Maxwell v. Dow

176 U.S. 581

Case Year: 1900

Case Ruling: 8-1, Affirmed

Opinion Justice: Peckham

FACTS

At issue in Maxwell were the antics of Charles L. "Gunplay" Maxwell, who robbed a Utah bank in 1898. Under that state's newly adopted constitution, an individual charged with a noncapital offense, such as armed robbery, could be tried by a jury of eight persons instead of the traditional twelve, and no provision was made for a defendant's right to a grand jury hearing. After an eight-person jury found him guilty and he was sentenced to eighteen years in prison, Maxwell hired J.W.N Whitecotton, an experienced criminal lawyer, to represent him in the state supreme court. Whitecotton argued that the state's denial of grand jury proceedings and its jury trial system deprived Maxwell of his federal Fifth and Sixth Amendment rights, which should be incorporated under the Fourteenth Amendment's Due Process Clause and the amendment's Privileges or Immunities Clause. Utah's highest court rejected this claim, and Maxwell filed for a writ of error with the U.S. Supreme Court, asking the justices to rectify contradictions in the Court's incorporation jurisprudence.

 

MR. JUSTICE PECKHAM DELIVERED THE OPINION OF THE COURT:

... 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.... The case has since been frequently approved....

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....

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.... 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....

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 offenses, 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....

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....

... ['P]privileges and immunities,'... it is said in the Slaughter-House 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 Slaughter-House Cases is that of Bradwell v. Illinois, 16 Wall. 130, 21 L. ed. 442, where it is held that the right to practise 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, 22 L. ed. 627, 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 2d, article fourth, of the Constitution, it was said by the present Chief Justice, in Cole v. Cunningham ... 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, 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 every-one, white or black, that comes within its provisions. But, as said in the Slaughter-House Cases, the protection of the citizen in his rights as a citizen of the state still remains with the state....

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 offense, 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. Such privileges or immunities do not arise out of the nature or essential character of the national government....

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 immunites 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.[T]he amendment does not preclude the states by their constitutions and laws 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...

In Re Kemmler, 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 was 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, 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...

In O'Neil v. Vermont, it was stated that as a general question it has always been ruled that the Eighth Amendment to the Constitution of the United States does not apply 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....

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. 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 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....

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....

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.

DISSENTING OPINION BY MR. JUSTICE HARLAN.

... 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, 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....

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 soldiers shall, in time of peace, be quartered in any house, without the consent of the owner, nor in time of war, 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 offense 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 withnesses in his favor, and to have the assistance of counsel for his defense;' and by the Eighth, 'excessive bail shall not be required 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 tranquillity, provide for the common defense, 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 inpaired or destroyed by the national government....

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 shall be deprived of life, liberty, or property without due process of law,' this court said in Den ex dem. Murray v. Hoboken Land & Improv. Co. '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....

... When, therefore, the Fourteenth Amendment forbade the deprivation by any state of life, liberty, or property without due process of law, the intention was to prevent any state from infringing the guaranties 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 due 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, B. & Q. R. Co. v. Chicago....

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 that 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 citizens 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....

I dissent from the opinion and judgment of the court.