A written waiver of a jury by a defendant in an action brought
by the United States to recover a penalty of fifty dollars under §
11 of the act of 1886 as amended by the Act of May 9, 1902, is not
in conflict with the laws and Constitution of the United States,
and does not invalidate the judgment.
McCray v. United States, ante, p.
195 U. S. 27,
followed as to constitutionality of the oleomargarine
legislation.
The facts are stated in the opinion of the Court.
Page 195 U. S. 66
MR. JUSTICE BREWER delivered the opinion of the Court.
The constitutionality of the oleomargarine legislation
having
Page 195 U. S. 67
been settled in
McCray v. United States, just decided,
there is in these two cases only a single question. The plaintiffs
in error were severally prosecuted by information in the District
Court of the United States for the Northern District of Illinois,
under section 11 of the Act of August 2, 1886, 24 Stat. 209, which
reads:
"That every person who knowingly purchases or receives for sale
any oleomargarine which has not been branded or stamped according
to law shall be liable to a penalty of fifty dollars for each such
offense."
In each case, the parties in writing waived a jury and agreed to
submit the issues to the court. Judgments were entered in favor of
the United States, and their collection ordered by only the civil
process of execution. That the defendants had failed to comply with
the section was proved. Indeed, it was not seriously disputed, the
defense resting only on the alleged unconstitutionality of the act.
The waiver of a jury was not assigned as error nor referred to by
counsel at the hearing before us either in brief or argument. The
question of its effect upon the judgment was suggested by this
Court, and briefs were called for from the respective parties. Such
briefs have been filed, and both agree that the waiver of a jury
did not invalidate the proceedings. Notwithstanding this, the fact
of the waiver appears in the record.
We entertain no doubt that the parties could rightfully make
such a waiver, and that the judgments are in no way invalidated
thereby. It will be noticed that the section characterizes the act
prohibited as an offense, and subjects the party to a penalty of
fifty dollars. So small a penalty for violating a revenue statute
indicates only a petty offense. It is not one necessarily involving
any moral delinquency. The violation may have been the result of
ignorance or thoughtlessness, and must be classed with such illegal
acts as acting as an auctioneer or peddler without a license, or
making a deed without affixing the proper stamp. That by other
sections of this statute more serious offenses are described, and
more grave punishments provided, does not lift this one to the
Page 195 U. S. 68
dignity of a crime. Not infrequently, a single statute in its
several sections provides for offenses of different grades, subject
to different punishments and to prosecution in different ways. In
some states, in the same act are gathered all the various offenses
against the person, ranging from simple assault to murder, and
imposing punishments, from a mere fine to death. This very statute
furnishes an illustration. By one clause, the knowingly selling of
adulterated butter in any other than the prescribed form subjects
the party convicted thereof to a fine of not more than $1,000 and
imprisonment for not more than two years. An officer of customs
violating certain provisions of the act is declared guilty of a
misdemeanor, and subject to a fine of not less than one thousand
dollars nor more than five thousand dollars and imprisonment for
not less than six months nor more than three years. Obviously,
these violations of certain provisions of the statute must be
classed among serious criminal offenses, and can be prosecuted only
by indictment, while the violations of the statute in the cases
before us were prosecuted by information. The truth is, the nature
of the offense and the amount of punishment prescribed, rather than
its place in the statutes, determine whether it is to be classed
among serious or petty offenses -- whether among crimes or
misdemeanors. Clearly both indicate that this particular violation
of the statute is only a petty offense.
In such a case, there is no constitutional requirement of a
jury. In the third clause of Section 2, Article 3, of the
Constitution it is provided that "the trial of all crimes, except
in cases of impeachment, shall be by jury," and in Article VI of
the Amendments, that,
"in all criminal prosecutions, the accused shall enjoy the right
to a speedy and public trial by an impartial jury of the state and
district wherein the crime shall have been committed."
If there be any conflict between these two provisions, the one
found in the Amendments must control, under the well understood
rule that the last expression of the will of the lawmaker prevails
over an earlier
Page 195 U. S. 69
one. But that in the body of the Constitution does not include a
petty offense like the present. It must be read in the light of the
common law. "That," said Mr. Justice Bradley in
Moore v. United
States, 91 U. S. 270,
91 U. S. 274,
referring to the common law,
"is the system from which our judicial ideas and legal
definitions are derived. The language of the Constitution and of
many acts of Congress could not be understood without reference to
the common law."
