[Cite as Maxwell v. Dow, 176 U.S. 581 (1899). NOTE: This decision concerns whether the Fifth Amendment right to grand jury clause and Sixth Amendment right to trial by jury were "privileges and immunities" of the Fourteenth Amendment and made enforceable against State action. Commenting on different Supreme Court opinions which held various individual rights to be unenforceable against state infringement, the majority opinion cites Pressor "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." (P. 597) Justice Harlan argued in his dissenting opinion that the Constitution was opposed because "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." To counter this opposition, amendments were promised "to guard against the infringement ... of the essential rights of American freemen.... These amendments have ever since been regarded as the National Bill of Rights." Harlan enumerates "some of those amendments" but does not mention the Second or Seventh Amendments. (P. 607. Compare Justice Harlan's dissent in Poe v. Ullman, 367 U.S. 497, 542-543 (1961) (list of individual rights includes the right to arms and similarly omits others.)) See also P. 615 where Justice Harlan writes, "To say of any people that they do not enjoy those [first ten amendments] is to say they do not enjoy real freedom."]
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[paragraph continued from previous page] 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 (p.599)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 (p.600)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 (p.601)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 (p.602)as explanatory of the grounds upon which the members voted in adopting it. United States v. Trans-Missouri Freight Association, 166 U.S. 290, 318; Dunlap v. United States, 173 U.S. 65, 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 trial by 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 (p.603)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. 262; Holden v. Hardy, 169 U.S. 366, 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, 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, 535, and cases cited." See also for statement (p.604)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, 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 [paragraph continues next page]
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