, official guests, and internationaly protected persons " (a) Whoever assaults, strikes, wounds, imprisons, or offers violence to a foreign official, official guest, or internationaly protected person or makes any other violent attack upon the person or liberty of such person, or, if likely to endanger his person or liberty, makes a violent attack upon his official premises, private accommodation, or means of transport or attempts to commit any of the foregoing shall be fined not more than $5,000 or imprisoned not more than three years, or both. Whoever in the commission of any such act uses a deadly or dangerous weapon shall be fined not more than $10,000 or imprisoned not more than ten years, or both. "(b) Whoever willfully— " (1) intimidates, coerces, threatens, or harasses a foreign official or an official guest or obstructs a foreign official in the performance of his duties; " (2) attempts to intimidate, coerce, threaten, or harass a foreign official or an official guest or obstruct a foreign official in the performance of his duties; or " (3) within the United States but outside the District of Columbia and within one hundred feet of any building or premises in whole or in part owned, used, or occupied for official business or for diplomatic, consular, or residential purposes by— " (A) a foreign government, including such use as a mission to an international organization; "(B) an international organization; "(C) a foreign official; or "(D) an official guest; congregates with two or more other persons with intent to violate any other provision of this section;, shall be fined not more than $500 or imprisoned not more than six months, or both. "(c) For the purpose of this section 'foreign government', 'foreign Definitions, official', 'internationaly protected person', 'international organization', and 'official guest' shall have the same meanings as those provided in section 1116(b) of this title. Ante, p. 1997. "(d) Nothing contained in this section shall be construed or applied so as to abridge the exercise of rights guaranteed under the first amendment to the Constitution of the United States. "(e) If the victim of an offense under subsection (a) is an inter- Jurisdiction, nationally protected person, the United States may exercise jurisdiction over the offense if the alleged offender is present within the United States, irrespective of the place where the offense was committed or the nationality of the victim or the alleged offender. As used in this subsection, the United States includes all areas under the jurisdiction of the United States including any of the places within the provisions of sections 5 and 7 of this title and section 101 (34) of the 18 USC 5, 7. Federal Aviation Act of 1958, as amended (49 U.S.C. 1301(34)). "(f) In the course of enforcement of subsection (a) and any other Assistance for sections prohibiting a conspiracy or attempt to violate subsection (a), Attorney the Attorney General may request assistance from any Federal, State, General. or local agency, including the Army, Navy, and Air Force, any statute, rule, or regulation to the contrary, notwithstanding.".

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 90 STAT. 2000

PUBLIC LAW 94-467—OCT. 8, 1976

SEC. 6. The analysis at the beginning of chapter 51 of title 18, United States Code, relating to section 112 is amended to read as follows: "112. Protection of foreign oflicials, official guests, and internationaly protected persons.". SEC. 7. Section 970 of title 18, United States Code, is amended: (a) by relettering subsection " (b) " as subsection " (c) " and amending the subsection to read as follows: Definitions. "(c) For the purpose of this section 'foreign government', 'foreign official', 'international organization', and 'official guest' shall have the Ante,p. 1997. same meanings as those provided in section 1116(b) of this title."; and (b) by inserting a new subsection " (b)" as follows: "(b) Whoever, willfully with intent to intimidate, coerce, threaten, or harass— "(1) forcibly thrusts any part of himself or any object within or upon that portion of any building or premises located within the United States, which portion is used or occupied for official business or for diplomatic, consular, or residential purposes by— " (A) a foreign government, including such use as a mission to an international organization; "(B) an international organization; "(C) a foreign official; or "(D) an official guest; or "(2) refuses to depart from such portion of such building or premises after a request— "(A) by an employee of a foreign government or of an international organization, if such employee is authorized to make such request by the senior official of the unit of such government or organization which occupies such portion of such building or premises; "(B) by a foreign official or any member of the foreign official's staff who is authorized by the foreign official to make such request; "(C) by an official guest or any member of the official guest's staff who is authorized by the official guest to make such request; or "(D) by any person present having law enforcement powers; shall be fined not more than $500 or imprisoned not more than six months, or both.". SEC. 8. Chapter 41 of title 18, United States Code, is amended by adding a new section 878 as follows: 18 USC 878. "§ 878. Threats and extortion against foreign officials, official guests, or internationaly protected persons "(a) Whoever knowingly and willfully threatens to violate section Ante, pp. 1997, 112, 1116, or 1201 by killing, kidnapping, or assaulting a foreign offi1999. cial, official guest, or internationaly protected person shall be fined 18 USC 1201. not more than $5,000 or imprisoned not more than five years, or both, except that imprisonment for a threatened assault shall not exceed three years. "(b) Whoever in connection with any violation of subsection (a) or actual violation of section 112, 1116, or 1201 makes any extortionate demand shall be fined not more than $20,000 or imprisoned not more than twenty years, or both.

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Page:United States Statutes at Large Volume 90 Part 2.djvu/533

 PUBLIC LAW 94^467—OCT. 8, 1976 " (c) For the purpose of this section 'foreign official', 'internationaly protected person', and 'official guest' shall have the same meanings as those provided in section 1116(a) of this title. "(d) If the victim of an offense under subsection (a) is an internationaly protected person, the United States may exercise jurisdiction over the offense if the alleged offender is present within the United States, irrespective of the place where the offense was committed or the nationality of the victim or the alleged offender. As used in this subsection, the United States includes all areas under the jurisdiction of the United States including any of the places within the provisions of sections 5 and 7 of this title and section 101 (34) of the Federal Aviation Act of 1958, as amended (49 U.S.C. 1301 (34)).". SEC. 9. The analysis of chapter 41 of title 18, United States Code, is amended by inserting at the end thereof the following new item: "878. Threat and extortion against foreign officials, official guests, and internationaly protected persons.". SEC. 10. Nothing contained in this Act shall be construed to indicate an intent on the part of Congress to occupy the field in which its provisions operate to the exclusion of the laws of any State, Commonwealth, territory, possession, or the District of Columbia, on the same subject matter, nor to relieve any person of any obligation imposed by a n j law of any State, Commonwealth, territory, possession, or the District of Columbia, including the obligation of all persons having official law enforcement powers to take appropriate action, such as effecting arrests, for Federal as well as non-Federal violations. SEC. 11. Section 11 of title 18, United States Code, is amended by inserting after the word "title" the words "except in sections 112, 878,970, 1116, and 1201". Approved October 8, 1976.

LEGISLATIVE HISTORY: HOUSE REPORT No. 94-1614 (Comm. on the Judiciary). SENATE REPORT No. 94-1273 accompanying S. 3646 (G)mm. on the Judiciary). CONGRESSIONAL RECORD, VoL 122 (1976): Sept. 21, considered and passed House. Sept. 24, considered and passed Senate. WEEKLY COMPILATION OF PRESIDENTIAL DOCUMENTS, Vol. 12, No. 42: Oct. 10, Presidential statement.

90 STAT. 2(301 Definitions. Ante, p. 1997.

18 USC 5, 7.

18 USC 112 mote,

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Page:United States Statutes at Large Volume 90 Part 2.djvu/534

 90 STAT. 2002

PUBLIC LAW 94-468—OCT. 11, 1976

Public Law 94-468 94th Congress An Act Oct. 11, 1976 [H.R. 11407] Coast Guard Academy. Foreign nationals, admission.

14 USC 182.

To amend title 14, United States Code, to authorize the admission of additional foreign nationals to the Coast Guard Academy.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That section 195 of title 14. United States Code, is amended to read as follows: "§ 195.

Admission of foreign nationals restrictions; conditions

for

instruction;

"(a) A foreign national may not receive instruction at the Academy except as authorized by this section. "(b) The President may designate not more than 36 foreign nationals whom the Secretary may permit to receive instruction at the Academy. "(c) A person receiving instruction under this section is entitled to the same pay and allowances, to be paid from the same appropriations, as a cadet appointed pursuant to section 182 of this title. A person may receive instruction under this section only if his country agrees in advance to reimburse the United States, at a rate determined by the Secretary, for the cost of providing such instruction, including pay and allowances, unless a waiver therefrom has been granted to that country by the Secretary. Funds received by the Secretary for this purpose shall be credited to the appropriations bearing the cost thereof, and may be apportioned between fiscal years. "(d) A person receiving instruction under this section is— "(1) not entitled to any appointment in the Coast Guard by reason of his graduation from the Academy; and "(2) subject to those regulations applicable to the Academy governing admission, attendance, discipline, resignation, discharge, dismissal, and graduation, except as may otherwise be prescribed by the Secretary.". Approved October 11, 1976.

