U.S. Supreme Court
Maxwell
v. Dow, 176 U.S.
581 (1900)
Maxwell
v. Dow
Argued
December 4, 1899
Decided
February 26, 1900
ERROR TO THE SUPREME COURT OF THE
STATE OF UTAH
Syllabus
The decision In Hurtado v.
California, 110 U. S.
516, that the words "due process of law " in the Fourteenth
Amendment to the Constitution of the United States do not necessarily require
an indictment by a grand jury in a prosecution by a State for murder, has been
often affirmed, and is now reaffirmed and applied to this case.
The privileges and immunities of
citizens of the United States do not necessarily include all the rights
protected by the first eight amendments to the Federal Constitution against the
powers of the Federal Government.
The trial of a person accused as a
criminal by a jury of only eight persons instead of twelve, and his subsequent
imprisonment after conviction, do not abridge his privileges and immunities
under the Constitution as a citizen of the United States and do not deprive him
of his liberty without due process of law.
Whether a trial in criminal cases
not capital shall be by a jury composed of eight instead of twelve jurors, and
whether, in case of an infamous crime, a person shall be only liable to be
tried after presentment or indictment by a grand jury are proper to be
determined by the citizens of each State for themselves, and do not come within
the Fourteenth Amendment to the Constitution so long as all persons within the
jurisdiction of the State are made liable to be proceeded against by the same
kind of procedure, and to have the same kind of trial, and the equal protection
of the law is secured to them.
MR. JUSTICE PECKHAM delivered the
opinion of the court.
On the 27th of June, 1898, an
information was filed against the plaintiff in error by the prosecuting
attorney of the county, in a state court of the State of Utah, charging him
with the crime of robbery committed within the county in May, 1898. In
September, 1898, he was tried before a jury composed of but eight jurors, and
convicted and sentenced to imprisonment in the state prison for eighteen years,
and, since that time, has been confined in prison undergoing the sentence of
the state court.
In May, 1899, he applied to the
Supreme Court of the State for a writ of habeas corpus, and alleged in his
sworn petition that he was a natural-born citizen of the United States, and
that his imprisonment was unlawful because he was prosecuted under an
information instead of by indictment by a grand jury, and was tried by a jury
composed of eight instead of twelve jurors. He specially set up and claimed (1)
that to prosecute him by information abridged his privileges and immunities as
a citizen of the United States, under article 5 of the amendments to the
Constitution of the United States, and also violated section 1 of article 14 of
those amendments; (2) that a trial by jury of only eight persons abridged his
privileges and immunities as a citizen of the United States, under article 6,
and also violated section 1 of article 14 of such amendments; (3) that a trial
by such a jury and his subsequent imprisonment by reason of the verdict of that
jury deprived him of his liberty without due process of law, in violation of
section 1 of article 14, which provides that no State shall deprive any person
of life, liberty or property without due process of law.
The Supreme Court of the State, after
a hearing of the case, denied the petition for a writ, and remanded the
prisoner to the custody of the keeper of the state prison to undergo the
remainder of his sentence, and he then sued out a writ of error and brought the
case here.
The questions to be determined in
this court are, (1) as to the validity, with reference to the Federal
Constitution, of the proceeding against the plaintiff in error on an
information instead of by an indictment by a grand jury, and (2) the validity
of the trial of the plaintiff in error by a jury composed of eight, instead of
twelve, jurors.
We think the various questions
raised by the plaintiff in error have, in substance, though not all in terms,
been decided by this court in the cases to which attention will be called. The
principles which have been announced in those cases clearly prove the validity
of the clauses in the constitution of Utah which are herein attacked as in
violation of the Constitution of the United States. It will, therefore, be
necessary in this case to do but little else than call attention to the former
decisions of this court, and thereby furnish a conclusive answer to the
contentions of plaintiff in error.
The proceeding by information and
also the trial by a jury, composed of eight jurors, were both provided for by
the state constitution.
Section 13, article 1, of the
constitution of Utah provides:
"Offences heretofore required
to be prosecuted by indictment shall be prosecuted by information after
examination and commitment by a magistrate, unless the examination be waived by
the accused with the consent of the State, or by indictment, with or without
such examination and commitment. The grand jury shall consist of seven persons,
five of whom must concur to find an indictment; but no grand jury shall be
drawn or summoned unless in the opinion of the judge of the district public
interest demands it."
Section 10, article 1, of that
constitution is as follows:
"In capital cases the right of
trial by jury shall remain inviolate. In courts of general jurisdiction, except
in capital cases, a jury shall consist of eight jurors. In courts of inferior
jurisdiction a jury shall consist of
four jurors. In criminal cases the verdict shall be unanimous. In civil cases
three fourths of the jurors may find a verdict. A jury in civil cases shall be
waived unless demanded."
The objection that the proceeding by
information does not amount to due process of law has been heretofore
overruled, and must be regarded as settled by the case of Hurtado v.
California, 110 U. S.
516. The case has since been frequently approved. Hallinger
v. Davis, 146 U. S.
314, 146 U.
S. 322; McNulty v. California, 149 U. S.
645; Hodgson v. Vermont, 168 U. S.
262, 168 U.
S. 272; Holden v. Hardy, 169 U. S.
366, 169 U.
S. 384; Brown v. New Jersey, 175 U. S.
172, 175 U.
S. 176; Bolln v. Nebraska, 176 U. S.
83.
But the plaintiff in error contends
that the Hurtado case did not decide the question whether the state law
violated that clause in the Fourteenth Amendment which provides that no State
shall make or enforce any law which shall abridge the privileges or immunities
of citizens of the United States. Although the opinion is mainly devoted to an
inquiry whether the California law was a violation of the "due process
clause" of the above-mentioned amendment, yet the matter in issue in the
case was as to the validity of the state law, and the court held it valid. It
was alleged by the counsel for the plaintiff in error, before the court which
passed sentence, that the proceeding was in conflict with the Fifth and the
Fourteenth Amendments, and those grounds were before this court. The Fifth
Amendment was referred to in the opinion delivered in this court, and it was
held not to have been violated by the state law, although that amendment
provides for an indictment by a grand jury. This decision could not have been
arrived at if a citizen of the United States were entitled, by virtue of that
clause of the Fourteenth Amendment relating to the privileges and immunities of
citizens of the United States, to claim in a state court that he could not be
prosecuted for an infamous crime unless upon an indictment by a grand jury. In
a Federal court, no person can be held to answer for a capital or otherwise
infamous crime unless by indictment by a grand jury, with the exceptions stated
in the
Fifth Amendment. Yet this amendment
was held in the Hurtado case not to apply to a prosecution for murder in
a state court pursuant to a state law. The claim was made in the case (and
referred to in the opinion) that the adoption of the Fourteenth Amendment
provided an additional security to the individual against oppression by the
States themselves, and limited their powers to the same extent as the
amendments theretofore adopted had limited the powers of the Federal
Government. By holding that the conviction upon an information was valid, the
court necessarily held that an indictment was not necessary; that exemption
from trial for an infamous crime, excepting under an indictment, was not one of
those privileges or immunities of a citizen of the United States which a State
was prohibited from abridging. The whole case was probably regarded as involved
in the question as to due process of law. The particular objection founded upon
the privileges and immunities of citizens of the United States is now taken and
insisted upon in this case.
Under these circumstances, it may
not be improper to inquire as to the validity of a conviction in a state court,
for an infamous crime, upon an information filed by the proper officer under
the authority of the constitution and laws of the State wherein the crime was
committed and the conviction took place; confining the inquiry to the question
of the effect of the provision in the Fourteenth Amendment prohibiting the
States from making or enforcing any law which abridges the privileges or
immunities of citizens of the United States. To the other objection, that a
conviction upon an information deprives a person of his liberty without due
process of law, the Hurtado case is, as we have said, a complete and conclusive
answer.
