It has sometimes been intimated that the phrase, closely following, as it does, the language of Magna Charta, must be given the same interpretation, with the result that nothing would be due process unless it retained the forms in use at that time. On the other hand, it is obvious that a proceeding is not due process merely because sanctioned by legislative authority.
The rule is best stated in the language used by Daniel Webster in the Dartmouth College Case: “By the law of the land [the phrase used in Magna Charta] is most clearly intended the general law; a law which hears before it condemns; which proceeds upon inquiry, and renders judgment only after trial. The meaning is, that every citizen shall hold his life, liberty, property, and immunities under the protection of the general rules which govern society. Everything which may pass under the form of an enactment is not therefore to be considered the law of the land. If this were so, acts of attainder, bills of pains and penalties, acts of confiscation, acts reversing judgments, and acts directly transferring one man’s estate to another, legislative judgments, decrees, and forfeitures in all possible forms, would be the law of the land.” 5 Works, 7th ed., pp. 487, 488. This is cited by Von Holst as the sound doctrine, and, in accordance with it, he declares that the prohibition applies only to the most general principles, viz.: “that no one shall be convicted unheard; that the facts alleged must be examined into; and that a decision shall be made only after a legal trial of the facts in a court of competent jurisdiction.” Constitutional Law, pp. 252, 253.
The question naturally suggests itself whether this provision necessitates a trial by jury; whether the right to this form of trial, unquestionably secured in prosecutions in the federal courts, is, by the Fourteenth Amendment, equally guaranteed in the State courts.
This point appears never to have been decided by the Supreme Court of the United States in respect to criminal cases. In Walker v. Sauvinet, 92 U. S. 90, the court held that in a civil action a jury trial was not essential to due process. Yet that the right to a jury in civil cases was regarded as of great importance is plain from the Seventh Amendment, which preserved the right in the federal jurisdiction, when the matter in dispute was more than twenty dollars; and under the constitutional provision now in question no ground for distinction in this respect,