were bound to proceed by jury trial. As said by Mr. Justice Field in the course of his dissenting opinion in Neal v. Delaware, 103 U. S. 370, a case not turning on this point, before the amendment no one would have doubted but that “it was competent for the States to dispense completely with juries, and to require all suits, civil and criminal, to be determined without their aid” (p. 405). See, also, Story’s Commentaries on the Constitution, 4th ed., § 1947. Since, therefore, there was no privilege to trial by jury inherent in citizens of free States, such privilege, if any there is, must either be directly created by the Constitution or by the amendment in question.
It is almost needless to repeat here that the first ten amendments did not apply to the several States; and the fact that while it was deemed expedient to restrict the federal government the States were left free, is cogent to show both that there was no inherent right, else the federal government need not have been restrained, and that the States were meant to be at perfect liberty, as otherwise they would have been restricted also. Nor can it be contended that since citizens of the United States, when tried in federal courts, could claim this right, it was a privilege or immunity of such citizens, and therefore included in the phrase in the Fourteenth Amendment; for, if this right guaranteed by the Sixth Amendment has become a limitation on State authority, then equally has the right to be tried for felony only after indictment or presentment by a grand jury, and this latter proposition was expressly denied in Hurtado v. California, 110 U. S. 516.
It follows, therefore, that, if a right to trial by jury in criminal cases is guaranteed by the Constitution of the United States, it is solely by virtue of the requirement that no State shall deprive any person of life, liberty, or property, without due process of law.
Few more difficult questions have ever arisen than that of defining the phrase “due process of law;” indeed it may well be deemed impossible to frame a definition that shall cover all possible cases, and, as Judge Miller has said in his often-quoted opinion in Davidson v. New Orleans, 96 U. S. 97, . . . “there is wisdom, we think, in the ascertaining of the intent and application of such an important phrase in the Federal Constitution, by the gradual process of judicial inclusion and exclusion, as the cases presented for decision shall require, with the reasoning on which such decisions may be founded” (p. 104.)