LEGISLATIVE HISTORY: HOUSE REPORT No. 94-1110 (Comm. on Merchant Marine and Fisheries). SENATE REPORT No. 94-1187 (Comm. on Commerce). CONGRESSIONAL RECORD, Vol. 122 (1976): May 18, considered and passed House. Sept. 7, considered and passed Senate, amended. Sept. 27, House concurred in Senate amendment.

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Page:United States Statutes at Large Volume 90 Part 2.djvu/535

 PUBLIC LAW 94-469—OCT. 11, 1976

90 STAT. 2003

Public Law 94-469 94th Congress An Act To regulate commerce and protect human health and the environment by requiring testing and necessary use restrictions on certain chemical substances, and for other purposes.

Oct. 11, 1976 rg 314,91 '• ' •'

Be it enacted by the Seriate and House of Represerdatives of the United States of Ameiica in Gonqress assembled. Toxic Substances SECTION 1. SHORT TITLE AND TABLE OF CONTENTS. °" ™ ^' This Act may be cited as the "Toxic Substances Control Act". 15 USC 2601 note. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sf c. Sec. Sec. Sec. Sec.

TABLE OF CONTENTS 1. Short title and table of contents. 2. Findings, policy, and intent. 3. Definitions. 4. Testing of chemical substances and mixtures. 5. Manufacturing and processing notices. 6. Regulation of hazardous chemical substances and mixtures. 7. Imminent hazards. 8. Reporting and retention of information. 9. Relationship to other Federal laws. 10. Research, development, collection, dissemination, and utilization of data. 11. Inspections and subpoenas. 12. Exports. 13. Entry into customs territory of the United States. 14. Disclosure of data. 15. Prohibited acts. 16. Penalties. 17. Specific enforcement and seizure. 18. Preemption. 19. Judicial review. 20. Citizens' civil actions. 21. Citizens' petitions. 22. National defense waiver. 23. Employee protection. 24. Employment effects. 25. Studies. 26. Administration of the Act. 27. Development and evaluation of test methods. 28. State programs. 29. Authorization for appropriations. 30. Annual report. 31. Effective date.

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SEC. 2. FINDINGS, POLICY, AND INTENT. (a) FiNDiNtJS.—The Congress finds that— 15 USC 2601. (1) human beings and the environment are being exposed each year to a large number of chemical substances and mixtures; (2) among the many chemical substances and mixtures which are constantly being developed and produced, there are some whose manufacture, processing, distribution in commerce, use, or disposal may present an unreasonable risk of injury to health or the environment; and (3) the effective regulation of interstate commerce in such chemical substances and mixtures also necessitates the regulation of intrastate commerce in such chemical substances and mixtures. (b) POLICY.—It is the policy of the United States that— •r (1) adequate data should be developed with respect to the effect of chemical substances and mixtures on health and the environ-

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 90 STAT. 2004

PUBLIC LAW 94-469—OCT. 11, 1976

ment and that the development of such data should be the responsibility of those who manufacture and those who process such chemical substances and m i x t u r e s; (2) adequate authority should exist to regulate chemical substances and mixtures which present an unreasonable risk of injury to health or the environment, and to take action with respect to chemical substances and mixtures which are imminent h a z a r d s; and (3) authority over chemical substances and mixtures should be exercised in such a manner as not to impede unduly or create unnecessary economic barriers to technological innovation while fulfilling the p r i m a r y purpose of this Act to assure that such innovation and commerce in such chemical substances and mixtures do not present an unreasonable risk of injury to health or the environment. (c) I N T E N T OF CONGRESS.—It is the intent of Congress that the Administrator shall carry out this Act in a reasonable and prudent manner, and that the Administrator shall consider the environmental, economic, and social impact of any action the Administrator takes or proposes to take under this Act. SEC. 3. DEFINITIONS. 15 USC 2602. As used in this Act: (1) the term " A d m i n i s t r a to r " means the Administrator of the Environmental Protection Agency. (2)(A) E x c e p t as provided in subparagraph (B), the term "chemical substance" means any organic or inorganic substance of a particular molecular identity, including— (i) any combination of such substances occurring in whole or in part as a result of a chemical reaction or occurring in n a t u r e, and (ii) any element or uncombined radical. (B) Such term does not include— (i) any mixture, (ii) any pesticide (as defined in the Federal Insecticide, F u n g i 7 USC 136 note. cide, and Rodenticide Act) when manufactured, processed, or distributed in commerce for use as a pesticide, (iii) tobacco or any tobacco product, (iv) any source material, special nuclear material, or byproduct material (as such terms are defined in the Atomic Energy Act 42 USC 2011 of 1954 and regulations issued under such Act), note. (v) any article the sale of which is subject to the tax imposed 26 USC 4181. hj section 4181 of the I n t e r n a l Revenue Code of 1954 (determined without regard to any exemptions from such tax provided 26 USC 4182, by section 4182 or 4221 or any other provision of such Code), and 4'221. (yi) any food, food additive, d r u g, cosmetic, or device (as such terms are" defined in section 201 of the Federal Food, D r u g, and 21 USC 321. Cosmetic Act) when manufactured, processed, or distributed in commerce for use as a food, food additive, d r u g, cosmetic, or device. The term "food" as used in clause (vi) of this subparagraph includes poultry and poultry products (as defined i n sections 4(e) and 4 (f) 21 USC 453. of the P o u l t r y Products Inspection Act), meat and meat food prod21 USC 601. ucts (as defined in section 1(]) of the Federal Meat Inspection Act), and eggs and egg products (as defined in section 4 of the E g g P r o d 21 USC 1033. ucts Inspection Act). (3) The term "commerce" means trade, traffic, transportation, or other commerce (A) between a place in a State and any place outside

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Hurtado v. People of the State of California/Dissent Harlan

HARLAN, J., dissenting.

The plaintiff in error, Joseph Hurtado, now under sentence of death pronounced in one of the courts of California, brings this writ of error upon the ground that the proceedings against him are in violation of the constitution of the United States. The crime charged, and of which he was found guilty, is murder. The prosecution against him is not based upon any presentment or indictment of a grand jury, but upon an information filed by the district attorney of the county in which the crime was alleged to have been committed. His contention is that an information for a capital offense is forbidden by that clause of the fourteenth amendment of the constitution of the United States which declares that no state shall 'deprive any person of life, liberty, or property without due process of law.' As I cannot agree that the state may, consistently, with due process of law require a person to answer for a capital offense, except upon the presentment or indictment of a grand jury, and as human life is involved in the judgment rendered here, I do not feel at liberty to withhold a statement of the reasons for my dissent from the opinion of the court.

The phrase 'due process of law' is not new in the constitutional history of this country or of England. It antedates the establishment of our institutions. Those who had been driven from the mother country by oppression and persecution brought with them, as their inheritance, which no government could rightfully impair or destroy, certain guaranties of the rights of life, liberty, and property which had long been deemed fundamental in Anglo-Saxon institutions. In the congress of the colonies, held in New York in 1765, it was declared that the colonists were entitled to all the essential rights, liberties, privileges, and immunities confirmed by Magna Charta to the subjects of Great Britain. Hutch. Hist. Mas. Bay, Appendix F. 'It was under the consciousness,' says STORY, 'of the full possession of the rights, liberties, and immunities of British subjects that the colonists, in almost all the early legislation of their respective assemblies, insisted upon a declaratory act, acknowledging and confirming them.' 1 Story, Const. § 165. In his speech in the house of lords, on the doctrine of taxation without representation, Lord CHATHAM maintained that the inhabitants of the colonies were entitled to all the rights and the peculiar privileges of Englishmen; that they were equally bound by the laws, and equally entitled to participate in the constitution of England. On the fourteenth of October, 1774, the delegates from the several colonies and plantations, in congress assembled, made a formal declaration of the rights to which their people were entitled, by the immutable laws of nature, the principles of the English constitution, and the several charters or compacts under which the colonial governments were organized. Among other things, they declared that their ancestors who first settled the colonies were, at the time of their immigration, 'entitled to all the rights, liberties, and immunities of free and natural-born subjects within the realm of England;' that 'by such immigration they by no means forfeited, surrendered, or lost any of those rights, but that they were, and their descendants now are, entitled to the exercise and enjoyment of all such of them as their local and and other circumstances entitled them to exercise and enjoy;' and that 'the respective colonies are entitled to the common law of England, and more especially to the great and inestimable privilege of being tried by their peers of the vicinage, according to the course of that law.' 1 Jour. Cong. 27-29.