Again, in
Smith v. Alabama, 124 U.
S. 465,
124 U. S. 478,
is this declaration by Mr. Justice Matthews:
"The interpretation of the Constitution of the United States is
necessarily influenced by the fact that its provisions are framed
in the language of the English common law, and are to be read in
the light of its history."
In
United States v. Wong Kim Ark, 169 U.
S. 649,
169 U. S. 654,
Mr. Justice Gray used this language:
"In this as in other respects, it must be interpreted in the
light of the common law, the principles and history of which were
familiarly known to the framers of the Constitution.
Minor v.
Happersett, 21 Wall. 162;
Ex Parte Wilson,
114 U. S.
417,
114 U. S. 422;
Boyd v.
United States, 116 U. S. 616,
116 U. S.
624-625;
Smith v. Alabama, 124 U. S.
465."
See also Kepner v. United States, post, p.
195 U. S. 100; 1
Kent, Com. 336.
Blackstone's Commentaries are accepted as the most satisfactory
exposition of the common law of England. At the time of the
adoption of the federal Constitution, it had been published about
twenty years, and it has been said that more copies of the work had
been sold in this country than in England, so that undoubtedly the
framers of the Constitution were familiar with it. In this
treatise, vol. 4, p. 5. is given a definition of the word
"crimes:"
"A crime or misdemeanor, is an act committed or omitted in
violation of a public law either forbidding or commanding it. This
general definition comprehends both crimes and misdemeanors, which,
properly speaking, are mere synonymous terms, though in common
usage the word 'crimes' is made to denote such offenses as are of a
deeper and more atrocious
Page 195 U. S. 70
dye; while smaller faults and omissions of less consequence are
comprised under the gentler name of 'misdemeanors' only."
In the light of this definition, we can appreciate the action of
the convention which framed the Constitution. In the draft of that
instrument as reported by the committee of five, the language was
"the trial of all criminal offenses . . . shall be by jury," but,
by unanimous vote, it was amended so as to read "the trial of all
crimes." The significance of this change cannot be misunderstood.
If the language had remained "criminal offenses," it might have
been contended that it meant all offenses of a criminal nature,
petty as well as serious; but when the change was made from
"criminal offenses" to "crimes," and made in the light of the
popular understanding of the meaning of the word "crimes" as stated
by Blackstone, it is obvious that the intent was to exclude from
the constitutional requirement of a jury the trial of petty
criminal offenses. But we need not go beyond the express rulings of
this Court. In
Callan v. Wilson, 127 U.
S. 540, reference was made to many decisions of state
courts holding that the trial of petty offenses was not within any
constitutional provision requiring a jury in the trial of crimes,
and on page
127 U. S. 557, it
was said:
"Except in that class or grade of offenses called petty
offenses, which, according to the common law, may be proceeded
against summarily in any tribunal legally constituted for that
purpose, the guaranty of an impartial jury to the accused in a
criminal prosecution, conducted either in the name, or by or under
the authority, of the United States, secures to him the right to
enjoy that mode of trial from the first moment, and in whatever
court, he is put on trial for the offense charged."
By section 563, Rev.Stat., the district courts are given
jurisdiction
"of all crimes and offenses cognizable under the authority of
the United States, committed within their respective districts, or
upon the high seas, the punishment of which is not capital."
There is no act of Congress requiring that
Page 195 U. S. 71
the trial of all offenses shall be by jury, and a court is fully
organized and competent for the transaction of business without the
presence of a jury. There is no public policy which forbids the
waiver of a jury in the trial of petty offenses. On the contrary,
by section 44 of the Code of Law for the District of Columbia,
Congress provided, in respect to the police court, that --
"In all prosecutions within the jurisdiction of said court in
which, according to the Constitution of the United States, the
accused would be entitled to a jury trial, the trial shall be by
jury unless the accused shall, in open court, expressly waive such
trial by jury and request to be tried by the judge, in which case
the trial shall be by such judge, and the judgment and sentence
shall have the same force and effect in all respects as if the same
had been entered and pronounced upon the verdict of a jury. In all
cases where the accused would not by force of the Constitution of
the United States be entitled to trial by jury, the trial shall be
by the court without a jury, unless in such of said last-named
cases wherein the fine or penalty may be $50 or more, or
imprisonment as punishment for the offense may be thirty days or
more, the accused shall demand a trial by jury, in which case the
trial shall be by jury."
