vailing, it was “due” simply by virtue of the expressed sense of the legislature of each State, and there is no ground for saying that the sense, as then expressed, was taken, as to each State, as an immutable standard, or that a subsequent expression would not have as great effect. The United States Constitution gives its protection to every person as viewed from the national stand-point, and when it establishes a right, State lines disappear, and the measure of that right must be the same wherever, within the Nation’s boundaries, it is called in question. It may be fearlessly asserted that if one State can lawfully proceed to try a criminal in a certain way, any other State may, in the discretion of its law-makers, do the same, although that mode was adopted by the one before, and by the other after, the Fourteenth Amendment became the law of the land.
The foregoing expressions of the Supreme Court and of its individual members seem, therefore, to point clearly to the conclusion that the provision in question does not necessitate a trial by jury. This opinion is confirmed by the authority of Judge Cooley, who, in his edition of “Story’s Commentaries on the Constitution,” says that, so far as the first ten amendments are concerned, “The States, in the enforcement of their own laws for the preservation of peace and order, may dispense with the grand jury if the legislature shall so provide; and they may make all State offences triable before a single judge, instead of by a jury, if that mode of trial shall be thought most politic or most conducive to justice. And no more under the fourteenth article than previously can the federal government interfere with the mode prescribed for the trial of State offences: whatever is established will be due process of law, so that it be general and impartial in operation, and disregard no provision of federal or State constitution.” § 1947.
But it may be urged that although trial by jury is not required, trial by a partial or biased jury is prohibited; that trial by any legally authorized and impartial tribunal may be due process of law, but that trial by a body prepossessed against the accused would not be.
This argument is not without force; while the sound discretion of legislators may deem it expedient, and equally or better calculated to secure justice, that a single judge or a bench of judges should decide all criminal cases rather than a jury, and may, by the
