Twice in Jeopardy. or custom of the several States to the con trary notwithstanding." Later decisions prove the assumption, in the above cases, to be an error. In 1824, in New York,1 it was thus held by the Court: "The provision of the Constitu tion of the United States, that ' cruel and unusual punishments shall not be inflicted,' is a restriction upon the national govern ment only, and does not limit the powers of the State." Again, in New York, A.D. 183 1,2 Chancellor Walworth says, " I have had occasion to examine the question how far these amendments of the Constitution of the United States were restrictive upon the power of the individual States; and the con clusion at which I arrived is, that all the amendments adopted by Congress at its first session, and afterwards sanctioned by the requisite number of States, were intended to be restrictive upon the government of the United States and upon its officers ex clusively." In Kentucky, A.D. 1829, it was held,3 that " Article IV. of the amendments to the Constitution of the United States has no application to proceedings under the authority of States." In Vermont, in the year A.D. I836,-1 Article VII. of the amend ments of the national Constitution was held to " establish a limitation to the mode of trial in the Federal courts, but not in the State courts." In the first case in Massachusetts tpuch' ' 3
Barker v. The People, 3 Cowen, 686. Livingston v. Mayor of New York, 8 Wendell, 85. Reed v. Rice, 2 J. J. Marshall, 44. State -'. Keys, 8 Vermont, 57.
-V£S
375
ing the question,1 the Court says : " It has been established by the highest authority, that those amendments of the Constitution of the United States which contain no ex pression indicative of an intention to apply them to the State governments, are restric tions upon the government of the United States only." This case is supported by other Massachusetts cases.2 The Supreme Court of the United States has also held the same to be the law,8 and likewise the courts of Connecticut* and other States.5 From the above authorities, it is quite clear that the first ten amendments to the Constitution of the United States are not re strictions upon the powers of States. The Constitution of the State of Massachusetts contains no provision that a person shall not be subject, for the same offense, to be ' twice put in jeopardy of life or limb.' I, therefore, draw my conclusion, that, since the amend ment of the Constitution of the United States does not apply, and the State Con stitution does not forbid it, the Legislature of Massachusetts has a -right to pa^s a law that, for some good reason or reasons, may compel a person to be put " twice in jeop ardy " for the same offense, and that such a law would be constitutional. 1 Commonwealth v. Hitchings, 71 Mass. 485.
- Jones v. Robbins, 74 Mass. 329; Commonwealth v.
Whitney, 108 Mass, 5. 3 Barn v. Mayor of Baltimore, 7 Pet. (U. S.) 243; Withers v. Buckley, 20 How. (U. S.) 84. 4 J. Hollister v. The Union Co. 9 Conn. 436. 5 Weimer v. Bunbury, 30 Mich. 201; Prescott v. State, 19 Ohio St. 184.