And it is a well known fact that, in many territories organized
by act of Congress, the legislature has authorized the prosecution
of petty offenses in the police courts of cities without a
jury.
But if there be no constitutional or statutory provision or
public policy requiring a jury in the trial of petty offenses, upon
what ground can it be contended that a defendant therein may not
voluntarily waive a jury? Can it be that a defendant can plead
guilty of the most serious, even a capital, offense, and thus
dispense with all inquiry by a jury, and cannot, when informed
against for a petty offense, waive a trial by jury? Article VI of
the Amendments, as we have seen, gives the accused a right to a
trial by jury. But the same article gives
Page 195 U. S. 72
him the further right "to be confronted with the witnesses
against him . . . and to have the assistance of counsel." Is it
possible that an accused cannot admit, and be bound by the
admission, that a witness not present would testify to certain
facts? Can it be that, if he does not wish the assistance of
counsel, and waives it, the trial is invalid? It seems only
necessary to ask these questions to answer them. When there is no
constitutional or statutory mandate, and no public policy
prohibiting, an accused may waive any privilege which he is given
the right to enjoy. Authorities in the state courts are in harmony
with this thought. In
Commonwealth v. Dailey, 12 Cush. 80,
the defendant in a misdemeanor case waived his right to a full
panel and consented to be tried by eleven jurors, and this action
was sustained by the Supreme Court of Massachusetts. Chief Justice
Shaw, delivering the opinion of the court, said (p. 83): "He may
waive any matter of form or substance, excepting only what may
relate to the jurisdiction of the court." The same doctrine was
laid down in
Murphy v. Commonwealth, 1 Met. 365;
Tyra
v. Commonwealth, 2 Met. 1, and in
State v. Kaufman,
51 Ia 578. In
Connelly v. State, 60 Ala. 89, a statute
authorizing the waiver of a jury was sustained. The same rule was
made in
State v. Worden, 46 Conn. 349, which was a case of
a felony.
See also People v. Rathbun, 21 Wend. 509,
542.
We are of opinion that the waiver of a jury by the defendants in
these cases, and the consent to trial by the court, was not in
conflict with law, and the judgments are therefore
Affirmed.
THE CHIEF JUSTICE, MR. JUSTICE BROWN, and MR. JUSTICE PECKHAM
concur in the views expressed in this opinion, although they
dissent from the judgments on the ground of their dissent in
McCray v. United States, ante, p.
195 U. S.
64.
MR. JUSTICE HARLAN dissenting:
These are criminal prosecutions based on the act of Congress
Page 195 U. S. 73
of August 2, 1886, entitled "An Act Defining Butter, Also
Imposing a Tax Upon and Regulating the Manufacture, Sale,
Importation, and Exportation of Oleomargarine," supplemented by the
Act of October 1, 1890, and amended by the Act of May 9, 1902. 24
Stat. 209, c. 840; 26 Stat. 621, c. 1244, § 41, 32 Stat. 193, c.
784.
The informations against Schick and Broadwell were substantially
of the same character. Each charged that the defendant, a retail
dealer in oleomargarine, unlawfully and knowingly purchased and
received for sale certain oleomargarine which had not been stamped
according to law.
The parties, in writing, waived a jury, and agreed to submit the
issues to the court. The accused in each case pleaded not guilty.
Evidence having been introduced, the defendant in each case moved
the court to render a verdict and judgment of not guilty, and that
he be discharged upon the ground that the above act of Congress, as
amended, was in contravention of the Constitution of the United
States in that it deprived the defendant and the oleomargarine
manufacturers and dealers in the United States of their liberty and
property without due process of law, was an unwarranted
encroachment upon, and interference with, the police powers
reserved to the several states and to the people of the United
States, invested an inferior executive officer with the power
finally and arbitrarily to determine judicial questions concerning
property rights, and so arbitrarily discriminated against
oleomargarine in favor of butter as to be repugnant to the
fundamental principles of equality and justice that were inherent
in the Constitution.
In each case, the motion was overruled, the defendant excepting.
Motions for a new trial and in arrest of judgment having been
severally overruled, the court, no jury having been impaneled,
found the defendant in each case guilty and adjudged that he pay a
fine of $50 and costs, and that execution issue therefor. From
those judgments the present writs of error were prosecuted.
Page 195 U. S. 74
The assignments of error here present the same questions of
constitutional law that were raised on the motion to render
judgment for the defendant, and, in addition, they question the
action of the trial court in striking out and refusing to consider
certain evidence.
