The Waite Court (1874–88)


CourtSpeak: Hurtado v. California Grand Jury Rights Case (1884)

Justice Stanley Matthews (majority): “We are unable to say that the substitution for a presentment or indictment by a grand jury of the proceeding by information after examination and commitment by a magistrate, certifying to the probable guilt of the defendant, with the right on his part to the aid of counsel, and to the cross-examination of the witnesses produced for the prosecution, is not due process of law.”

Justice John Marshall Harlan (dissenting): “Does not the fact that the people of the original states required an amendment of the national constitution, securing exemption from prosecution for a capital offense, except upon the indictment or presentment of a grand jury, prove that, in their judgment, such an exemption was essential to protection against accusation and unfounded prosecution, and therefore was a fundamental principle in liberty and justice?”


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