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Page:Harvard Law Review Volume 1.djvu/325

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between civil and criminal cases, is perceived, since deprivation of life, liberty, and property are classed together.

While there is no express decision, indications are not wanting of the opinion of the court that in criminal as in civil proceedings it is within the discretion of each State to regulate the matter for itself. Such was understood by Mr. Justice Harlan, dissenting, to be the effect of the opinion given in Hurtado v. California, supra; and in Ex parte Virginia, 100 U.S. 339, and Neal v. Delaware, 103 U.S. 370. Mr. Justice Field supported his dissenting opinions by arguments founded on the power of the several States prior to the Fourteenth Amendment to have abolished jury trials, and declared that that power still existed. It is worthy of note, also, that in Strauder v. West Virginia, 100 U.S. 303, Mr. Justice Strong referred the right of trial by jury to the State, and not to the National constitution. So, too, in Missouri v. Lewis, 101 U.S. 22, Mr. Justice Bradley, who in the Slaughter-House Cases evinced a disposition to carry the effect of the amendment further than any other member of the court, observed: “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.” “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.” 101 U.S. 31.

The last sentence clearly implies that trial by jury is not a requisite of due process of law, for it is to be borne in mind that, in relation to the federal Constitution, what is due process of law in one State will, if actually sanctioned by the local laws, be so in another. It cannot be made legal to try a criminal without a jury in California if it cannot equally be made legal in Maine. The right to due process of law is a national right, and must conform to a national standard; a form of proceeding does not meet that standard merely by virtue of its having been in use in a particular State prior to the creation of the right. No one has ever contended that the amendment was to crystallize the procedure of each State as it was found when the amendment became operative. If due process rested on the actual practice then pre-