lowing out this line in Butchers’ Union Co. v. Crescent City Co., 111 U. S. 746, he said, “It does not limit the subjects upon which the States can legislate. . . . It only inhibits discriminating and partial enactments, favoring some to the impairment of the rights of others” (p. 759). Mr. Justice Bradley alone appears to have gone further and regarded the amendment as securing a larger class of rights.
Prof. Pomeroy concludes that the restricted view of the majority was erroneous, and that, while not formally overruled, its soundness may well be doubted; but he states the object to have been “to afford the same protection to all persons as citizens of the United States against local oppressive laws, which the Constitution originally afforded to all persons in their character as citizens of the several States; Const. Law, 3d ed., p. 528, thus, like Judge Field, assimilating the provision to Article IV. Sect. 2, Cl. 1.
Perhaps the true test is that stated by Judge Cooley in his Constitutional Principles, p. 246, that “Whatever one may claim as of right under the Constitution and laws of the United States by virtue of his citizenship, is a privilege of a citizen of the United States.” In the same work, p. 245, he says, “The line of distinction between the privileges and immunities of citizens of the United States and those of citizens of the several States must be traced along the boundary of their respective spheres of action, and the two classes must be as different in their nature as are the functions of their respective governments.” And he is of opinion that it may be doubtful whether the amendment has imposed any additional limitations on the powers of the States, a view in which that very discriminating foreign writer, Von Holst, in his Constitutional Law of the United States, p. 250, agrees.
In any aspect it seems clear that the amendment creates no new privileges and immunities as to judicial proceedings, except such as are included in the phrase “due process of law.” If prior to the amendment the States were at liberty to try offences as they pleased, they are so still, so long as they act by due process of law. If prior to the amendment the Constitution contained no express limitation, and there was no inherent right to trial by jury, so that a State could, if it pleased, abolish that form of proceeding, that power remains, unless taken away by the express language of the amendment.
It has never been seriously asserted that formerly the States
