Sinclair v. State , 161 Miss. 142 ( 1931 )

It is argued by the state, and all the arguments by the state are within the contention, that there is no express prohibition contained in the Constitution against this legislation. So thoroughly considerate have the courts always been of, and so obedient to, the principle that no act of the Legislature shall be declared invalid unless clearly irreconcilable with the Constitution, that in almost all cases the courts in so declaring have placed the declaration upon some particular constitutional section. This has led to two unwarranted results: One, in the erroneous pronouncement casually made in some opinions that unless decision can be brought under some specific and express section there is no inhibition; and, the other, in the consequent straining of some section to make it cover the case, when in fact it is not true that in every case the court must be able to find some specific inhibition which has been disregarded. Cooley's Const. Lim. (8th Ed.), 355 et seq.; 6 R.C.L., page 105. "Necessarily in all Constitutions or other instruments there are certain propositions which the instruments import, as well as those which they expressly and in terms assert." Hopper v. Britt, 203 N.Y. 144, 96 N.E. 371, 372, 37 L.R.A. (N.S.) 825, Ann. Cas. 1913B, 172; Lexington v. Thompson, 113 Ky. 540, 68 S.W. 477, 57 L.R.A. 775, 101 Am. St. Rep. 361.

In view of the foregoing observations, it is our purpose to go back to that of which Constitutions are made. We would attempt to begin our inquiry with what lies at the bottom of the question, and to proceed only in that manner which will keep our feet throughout on those foundations. It is an indisputable truth that no earthly structure can exist without resting upon natural foundations — as for instance a house upon its sills, and these in some manner at last upon the ground. And thus it is that the Constitutions, state and federal, are not suspended in the air like Mohammed's coffin, but they rest upon the unchanging and unchangeable laws of nature, and upon those fundamental and indispensable principles of civil and political right without which no constitution in a civilization such as ours could permanently exist, whatever its particular provisions might be. Let us suppose that to conserve resources, the Legislature should enact that freezing weather shall be unlawful in this state, or to prevent floods, that the waters shall at certain seasons flow backward. These are things that, of course, are beyond mortal power, are controlled by the laws of nature, and as such are at the foundations of Constitutions. Blackstone says: "This law of nature, being coeval with mankind and dictated by God Himself, is, of course, superior in obligation to any other. It is binding over all the globe in all countries and at all times: No human laws are of any validity if contrary to this; and such of them as are valid derive all their force, and all their authority mediately or immediately from the original." This unimpeachable assertion is concentrated into the ancient maxim of the law, jura naturae sunt immutabilia, and are paramount or leges legum. Anderson v. Wilkins, 142 N.C. 154, 55 S.E. 272, 9 L.R.A. (N.S.) 1145, 1148; Co. Lit., section 212.

This fundamental proposition that the laws of nature are of higher authority than any human enactment, and that therefore constitutional laws, are inseparable therefrom, is as we take it, so completely self-evident that it can hardly be conceived as possible that normal minds can differ upon it. And in this day and time, it is none the less evident that the rights and securities founded upon the immutable and unyielding law of nature are equally within that higher authority. This, indeed, was the principle upon which our colonial forefathers based their fervid petitions to an arbitrary government, and upon which they appealed to arms in a successful revolution. It was the dominant and abiding principle which they had determined to preserve and did preserve in the institution by them of constitutional government in this country, and which under those Constitutions it is the inescapable duty of courts to continue to preserve and to transmit unimpaired to future generations. It is this fundamental proposition, exactly, upon which we plant our feet in this case, and in standing upon it, we have the support of that supreme authority which existed before there were books in the libraries.

On the contrary, when we speak herein of immutable, unchangeable laws, we try to make it clear that we have no direct reference to laws that have been made by human authority; and more particularly do we reject any suggestion that there shall be any necessity that this quality of unchangeableness shall have been uniformly recognized on any given question by the enactments and practices of the long dead past. For, if we turn back very far beyond the time of the migration of our ancestors to this New World, delve into the pages of ancient legal history, we will find that at one time or another there has been recognized and enforced every conceivable absurdity that barbarism could suggest or superstition would demand. Human laws have run the entire course from that tyrannical governmental conception that all power is by divine right vested in the king — even to the power of life and death upon a mere fiat, without actual offense or a hearing in respect thereto — on back to that primitive conception of the law of the feud under which the individual was a law unto himself and could, without legal restraint, enforce the private right of revenge, taking the life of one who has killed or injured a member of his family, or if not able to find the killer, then to take as a satisfaction the life of any other person in the community who might happen to be accidentally met. To use the words of a great American patriot, the rights of which we speak here "are not to be rummaged for among old parchments or musty records. They are written, as with a sunbeam, in the whole volume of human nature by the Hand of Divinity itself, and can never be erased or obscured by mortal power."

