528 HARVARD LAW REVIEW, within any of the prohibitions of the Federal Constitution. No question can of course arise except under the Fourteenth Amend- ment, as the first ten Amendments impose no restrictions on the State legislatures. And ** due process of law," as used in the Fourteenth Amendment, does not require that modes of trial in all the States shall be the same, or that in any particular State they shall remain the same. A right to a jury trial in a particular case may be given in one State, and not in another; and such a right may be abolished without violating the prohibitions of that Amendment.-^ So far as judicial proceedings are concerned, its provisions seem to secure merely the right to a fair trial in a court of justice according to the modes of proceeding which under the laws of the State then in force are applicable.^ That there was no violation of the right to such a trial by the liquor nuisance statutes we are discussing seems to have been the only point decided in Schmidt v. Cobb,^ Kansas v. Ziebold,* Kidd v. Pearson,^ and Eilenbecker v. District Court of Plymouth County.^ Upon what seems to be the settled construction of ** due pro- cess of law," as used in the Fourteenth Amendment, these deci- sions are very likely correct. But the question arising under the State Constitutions is quite different. These were adopted not as a restraint upon many States with diverse systems of procedure, but with reference to but one jurisdiction, in which presumably the main features of practice both in criminal and in civil proceedings were well settled. " Due process of law," or the '* law of the land," as here used, may, therefore, well be given a more restricted meaning, preserving the right to a jury trial in cases in which it was well established. In the words of Chief Justice Shaw, — . "These terms, in this connection, cannot, we think, be used in their most bald and literal sense to mean the law of the land at the time of the trial ; because the laws may be shaped and altered by the legislature, from time to time ; and such a provision intended to prohibit the making of any law impairing the ancient rights and liberties of the subject would under such a construction be wholly nugatory and void. The legislature 1 Walker 7/. Sauvinet, 92 U. S, 90; Missouri v. Lewis, loi U. S. 22, 31, semble ; Hallinger v. Davis, 146 U. S. 314. See also Hurtado v. California, no U. S. 516, 534. 2 Davidson v. New Orleans, 96 U. S. 97 ; Hurtado v. California, no U. S. 516 i Hallinger v. Davis, 146 U. S. 314. 8 119U. S. 286. 6 128 U.S. I.
- 123 U. S. 623. 6 134 u. S. 31.