These declarations were susequently emphasized in the most imposing manner, when the doctrines of the common law respecting the protection of the people in their lives, liberties, and property were incorporated into the earlier constitutions of the original states. Massachusetts in its constitution of 1780, and New Hampshire in 1784, declared in the same language that 'no subject shall be arrested, imprisoned, despoiled or deprived of his property, immunities, or privileges, put out of the protection of the law, exiled or deprived of his life, liberty, or estate but by the judgment of his peers or the law of the land;' Maryland and North Carolina in 1776, and South Carolina in 1778, that 'no freeman of this state be taken or imprisoned, or disseized of his freehold, liberties, or privileges, outlawed, exiled, or in any manner destroyed or deprived of his life, liberty, or property but by the judgment of his peers or the law of the land;' Virginia, in 1776, that 'no man be deprived of his liberty except by the law of the land or the judgment of his peers;' and Delaware, in 1792, that no person 'shall be deprived of life, liberty, or property, unless by the judgment of his peers or the law of the land.' In the ordinance of 1789 for the government of the Northwestern territory, it was made one of the articles of compact between the original states and the people and states to be formed out of that territory-'to remain forever unalterable unless by common consent'-that 'no man shall be deprived of his life, liberty, or property but by the judgment of his peers or the law of the land.' These fundamental doctrines were subsequently incorporated into the constitution of the United States. The people were not content with the provision in section 2 of article 3 that 'the trial of all crimes, except in cases of impeachment, shall be by jury.' They desired a fuller and broader enunciation of the fundamental principles of freedom, and therefore demanded that the guaranties of the rights of life, liberty, and property, which experience had proved to be assential to the safety and security of the people, should be placed beyond all danger of impairment or destruction by the general government through legislation by congress. They perceived no reason why, in respect of those rights, the same limitations should not be imposed upon the general government that had been imposed upon the states by their own constitutions. Hence the prompt adoption of the original amendments, by the fifth of which it is, among other things, provided that 'no person shall be deprived of life, liberty, or property without due process of law.' This language is similar to that of the clause of the fourteeth amendment now under examination. That similarity was not accidental, but evinces a purpose to impose upon the states the same restrictions, in respect of proceedings involving life, liberty, and property, which had been imposed upon the general government.

'Due process of law,' within the meaning of the national constitution, does not import one thing with reference to the powers of the states and another with reference to the powers of the general government. If particular proceedings, conducted under the authority of the general government, and involving life, are prohibited because not constituting that due process of law required by the fifth amendment of the constitution of the United States, similar proceedings, conducted under the authority of a state, must be deemed illegal, as not being due process of law within the meaning of the fourteenth amendment. The words 'due process of law,' in the latter amendment, must receive the same interpretation they had at the common law from which they were derived, and which was given to them at the formation of the general government. What was that interpretation? In seeking that meaning we are, fortunately, not left without authoritative directions as to the source, and the only source, from which the necessary information is to be obtained.

In Murray's Lessee v. Hoboken, etc., Co. 18 How. 276, 277, it was said: 'The constitution contains no description of those processes which it was intended to allow or forbid. It does not even declare what principles are to be applied to ascertain whether it be due process. It is manifest that it was not left to the legislative power to enact any process which might be devised. The article is a restraint on the legislative as well as on the executive and judicial powers of the government, and cannot be so construed as to leave congress free to make any process 'due process of law' by its mere will. To what principles are we to resort to ascertain whether this process enacted by congress is due process? To this the answer must be twofold. We must examine the constitution itself to see whether this process be in conflict with any of its provisions. If not found to be so, we must look to those settled usages and modes of proceeding existing in the common and statute law of England before the emigration of our ancestors, and which are shown not to have been unsuited to their civil and political condition by having been acted on by them after the settlement of this country.'

Magna Charta-upon which rested the rights, liberties, and immunities of our ancestors-was called, said Coke, 'the charter of the liberties of the kingdom, upon great reason, because, liberos facit, it makes the people free.' Hallam characterizes the signing of it as the most important event in English history, and declares that the instrument is still the keystone of English liberty. 'To have produced it,' said Mackintosh, 'to have preserved it, to have matured it, constitute the immortal claim of England upon the esteem of mankind.' By that instrument the king, representing the sovereignty of the nation, declared that 'no freeman shall be taken, or imprisoned, or be disseized of his freehold, or liberties, or free customs, or be outlawed, or exiled, or any otherwise destroyed; nor will we [not] pass upon him, nor condemn him, but by lawful judgment of his peers, or by the law of the land.' 'The words 'due process of law' were undoubtedly intended,' said this court, in Murray's Lessee v. Hoboken, etc., Co. 'to convey the same meaning as the words 'by the law of the land' in Magna Charta.' That the one is the equivalent of the other was recognized in Davidson v. New Orleans, 96 U.S. 97. See also 2 Kent, 13; 2 Story, Const. § 1789; Cooley, Const. Lim. 353; Pom. Const. Law, § 245; Greene v. Briggs, 1 Curt. 311. Whether the phrase in our American constitutions, national or state, be 'law of the land' or 'due process of law,' it means in every case the same thing. Cooley, Const. Lim. 352.

Declining to follow counsel in their search for precedents in England, in support or in refutation of the proposition that the common law permitted informations in certain classes of public offenses, and conceding that in some cases (such as Prynn's Case, 5 Mod. 459, which was an information for a riot, tried before Chief Justice HOLT) the requirement of due process of law was met by that mode of procedure, let us inquire-and no other inquiry is at all pertinent-whether, according to the settled usages and modes of proceeding to which, this court has said, reference must be had, an information for a capital offense was, prior to the adoption of our constitution, regarded as due process of law.

Erskine, in his speech delivered in 1784 in defense of the dean of St. Asaph, said, in the presence of the judges of the king's bench: 'If a man were to commit a capital offense in the face of all the judges of England, their united authority could not put him upon his trial; they could file no complaint against him, even upon the records of the supreme criminal court, but could only commit him for safe custody, which is equally competent to every common justice of the peace. The grand jury alone could arraign him, and in their discretion might likewise finally discharge him, by throwing out the bill, with the names of all your lordships as witnesses on the back of it. If it be said that this exclusive power of the grand jury does not extend to lesser misdemeanors, which may be prosecuted by information, I answer, that for that reason it becomes doubly necessary to preserve the power of the other jury which is left.' That this defender of popular rights against official oppression was not in error when saying that no person could be arraigned for a capital crime except upon the presentment or indictment of a grand jury is shown upon almost every page of the common law.