Under all sound modern conceptions, the affliction of insanity, so that a person is totally insane, is a visitation of Providence and is at the hand of God. The overwhelming and presently uncontrollable result of that visitation is such as to deprive the sufferer of the power of responsible reason, and this result, so long as the affliction lasts, is one pronounced by the decree of nature itself. And when, and so long as, deprived of the faculty of reason, the afflicted person is no more than a frame of bones and muscles, although in a physical sense he is still living and subject to the sensation of pain, and other feelings of a purely physical character. In the light of nature and nature's laws, such a person is then no more capable of committing a crime than a five year old child, or an idiot, or the insensate animal of the brute creation, and no more so than would a dead body found naked on the street be indictable for an indecent exposure. Then how can a legislative enactment, which runs counter to these determinative and overruling dispensations and ordinances of nature, be valid, and how can a Legislature make by its fiat a fact out of something which nature declares by its paramount power is not a fact — how can a Legislature change into guilt that which under the supreme law of nature is not guilt, or punish as a crime, that which nature proclaims is not a crime? This man-made statute would attempt by an arbitrary legislative declaration to insert into the equation the essential elements of volition, animus and intent, and thereby to make of a homicide by a lunatic a felonious crime, when nature, under the dictates of the Supreme Ruler of the Universe, has removed those elements in the particular case and has made it impossible for human power to insert them — has thereby made any such legislative fiat a nugatory pronouncement — void because contrary to the immutable and paramount laws of nature.

But if upon the proposition as stated in the foregoing paragraph, there could still be any difference of opinion as to the effect of the handiwork of nature in the solution of the problem, let us then place its consideration upon the proposition that insanity is a disease, and is a disease wherein the volition of the sufferer has had no responsible part in the existence of the affliction, or if any part, then one so remote that volition must disappear as a feature in the equation. Certainly, we must all agree that insanity as a disease is a work produced through the processes of nature, is thus a visitation of Providence, and is at the hand of God. But the existence of insanity is detrimental to the public welfare, to the public safety, and particularly to the public health. Suppose then that the Legislature, in the purported exercise of the police power of the state, for the promotion of the public welfare, the public safety, and of the public health, should enact a statute making it a crime for a person to be afflicted with the disease of insanity. The disease of tuberculosis is a greater curse upon the human race than insanity, and moreover is communicable. Suppose the Legislature should pass a law making the disease of tuberculosis punishable as a crime, or should enact that if any tubercular person should communicate the disease to a nurse or a member of his family and the latter die of it, the person so transmitting the disease shall be guilty of murder, regardless of any and all other circumstances. And when an insane person commits a homicide, he does no more than transmit, as one of the results of his affliction, a death-dealing but nevertheless irresponsible manifestation of that baneful disorder. It is the disease that has done it, and diseases which are the sole work of nature cannot be punished as a crime, no more than could epilepsy or blindness or curvature of the spine be denounced as penal offenses. The field of operation of the legislative power upon the diseased is amelioration and segregation, not condemnation.

We understand, of course, the worthy purpose of the Legislature in the enactment of this statute. We are conscious of the shameful abuses in the practical administration of criminal justice which have been perpetrated by means of this defense of insanity. But there have been even more abuses in the perjured pretenses of the alibi, and the latter defense is the easier to make than that of insanity. There is therefore the greater reason, from the standpoint of the elimination of fraudulent defenses, for withdrawing the alibi as a defense than there is for that of insanity. Suppose, then, that the Legislature should enact a statute that the defense of an alibi shall no longer be admitted, just as they have here enacted that the fact of insanity shall not be admitted as a defense. We would then have the situation that so long as one witness testified that the person indicted was there present and committed the homicide, this asserted fact should be conclusive and indisputable, although a hundred other witnesses stand ready to testify to the overwhelming fact that the person charged was, at the very hour and minute of the homicide, chained hands and feet in a distant part of the country, guarded day and night, by every one and all of these one hundred witnesses. What else in fundamental principle would we have there than simply a legislative fiat, contrary to that immutable law of nature that no one individual can be at two widely separated places at one and the same time?

