HURTADO v. CALIFORNIA 110 U.S. 516 (1884)

due process of law reached a watershed in Hurtado. For centuries due process had stood for a cluster of specific procedures associated especially with trial by jury. Sir edward coke, for example, explicitly associated due process with indictment by grand jury. The bill of rights enumerated many of the rights that the concept of due process spaciously accommodated. The fourteenth amendment's due process clause was copied verbatim from the Fifth Amendment, where the same clause sat cheek-by-jowl with a number of specific guarantees that due process had embodied as a common law concept. The framers of the Fifth Amendment had added the due process clause as an additional assurance, a rhetorical flourish, and a genuflection toward the traditions of magna carta. In Hurtado, the Supreme Court began to whittle away at the conventional meanings of procedural due process and did not pause until moore v. dempsey (1923).

California tried and convicted Hurtado on an information for murder, filed by his prosecutor. He claimed that because the state had denied him indictment by grand jury, it had violated the due process clause of the Fourteenth Amendment. The Court, sustaining the conviction, 7–1, rejected Hurtado's claim on the ground that "any legal proceeding" that protects "liberty and justice" is due process. Justice stanley matthews, for the Court, reasoned that the Constitution, having been framed for an undefined and expanding future, must recognize new procedures. To hold otherwise, he said, would render the Constitution "incapable of progress and improvement. It would be to stamp upon our jurisprudence the unchangeableness attributed to the Medes and the Persians.…" Matthews also argued that no part of the Constitution was superfluous; the fact that the Fifth Amendment included both a guarantee of grand jury proceedings in federal prosecutions and the guarantee of due process showed that the latter did not mean the former.

Justice john marshall harlan, dissenting, had history on his side when he found grand jury proceedings to be an indispensable requisite of due process, but whether history should have disposed of the question is a different issue. Harlan did not think that prosecuting individuals for their lives by information inaugurated a new era of progress in the constitutional law of criminal procedure. The Court's inexorable logic, he asserted, as if asserting the unthinkable, would lead to the conclusion that due process did not even guarantee the traditional trial by jury. Later cases justified his fears.

(See maxwell v. dow.)

Leonard W. Levy
(1986)