Blackstone says: 'But to find a bill there must be at least twelve of the jury agree; for, so tender is the law of England of the lives of the subjects, that no man can be convicted at the suit of the king of any capital offense, unless by a unanimous voice of twenty-four of his equals and neighbors; that is, by twelve at least of the grand jury, in the first place, assenting to the accusation, and afterwards by the whole petit jury of twelve more finding him guilty upon his trial.' 4 Bl. Comm. 306. The same author, after referring to prosecutions by information, describing their different kinds, and stating that the mode of prosecution by information (or suggestion) filed on record by the king's attorney general, or by his coroner or master of the crown office in the court of king's bench, was as ancient as the common law itself, proceeds: 'But these informations (of every kind) are confined by the constitutional law to mere misdemeanors only; for, wherever any capital offense is charged, the same law requires that the accusation be warranted by the oath of twelve men before the party shall be put to answer it.' Id. 309, 310. Again, in his discussion of the trial by jury, Blackstone, after saying that the English law has 'wisely placed this strong and twofold barrier, of a punishment and a trial by jury, between the liberties of the people and the prerogative of the crown,' says: 'The founders of the English law have, with excellent forecast, contrived that no man shall be called to answer the king for any capital crime, unless upon the peremptory accusation of twelve or more of his fellow-subjects, the grand jury; and that the truth of any accusation, whether preferred in the shape of indictment, information, or appeal, should afterwards be confirmed by the unanimous suffrage of twelve of his equals and neighbors, indifferently chosen and superior to all suspicion. So that the liberties of England cannot but subsist so long as this palladium remains sacred and inviolate, not only from all open attacks, (which none will be so hardy as to make,) but also from all secret machinations which may sap and undermine it, by introducing new and arbitrary methods of trial, by justices of the peace, commissioners of the revenue, and courts of conscience. And however convenient these may appear at first, (as doubtless all arbitrary powers, well executed, are the most convenient,) yet let it be again remembered that delays and little inconveniences in the forms of justice are the price that all free nations must pay for their liberty in more substantial matters; that these inroads upon the sacred bulwark of the nation are fundamentally opposite to the spirit of our constitution; and that, though begun in trifles, the precedent may gradually increase and spread to the utter disuse of jurors in questions of the most momentous concern.' Id. 349, 350.

Hawkins in his Pleas of the Crown, (book 2, c. 26,) after saying that it is every-day practice to proceed by information in certain cases, says: 'But I do not find it anywhere holden that such an information will lie for any capital crime, or for misprision of treason.'

In Wooddeson's Lectures on the Laws of England, (Lect. 38,) it is said that 'informations cannot be brought in capital cases, nor for misprision of treason.'

Bacon, in his Abridgement, lays it down: 'But though, as my Lord HALE observes, in all criminal causes the most regular and safe way, and most consonant to the statute of Magna Charta, etc., is by presentment or indictment of twelve sworn men, yet he admits that, for crimes inferior to capital ones, the proceedings may be by information.' Tit. 'Information' A.

See, also, 2 Hal. Hist. P. C. c. 201; Jacobs, Law Dict. tit. 'Information;' 4 Broom, Com. Laws Eng. 396.

I omit further citations of authorities, which are numerous, to prove that, according to the settled usages and modes of proceeding existing under the common and statute law of England at the settlement of this country, information in capital cases was not consistent with the 'law of the land' or with due process of law.' Such was the understanding of the patriotic men who established free institutions upon this continent. Almost the identical words of Magna Charta were incorporated into most of the state constitutions before the adoption of our national constitution. When they declared, in substance, that no person shall be deprived of life, liberty, or property except by the judgment of his peers or the law of the land, they intended to assert his right to the same guaranties that were given in the mother country by the great charter and the laws passed in furtherance of its fundamental principles.

My brethren concede that there are principles of liberty and justice lying at the foundation of our civil and political institutions which no state can violate consistently with that due process of law required by the fourteenth amendment in proceedings involving life, liberty, or property. Some of these principles are enumerated in the opinion of the court. But for reasons which do not impress my mind as satisfactory, they exclude from that enumeration the exemption from prosecution, by information, for a public offense involving life. By what authority is that exclusion made? Is it justified by the settled usages and modes of proceeding existing under the common and statute law of England at the emigration of our ancestors, or at the foundation of our government? Does not the fact that the people of the original states required quired an amendment of the national constitution, securing exemption from prosecution for a capital offense, except upon the indictment or presentment of a grand jury, prove that, in their judgment, such an exemption was essential to protection against accusation and unfounded prosecution, and therefore was a fundamental principle in liberty and justice? By the side of that exemption, in the same amendment, is the declaration that no person shall be put twice in jeopardy for the same offense, nor compelled to criminate himself, nor shall private property be taken for public use without just compensation. Are not these principles fundamental in every free government established to maintain liberty and justice? If it be supposed that immunity from prosecution for a capital offense, except upon the presentment or indictment of a grand jury, was regarded at the common law any less secured by the law of the land, or any less valuable, or any less essential to due process of law, than the personal rights and immunities just enumerated, I take leave to say that no such distinction is authorized by any adjudged case, determined in England or in this country prior to the adoption of our constitution, or by any elementary writer upon the principles established by Magna Charta and the statutes subsequently enacted in explanation or enlargement of its provisions.

But it is said that the framers of the constitution did not suppose that due process of law necessarily required for a capital offense the institution and procedure of a grand jury, else they would not in the same amendment prohibiting the deprivation of life, liberty, or property without due process of law, have made specific and express provision for a grand jury where the crime is capital or otherwise infamous; therefore, it is argued, the requirment by the fourteenth amendment of due process of law in all proceedings involving life, liberty, and property, without specific reference to grand juries in any case whatever, was not intended as a restriction upon the power which it is claimed the states previously had, so far as the express restrictions of the national constitution are concerned, to dispense altogether with grand juries. This line of argument, it seems to me, would lead to results which are inconsistent with the vital principles of republican government. If the presence in the fifth amendment of a specific provision for grand juries in capital cases, along-side the provision for due process of law in proceedings involving life, liberty, or property, is held to prove that 'due process of law' did not, in the judgment of the framers of the constitution, necessarily require a grand jury in capital cases, inexorable logic would require it to be likewise held that the right not to be put twice in jeopardy of life and limb, for the same offense, nor compelled in a criminal case to testify against one's self, rights and immunities also specifically recognized in the fifth amendment,-were not protected by that due process of law required by the settled usages and proceedings existing under the common and statute law of England at the settlement of this country. More than that, other amendments of the constitution proposed at the same time expressly recognize the right of persons to just compensation for private property taken for public use; their right, when accused of crime, to be informed of the nature and cause of the accusation against them, and to a speedy and public trial, by an impartial jury of the state and district wherein the crime was committed; to be confronted with the witnesses against them; and to have compulsory process for obtaining witnesses in their favor. Will it be claimed that none of these rights were secured by the 'law of the land' or 'due process of law,' as declared and established at the foundation of our government? Are they to be excluded from the enumeration of the fundamental principles of liberty and justice, and, therefore, not embraced by 'due process of law?' If the argument of my brethren be sound, those rights-although universally recognized at the establishment of our institutions as secured by that due process of law which for centuries had been the foundation of Anglo-Saxon liberty-were not deemed by our fathers essential to the due process of law prescribed by our constitution; because, such seems to be the argument,-had they been regarded as involved in due process of law they would not have been specifically and expressly provided for, but left to the protection given by the general clause forbidding the deprivation of life, liberty, or property without due process of law. Further, the reasoning of the opinion indubitably leads to the conclusion that but for the specific provisions made in the constitution for the security of the personal rights enumerated, the general inhibition against deprivation of life, liberty, and property without due process of law would not have prevented congress from enacting a statute in derogation of each of them. Still further, it results from the doctrines of the opinion-if I do not misapprehend its scope-that the clause of the fourteenth amendment forbidding the deprivation of life or liberty without due process of law would not be violated by a state regulation dispensing with petit juries in criminal cases, and permitting a person charged with a crime involving life to be tried before a single judge, or even a justice of the peace, upon a rule to show cause why he should not be be hanged.

