Page:Harvard Law Review Volume 1.djvu/329

 juror is or is not disqualified by partiality should be placed on some person or persons, and the best that can be done is to make a judicious selection in imposing the duty. Whether the matter be left to the discretion of the trial judge, as in Illinois, or be left to triers, according to the old practice, it will still, like other questions of fact or of mixed law and fact, be liable to erroneous decisions, and oftentimes equally discreet persons might differ in opinion as to whether bias was shown sufficient to disqualify or not. Shall it then be said that the whole matter is to be taken up to the Supreme Court of the United States, and that body be called upon to determine whether the evidence on voir dire as reported shows too much bias, on the ground that if it does, the accused was not given due process of law?

It is impossible to suppose that by these words is meant a correct decision of this or any other incidental question. Due process of law by a State in depriving a person of life, liberty, or property can only mean and must be taken to mean in this connection the establishment of such a system of procedure as provides for a fair trial; and if such a system is provided and acted upon by those who are intrusted with the duty, there will be no failure of due process, in the constitutional sense, although there may be a failure of justice. It consists not in reaching a right conclusion absolutely, not in trying a man by a jury utterly impartial, if partiality is in question, but in supplying the means, working as we must through human agencies, of attaining the right result; and if there is a failure owing to the defectiveness of the agencies, it is no more than often happens. Equally well might failure of a jury to arrive at the truth be deemed a lack of due process, as an error of the trial judge in determining the questions submitted to him. Neither State nor Nation can ensure that errors will not occur; and if the State has made such suitable provision as it deems best to prevent or correct errors, and has allowed the accused the benefit of those provisions, it has acquitted itself of its duties towards the nation and towards the man, and having granted him a fair opportunity for a fair trial has done all that was required.

Indeed there is much reason for the contention that the prohibition of the Fourteenth Amendment applies only to legislative action and perhaps to questions of jurisdiction. Mr. Justice Field, speaking of it in Neal v. Delaware, supra, said: “That is a provision found in all our State constitutions from the origin of the