Commonwealth v. Whitney

108 Mass. 5

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1871
• Status: Published

Opinion

Morton, J.

The fifth section of chapter 173 of the General Statutes provides that, “ if the appellant fails to enter and prosecute his appeal,' he shall be defaulted on his recognizance, if any was taken, and the superior court may award sentence against him for the offence whereof he was convicted, in like manner as if he had been convicted in that court.” The defendant contends that, this section is unconstitutional, because it violates the twelfth article of the Bill of Rights, which provides 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.”

This objection cannot be sustained. It has been the uniform practice of the legislature, since the adoption of the Constitution, to pass laws regulating the mode in which the rights secured to the sxxbject by the Bill of Rights and Constitution shall be enjoyed. And if the subject neglects to comply with these regulations, he thereby waives his constitutional privileges. Jones v. Robbins, 8 Gray, 329, 341. Commonwealth v. Walton, 11 Allen, 238, 240. The statute in question falls within this principle. It gives any person convicted before a jxxstice of the peace or police court the right to appeal to the superior coxrrt and to have a trial by jxxry, and makes regulations which are reasonable and necessary as to the mode in which he may enter and prosecute his appeal. Gen. Sts. c. 173, §§ 1—5. If he neglects so to enter and prosecute his appeal, he waives his right of a trial by jury, and the provision of the fifth section, that he may thereupon be defaulted and sentenced, is not unconstitutional.

The objection, that this statute violates the provisions of the sixth article of amendment of the Constitution of the United States,'cannot prevail. This article is a restriction upon the government of the United States only, and does not apply to the laws of the several states. Jones v. Rollins, 8 Gray, 329. Commonwealth v. Hitchings, 5 Gray, 482 Exceptions overruled.