that contention has been explicitly overruled by the supreme court, and the following points determined:

(1) Exemption from trial, in a state court and upon state authority, for an infamous crime, except on a presentment or indictment of a grand jury, as required in the federal courts by the fifth amendment to the federal constitution, is not made by the fourteenth amendment a privilege or immunity of citizens of the United States; and a prosecution of a citizen of the United States, in a state court and upon state auhority, for an infamous crime, upon an information filed against him by the proper law officer of the state, in accordance with the constitution and laws of such state, does not abridge the privileges. or immunities of such citizen of the United States, and does not deny to him any right secured to him by the federal constitution.so

(2) Exemption from trial, in a state court and upon state authority, in a criminal prosecution, except by a common law jury of twelve men, as required in the federal courts by the sixth amendment to the constitution, is not made by the fourteenth amendment a privilege or immunity of citizens of the United States; and a trial of a citizen of the United States, in a state court and upon state authority, on a criminal charge, by a jury of less than twelve men, in accordance with the constitution and laws of such state; does not abridge the privileges or immunities of such citizen of the United States, and does not deny to him any right secured to him by the federal constitution.81

(3) Exemption from capital execution by electricity under the New York statute, of a person who has been duly convicted of a capital offense under the laws of that state, is not a privilege or immunity of a citizen of the United States. $2

82

§ 266. Same Same Jury in civil cases.-A trial by jury in a civil suit at common law in the state courts is not a privilege or an immunity of national citizenship, which the states are by the fourteenth amendment forbidden to abridge.83

80 Maxwell v. Dow, 176 U. S. 581, 617 (44:597).

81 Maxwell v. Dow, 176 U. S. 581, 617 (44:597).

82 McElvaine v. Brush, 142 U. S.

155, 160 (30:971); Re Kemmler, 136 U. S. 436 (34:519).

83 Walker v. Sauvenet, 92 U. S. 90, 93 (23:678); State v. Saunders, 66 N. H. 88, 25 Atl. 595, 18 L. R. A. 656.

§ 267. Same--Same-Form of action in civil cases.-The fourteenth amendment in no way undertakes to control the power of a state to determine by what process legal rights may be asserted or legal obligations be enforced, provided the inethod of procedure adopted for these purposes gives reasonable notice and affords fair opportunity to be heard before the issues are decided. These being secured, it is not a right, privilege or immunity of a citizen of the United States to have a controversy in the state court prosecuted or determined by one form of action instead of another. And it is not a denial of a right protected by the federal constitution to refuse a trial by a jury, even though it were erroneous to construe the law of the state as justifying the refusal.s

§ 268. Corporations not citizens within the meaning of the constitutional provision.-A corporation is not a citizen within the meaning of the second clause of the first section of the fourteenth amendment to the constitution, which declares. that "no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.'

(f) NO STATE TO DEPRIVE ANY PERSON OF LIFE. LIBERTY, OR PROPERTY, WITHOUT DUE PROCESS OF LAW.

§ 269. The "due process of law" of the state-Meaning of the constitutional limitation. The third clause of the first section of the fourteenth amendment to the constitution declares. "Nor shall any state deprive any person of life, liberty, or property, without due process of law." This is a limitation upon the states; it is a prohibition upon state action, legislative, executive and judicial. The fifth amendment to the constitution declares that "no person" shall "be deprived of life, liberty, or property, without due process of law;" but

86

84 Iowa Central Railway Co. v. Iowa, 160 U. S. 389, 394 (40.467).

85 Orient Insurance Co. v. Daggs, 172 U. S. 557, 567 (43:552); Blake v. McClung, 172 U. S. 239 (43:432).

86 Hurtando v. California, 110 U. S. 516 (28:332); Maxwell v. Dow, 176 U. S. 581, 617 (44:597); Civil

Rights Cases, 109 U. S. 3, 62 (27:836); Ex parte Commonwealth of Virginia, 100 U. S. 313, 338 (25:667); Slaughter-House Cases, 16 Wall. 36 (21:394); United States v. Cruikshank, 92 U. S. 542 (23:588).

87

that amendment is a limitation upon the federal government, and is in no respect a restraint upon the states; it is a prohibition upon federal action alone. Regarding these provisions of the constitution, the following propositions are established by the adjudicated cases 88 upon the subject, viz.: (1) "Due process of law" in the fifth amendment to the constitution means that law of the land, which derives its authority from the legislative powers conferred upon congress by the constitution of the United States, exercised within the limits therein prescribed, and interpreted according to the principles of the common law. (2) "Due process of law" in the fourteenth amendment to the constitution means that law of the land in each state, which derives its authority from the inherent and reserved powers of the state, exerted within the limits of those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions, and the greatest security for which resides in the right of the people to make their own laws, and alter them at their pleasure. (3) Any legal proceeding or judicial procedure, enforced by the authority of a state, in accordance with its constitution and laws, whether sanctioned by age or custom, or newly devised in the discretion of the legislative power of the state, in furtherance of the general public good, which regards and preserves those principles of liberty and justice which lie at the base of all our civil and political institutions, must be held to be due process of law. (4) The fourteenth amendment to the constitution was not intended to establish a uniform system of judicial