I do no injustice to my brethren by this illustration of the principles of the opinion. It is difficult, in my judgment, to overestimate the value of the petit jury system in this country. A sagacious statesman and jurist has well said that it was 'the best guardian of both public and private liberty which has been hitherto devised by the ingenuity of man,' and that 'liberty can never be insecure in that country in which the trial of all crimes is by the jury.' Mr. Madison observed that while trial by jury could not be considered as a natural right, but one resulting from the social compact, yet it was 'as essential to secure the liberty of the people as any one of the pre-existent rights of nature.' 1 Lloyd, Deb. 430. 'When our more immediate ancestors,' says STORY, 'removed to America, they brought this privilege with them as their birthright and inheritance, as a part of that admirable common law which had fenced round and interposed barriers on every side against the approaches of arbitrary power.' Story, Const. § 1779. I submit, however, with confidence, there is no foundation for the opinion that, under Magna Charta or at common law, the right to a trial by jury in a capital case was deemed of any greater value to the safety and security of the people than was the right not to answer, in a capital case, upon information filed by an officer of the government, without previous inquiry by a grand jury. While the former guards the citizen against improper conviction, the latter secures him against unfounded accusation. A state law which authorized the trial of a capital case before a single judge, perhaps a justice of the peace, would-if a petit jury in a capital case be not required by the fundamental principles of liberty and justice-meet all the requirements of due process of law, as indicated in the opinion of the court, for such a law would not prescribe a special rule for particular persons; it would be a general law which heard before it condemned; which proceeded upon inquiry; and under which judgment would be rendered only after trial. It would be embraced by the rule laid down by the court when it declares that any legal proceeding enforced by public authority, whether sanctioned by age and custom or newly devised in the descretion of the legislative power, in furtherance of the public good, which regards and preserves those principles of liberty and justice, must be held to be due process of law.

It seems to me that too much stress is put upon the fact that the framers of the constitution made express provision for the security of those rights which at common law were protected by the requirement of due process of law, and, in addition, declared, generally, that no person shall 'be deprived of life, liberty, or property without due process of law.' The rights, for the security of which these express provisions were made, were of a character so essential to the safety of the people that it was deemed wise to avoid the posibility that congress, in regulating the processes of law, would impair or destroy them. Hence, their specific enumeration in the earlier amendments of the constitution, in connection with the general requirement of due process of law, the latter itself being broad enough to cover every right of life, liberty, or property secured by the settled usages and modes of proceedings existing under the common and statute law of England at the time our government was founded. Pom. Mun. Law, 373, 366.

The views which I have attempted to maintain are supported by the supreme judicial court of Massachusetts in Jones v. Robbins, 8 Gray, 329. Among the questions there presented was whether a statute giving a single magistrate authority to try an offense punishable by imprisonment in the state prison, without the presentment by a grand jury, violated that provision of the state constitution which declared that 'no man shall be arrested, imprisoned, exiled, or deprived of his life, liberty, or estate but by the judgment of his peers or the law of the land.' It was held that it did. 'This clause, in its whole structure,' said Chief Justice SHAW, speaking for the court, 'is so manifestly conformable to the words of Magna Charta that we are not to consider it as a newly-invented phrase, first used by the makers of our constitution, but we are to look at it as the adoption of one of the great securities of private right handed to us as among the liberties and privileges which our ancestors enjoyed at the time of their emigration, and claimed to hold and retain as their birthright. These terms, in this connection, cannot, we think, be used in their most bald and literal sense to mean the law of the land at the time of their trial; because the laws may be shaped and altered by the legislature from time to time; and such a provision, intended to prohibit the making of any law impairing the ancient rights and liberties of the subject, would, under such a construction, be wholly nugatory and void. The legislature might simply change the law by statute, and thus remove the landmark and the barrier intended to be set up by this provision in the bill of rights. It must, therefore, have intended the ancient, established law and course of legal proceedings, by an adherence to which our ancestors in England, before the settlement of this country, and the emigrants themselves and their descendants, had found safety for their personal rights.' After recognizing the 'law of the land' in Magna Charta and in the constitution of Massachusetts as having the same meaning as 'due process of law,' and after stating that the people of the original states deemed it essential for the better security of their rights of life, liberty, and property that their constitutions should set forth and declare the fundamental principles of free government, Chief Justice SHAW proceeds: 'Most of the state constitutions did contain these declarations, more or less detailed and explicit; but the general purpose was to assert and maintain the great rights of English subjects, as they had been maintained by the ancient laws, and the actual enjoyment of civil rights under them. 'The sense of America was,' says Chancellor KENT, 'more fully ascertained, and more explicitly and solemnly promulgated, in the memorable declaration of rights of the first continental bill of rights, in October, 1774, and which was a representation of all the states except Georgia. That declaration contained the assertion of several great and fundamental principles of American liberty, and it constituted the basis of those subsequent bills of rights which, under various modifications, pervaded all our constitutional charters.' 2 Kent, 5, 6. The right of individual citizens to be secure from an open and public accusation of crime, and from the trouble, expense, and anxiety of a public trial, before a probable cause is established by the presentment and indictment of a grand jury, in case of high offenses, is justly regarded as one of the securities to the innocent against hasty, malicious, and oppressive public prosecutions, and as one of the ancient immunities and privileges of English liberty.'

Chancellor KENT, referring to the rights of personal security, as guarded by constitutional provisions, which were transcribed into the constitutions of this country from Magna Charta and other fundamental acts of the English parliament, says: 'And where express constitutional provisions on the subject appear to be wanting, the same principles are probably asserted by declaratory legislative acts; and they must be regarded as fundamental doctrines in every state, for the colonies were parties to the national declaration of right in 1774, in which the trial by jury, and the other rights and liberties of English subjects, were peremptorily claimed as their undoubted inheritance and birthright. It may be received as a proposition, universally understood and acknowledged throughout this country, that no person can be taken or imprisoned, or disseized of his freehold or estate, or exiled, or condemned, or deprived of life, liberty, or property unless by the law of the land or the judgment of his peers. The words 'by the law of the land,' as used originally in Magna Charta, in reference to this subject, are understood to mean due process of law, that is, by indictment or presentment of good and lawful men; and this, says Lord COKE, is the true sense and exposition of these words.' And KENT immediately adds: 'The better and larger definition of 'due process of law' is that it means law in its regular course of administration through courts of justice.'

Because of this general definition of due process of law that distinguished jurist is claimed as authority for the present decision. When Lord COKE said that indictment or presentment was due process of law, he had reference, of course, to the class of cases in which, by the law of the land, that kind of procedure was required. In no commentary upon Magna Charta is it more distinctly stated than in Coke's that informations were consistent with the law of the land in certain cases, and no one has more emphatically declared that, in capital cases, informations are not allowed by that law, and was not due process of law. He referred to indictments and presentments to illustrate what was due process of law in prosecutions against persons accused of the higher grades of crime, and not for the purpose of giving a full definition of the phrase 'due process of law' as applicable to both civil and criminal cases. The definition by Kent of 'due process of law' was therefore better and larger, because it embraced cases civil and criminal, in rem and in personam, and included proceedings affecting every right, whether of life, liberty, or property, guarantied by the law of the land. He was very far from saying that every proceeding, involving new methods of trial, was due procees of law because declared by the legislature to be such, or because it may be regular in the sense that it is established by a general statute.

It is said by the court that the constitution of the United States was made for an undefined and expanding future, and that its requirement of due process of law, in proceedings involving life, liberty, and property, must be so interpreted as not to deny to the law the capacity of progress and improvement; that the greatest security for the fundamental principles of justice resides in the right of the people to make their own laws and alter them at pleasure. It is difficult, however, to perceive anything in the system of prosecuting human beings for their lives, by information, which suggests that the state which adopts it has entered upon an era of progess and improvement in the law of criminal procedure. Even the statute of Henry VII. c. 3, allowing informations, and under which, it is said, Empson and Dudley, and an arbitrary star chamber, fashioned the proceedings of the law into a thousand tyrannical forms, expressly declared that it should not extend 'to treason, murder, or felony, or to any other offense wherefor any person should lose life or member.' So great, however, were the outrages perpetrated by those men that this statute was repealed by 1 Henry VIII. c. 6. Under the local statutes in question, even the district attorney of the county is deprived of any discretion in the premises; for if in the judgment of the magistrate before whom the accused is brought-and, generally, he is only a justice of the peace-a public offense has been committed, it becomes the duty of the district attorney to proceed against him, by information, for the offense indicated by the committing magistrate. Thus, in California nothing stands between the citizen and prosecution for his life except the judgment of a justice of the peace. Had such a system prevailed in England, in respect of all grades of public offenses, the patriotic men who laid the foundation of our government would not have been so persistent in claiming, as the inheritance of the colonists, the institutions and guaranties which had been established by her fundamental laws for the protection of the rights of life, liberty, and property. The royal governor of New York would not have had occasion to write in 1697 to the home government that the members of the provincial legislature were 'big with the privileges of Englishmen and Magna Charta.' 3 Bancroft, 56. Nor would the colonial congress of 1774, speaking for the people of 12 colonies, have permitted, as it did, the journal of their proceedings to be published with a medallion on the title page 'representing Magna Charta as the pedestal on which was raised the column and cap of liberty, supported by twelve hands, and containing the words 'Hanc Tuemur, Hac Nitimur." Hurd, Hab. Corp. 108. Anglo-Saxon liberty would, perhaps, have perished long before the adoption of our constitution had it been in the power of government to put the subject on trial for his life whenever a justice of the peace, holding his office at the will of the crown, should certify that he had committed a capital crime. That such officers are, in some of the states, elected by the people, does not add to the protection of the citizen; for one of the peculiar benefits of the grand-jury system, as it exists in this country, is that it is composed, as a general rule, of private persons who do not hold office at the will of the government, or at the will of voters. In most, if not all of the states, civil officers are disqualified to sit on grand juries. In the secrecy of the investigations by grand juries, the weak and helpless-proscribed, perhaps, because of their race, or pursued by an unreasoning public clamor-have found, and will continue to find, security against official oppression, the cruelty of mobs, the machinations of falsehood, and the malevolence of private persons who would use the machinery of the law to bring ruin upon their personal enemies. 'The grand juries perform,' says STORY, 'most important public functions, and are a great security to the citizens against vindictive prosecutions, either by the government or by political partisans, or by private enemies.' Story, Const. § 1785.