The inquiry may be pursued in
connection with that in regard to the validity of the provision in the state
constitution for a trial before a jury to be composed of but eight jurors in
criminal cases which are not capital. One of the objections to this provision
is that its enforcement has abridged the privileges and immunities of the
plaintiff in error as a citizen of the United States; the other objection being
that a
conviction thus obtained has
resulted in depriving the plaintiff in error of his liberty without due process
of law. Postponing an inquiry in regard to this last objection until we have
examined the other, we proceed to inquire what are the privileges and
immunities of a citizen of the United States which no State can abridge? Do
they include the right to be exempt from trial for an infamous crime in a state
court and under state authority except upon presentment by a grand jury? And do
they also include the right in all criminal prosecutions in a state court to be
tried by a jury composed of twelve jurors?
That a jury composed, as at common
law, of twelve jurors was intended by the Sixth Amendment to the Federal
Constitution there can be no doubt. Thompson v. Utah, 170 U. S.
343, 170 U.
S. 349. And as the right of trial by jury in certain suits at common law is
preserved by the Seventh Amendment, such a trial implies that there shall be an unanimous verdict of twelve jurors in all Federal courts
where a jury trial is held. American Publishing Company v. Fisher, 166 U. S. 464;
Springville v. Thomas, 166 U. S.
707.
It would seem to be quite plain that
the provision in the Utah constitution for a jury of eight jurors in all state
criminal trials for other than capital offences violates the Sixth Amendment,
provided that amendment is now to be construed as applicable to criminal
prosecutions of citizens of the United States in state courts.
It is conceded that there are
certain privileges or immunities possessed by a citizen of the United States
because of his citizenship, and that they cannot be abridged by any action of
the States. In order to limit the powers which it was feared might be claimed
or exercised by the Federal Government under the provisions of the Constitution
as it was when adopted, the first ten amendments to that instrument were
proposed to the legislatures of the several States by the first Congress on the
25th of September, 1789. They were intended as restraints and limitations upon
the powers of the General Government, and were not intended to, and did not,
have any effect upon the powers of the respective States. This has
been many times decided. The cases
herewith cited are to that effect, and they cite many others which decide the
same matter. Spies v. Illinois, 123 U. S.
131, 123 U.
S. 166; Holden v. Hardy, 169 U. S.
366, 169 U.
S. 382; Brown v. New Jersey, 175 U. S.
172, 175 U.
S. 174.
It is claimed, however, that, since
the adoption of the Fourteenth Amendment, the effect of the former amendments
has been thereby changed and greatly enlarged. It is now urged in substance
that all the provisions contained in the first ten amendments, so far as they
secure and recognize the fundamental rights of the individual as against the
exercise of Federal power, are by virtue of this amendment to be regarded as
privileges or immunities of a citizen of the United States, and, therefore, the
States cannot provide for any procedure in state courts which could not be
followed in a Federal court because of the limitations contained in those
amendments. This was also the contention made upon the argument in the Spies
case, 123
U. S. 123 U.S. 131, 151; but in the opinion of the court therein, which was
delivered by Mr. Chief Justice Waite, the question was not decided, because it
was held that the case did not require its decision.
In the Slaughterhouse
cases, 16 Wall. 36, the subject of the privileges or immunities of citizens of
the United States, as distinguished from those of a particular State, was
treated by Mr. Justice Miller in delivering the opinion of the court. He stated
that the argument in favor of the plaintiffs, claiming that the ordinance of
the city of New Orleans was invalid, rested wholly on the assumption that the
citizenship is the same and the privileges and immunities guaranteed by the
Fourteenth Amendment are the same as to citizens of the United States and
citizens of the several States. This he showed to be not well founded; that
there was a citizenship of the United States and a citizenship of the States,
which were distinct from each other, depending upon different characteristics
and circumstances in the individual; that it was only privileges and immunities
of the citizen of the United States that were placed by the amendment under the
protection of the Federal Constitution, and that the privileges and immunities
of a citizen of a State, whatever they might be, were not
intended to have any additional protection
by the paragraph in question, but they must rest for their security and
protection where they have heretofore rested.
He then proceeded to inquire as to
the meaning of the words "privileges and immunities" as used in the
amendment, and said that the first occurrence of the phrase in our
constitutional history is found to be in the fourth article of the old
confederation, in which it was declared
"that the better to secure and
perpetuate mutual friendship and intercourse among the people of the different
States in this Union, the free inhabitants of each of these States, paupers,
vagabonds and fugitives from justice excepted, shall be entitled to all the
privileges and immunities of free citizens in the several States, and the
people of each State shall have free ingress and egress to and from any other
State, and shall enjoy therein all the privileges of trade and commerce,
subject to the same duties, impositions and restrictions as the inhabitants
thereof respectively."
A provision corresponding to this he
found in the Constitution of the United States in section 2 of the fourth
article, wherein it is provided that "the citizens of each State shall be
entitled to all the privileges and immunities of citizens of the several
States." What those privileges were is not
defined in the Constitution, but the justice said there could be but little
question that the purpose of both those provisions was the same, and that the
privileges and immunities intended were the same in each. He then referred to
the case of Corfield v. Coryell, decided by Mr. Justice Washington in
the Circuit Court for the District of Pennsylvania in 1823, 4 Washington C.C.
371, where the question of the meaning of this clause in the Constitution was
raised. Answering the question what were the privileges and immunities of
citizens of the several States, Mr. Justice Washington said in that case:
"We feel no hesitation in
confining these expressions to those privileges and immunities which are in
their nature fundamental; which belong of right to the citizens of all
free governments, and which have at all times been enjoyed by citizens of the
several States which compose this Union from the time of their becoming free,
independent and sovereign.
What these fundamental principles
are it would be more tedious than difficult to enumerate. They may, however, be
all comprehended under the following general heads: Protection by the
government; . . . The enjoyment of life and liberty with the right to acquire
and possess property of every kind, and to pursue and obtain happiness and
safety, subject, nevertheless, to such restraints as the government may
prescribe for the general good of the whole."
Having shown that, prior to the
Fourteenth Amendment, the legislation under review would have been regarded as
relating to the privileges or immunities of citizens of the State, with which
the United States had no concern, Justice Miller continued:
"It would be the vainest show
of learning to attempt to prove by citations of authority that, up to the
adoption of the recent amendments, no claim or pretense was set up that those
rights depended on the Federal government for their existence or protection
beyond the very few express limitations which the Federal Constitution imposed
upon the States -- such, for instance, as the prohibition against ex post
facto laws, bills of attainder, and laws impairing the obligation of
contracts. But, with the exception of these and a few other restrictions, the
entire domain of the privileges and immunities of citizens of the States, as
above defined, lay within the constitutional and legislative power of the
States, and without that of the Federal Government. Was it the purpose of the
Fourteenth Amendment, by the simple declaration that no State should make or
enforce any law which shall abridge the privileges and immunities of citizens
of the United States, to transfer the security and protection of all the civil
rights, which we have mentioned, from the States to the Federal Government? And
where it is declared that Congress shall have the power to enforce that
article, was it intended to bring within the power of Congress the entire
domain of civil rights heretofore belonging exclusively to the States?"
