Maxwell v. Dow 176 U.S. 581 (1900)
MAXWELL v. DOW 176 U.S. 581 (1900)
This case was decided at a time when the Court was subjecting the fourteenth amendment to an accordionlike motion, expanding substantive due process to protect the rights of property and contracting procedural due process for persons accused of crime. After hurtado v. california (1884), when the Court held that the concept of due process did not guarantee indictment by grand jury, persons accused of crime resorted to the incorporation doctrine, claiming that the Fourteenth Amendment, through either its due process clause or its privileges and immunities clause, incorporated provisions of the bill of rights, thus extending to the states the same trial standards. Utah accused Maxwell by an information, rather than an indictment, and tried him by a jury of eight rather than twelve. The Fifth and sixth amendments would have made such procedures unconstitutional in federal courts. Maxwell argued that the Fourteenth Amendment guaranteed the federal standards in state proceedings. Justice john marshall harlan, dissenting, adopted Maxwell's arguments. Justice rufus peckham, for the remainder of the Court, held that neither the due process nor the privileges and immunities clause of the Fourteenth Amendment embodied Fifth or Sixth Amendment rights. Peckham also ruled that trial by jury "has never been affirmed to be a necessary requisite of due process of law" and that an eight-member jury was constitutional. In 1968 duncan v. louisiana, overruling Maxwell, held trial by jury to be a fundamental right of due process of law for persons accused of crime, but under today's constitutional law, the jury size need not be twelve members in a state proceeding.
Leonard W. Levy