To the evidence already adduced of the necessity and value of that system, I may add the testimony of Mr. Justice WILSON, formerly of this court, and one of the foremost of the great men who have served the cause of constitutional government. He said that 'among all the plans and establishments which have been devised for securing the wise and uniform execution of the criminal laws, the institution of grand juries holds the most distinguished place. This institution is, at least in the present times, the peculiar boast of the common law. The era of its commencement, and the particulars attending its gradual progress and improvement, are concealed behind the thick veil of a very remote antiquity. Bit one thing concerning it is certain: In the annals of the world there is not found another institution so well adapted for avoiding all the inconveniences and abuses which would otherwise arise from malice, from rigor, from negligence, or from partiality in the prosecution of crimes.' 3 Wilson's Works, 363, 364.

Mr. Justice FIELD, referring to the ancient origin of the grand jury system in England, said that it was, 'at the time of the settlement of this country, an informing and accusing tribunal, without whose previous action no person charged with a felony could, except in certain special cases, be put upon his trial. And in the struggles which at times arose in England between the powers of the king and the rights of the subject, it often stood as a barrier against persecution in his name, until, at length, it came to be regarded as an institution by which the subject was rendered secure against oppression from unfounded prosecutions of the crown. In this country, from the popular character of our institutions, there has seldon been any contest between the government and the citizen, which required the existence of the grand jury as a protection against oppressive action of the government. Yet the institution was adopted in this country, and is continued from considerations similar to those which give to it its chief value in England, and is designed as a means, not only of bringing to trial persons accused of public offenses upon just grounds, but also as a means of protecting the citizen against unfounded accusation, whether it comes from government or be prompted by partisan passion or private enmity.' 2 Sawy. 668, 669. He quoted with approval the observations of a distinguished judge to the effect that 'into every quarter of the globe in which the Anglo-Saxon race have formed settlements they have carried with them this time-honored institution, ever regarded it with the deepest veneration, and connecting its perpetuity with that of civil liberty.' 'In their independent action,' said the same jurist, 'the persecuted found the most fearless protectors, and in the records of their doings are to be discovered the noblest stands against the oppressions of power, the virulence of malice, and the intemperance of prejudice.'

We have already seen that for centuries before the adoption of our present constitution, due process of law, according to the maxims of Magna Charta and the common law,-the interpreters of constitutional grants of power,-which even the British parliament with all its authority could not rightfully disregard, (Cooley, Const. Lim. 175,) absolutely forbade that any person should be required to answer for his life except upon indictment or presentment of a grand jury. And we have seen that the people of the original states deemed it of vital importance to incorporate that principle into our own constitution, not only by requiring due process of law in all proceedings involving life, liberty, or property, but by specific and express provision giving immunity from prosecution, in capital cases, except by that mode of procedure.

To these considerations may be added others of very great significance. When the fourteenth amendment was adopted all the states of the Union-some in terms, all substantially-declared, in their constitution, that no person shall be deprived of life, liberty, or property otherwise than 'by the judgment of his peers or the law of the land,' or 'without due process of law.' When that amendment was adopted the constitution of each state, with few exceptions, contained, and still contains, a bill of rights, enumerating the rights of life, liberty, and property, which cannot be impaired or destroyed by the legislative department. In some of them, as in those of Pennsylvania, Kentucky, Ohio, Alabama, Illinois, Arkansas, Florida, Mississippi, Missouri, and North Carolina, the rights so enumerated were declared to be embraced by 'the general, great, and essential principles of liberty and free government;' in others, as in those of Connecticut, in 1818, and Kansas, in 1857, to be embraced by 'the great and esssential principles of free government.' Now, it is a fact of momentous interest in this discussion, that, when the fourteenth amendment was submitted and adopted, the bill of rights and the constitutions of 27 states expressly forbade criminal prosecutions, by information, for capital cases; while in the remaining 10 states such prosecutions were impliedly forbidden by a general clause declaring that no person should be deprived of life otherwise than by 'the judgment of his peers or the law of the land,' or 'without due process of law.' It may be safely affirmed that, when that amendment was adopted, a criminal prosecution, by information, for a crime involving life, was not permitted in any one of the states composing the Union. So that the court, in this case, while conceding that the requirement of due process of law protects the fundamental principles of liberty and justice, adjudges, in effect, that an immunity or right, recognized at the common law to be essential to personal security, jealously guarded by our national constitution against violation by any tribunal or body exercising authority under the general government, and expressly or impliedly recognized, when the fourteenth amendment was adopted, in the bill of rights or constitution of every state in the Union, is yet not a fundamental principle in governments established, as those of the states of the Union are, to secure to the citizen liberty and justice, and therefore is not involved in due process of law as required by that amendment in proceedings conducted under the sanction of a state. My sense of duty constrains me to dissent from this interpretation of the supreme law of the land.


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of such State, or (B) which affects trade, traffic, transportation, or commerce described in clause (A). (4) The terms "distribute in commerce" and "distribution in commerce"' when used to describe an action taken with respect to a chemical substance or mixture or article containing a substance or mixture mean to sell, or the sale of, the substance, mixture, or article in commerce; to introduce or deliver for introduction into commerce, or the introduction or delivery for intr-oduction into commerce of, the substance, mixture, or article; or to hold, or the holding of, the substance, mixture, or article after its introduction into commerce. (5) The term "environment" includes water, air, and land and the i interrelationship which exists among and between water, air, and land and all living things. (6) The term "health and safety study" means any study of any effect of a chemical substance or mixture on health or the environment or on both, including underlying data and epidemiological studies, studies of occupational exposure to a chemical substance or mixture, toxicological, clinical, and ecological studies of a chemical substance or mixture, and any test performed pursuant to this Act. (7) The term "manufacture" means to import into the customs territory of the United States (as defined in general headnote 2 of the Tariff Schedules of the United States), produce, or manufacture. 19 USC 1202. (8) The term "mixture" means any combination of two or more chemical substances if the combination does not occur in nature and is not, in whole or in part, the result of a chemical reaction; except that such term does include any combination which occurs, in whole or in part, as a result of a chemical reaction if none of the chemical substances comprising the combination is a new chemical substance and if the combination could have been manufactured for commercial purposes without a chemical reaction at the time the chemical substances comprising the combination were combined. (9) The term "new chemical substance" means any chemical substance which is not included in the chemical substance list compiled and published under section 8(b). Post, p. 2027. (10) The term "process" means the preparation of a chemical substance or mixture, after its manufacture, for distribution in commerce— (A) in the same form or physical state as, or in a different form or physical state from, that in which it was received by the person so preparing such substance or mixture, or (B) as part of an article containing the chemical substance .;;:;>• or mixture. (11) The term "processor" means any person who processes a chemical substance or mixture. (12) The term "standards for the development of test data" means a prescription of— (A) the— (i) health and environmental effects, and (ii) information relating to toxicity, persistence, and other characteristics which affect health and the environment, for which test data for a chemical substance or mixture are to be developed and any analysis that is to be performed on such data, and (B) to the extent necessary to assure that data respecting such effects and characteristics are reliable and adequate— (i) the manner in which such data are to be developed, (ii) the specification of any test protocol or methodology to be employed in the development of such data, and

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15 USC 2603.