"All this and more must follow
if the proposition of the plaintiffs in error be sound. For not only are these
rights subject to the control of Congress whenever in its discretion any
of them are supposed to be abridged
by state legislation, but that body may also pass laws in advance, limiting and
restricting the exercise of legislative power by the States, in their most
ordinary and usual functions, as in its judgment it may think proper on all
such subjects. And still further, such a construction followed by the reversal
of the judgments of the Supreme Court of Louisiana in these cases, would
constitute this court a perpetual censor upon all legislation of the States, on
the civil rights of their own citizens, with authority to nullify such as it
did not approve as consistent with those rights, as they existed at the time of
the adoption of this amendment. The argument, we admit, is not always the most
conclusive which is drawn from the consequences urged against the adoption of a
particular construction of an instrument. But when, as in the case before us,
these consequences are so serious, so far-reaching and pervading, so great a
departure from the structure and spirit of our institutions; when the effect is
to fetter and degrade the State governments by subjecting them to the control
of Congress in the exercise of power heretofore universally conceded to them of
the most ordinary and fundamental character; when, in fact, it radically
changes the whole theory of the relations of the State and Federal governments
to each other and of both these Governments to the people; the argument has a
force that is irresistible in the absence of language which expresses such a
purpose too clearly to admit of doubt. We are convinced that no such results
were intended by the Congress which proposed these amendments, nor by the
legislatures of the States which ratified them."
If the rights granted by the
Louisiana legislature did not infringe upon the privileges or immunities of
citizens of the United States, the question arose as to what such privileges
were, and in enumerating some of them, without assuming to state them all, it
was said that a citizen of the United States, as such, had the right to come to
the seat of government to assert claims or transact business, to seek the
protection of the government or to share its offices; he had the right of free
access to its seaports, its various offices throughout the country, and to the
courts of justice in the several States; to demand
the care and protection of the
General Government over his life, liberty and property when on the high seas or
within the jurisdiction of a foreign government; the right, with others, to
peaceably assemble and petition for a redress of grievances; the right to the
writ of habeas corpus, and to use the navigable waters of the United States,
however they may penetrate the territory of the several States; also all rights
secured to our citizens by treaties with foreign nations; the right to become
citizens of any State in the Union by a bona fide residence therein,
with the same rights as other citizens of that State, and the rights secured to
him by the Thirteenth and Fifteenth amendments to the Constitution. A right
such as is claimed here was not mentioned, and we may suppose it was regarded
as pertaining to the State, and not covered by the amendment.
Other objections to the judgment
were fully examined, and the result was reached that the legislation of the
State of Louisiana complained of violated no provision of the Constitution of
the United States.
We have made this extended reference
to the case because of its great importance, the thoroughness of the treatment
of the subject, and the great ability displayed by the author of the opinion.
Although his suggestion that only discrimination by a State against the negroes
as a class or on account of their race was covered by the amendment as to the
equal protection of the laws has not been affirmed by the later cases, yet it
was but the expression of his belief as to what would be the decision of the
court when a case came before it involving that point. The opinion upon the
matters actually involved and maintained by the judgment in the case has never
been doubted or overruled by any judgment of this court. It remains one of the
leading cases upon the subject of that portion of the Fourteenth Amendment of
which it treats.
The definition of the words
"privileges and immunities," as given by Mr. Justice Washington, was
adopted in substance in Paul v.
Virginia, 8 Wall. 168, 75 U.
S. 180, and in Ward v.
Maryland, 12 Wall. 418, 79 U.
S. 430. These rights, it is said in the Slaughterhouse cases, have
always been held to be the class of
rights which the State Governments
were created to establish and secure.
In the same volume as the Slaughterhouse
cases is that of Bradwell v.
The State, 16 Wall. 130, where it is held that the right to practice
law in the courts of a State is not a privilege or immunity of a citizen of the
United States within the meaning of the Fourteenth Amendment. And in Minor v. Happersett, 21 Wall. 162, it was held that the
right of suffrage was not necessarily one of the privileges or immunities of
citizenship before the adoption of the Fourteenth Amendment, and although a
woman was in one sense a citizen of the United States, yet she did not obtain
the right of suffrage by the adoption of that amendment. The right to vote is a
most important one in our form of government, yet it is not given by the
amendment.
In speaking of the meaning of the
phrase "privileges and immunities of citizens of the several States"
under section second, article fourth of the Constitution, it was said by the
present Chief Justice, in Cole v. Cunningham, 133 U. S.
107, that the intention was
"to confer on the citizens of
the several States a general citizenship, and to communicate all the privileges
and immunities which the citizens of the same State would be entitled to under
the like circumstances, and this includes the right to institute actions."
And in Blake v. McClung, 172 U. S.
239, 172 U.
S. 248, various cases are cited regarding the meaning of the words
"privileges and immunities," under the fourth article of the
Constitution, in not one of which is there any mention made of the right
claimed in this case as one of the privileges or immunities of citizens in the
several States.
These cases show the meaning which
the courts have attached to the expression, as used in the fourth article of
the Constitution, and the argument is not labored which gives the same meaning
to it when used in the Fourteenth Amendment.
That the primary reason for that
amendment was to secure the full enjoyment of liberty to the colored race is
not denied, yet it is not restricted to that purpose, and it applies to
everyone,
white or black, that comes within
its provisions. But, as said in the Slaughterhouse cases, the protection
of the citizen in his rights as a citizen of the State still remains with the
State. This principle is again announced in the decision in United States v.
Cruikshank, 92 U. S.
54, wherein it is said that sovereignty for the protection of the rights of
life and personal liberty within the respective States rests alone with the
States. But if all these rights are included in the phrase "privileges and
immunities" of citizens of the United States which the States, by reason
of the Fourteenth Amendment, cannot in any manner abridge, then the sovereignty
of the State in regard to them has been entirely destroyed, and the Slaughterhouse
cases and United States v. Cruikshank are all wrong, and should be
overruled.
It was said in Minor v. Happersett, supra, that the amendment did not add to
the privileges and immunities of a citizen; it simply furnished an additional
guaranty for the protection of such as he already had. And in In re Kemmler,
136 U.
S. 436, 136 U.
S. 448, it was stated by the present Chief Justice that
"The Fourteenth Amendment did
not radically change the whole theory of the relations of the state and Federal
governments to each other, and of both governments to the people. The same
person may be at the same time a citizen of the United States and a citizen of
a State. Protection to life, liberty and property rests primarily with the
States, and the amendment furnishes an additional guaranty against any
encroachment by the States upon those fundamental rights which belong to
citizenship, and which the state governments were created to secure. The
privileges and immunities of citizens of the United States, as distinguished
from the privileges and immunities of citizens of the States, are indeed
protected by it; but those are privileges and immunities arising out of the nature
and essential character of the National government, and granted or secured by
the Constitution of the United States. United States v. Cruikshank, 92 U. S. 542; Slaughterhouse
cases, 16 Wall. 36."
In Cooley's Constitutional
Limitations (4th ed. p. 497, marginal page 397), the author says:
"Although the precise meaning
of 'privileges and immunities' is not very conclusively settled as yet, it
appears to be conceded that the Constitution secures in each State to the
citizens of all other States the right to remove to and carry on business
therein; the right by the usual modes to acquire and hold property, and to
protect and defend the same in the law; the right to the usual remedies for the
collection of debts and the enforcement of other personal rights, and the right
to be exempt, in property and person, from taxes or burdens which the property
or persons of citizens of the same State are not subject to."
There is no intimation here that
among the privileges or immunities of a citizen of the United States are the
right of trial by jury in a state court for a state offence and the right to be
exempt from any trial for an infamous crime unless upon presentment by a grand
jury. And yet, if these were such privileges and immunities, they would be
among the first that would occur to anyone when enumerating or defining them.
Nor would these rights come under the description given by the Chief Justice in
the Kemmler case, supra. Such privileges or immunities do not
arise out of the nature or essential character of the National Government.