87 Brown v. New Jersey, 175 U. S. 172, 177 (44:119), and authori ties cited.

88 Hurtado v. Califorria, 110 U. S. 516, 558 (28:232); McNulty v. California, 149 U. S. 648 (37:883); Hodgson v. Vermont, 168 U. S. 262, 273 (42:461); Maxwell v. Dow, 176 U. S. 581, 617 (44:597); Holden v. Hardy, 169 U. S. 366 (42:780); Brown v. New Jersey, 175 U. S. 172, 177 (44:119); Bolln v. Nebraska, 176 U. S. 83, 92 (44:382); Walker v. Sauvinet, 92 U. S. 90 (23:678); Kennard v. Louisiana,

92 U. S. 480 (23:478); Bowman v. Lewis, 101 U. S. 22 (25:989); Re Converse, 137 U. S. 624 (34:796); Caldwell v. Texas, 137 U. S. 692 (34:816); Leeper v. Texas, 139 U. S. 462 (35:225); Davidson v. New Orleans, 96 U. S. 97 (24:616); McMullen v. Anderson, 95 U. S. 37, 42 (24:335); Hager v. Reclamation District, 111 U. S. 701 (28:569); Giozza v. Tiernan, 148 U. S. 657 (37:599); Vincent v. California, 149 U. S. 648 (37:884); Duncan v. Missouri, 152 U. S. 377 (38:485).

procedure in the several states, nor to guaranty any particular forms of procedure, but to guaranty the very substance of individual rights to life, liberty and property, leaving each state to prescribe its own modes and forms of judicial procedure. (5) The fourteenth amendment forbids any arbitrary deprivation, by a state, of life, liberty, or property, and, in the administration of criminal justice, requires that no different or higher punishment shall be imposed on one than is imposed on all for like offenses; but it was not designed to interfere with the power of the state to protect the lives, liberty and property of the citizens, nor with the exercise of that power in the adjudications of the courts of a state in administering the process provided by the law of the state. (6) The powers of the states to deal with crime within their borders is not limited by the fourteenth amendment, except that no state can deprive particular persons, or classes of persons, of equal and impartial justice under the law; and law, in its regular course of administration through courts of justice is, within the meaning of the fourteenth amendment, due process of law, and when secured by the law of the state the constitutional requirement is satisfied; and due process of law 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 fundamental principles of private right and distributive justice. (7) Protection to life, liberty and property rests, primarily, with the states, and the fourteenth amendment furnishes an additional guaranty against any encroachment by the states upon those fundamental rights which belong to citizenship, and which the state governments were created to

secure.

§ 270. Same-The states control their own judicial procedure-Law a progressive science. In passing upon state legislation alleged to be in conflict with the due process clause of the fourteenth amendment to the constitution of the United States, the supreme court of the union has recognized the rational principle that the law is a progressive science, ever unfolding and expanding to meet the varying conditions and exi gencies of advancing civilization, and that, while the cardinal principles of liberty and justice are immutable, the methods. and procedure by which justice is administered are flexible and subject to constant change and readjustment; and, in con

sonance with this philosophical principle of law and government, it is settled by the decisions that the several states of the union are not tied down by the fourteenth amendment, nor by any other provision of the federal constitution, to the judicial procedure which existed at the common law, nor to the judicial procedure which has existed at any time in their own judicial systems, but each state has full control over the procedure in its own courts, both criminal and civil, subject only to the qualification that such procedure must not work a denial of fundamental rights, or conflict with specific and applicable provisions of the federal constitution, and, subject to this limitation, may avail itself of the wisdom gathered by the experience of the century and the growth and development of legal science, to make such changes in its methods of procedure, as its people, through their legislature, may deem necessary or appropriate for the conservation of their interests and the promotion of their welfare.

83

89 Hurtado v. California, 110 U. S. 516, 558 (28:232); Holden v. Hardy, 169 U. S. 366, 398 (42: 780); Brawn v. New Jersey, 175 U. S. 172, 177 (44:119).

"The concessions of Magna Charta were wrung from the king as guaranties against the oppressions and usurpations of his prerogatives. It did not enter into the minds of the barons to provide security against their own body or in favor of the commons by limiting the power of parliament; so that bills of attainder, ex post facto laws, laws declaring forfeitures of estates, and other arbitrary acts of legislation which occur so frequently in English history, were not regarded as inconsistent with the law of the land; for, notwithstanding what is attributed to Lord Coke in Bonham's Case, the omnipotence of parliament over the common law was absolute, even against common right and reason. The actual and practical security for English

liberty against legislative tyranny was the power of a free public opinion represented by the com

mons.

"In this country written constitutions were deemed essential to protect the rights and liberties of the people against the encroachments of power delegated to their governments, and the provisions of Magna Charta were incorporated into bills of rights. They were limitations upon all the powers of government, legislative as well as executive and judicial.

"It necessarily happened, therefore, that as these broad and general maxims of liberty and justice held in our system a different place and performed a different function from their position and office in English constitutional history and law, they would receive and justify a corresponding and more comprehensive interpretation. Applied in England only as guards against executive interpre