Upon the face of the record, the question arises whether the
court below, without the aid of a jury, had jurisdiction to
ascertain the facts, and, finding the defendants severally guilty
of the offense charged, to impose upon each the fine prescribed by
the statute.
I. That this is a criminal prosecution, and that the mode of
procedure must be determined by the established rules governing the
conduct of trials in criminal cases, is, in my judgment, not to be
doubted. The record itself describes the information as a criminal
information, and the case was tried as if it were a criminal
prosecution. It never occurred to the trial court that it was a
prosecution of any other kind. It is true that the act provides
that all fines, penalties, and forfeitures imposed by it may be
recovered in any court of competent jurisdiction. § 19. But it is
evident from the entire act that it makes all the violations of the
provisions imposing a fine, or fine and imprisonment, or fine or
imprisonment, criminal offenses, to be punished in such mode as was
appropriate or allowable by the law of criminal procedure.
Throughout the act, when a fine is imposed, the doing of the thing
forbidden is described as an "offense." If a person carries on the
business of a manufacturer of oleomargarine without having paid the
special tax, he is subject, besides being liable to pay the special
tax, to be fined not less than $1,000 and not more than $5,000; if
he carries on the business of a wholesale dealer in oleomargarine
without having paid the special tax therefor, he is subject,
besides being liable for the special tax, to be fined not less than
$500 nor more than $2,000, and if he carries on the business of a
retail dealer in oleomargarine without having paid the special tax,
he may be fined not less than $50 nor more than $500 for each and
every
Page 195 U. S. 75
offense. § 4. Every person who knowingly sells or offers for
sale, or delivers or offers to deliver, any oleomargarine in any
other form than in new wooden or paper packages, as described, or
who packs in any package any oleomargarine in a manner contrary to
law, or who falsely brands any package or affixes any stamp on any
package denoting a less amount of tax than that required by law,
"may be fined for each
offense not more than $1,000, and
be imprisoned not more than two years." § 6. Every manufacturer of
oleomargarine who neglects to affix the required label to a package
containing oleomargarine made by him, or sold or offered for sale
by or for him, and every person who removes any label so affixed
may be "fined $50 for each package in respect to which such offense
is committed." § 7. Every officer of customs who permits imported
oleomargarine
"to pass out of his custody or control without compliance by the
owner or importer thereof with the provisions of this section
relating thereto, shall be guilty of a misdemeanor, and shall be
fined not less than $1,000, nor more than $5,000, and imprisoned
not less than six months, nor more than two years."
§ 10. Any person who willfully neglects or refuses, when
emptying a stamped package containing oleomargarine, to utterly
destroy such stamps,
"shall for each such offense, be fined, not exceeding $50, and
imprisoned not less than ten days, nor more than six months. And
any person who fraudulently gives away or accepts from another, or
who sells, buys, or uses for packing oleomargarine any such stamped
package, shall, for each such offense, be fined not exceeding $100,
and be imprisoned not more than one year."
§ 13. Any person who willfully removes or defaces the stamps,
marks, or brands on packages containing oleomargarine taxed as
provided, is guilty
"of a misdemeanor, and shall be punished by a fine of not less
than one hundred dollars, nor more than two thousand dollars, and
by imprisonment for not less than thirty days, nor more than six
months."
§ 15. Whenever any person engaged in carrying on the business of
manufacturing oleomargarine defrauds or attempts to defraud
Page 195 U. S. 76
the United States of the tax on oleomargarine produced by him,
or any part thereof, he forfeits the factory and manufacturing
apparatus used by him and all oleomargarine and all raw material
for the production of oleomargarine found in the factory and on the
factory premises, and
"shall be fined not less than five hundred dollars nor more than
five thousand dollars, and be imprisoned not less than six months,
nor more than three years."
§ 17.
These sections are to be looked at in connection with section
11, on which this prosecution is based. That section provides:
"That every person who knowingly purchases or receives for sale
any oleomargarine which has not been branded or stamped according
to law, shall be liable to a penalty of fifty dollars for each such
offense."