In Walker v. Sauvinet,
92 U. S.
90, it was held that a trial by jury in suits at common law in the state
courts was not a privilege or immunity belonging to a person as a citizen of
the United States, and protected, therefore, by the Fourteenth Amendment. The
action was tried without a jury by virtue of an act of the legislature of the
State of Louisiana. The plaintiff in error objected to such a trial, alleging
that he had a constitutional right to a trial by jury, and that the statute was
void to the extent that it deprived him of that right. The objection was
overruled. Mr. Chief Justice Waite, in delivering the opinion of the court,
said:
"By article 7 of the
amendments, it is provided that, 'in suits at common law, where the value in
controversy shall exceed twenty dollars, the right of trial by jury shall be
preserved.' This, as has been many times decided, relates only to trials in the
courts of the United States. Edwards v. Elliott,
21 Wall.
532, 88 U. S. 557. The
States, so far as this amendment is concerned, are left to regulate trials in
their own courts in their own way. A trial by jury in suits at common law
pending in the state courts is not, therefore, a privilege or immunity of
national citizenship, which the States are forbidden by the Fourteenth
Amendment to abridge. A State cannot deprive a person
of his property without due process of law, but this does not necessarily imply
that all trials in the state courts affecting the property of persons must be
by jury. This requirement of the Constitution is met if the trial is had
according to the settled course of judicial proceedings. Murray's Lessee v.
Hoboken Land & Improvement Co., 18 How. 272, 59 U. S. 280. Due
process of law is process due according to the law of the land. This process in
the States is regulated by the law of the State. Our power over that law is
only to determine whether it is in conflict with the supreme law of the land --
that is to say, with the Constitution and laws of the United States made in
pursuance thereof -- or with any treaty made under the authority of the United
States."
This case shows that the Fourteenth
Amendment, in forbidding a State to abridge the privileges or immunities of
citizens of the United States, does not include among them the right of trial
by jury in a civil case, in a state court, although the right to such a trial
in the Federal courts is specially secured to all persons in the cases
mentioned in the Seventh Amendment.
Is anyone of the rights secured to
the individual by the Fifth or by the Sixth Amendment any more a privilege or
immunity of a citizen of the United States than are those secured by the
Seventh? In none are they privileges or immunities granted and belonging to the
individual as a citizen of the United States, but they are secured to all
persons as against the Federal Government, entirely irrespective of such
citizenship. As the individual does not enjoy them as a privilege of
citizenship of the United States, therefore, when the Fourteenth Amendment
prohibits the abridgment by the States of those privileges or immunities which
he enjoys as such citizen, it is not correct or reasonable to say that it
covers and extends to
certain rights which he does not
enjoy by reason of his citizenship, but simply because those rights exist in
favor of all individuals as against Federal governmental powers. The nature or
character of the right of trial by jury is the same in a criminal prosecution
as in a civil action, and in neither case does it spring from nor is it founded
upon the citizenship of the individual as a citizen of the United States, and
if not, then it cannot be said that, in either case, it is a privilege or
immunity which alone belongs to him as such citizen.
So it was held in the oyster
planting case, McCready v. Virginia, 94 U. S.
391, that the right which the people of that State acquired to appropriate
its tidewaters and the beds therein for taking and cultivating fish was but a
regulation of the use, by the people, of their common property, and the right
thus acquired did not come from their citizenship alone, but from their
citizenship and property combined. It was, therefore, a property right, and not
a mere privilege or immunity of citizenship, and, for that reason, the citizen
of one State was not invested by the Constitution of the United States with any
interest in the common property of the citizens of another State.
This was a decision under another
section of the Constitution (section second of article fourth) from the one
under discussion, and it gives to the citizens of each State all privileges and
immunities of citizens of the several States, but it is cited for the purpose
of showing that, where the privilege or immunity does not rest alone upon
citizenship, a citizen of another State does not participate therein.
In this case, the privilege or
immunity claimed does not rest upon the individual by virtue of his national
citizenship, and hence is not protected by a clause which simply prohibits the
abridgment of the privileges or immunities of citizens of the United States.
Those are not distinctly privileges or immunities of such citizenship, where
everyone has the same as against the Federal Government, whether citizen or
not.
The Fourteenth Amendment, it must be
remembered, did not add to those privileges or immunities. The Sauvinet case is an authority in favor of the
contention that the amendment
does not preclude the States, by
their constitutions and law, from altering the rule as to indictment by a grand
jury or as to the number of jurors necessary to compose a petit jury in a
criminal case not capital.
The same reasoning is applicable to
the case of Kennard v. Louisiana, 92 U. S.
480, although that case was decided with special reference to the "due
process of law" clause.
In Kemmler's case, 136 U. S.
436, it was stated that it was not contended, and could not be, that the
Eighth Amendment to the Federal Constitution was intended to apply to the
States. This is said long after the adoption of the Fourteenth Amendment, and
also subsequent to the making of the claim that, by its adoption, the
limitations of the preceding amendments had been altered and enlarged so as, in
effect, to make them applicable to proceedings in the state courts.
In Presser v. Illinois, 116 U. S.
22, it was held that the Second Amendment to the Constitution, in regard to
the right of the people to bear arms, is a limitation only on the power of
Congress and the National Government, and not of the States. It was therein
said, however, that, as all citizens capable of bearing arms constitute the reserved
military force of the National Government, the States could not prohibit the
people from keeping and bearing arms, so as to deprive the United States of
their rightful resource for maintaining the public security and disable the
people from performing their duty to the General Government.
In O'Neil v. Vermont, 144 U. S.
323, 144 U.
S. 332, it was stated that, as a general question, it has always been ruled
that the Eighth Amendment to the Constitution of the United States do not apply
to the States.
In Thorington
v. Montgomery, 147 U. S.
490, it was said that the Fifth Amendment to the Constitution operates
exclusively in restraint of Federal power, and has no application to the
States.
We have cited these cases for the
purpose of showing that the privileges and immunities of citizens of the United
States do not necessarily include all the rights protected by the first eight
amendments to the Federal Constitution against the
powers of the Federal Government.
They were decided subsequently to the adoption of the Fourteenth Amendment, and
if the particular clause of that amendment now under consideration had the
effect claimed for it in this case, it is not too much to say that it would
have been asserted and the principles applied in some of them.
It has been held that the last
clause of the Seventh Amendment, which provides that no fact tried by a jury
shall be otherwise reexamined in any court of the United States than according
to the rules of the common law, is not confined to trials by jury in Federal
courts, but applies equally to a cause tried before a jury in a state court and
brought thence before a Federal court. The
Justices v. Murray, 9 Wall. 274; Chicago, Burlington &c.
Railroad v. Chicago, 166 U. S.
226; Capital Traction Company v. Hof, 174 U. S. 1.
But these decisions only carry out the idea that the amendment is a restraint
upon Federal power, and not upon the power of the State, inasmuch as they
declare that the clause restricts the right of the Federal courts to reexamine
the facts found by a jury in a state court, as well as in a Federal one.
In Missouri v. Lewis, 101 U. S.
