176 U.S. 581 (1900), argued 4 Dec. 1899, decided 26 Feb. 1900 by vote of 8 to 1; Peckham for the Court, Harlan in dissent. Charles L. Maxwell challenged his conviction for robbery on two grounds: use of an information rather than indictment by a grand jury to initiate a prosecution; and trial before a jury of eight, not twelve. Both grounds, according to Maxwell, violated his privileges and immunities as protected by the Fifth and Fourteenth Amendments. He also argued that conviction by an eight-member jury violated the due process guaranteed by the Fourteenth Amendment.
Justice Rufus W. Peckham brusquely dismissed Maxwell's arguments and upheld the conviction, noting that the issues had been resolved in prior decisions. With that assertion, the Court continued to minimize the scope of the Privileges and Immunities Clause, a process begun in the Slaughterhouse Cases (1873). Any other approach, Peckham reasoned, relying on the pre-Civil War case of Corfield v. Coryell (Pa., 1823), would so “fetter and degrade the state governments by subjecting them to the control of Congress” as to violate “the structure and spirit of our institutions” (p. 590). Thus, in the Court's view, the states remained the primary protectors of most rights.
Justice John Marshall Harlan's dissent was a paean to the jury. He emphasized that at a minimum the Bill of Rights identified the privileges and immunities that the Fourteenth Amendment protected. Harlan therefore concluded that the states could not avoid the Sixth Amendment's guarantee of a trial by a jury of twelve members. He reached the same conclusion about due process, foreshadowing the Court's gradual incorporation of the Bill of Rights into the Fourteenth Amendment after World War II.
Walter F. Pratt, Jr.