Let us advance the inquiry a step further. Where one guilty person has escaped the law on the pretense of insanity, twenty-five have defeated justice on the false and perjured plea of self-defense. Suppose then the Legislature should enact that the plea of self-defense shall no longer be received in any court and that the same shall be and is abolished. This would be equivalent to a legislative pronouncement that a man must suffer himself to be killed by another, shall give up his own life, rather than raise his hand to defend himself, and that if he do so he shall be guilty of a crime, and, further, if the necessity of his defense be such that his assailant be killed, the killing shall be murder, and all this regardless of the circumstances. The right of self-defense is inherent in the very nature of man. It is an instinctive and ineradicable part of him. He has claimed and enforced the right in all ages of the past, and will continue to do so in all coming ages, regardless of man-made laws. What is true of man in this respect is true of the beasts of the field and of the birds of the air. This right of self-defense is the universal law of all animate nature, and is unchangeable; wherefore any law that would undertake to abolish it would be no law — it would be overruled by the superior, immutable, and all pervading law of nature.

Advancing the proposition still further, let us suppose that the Legislature should enact a statute abolishing the relation of husband and wife, and of parent and child, and should prohibit marriage and attempt to destroy the family as an institution in civil government, and then counsel would come into court demanding that some specific section of the constitution be pointed out as expressly inhibiting such legislation. The answer would be that such an enactment, as we have already mentioned, would be contrary to these fundamental and essential principles of civil rights which no Constitution in a civilization such as ours could permanently exist. What would be the good of a Constitution, and how long would it last, if the foundations of the family and the family relationship be struck from under that constitution? Our very civilization would crumble, involving everything, including the Constitution, in a barbarous and indiscriminate ruin.

And it is no answer to all we have said, to reply that we put impossible examples, cases which no Legislature would ever attempt, for, to that, there would be the rejoinder that, in the minds of many worthy and patriotic people, it would, before this particular legislation on insanity was passed, have been thought equally impossible that such an act as this could ever have been seriously proposed.

But we do not have to look, in this case, to the fundamentals of indispensable civil rights. It is enough that the legislation runs into conflict with the fundamental and paramount laws of nature. And with that latter as the premise, then there is no necessity that any particular section of the Constitution shall be advanced into view. Nevertheless, if there be such a necessity, then it would seem to be clear enough, upon the premise which we have herein maintained, that the act is in contravention of section 14 of the Constitution, the section on due process, because being contrary to paramount inhibitions or leges legum, the statute is by the same reason contrary to the fundamental law of the land, and would deprive the accused of the benefit of that law; would withdraw from the jury an essential fact inherently pertinent and vitally material; would outlaw this particular class of defendants at the very threshold of their trials.

Section 14 is elaborated upon by another concurring opinion, with which we agree so far as that section is concerned. But even if section 14 did not apply, there yet is section 32 of our Constitution, which stands as the concluding section of the bill of rights. It reads: "The enumeration of rights in this constitution shall not be construed to deny and impair others retained by, and inherent in, the people." Useless or meaningless sections were not inserted in our Constitution, nor was this section ordained to make a flourish of language. Its purpose and language are clear. The bill of rights, as well as other parts of the Constitution, contain limitations on legislative, judicial, and executive power. The makers of the Constitution were not willing to stand alone on these express limitations. By section 32 of the Constitution they said, in broad and unmistakable terms, that those express limitations on the powers, legislative, executive, and judicial, to deny or impair the rights of the people, are not all or the only limitations on such powers; that in addition to all those other limitations, there shall be the further and plenary limitation that none of these departments shall deny or impair other rights inherent in, and retained by the people. Is it not true that a right implanted in man, or a defense secured to him by the operation of nature and of nature's law, is an inherent right? To ask that question is to answer it. Whence it follows that although different minds might differ as to other sections and their particular meaning and applicability, so that if it could be said that other specific sections do not apply, there stands at last this section 32 as a final barrier to all such legislation, or the exercise of other governmental powers, as would deny inherent, immutable, indispensable, paramount rights, or would destroy the securities of such rights.

We concur, therefore, in the conclusion that the said statute is void, and that the judgment of the court, pronounced in obedience to it, is without constitutional support. Judge ANDERSON joins in the foregoing concurring opinion, and we are directed to add that Judge ETHRIDGE thinks section 32 of the Constitution prohibits the enactment of the statute, even were no other section of the Constitution violated.