22, it was held that the clause of the Fourteenth Amendment which prohibits
a State from denying to any person the equal protection of the laws did not
thereby prohibit the State from prescribing the jurisdiction of its several
courts either as to their territorial limits or the subject matter or amount or
finality of their respective judgments or decrees; that a State might establish
one system of law in one portion of its territory and another system in
another, provided it did not encroach upon the proper jurisdiction of the
United States, nor abridge the privileges or immunities of citizens of the
United States, nor deny to any person within its jurisdiction the equal
protection of the laws in the same district, nor deprive him of his rights
without due process of law. In the course of the opinion, which was delivered
by Mr. Justice Bradley, he said:
"We might go still further and
say, with undoubted truth, that there is nothing in the Constitution to prevent
any State from adopting any system of laws or judicature it sees fit for
all or any part of its territory. If
the State of New York, for example, should see fit to adopt the civil law and
its method of procedure for New York City and the surrounding counties, and the
common law and its method of procedure for the rest of the State, there is
nothing in the Constitution of the United States to prevent its doing so. This
would not, of itself, within the meaning of the Fourteenth Amendment, be a
denial to any person of the equal protection of the laws. If every person
residing or being in either portion of the State should be accorded the equal
protection of the laws prevailing there he could not
justly complain of a violation of the clause referred to. For, as before said,
it has respect to persons and classes of persons. It means that no person or
class of persons shall be denied the same protection of the laws which is
enjoyed by other persons or other classes in the same place and under like
circumstances. The Fourteenth Amendment does not profess to secure to all persons
in the United States the benefit of the same laws and the same remedies. Great
diversities in these respects may exist in two States separated only by an
imaginary line. On one side of this line, there may be a right of trial by
jury, and, on the other side, no such right. Each State prescribes its own
modes of judicial proceeding. If diversities of laws and judicial proceedings
may exist in the several States without violating the equality clause in the
Fourteenth Amendment, there is no solid reason why there may not be such
diversities in different parts of the same State. A uniformity which is not
essential as regards different States cannot be essential as regards different
parts of a State, provided that, in each and all, there is no infraction of the
constitutional provision. Diversities which are allowable in different States
are allowable in different parts of the same State. Where part of a State is
thickly settled, and another part has but few inhabitants, it may be desirable
to have different systems of judicature for the two portions -- trial by jury
in one, for example, and not in the other. Large cities may require a
multiplication of courts and a peculiar arrangement of jurisdictions. It would
be an unfortunate restriction of the powers of the state government if it could
not, in its
discretion, provide for these
various exigencies. If a Mexican State should be acquired by treaty and added
to an adjoining State or part of a State in the United States, and the two
should be erected into a new State, it cannot be doubted that such new State
might allow the Mexican laws and judicature to continue unchanged in the one
portion, and the common law and its corresponding judicature in the other
portion. Such an arrangement would not be prohibited by any fair construction
of the Fourteenth Amendment. It would not be based on any respect of persons or
classes, but on municipal considerations alone, and a regard for the welfare of
all classes within the particular territory or jurisdiction."
Although this case was principally
discussed under that clause of the Fourteenth Amendment which prohibits a State
from denying to any person within its jurisdiction the equal protection of the
laws, yet the application of the amendment with regard to the privileges or
immunities of citizens of the United States was also referred to, and if it had
been supposed that it secured to a citizen of the United States, when proceeded
against under state authority, all the privileges and immunities set forth in
the first eight amendments to the Federal Constitution, Mr. Justice Bradley
could not, in the course of his opinion in the case, have said that a trial by
jury might exist as a right in one State and not exist in another. Trial by
jury would in such case have been protected under the Fourteenth Amendment,
because it was granted to all persons by article six in all criminal
prosecutions in the Federal courts, and by article seven in civil actions at
common law where the value in controversy should exceed twenty dollars. On the
contrary, it was stated that great diversity in these respects might exist in
two States separated only by an imaginary line, on one side of which there
might be a right of trial by jury, and, on the other side, no such right. Each
State, it was said, prescribes its own modes of judicial procedure. The
decision of this case was by a unanimous court, and the remarks of the justice
are wholly irreconcilable with the existence of a right of trial by jury in a
state court which was guaranteed and protected by the Fourteenth Amendment,
notwithstanding the
denial of such right by and under
the constitution and laws of the State.
The principle to be deduced from
these various cases is that the rights claimed by the plaintiff in error rest
with the state governments, and are not protected by the particular clause of
the amendment under discussion. What protection may be afforded the individual
against state legislation or the procedure in state courts or tribunals under other
clauses of the amendment we do not now inquire, as what has been heretofore
said is restricted to the particular clause of that amendment which is now
spoken of, the privileges or immunities of citizens of the United States.
Counsel for plaintiff in error has
cited from the speech of one of the Senators of the United States, made in the
Senate when the proposed Fourteenth Amendment was under consideration by that
body, wherein he stated that among the privileges and immunities which the
committee having the amendment in charge sought to protect against invasion or
abridgment by the States were included those set forth in the first eight
amendments to the Constitution, and counsel has argued that this court should
therefore give that construction to the amendment which was contended for by
the Senator in his speech.
What speeches were made by other
Senators, and by Representatives in the House, upon this subject is not stated
by counsel, nor does he state what construction was given to it, if any, by other
members of Congress. It is clear that what is said in Congress upon such an
occasion may or may not express the views of the majority of those who favor
the adoption of the measure which may be before that body, and the question
whether the proposed amendment itself expresses the meaning which those who
spoke in its favor may have assumed that it did is one to be determined by the
language actually therein used, and not by the speeches made regarding it.
What individual Senators or
Representatives may have urged in debate in regard to the meaning to be given
to a proposed constitutional amendment or bill or resolution does not furnish a
firm ground for its proper construction, nor is it important
as explanatory of the grounds upon
which the members voted in adopting it. United States v. Trans-Missouri
Freight Association, 166 U. S.
290, 166 U.
S. 318; Dunlap v. United States, 173 U.
S. 66, 173 U.
S. 75.
In the case of a constitutional
amendment, it is of less materiality than in that of an ordinary bill or
resolution. A constitutional amendment must be agreed to not only by Senators
and Representatives, but it must be ratified by the legislatures, or by conventions,
in three-fourths of the States before such amendment can take effect. The safe
way is to read its language in connection with the known condition of affairs
out of which the occasion for its adoption may have arisen, and then to
construe it, if there be therein any doubtful expressions, in a way so far as
is reasonably possible to forward the known purpose or object for which the
amendment was adopted. This rule could not, of course, be so used as to limit
the force and effect of an amendment in a manner which the plain and
unambiguous language used therein would not justify or permit.
For the reasons stated, we come to
the conclusion that the clause under consideration does not affect the validity
of the Utah constitution and legislation.
The remaining question is whether,
in denying the right of an individual, in all criminal cases not capital, to
have a jury composed of twelve jurors, the State deprives him of life, liberty
or property, without due process of law.
This question is, as we believe,
substantially answered by the reasoning of the opinion in the Hurtado
case, supra. The distinct question was there presented whether it was
due process of law to prosecute a person charged with murder by an information
under the state constitution and law. It was held that it was, and that the
Fourteenth Amendment did not prohibit such a procedure. In our opinion the
right to be exempt from prosecution for an infamous crime, except upon a
presentment by a grand jury, is of the same nature as the right to a petit jury
of the number fixed by the common law. If the State have the power to abolish
the grand jury and the consequent proceeding by indictment, the same course of
reasoning
which establishes that right will
and does establish the right to alter the number of the petit jury from that
provided by the common law. Many cases upon the subject since the Hurtado
case was decided are to be found gathered in Hodgson v. Vermont, 168 U. S.
62; Holden v. Hardy, 169 U. S.
366, 169 U.
S. 384; Brown v.: New Jersey, 175 U. S.
172; Bolln v. Nebraska, 176 U. S.
83.
Trial by jury has never been
affirmed to be a necessary requisite of due process of law. In not one of the
cases cited and commented upon in the Hurtado case is a trial by jury
mentioned as a necessary part of such process.
In In re Converse, 137 U. S.
624, it was stated that the Fourteenth Amendment was not designed to
interfere with the power of a State to protect the lives, liberty and property
of its citizens, nor with the exercise of that power in the adjudications of
the courts of a State in administering process provided by the law of the
State.
In Caldwell v. Texas, 137 U. S.
692, it was held that no State can deprive particular persons or classes of
persons of equal and impartial justice under the law without violating the
provisions of the Fourteenth Amendment to the Constitution, and that due
process of law, within the meaning of the Constitution, is secured when the
laws operate on all alike, and no one is subjected to partial or arbitrary
exercise of the powers of government.
In Leeper v. Texas, 139 U. S.
462, 139 U.
S. 467, it was said
"that, by the Fourteenth
Amendment, the powers of States in dealing with crime within their borders are
not limited, except that no State can deprive particular persons, or class of
persons, of equal and impartial justice under the law; that law, in its regular
course of administration through courts of justice, is due process, and when
secured by the law of the State, the constitutional requirement is satisfied,
and that due process is so secured by laws operating on all alike, and not
subjecting the individual to the arbitrary exercise of the powers of government
unrestrained by the established principles of private right and distributive
justice. Hurtado v. California, 110 U. S. 516, 110 U. S. 535,
and cases cited."