Rules.

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(iii) such other requirements as are necessary to provide such assurance. (13) The term " State " means any State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, the Canal Zone, American Samoa, the Northern Mariana Islands, or any other territory or possession of the United States. (14) The term "United States", when used in the geographic sense, means all of the States. SEC. 4. TESTING OF CHEMICAL SUBSTANCES AND MIXTURES. (a) TESTING REQUIREMENTS.—If the Administrator finds that— (1)(A)(i) the manufacture, distribution in commerce, proc~^ essing, use, or disposal of a chemical substance or mixture, or that any combination of such activities, may present an unreasonable risk of injury to health or the environment, (ii) there are insufficient data and experience upon which the effects of such manufacture, distribution in commerce, processing, use, or disposal of such substance or mixture or of any combination of such activities on health or the environment can reasonably be determined or predicted, and (iii) testing of such substance or mixture with respect to such effects is necessary to develop such d a t a; or (B)(i) a chemical substance or mixture is or will be produced in substantial quantities, and (I) it enters or may reasonably be anticipated to enter the environment in substantial quantities or ( II) there is or may be significant or substantial human exposure to such substance or mixture, (ii) there are insufficient data and experience upon which the effects of the manufacture, distribution in commerce, processing, use, or disposal of such substance or mixture or of any combination of such activities on health or the environment can reasonably be determined or predicted, and (iii) testing of such substance or mixture with respect to such effects is necessary to develop such d a t a; and (2) in the case of a mixture, the effects which the mixture's manufacture, distribution in commerce, processing, use, or disposal or any combination of such activities may have on health or the environment may not be reasonably and more efficiently determined or predicted by testing the chemical substances which comprise the m i x t u r e; the Administrator shall by rule require that testing be conducted on such substance or mixture to develop data with respect to the health and environmental effects for which there is an insufficiency of data and experience and which are relevant to a determination that the manufacture, distribution in commerce, processing, use, or disposal of such substance or mixture, or that any combination of such activities, does or does not present an unreasonable risk of injury to health or the environment. (b)(1) TESTING REQUIREMENT RULE. — A rule under subsection (a)

shall include— (A) identification of the chemical substance or mixture for which testing is required under the rule, Standards for (B) standards for the development of test data for such subdevelopment of stance or mixture, and test data. (C) with respect to chemical substances which are not new Data, submittal to chemical substances and to mixtures, a specification of the period Administrator. (which period may not be of unreasonable duration) within

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 PUBLIC LAW 94-469—OCT. 11, 1976 which the persons required to conduct the testing shall submit to the Administrator data developed in accordance with the standards referred to in subparagraph (B). In determining the standards and period to be included, pursuant to subparagraphs (B) and (C), in a rule under subsection (a), the Administrator's considerations shall include the relative costs of the various test protocols and methodologies which ma^ be required under the rule and the reasonably foreseeable availability of the facilities and personnel needed to perform the testing required under the rule. Any such rule may require the submission to the Administrator of preliminary data during the period prescribed under subparagraph (C). (2)(A) The health and environmental effects for which standards for the development of test data may be prescribed include carcinogenesis, mutagenesis, teratogenesis, behavioral disorders, cumulative or synei'i^istic effects, and any other effect which may present an unreasonable risk of injury to health or the environment. The characteristics of chemical substances and mixtures for which such standards may be prescribed include persistence, acute toxicity, subacute toxicity, chronic toxicity, and any other characteristic which may present such a risk. The methodologies that may be prescribed in such standards include epidemiologic studies, serial or hierarchical tests, in vitro tests, and whole animal tests, except that before prescribing epidemiologic studies of employees, the Administrator shall consult with the Director of the National Institute for Occupational Safety and Health. (B) From time to time, but not less than once each 12 months, the Administrator shall review the adequacy of the standards for development of data prescribed in rules under subsection (a) and shall, if necessary, institute proceedings to make appropriate revisions of such standards. (3)(A) A rule under subsection (a) respecting a chemical substance or mixture shall require the persons described in subparagraph (B) to conduct tests and submit data to the Administrator on such substance or mixture, except that the Administrator may permit two or more of such persons to designate one such person or a qualified third party to conduct such tests and submit such data on behalf of the persons making the designation. (B) The following persons shall be required to conduct tests and submit data on a chemical substance or mixture subject to a rule under subsection (a): (i) Each person who manufactures or intends to manufacture such substance or mixture if the Administrator makes a finding described in subsection (a)(1)(A) (ii) or (a)(1)(B) (ii) with respect to the manufacture of such substance or mixture. (ii) Each pereon who processes or intends to process such substance or mixture if the Administrator makes a finding described in subsection (a)(1)(A) (ii) or (a)(1)(B) (ii) with respect to the processing of such substance or mixture. (iii) Each person who manufactures or processes or intends to manufacture or process such substance or mixture if the Administrator makes a finding described in subsection (a)(1)(A) (ii) or (a)(1)(B) (ii) with respect to the distribution in commerce, use, or disposal of such substance or mixture. (4) Any rule under subsection (a) requiring the testing of and submission of data for a particular chemical substance or mixture shall expire at the end of the reimbursement period (as defined in subsection (c)(8)(B)) which is applicable to test data for such substance or mixture unless the Administrator repeals the rule before such date;

90 STAT. 2007

Consultations.

Review of standards.

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 90 STAT. 2008

Oral presentation and written submissions. Transcript. Publication.

Application.

Fair and equitable reimbursement.

Rules.

PUBLIC LAW 94-469—OCT. 11, 1976 and a rule under subsection (a) requiring the testing of and submission of data for a category of chemical substances or mixtures shall expire with respect to a chemical substance or mixture included in the category at the end of the reimbursement period (as so defined) which is applicable to test data for such substance or mixture unless the Administrator before such date repeals the application of the rule to such substance or mixture or repeals the rule. (5) Rules issued under subsection (a) (and any substantive amendment thereto or repeal thereof) shall be promulgated pursuant to section 553 of title 5, United States Code, except that (A) the Administrator shall give interested persons an opportunity for the oral presentation of data, views, or arguments, in addition to an opportunity to make written submissions; (B) a transcript shall be made of any oral presentation; and (C) the Administrator shall make and publish with the rule the findings described in paragraph (1)(A) or (1)(B) of subsection (a) and, in the case of a rule respecting a mixture, the finding described in paragraph (2) of such subsection. (c) ExEMPTioisr.— (1) Any person required by a rule under subsection (a) to conduct tests and submit data on a chemical substance or mixture may apply to the Administrator (in such form and manner as the Administrator shall prescribe) for an exemption from such requirement. (2) If, upon receipt of an application under paragraph (1), the Administrator determines that— (A) the chemical substance or mixture with respect to which such application was submitted is equivalent to a chemical substance or mixture for which data has been submitted to the Administrator in accordance with a rule under subsection (a) or for which data is being developed pursuant to such a rule, and (B) submission of data by the applicant on such substance or mixture would be duplicative of data which has been submitted to the Administrator in accordance with such rule or which is being developed pursuant to such rule, the Administrator shall exempt, in accordance with paragraph (3) or (4), the applicant from conducting tests and submitting data on such substance or mixture under the rule with respect to which such application v>'as submitted. (3)(A) If the exemption under paragraph (2) of any person from the requirement to conduct tests and submit test data on a chemical substance or mixture is granted on the basis of the existence of previouslv submitted test data and if such exemption is granted during the reimbursement period for such test data (as prescribed by subparagraph (B)), then (unless such person and the persons referred to in clauses (i) and (ii) agree on the amount and method of reimbursement) the Administrator shall order the person granted the exemption to provide fair and equitable reimbursement (in an amount determined under rules of the Administrator) — (i) to the person who previously submitted such test data, for a portion of the costs incurred by such person in complying with the requirement to submit such data, and (ii) to any other person who has been required under this subparagraph to contribute with respect to such costs, for a portion of the amount such person was required to contribute. In promulgating rules for the determination of fair and equitable reimbursement to the persons described in clauses (i) and (ii) for costs incurred with respect to a chemical substance or mixture, the Administrator shall, after consultation with the Attorney General