See also, for statement
of the Court. as to due process of
law, the cases of Davidson v. New Orleans, 96 U. S. 97;
Hagar v. Reclamation District, 111 U. S.
701, 111 U.
S. 707. The clause has been held to extend to a proceeding conducted to
judgment in a state court under a valid statute of the State, if such judgment
resulted in the taking of private property for public use without compensation
made or secured to the owner under the conditions mentioned in the cases
herewith cited. Chicago, Burlington &c. Railroad v. Chicago, 166 U. S.
226; Backus v. Fort Street Union Depot Company, 169 U. S.
557.
It has also been held not to impair
the police power of a State. Barbier v.
Connolly, 113 U. S.
27.
It appears to us that the questions
whether a trial in criminal cases not capital shall be by a jury composed of
eight instead of twelve jurors, and whether, in case of an infamous crime, a
person shall only be liable to be tried after presentment or indictment of a
grand jury, are eminently proper to be determined by the citizens of each State
for themselves, and do not come within the clause of the amendment under
consideration so long as all persons within the jurisdiction of the State are
made liable to be proceeded against by the same kind of procedure and to have
the same kind of trial, and the equal protection of the laws is secured to
them. Caldwell v. Texas, 137 U. S.
692; Leeper v. Texas, 139 U. S.
462. It is emphatically the case of the people by their organic law,
providing for their own affairs, and we are of opinion they are much better
judges of what they ought to have in these respects than anyone else can be.
The reasons given in the learned and most able opinion of Mr. Justice Matthews
in the Hurtado case for the judgment therein rendered apply with equal
force in regard to a trial by a jury of less than twelve jurors. The right to
be proceeded against only by indictment and the right to a trial by twelve
jurors are of the same nature, and are subject to the same judgment, and the
people in the several States have the same right to provide by their organic
law for the change of both or either. Under this construction of the
amendment, there can be no just fear
that the liberties of the citizen will not be carefully protected by the States
respectively. It is a case of self-protection, and the people can be trusted to
look out and care for themselves. There is no reason to doubt their willingness
or their ability to do so, and when providing in their constitution and
legislation for the manner in which civil or criminal actions shall be tried,
it is in entire conformity with the character of the Federal Government that
they should have the right to decide for themselves what shall be the form and
character of the procedure in such trials, whether there shall be an indictment
or an information only, whether there shall be a jury of twelve or a lesser
number, and whether the verdict must be unanimous or not. These are matters
which have no relation to the character of the Federal Government. As was
stated by Mr. Justice Brewer in delivering the opinion of the court in Brown
v. New Jersey, 175 U. S.
172, the State has full control over the procedure in its courts, both in
civil and criminal cases, subject only to the qualification that such procedure
must not work a denial of fundamental rights or conflict with specific and
applicable provisions of the Federal Constitution. The legislation in question
is not, in our opinion, open to either of these objections.
Judged by the various cases in this
court, we think there is no error in this record, and the judgment of the
Supreme Court of Utah must, therefore, be
Affirmed.
MR. JUSTICE HARLAN, dissenting.
Under an information filed against
him in one of the courts of the State of Utah, Maxwell, the plaintiff in error,
a citizen of the United States, was convicted of the crime of robbery, and,
having been tried by a jury consisting of eight persons, was found guilty and
sentenced to confinement in the penitentiary for the term of eighteen years.
He insists that his imprisonment is
in violation of the Constitution of the United States in that he was proceeded
against by information -- not by indictment or presentment of a grand
jury -- and was tried for an
infamous crime by a jury composed of less than twelve persons.
By its opinion and judgment just
rendered, this court holds that neither the prosecution by information nor the
trial by eight jurors was in violation of the Constitution of the United
States.
Upon the first point, I do not care
to say anything. For, in Hurtado v. California, 110 U. S.
516, this court held that a state enactment authorizing the prosecution by
information for the crime of murder in the first degree -- the penalty for such
crime being death -- was not in violation of the Constitution of the United
States. The principles there announced have been reaffirmed in later cases. In
the Hurtado case, I dissented from the opinion and judgment of the court
and stated fully the reasons why, in my judgment, no civil tribunal or Court,
Federal or state, could legally try a citizen of the United States for an
infamous crime otherwise than on the indictment or presentment of a grand jury.
I adhere to the views then expressed, but further discussion of the question
decided seems unnecessary.
The remaining question in the
present case is whether the trial of the accused by eight jurors is forbidden
by the Constitution of the United States.
The Fourteenth Amendment, after
declaring that all persons born or naturalized in the United States and subject
to the jurisdiction thereof are citizens of the United States and of the State
wherein they reside, provides that "no State shall make or enforce any law
which shall abridge the privileges or immunities of citizens of the United
States," nor "shall any State deprive any person of life, liberty or
property without due process of law."
What are the privileges and immunities
of "citizens of the United States"? Without attempting to enumerate
them, it ought to be deemed safe to say that such privileges and immunities
embrace at least those expressly recognized by the Constitution of the United
States and placed beyond the power of Congress to take away or impair.
When the Constitution was adopted by
the Convention of
1787 and placed before the people
for their acceptance or rejection, many wise statesmen whose patriotism no one
then questioned or now questions earnestly objected to its acceptance upon the
ground that it did not contain a Bill of Rights guarding the fundamental
guarantees of life, liberty and property against the unwarranted exercise of
power by the National Government. But the friends of the Constitution,
believing that the failure to accept it would destroy all hope for permanent
union among the people of the original States, and following the advice of
Washington, who was the leader of the constitutional forces, met this objection
by showing that, when the Constitution had been accepted by the requisite
number of States, and thereby become the supreme law of the land, such
amendments could be adopted as would relieve the apprehensions of those who
deemed it necessary, by express provisions, to guard against the infringement
by the agencies of the General Government of any of the essential rights of
American freemen. This view prevailed, and the implied pledge thus given was
carried out by the first Congress, which promptly adopted and submitted to the
people of the several States the first ten amendments. These amendments have
ever since been regarded as the National Bill of Rights.
Let us look at some of those
amendments. It is declared by the First,
"Congress shall make no law
respecting an establishment of religion, or prohibiting the free exercise
thereof, or abridging the freedom of speech or of the press, or the right of
the people peaceably to assemble and to petition the Government for a redress
of grievances;"
by the Third,
"no soldier shall in time of
peace be quartered in any house, without the consent of the owner, nor in time
of var, but in a manner to be prescribed by law"
by the Fourth,
"the right of the people to be
secure in their persons, houses, papers and effects against unreasonable
searches and seizures shall not be violated, and no warrants shall issue but
upon probable cause, supported by oath or affirmation, and particularly
describing the place to be searched, and the persons or things to be
seized;"
by the Fifth, no person shall
"be subject for the same
offence to be twice put in jeopardy of life or limb, nor shall he be compelled
in any criminal case to be a witness
against himself, nor be deprived of life, liberty or property without due
process of law, nor shall private property be taken for public use, without
just compensation;"
by the Sixth,
"in all criminal prosecutions
the accused shall enjoy the right to a speedy and public trial, by an impartial
jury of the State and district wherein the crime shall have been committed,
which district shall have been previously ascertained by law, and to be
informed of the nature and cause of the accusation, to be confronted with the
witnesses against him, to have compulsory process for obtaining witnesses in
his favor, and to have the assistance of counsel for his defence;"
and by the Eighth,
"excessive bail shall not be
nor excessive fines imposed, nor cruel and unusual punishments inflicted."
It seems to me that the privileges
and immunities enumerated in these amendments belong to every citizen of the
United States. They were universally so regarded prior to the adoption of the
Fourteenth Amendment. In order to form a more perfect union, establish justice,
insure domestic tranquility, provide for the common defence,
promote the general welfare, and secure the blessings of liberty to themselves
and their posterity, the political community known as the People of the United
States ordained and established the Constitution of the United States, and
every member of that political community was a citizen of the United States. It
was that community that adopted, in the mode prescribed by the Constitution,
the first ten amendments, and what they had in view by so doing was to make it
certain that the privileges and immunities therein specified -- the enjoyment
of which, the fathers believed, were necessary in order to secure the blessings
of liberty -- could never be impaired or destroyed by the National Government.
Now, the original Constitution
declared that "the trial of all crimes, except in cases of impeachment,
shall be by jury." This was supplemented by the Sixth Amendment, declaring
that, in all criminal prosecutions, the accused should enjoy the right to a
speedy and public trial by an impartial jury of the State and district wherein
the crime was committed. And
we have held that the jury here
referred to was a common law jury consisting of neither more or less than twelve
persons, whose unanimous verdict was necessary to acquit or convict the
accused; that a jury of less number was not admissible in any criminal trial in
the District of Columbia or in a Territory of the United States, or in any
prosecution of a criminal character in a court of the United States or in any
court organized under the authority of the United States. Callan v. Wilson,
127 U.
S. 540; Thompson v. Utah, 170 U. S.
343. We have often adjudged that the declaration in Magna Charta that the
King would not pass upon any freeman, nor condemn him "but by the lawful
judgment of his peers" referred to a jury of twelve persons.
It is not difficult to understand
why the fathers intrenched the right of trial by jury in the supreme law of the
land. They regarded the recognition and exercise of that right as vital to the
protection of liberty against arbitrary power. Mr. Hallam, in his
Constitutional History of England, after observing that liberty had been the
slow fruit of ages, said that, as early as the reign of Henry VII, one of the
essential checks upon royal power was that
"the fact of guilt or innocence
on a criminal charge was determined in a public court, and in the county where
the offence was alleged to have occurred, by a jury of twelve men, from whose
unanimous verdict no appeal could be made."
And it is an interesting fact that
the first ordinance adopted by the Plymouth Colony in 1623 was one declaring,
among other things, that "all criminal facts" should be tried
"by the verdict of twelve honest men to be impaneled by authority, in form
of a jury upon their oaths." The value of that institution was recognized
by the patriotic men of the Revolutionary period when, in the Declaration of
Independence, they complained that the King of Great Britain had deprived the
people of the Colonies in many cases of the benefits of trial by jury.
Referring to the provisions of the Federal Constitution relating to the
personal security of citizens of the United States, Kent says they
"must be regarded as
fundamental in every State, for the colonies were parties to the national
declaration of rights 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."
Upon this general subject, Mr.
Justice Story, in his Commentaries on the Constitution, has said:
"It was under the consciousness
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. And, for the most part, they thus succeeded in obtaining a
real and effective Magna Charta of their liberties. The trial by jury in all
cases, civil and criminal, was as firmly and universally established in the
Colonies as in the mother country."
1 Story's Const. § 165. Again, the
same eminent jurist says:
"It seems hardly necessary in
this place to expatiate upon the antiquity or importance of the trial by jury
in criminal cases. It was from very early times insisted on by our ancestors in
the parent country as the great bulwark of their civil and political liberties,
and watched with an unceasing jealousy and solicitude. The right constitutes
one of the fundamental articles of Magna Charta, in which it is declared, nullus homo capiatur, nec imprisonetur, aut exuletur, aut
aliquo modo destruatur,
&c.; nisi per legale judicium parium
suorum, vel per legem
terrae; no man shall be arrested, nor imprisoned, nor banished, nor
deprived of life, etc., but by the judgment of his peers, or by the law of the
land. The judgment of his peers here alluded to, and commonly called, in the
quaint language of former times, a trial per pais,
or trial by the country, is the trial by a jury, who are called the peers of
the party accused, being of the like condition and equality in the State. When
our more immediate ancestors 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. It is now incorporated into all our state
constitutions as a fundamental right, and the Constitution of the United States
would have been justly obnoxious to the most conclusive objection if it had not
recognized and confirmed it in the most solemn terms. The great object of a
trial by jury
in criminal cases is to guard
against a spirit of oppression and tyranny on the part of rulers, and against a
spirit of violence and vindictiveness on the part of the people. Indeed, it is
often more important to guard against the latter than the former."
Story's Const. § 1779. Blackstone
has said:
"A celebrated French writer,
who concludes that because Rome, Sparta and Carthage have lost their liberties,
therefore those of England in time must perish, should have recollected that
Rome, Sparta and Carthage, at the time when their liberties were lost, were
strangers to the trial by jury."
2 Bl.Com. 379. In a recent American
work on trial by jury, the author well says:
"The English colonists settled
here with a deep-rooted regard for this right. It had been, no doubt, to them
in the mother country a valuable protection. They brought it with them and
established it as one of their dearest privileges, and in every enumeration of
their rights and immunities, it takes a conspicuous place."
Again, the same author:
"Ever since Magna Charta, the
right to a trial by jury has been esteemed a peculiarly dear and inestimable
privilege by the English race, and whether, in a strictly historical view, the
right was defined or secured by that instrument or not, it was nevertheless
invariably appealed to and implicitly relied on as unalterably and inviolably
securing the right among other valuable privileges guaranteed therein. During
long centuries, when popular rights were overborne by prerogative or despotism,
those who claimed and were denied the right to such a trial founded their
demand on the guarantee of the Great Charter, and solemnly protested against
its violation when the privilege was denied them, and whenever an invasion or
violation of individual rights was threatened, the security afforded by this
guarantee was relied on as an effectual safeguard either to repel the attack or
nullify its effect."
Proffat on Jury Trials, §§ 81, 82. And this court has declared that
"the trial by jury is justly
dear to the American people. It has always been an object of deep interest and
solicitude, and every encroachment upon it has been watched with great
jealousy."
Paron v. Bedford,
3 Pet. 433, 28 U.
S. 446.
Notwithstanding this history of the
incorporation into the
Constitution of the United States of
the provision relating to trial by jury, it is now adjudged that immunity from
trial for crime except by a jury of twelve jurors is not an immunity belonging
to citizens of the United States within the meaning of the Fourteenth
Amendment.
It does not solve the question
before us to say that the first ten amendments had reference only to the powers
of the National Government, and not to the powers of the States. For if, prior
to the adoption of the Fourteenth Amendment, it was one of the privileges or
immunities of citizens of the United States that they should not be tried for
crime in any court organized or existing under National authority except by a
jury composed of twelve persons, how can it be that a citizen of the United
States may be now tried in a state court for crime, particularly for an
infamous crime, by eight jurors, when that amendment expressly declares that
"no State shall make or enforce any law which shall abridge the privileges
or immunities of citizens of the United States"? It does not meet the case
to say that a trial by eight jurors is as much a trial by jury as if there were
twelve jurors; for if a citizen charged with crime can be subjected to trial by
a less number of jurors than that prescribed by the Constitution, the number
may be reduced to three. Indeed, under the interpretation now given to the
amendment, it will, I think, be impossible to escape the conclusion that a
State may abolish trial by jury altogether in a criminal case, however grave
the offence charged, and authorize the trial of a case of felony before a single
judge. I cannot assent to this interpretation, because it is opposed to the
plain words of the Constitution and defeats the manifest object of the
Fourteenth Amendment.
I am of opinion that, under the
original Constitution and the Sixth Amendment, it is one of the privileges and
immunities of citizens of the United States that, when charged with crime, they
shall be tried only by a jury composed of twelve persons; consequently, a state
statute authorizing the trial by a jury of eight persons of a citizen of the
United States, charged with crime, is void under the Fourteenth Amendment
declaring that no State shall make or enforce any law that
"shall abridge the privileges
or immunities of citizens of the United States."