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 PUBLIC LAW 94-469—OCT. 11, 1976 and the Federal Trade Commission, consider all relevant factors, including the effect on the competitive position of the person required to provide reimbursement in relation to the person to be reimbursed and the share of the market for such substance or mixture of the person required to provide reimbursement in relation to the share of such market of the persons to be reimbursed. An order under this subparagraph shall, for purposes of judicial review, be considered final agency action. (B) For purposes of subparagraph (A), the reimbursement period for any test data for a chemical substance or mixture is a period— (i) beginning on the date such data is submitted in accordance with a rule promulgated under subsection (a), and (ii) ending— (I) five years after the date referred to in clause (i), or (II) at the expiration of a period which begins on the date referred to in clause (i) and which is equal to the period which the Administrator determines was necessary to develop such data, whichever is later. (4)(A) If the exemption under paragraph (2) of any person from the requirement to conduct tests and submit test data on a chemical substance or mixture is granted on the basis of the fact that test data is being developed by one or more persons pursuant to a rule promulgated under subsection (a), then (unless such person and the persons referred to in clauses (i) and (ii) agree on the amount and method of reimbursement) the Administrator shall order the person granted the exemption to provide fair and equitable reimbursement (in an amount determined under rules of the Administrator)— (i) to each such person who is developing such test data, for a portion of the costs incurred by each such person in complying with such rule, and (ii) to any other person who has been required under this subparagraph to contribute with respect to the costs of complying with such rule, for a portion of the amount such person was required to contribute. In promulgating rules for the determination of fair and equitable reimbursement to the persons described in clauses (i) and (ii) for costs incurred with respect to a chemical substance or mixture, the Administrator shall, after consultation with the xittorney General and the Federal Trade Commission, consider the factors described in the second sentence of paragraph (3)(A). An order under this subparagraph shall, for purposes of judicial review, be considered final agency action. (B) If any exemption is granted under paragraph (2) on the basis of the fact that one or more persons are developing test data pursuant to a rule promulgated under subsection (a) and if after such exemption is granted the Administrator determines that no such person has complied with such rule, the Administrator shall (i) after providing written notice to the person who holds such exemption and an opportunity for a hearing, by order terminate such exemption, and (ii) notify in writing such person of the requirements of the rule with respect to which such exemption was granted. (d) NOTICE.—Upon the receipt of any test data pursuant to a rule under subsection (a), the Administrator shall publish a notice of the receipt of such data in the Federal Register within 15 days of its receipt. Subject to section 14, each such notice shall (1) identify the chemical substance or mixture for which data have been received; (2) list the uses or intended uses of such substance or mixture and the

90 STAT. 2009

Reimbursement period.

Publication in Federal Register.

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information required by the applicable standards for the development of test data; and (3) describe the nature of the test data developed. Post, p. 2034. Except as otherwise provided in section 14, such data shall be made available by the Administrator for examination by any person. Committee to (e) PRIORITY LIST,— (1)(A) There is established a committee to make make recommendations to the Administrator respecting the chemical recommendations substances and mixtures to which the Administrator should give to priority consideration for the promulgation of a rule under subsecAdministrator. tion (a). In making such a recommendation with respect to any chemical substance or mixture, the committee shall consider all relevant factors, including— (i) the quantities in which the substance or mixture is or will be manufactured, (ii) the quantities in which the substance or mixture enters or will enter the environment, (iii) the number of individuals who are or will be exposed to the substance or mixture in their places of employment and the duration of such exposure, (iv) the extent to which human beings are or will be exposed to the substance or mixture, (v) the extent to which the substance or mixture is closely related to a chemical substance or mixture which is known to present an unreasonable risk of injury to health or the environment, (vi) the existence of data concerning the effects of the substance or mixture on health or the environment, (vii) the extent to which testing of the substance or mixture may result in the development of data upon which the effects of the substance or mixture on health or the environment can reasonably be determined or predicted, and (viii) the reasonably foreseeable availability of facilities and personnel for performing testing on the substance or mixture. RecommendaThe recommendations of the committee shall be in the form of a list tions, list of of chemical substances and mixtures which shall be set forth, either by chemical individual substance or mixture or by groups of substances or mixsubstances and tures, in the order in which the committee determines the Administramixtures. tor should take action under subsection (a) with respect to the substances and mixtures. In establishing such list, the committee shall give priority attention to those chemical substances and mixtures which are known to cause or contribute to or which are suspected of causing or contributing to cancer, gene mutations, or birth defects. The committee shall designate chemical substances and mixtures on the list with respect to which the committee determines the Administrator should, within 12 months of the date on which such substances and mixtures are first designated, initiate a proceeding under subsection (a). The total number of chemical substances and mixtures on the list which are designated under the preceding sentence may not, at any time, exceed 50. Publication in (B) As soon as practicable but not later than nine months after Federal Register; the effective date of this Act, the committee shall publish in the Fedtransmittal to eral Register and transmit to the Administrator the list and designaAdministrator. tions required by subparagraph (A) together with the reasons for the committee's inclusion of each chemical substance or mixture on the list. At least every six months after the date of the transmission to the Administrator of the list pursuant to the preceding sentence, the committee shall make such revisions in the list as it determines to be necessary and shall transmit them to the Administrator together with the comPublication in mittee's reasons for the revisions. Upon receipt of any such revision, Federal Register.

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the Administrator shall publish in the Federal Register the list with such revision, the reasons for such revision, and the designations made under subparagraph (A). The Administrator shall provide reasonable Comments. opportunity to any interested person to file with the Administrator written comments on the committee's list, any revision of such list by the committee, and designations made by the committee, and shall make such comments available to the public. Within the 12-month Publication in period beginning on the date of the first inclusion on the list of a Federal Register. chemical substance or mixture designated by the committee under subparagraph (A) the Administrator shall with respect to such chemical substance or mixture either initiate a rulemaking proceeding under subsection (a) or if such a proceeding is not initiated within such period, publish in the Federal Register the Administrator's reason for not initiating such a proceeding. (2)(A) The committee established by paragraph (1)(A) shall con- Membership. sist of eight members as follows: (i) One member appointed by the Administrator from the Environmental Protection Agency. (ii) One member appointed by the Secretary of Labor from officers or employees of the Department of I^bor engaged in the Secretary's activities under the Occupational Safety and Health Act of 1970. (iii) One member appointed by the Chairman of the Council on Environmental Quality from the Council or its officer's or employees. (iv) One member appointed by the Director of the National Institute for Occupational Safety and Health from officers or employees of the Institute. (v) One member appointed by the Director of the National Institute of Environmental Health Sciences from officers or employees of the Institute. (vi) One member appointed by the Director of the National Cancer Institute from officers or employees of the Institute. (vii) One member appointed by the Director of the National Science Foundation from officers or employees of the Foundation, (viii) One member appointed by the Secretary of Commerce from officers or employees of the Department of Commerce. (B)(i) An appointed member may designate an individual to serve on the committee on the member's behalf. Such a designation may be made only with the approval of the applicable appointing authority and only if the individual is from the entity from which the member was appointed. (ii) No individual may serve as a member of the committee for more than four years in the aggregate. If any member of the committee leaves the entity from which the member was appointed, such member may not continue as a member of the committee, and the member's position shall be considered to be vacant. A vacancy in the committee shall be filled in the same manner in which the original appointment was made. (iii) Initial appointments to the committee shall be made not later than the 60th day after the effective date of this Act. Not later than the 90th day after such date the members of the committee shall hold a meeting for the selection of a chairperson from among their number. (C)(i) No member of the committee, or designee of such member, shall accept employment or compensation from any person subject to any requirement of this Act or of any rule promulgated or order issued thereunder, for a period of at least 12 months after termination of service on the committee.

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