I am also of opinion that the trial
of the accused for the crime charged against him by a jury of eight persons was
not consistent with the "due process of law" prescribed by the
Fourteenth Amendment. Referring to the words in the Fifth Amendment that "no
person hall be deprived of life, liberty or property
without due process of law," this court said in Murray's
Lessee v. Hoboken, 18 How. 272, 59 U.
S. 276:
"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 was 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 two-fold. 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."
No one, I think, can produce any
authority to show that, according to the "settled usages and modes of
proceeding existing in the common and statute law of England before the
emigration of our ancestors," the trial of one accused of felony otherwise
than by a jury of twelve, or wholly without a jury, was consistent with
"due process of law." If the original Constitution had not contained
a specific prohibition of trials for crime otherwise than by a jury, the
requirement of due process of law in the Fifth Amendment would have stood in
the way of any act of Congress authorizing criminal trials in the
Federal courts in any mode except by
a common law jury. When, therefore, the Fourteenth Amendment forbade the
deprivation by any State of life, liberty or property without use process of
law, the intention was to prevent any State from infringing the guarantees for
the protection of life and liberty that had already been guarded against
infringement by the National Government.
This interpretation of the
Fourteenth Amendment finds support in some of the decisions of this court. In
addition to the clause forbidding the deprivation of property "without de process of law," there is in the Fifth Amendment a
clause specifically declaring "nor shall private property be taken for
public use without just compensation." The Fourteenth Amendment does not,
in terms, refer to the taking of private property for public use, yet we have
held that the requirement of "due process of law" in that
amendment forbids the taking of private property for public use without
making or securing just compensation. Chicago, Burlington &c. Railroad
v. Chicago, 166 U. S.
226, 166 U.
S. 233, 166 U.
S. 241; Norwood v. Baker, 172 U. S.
269, 172 U.
S. 277.
If, then, the "due process of
law" required by the Fourteenth Amendment does not allow a State to take
private property without just compensation, but does allow the life or liberty
of the citizen to be taken in a mode that is repugnant
to the settled usages and the modes of proceeding authorized at the time the
Constitution was adopted and which was expressly forbidden in the National Bill
of Rights, it would seem that the protection of private property is of more
consequence than the protection of the life and liberty of the citizen.
If the court had not ruled
otherwise, I should have thought it indisputable that, when by the Fourteenth
Amendment it was declared that no State should make or enforce any law
abridging the privileges or immunities of citizens of the United States, nor
deprive any person of life, liberty or property without due process of law, the
people of the United States put upon the States the same restrictions that had
been imposed upon the National Government in respect as well of the privileges
and immunities of citizens of the United States as of
the protection of the fundamental
rights of life, liberty and property.
The decision today rendered is very
far-reaching in its consequences. I take it no one doubts that the great men
who laid the foundations of our government regarded the preservation of the
privileges and immunities specified in the first ten amendments as vital to the
personal security of American citizens. To say of any people that they do not
enjoy those privileges and immunities is to say that they do not enjoy real
freedom. But suppose a State should prohibit the free exercise of religion; or
abridge the freedom of speech or of the press; or forbid its people from
peaceably assembling to petition the government for a redress of grievances; or
authorize soldiers in time of peace to be quartered in any house without the
consent of the owner; or permit the persons, houses, papers and effects of the
citizen to be subjected to unreasonable searches and seizures under warrants
not issued upon probable cause nor supported by oath or affirmation, nor
describing the place to be searched and the persons or things to be seized; or
allow a person to be twice put in jeopardy of life or limb; or compel the
accused to be a witness against himself; or deny to the accused the right to be
informed of the nature and cause of the accusation against him, to be
confronted with the witnesses against him, to have compulsory process for
obtaining witnesses in his favor, or to have the assistance of counsel; or
require excessive bail; or inflict cruel and unusual punishment. These or any
of these things being done by a State, this court, according to the reasoning
and legal effect of the opinion just delivered, would be bound to say that the
privileges and immunities specified were not privileges and immunities of
citizens of the United States within the meaning of the Fourteenth Amendment,
and that citizens of the United States affected by the action of the State
could not invoke the protection of that amendment or of any other provision of
the National Constitution. Suppose the State of Utah should amend its
constitution and make the Mormon religion the established religion of the
State, to be supported by taxation on all the people of Utah. Could its right
to do
so, as far as the Constitution of
the United States is concerned, be gainsaid under the principles of the opinion
just delivered? If such an amendment were alleged to be invalid under the
National Constitution, could not the opinion herein be cited as showing that
the right to the free exercise of religion was not a privilege of a
"citizen of the United States" within the meaning of the Fourteenth
Amendment? Suppose, again, a State should prescribe as a punishment for crime
burning at the stake or putting out the eyes of the accused. Would this court
have any alternative under the decision just rendered but to say that the
immunity from cruel and unusual punishments recognized in the Eighth Amendment
as belonging to every citizen of the United States was not an immunity of a
citizen within the meaning of the Fourteenth Amendment, and was not protected
by that amendment against impairment by the State? The privileges and
immunities specified in the first ten amendments as belonging to the people of
the United States are equally protected by the Constitution. No judicial
tribunal has authority to say that some of them may be abridged by the States,
while others may not be abridged. If a State can take from the citizen charged
with crime the right to be tried by a jury of twelve persons, it can, so far as
the Constitution of the United States is concerned, take away the remaining
privileges and immunities specified in the National Bill of Rights. There is no
middle position, unless it be assumed to be one of the functions of the
judiciary by an interpretation of the Constitution to mitigate or defeat what
its members may deem the erroneous or unwise action of the people in adopting
the Fourteenth Amendment. The court cannot properly say that the Constitution
of the United States does not protect the citizen when charged with crime in a
state court against trial otherwise than by a jury of twelve persons, but does
protect him against cruel and unusual punishment, or against being put twice in
jeopardy of life or limb for the same offence, or against being compelled to
testify against himself in a criminal prosecution, or in freedom of speech or
in the free exercise of religion. The right to be tried when charged with crime
by a jury of twelve persons
is placed by the Constitution upon
the same basis as the other rights specified in the first ten amendments. And
while those amendments originally limited only the powers of the National
Government in respect of the privileges and immunities specified therein, since
the adoption of the Fourteenth Amendment, those privileges and immunities are,
in my opinion, also guarded against infringement by the States.
If it be said that there need be no
apprehension that any State will strike down the guarantees of life and liberty
which are found in the National Bill of Rights, the answer is that the
plaintiff in error is now in the penitentiary of Utah as the result of a mode
of trial that would not have been tolerated in England at the time American
independence was achieved, nor even now, and would have caused the rejection of
the Constitution by every one of the original States if it had been sanctioned
by any provision in that instrument when it was laid before the people for
acceptance or rejection. Liberty, it has been well said, depends not so much
upon the absence of actual oppression as on the existence of constitutional
checks upon the power to oppress. These checks should not be destroyed or
impaired by judicial decisions. On the contrary, speaking by Mr. Justice
Bradley, we have declared in Boyd v. United States, 116 U. S.
616, 116 U.
S. 636, that "it is the duty of the courts to be watchful for the
constitutional rights of the citizen." If some of the guarantees of life,
liberty and property which at the time of the adoption of the National
Constitution were regarded as fundamental and as absolutely essential to the
enjoyment of freedom have, in the judgment of some, ceased to be of practical value,
it is for the people of the United States so to declare by an amendment of that
instrument. But, if I do not wholly misapprehend the scope and legal effect of
the present decision, the Constitution of the United States does not stand in
the way of any State striking down guarantees of life and liberty that
English-speaking people have for centuries regarded as vital to personal
security, and which the men of the Revolutionary period universally claimed as
the birthright of freemen.
I dissent from the opinion and
judgment of the court.