It is true that the word "penalty" is used in several sections
of this act. But it is not to be conclusively inferred therefrom
that the offense described was not a crime within the strictest
meaning of that word. Referring to the words "penalty,"
"liability," and "forfeiture," this Court has said:
"These words have been used by the great masters of Crown law
and the elementary writers as synonymous with the word
'punishment,' in connection with crimes of the highest grade. Thus,
Blackstone speaks of criminal law as that 'branch of jurisprudence
which teaches of the nature, extent, and degrees of every crime,
and adjusts to it its adequate and necessary penalty.' Alluding to
the importance of this department of legal science, he says: 'The
enacting of penalties to which a whole nation shall be subject
should be calmly and maturely considered.' Referring to the unwise
policy of inflicting capital punishment for certain comparatively
slight offenses, he speaks of them as 'these outrageous penalties,'
and frequently refers to laws that inflict the 'penalty of
death.'"
United States v. Reisinger, 128 U.
S. 398,
128 U. S. 402.
So, in
Huntington v. Attrill, 146 U.
S. 657,
146 U. S. 667,
after referring to the maxim of international law in
The Antelope,
10 Wheat. 66,
23 U. S. 123,
that "the courts of no country execute the penal laws of another,"
and observing
Page 195 U. S. 77
that there was great danger, when interpreting that maxim, of
being misled by the different shades of meaning allowed to the word
"penal" in our language, this Court said:
"In the municipal law of England and America, the words 'penal'
and 'penalty' have been used in various senses. Strictly and
primarily, they denote punishment, whether corporal or pecuniary,
imposed and enforced by the state for a crime or offense against
its laws. . . . Penal laws, strictly and properly, are those
imposing punishment for an offense committed against the state, and
which, by the English and American Constitutions, the executive of
the state has the power to pardon."
Besides, the act throughout uses the words "fine," and "fined"
-- words which, in their primary sense, import the punishment of a
person convicted of crime.
I cannot doubt, after a scrutiny of the entire act, that every
offense prescribed by it, and for which a fine is imposed, was
intended to be made and is a criminal offense -- a crime against
the United States -- to be punished as such. Certainly the offenses
prescribed in sections four, six, seven, ten, thirteen, fifteen and
seventeen, are crimes against the United States. If that be so,
surely the offense prescribed in section 11 is a crime, and not a
mere penalty, recoverable only by some form of proceeding of a
civil nature. This view is substantially conceded by the Solicitor
General when he says that,
"in view of the word 'offense' in section 11 of the
Oleomargarine Act, there is ground for saying that the penalty
which it provides was imposed as a fine for the violation of what
is made a misdemeanor."
If the United States could have proceeded in some form of civil
action to recover the fine imposed by that section, it has not done
so. It chose to proceed by criminal information, and the accused
pleaded not guilty of the crime charged.
II. So far, it has been my object only to show that the offense
charged was a crime against the United States. I now inquire as to
the mode in which it may be legally ascertained whether an accused,
pleading
not guilty, has committed the
Page 195 U. S. 78
crime charged against him? Has the law designated any particular
tribunal, or prescribed any special mode, for trying the issue as
to his guilt? The words of the Constitution upon this subject are
clear and explicit. They leave no room for interpretation. Its
express mandate is that "the
trial of all crimes, except
in cases of impeachment,
shall be by jury." Const. Art.
III. When the Constitution was placed before the people for
adoption or rejection, many deemed those words, explicit as they
were, inadequate to secure all the benefits of a jury trial as it
existed at common law.
It is suggested that, if any conflict exists between the
absolute requirement in the original Constitution (Art. III,
section 2), that the "trial of all crimes, except in cases of
impeachment,
shall be by jury," and the provision in the
Sixth Amendment that the accused, in every criminal prosecution,
"shall
enjoy the right to a speedy and public trial, by an
impartial jury," etc., the latter, having been last adopted, must
control. But there is no such conflict. Those who opposed the
acceptance of the Constitution said, among other things, that the
words of that instrument, strictly construed (Art. III, section 2),
admitted of a secret trial, or of one that might be indefinitely
postponed to suit the purposes of the government, or of one taking
place in a state or district other than that in which the crime was
committed. The framers of the Constitution disclaimed any such evil
purposes; but in order to meet the objections of its opponents, and
to remove all possible ground of uneasiness on the subject, the
Sixth Amendment was adopted, in which the essential features of the
trial required by section 2 of Article III are set forth. In other
words, the trial required by that section is the trial referred to
in the Sixth Amendment. And the jury referred to in both the
original Constitution and in the Amendments was, the authorities
all agree, the historical jury of the common law, consisting of
twelve persons, no more and no less, whose unanimous verdict was
necessary to conviction.
Thompson v. Utah, 170 U.
S. 343,
170 U. S. 349;
2 Hale's P.C. 161; 1 Chitty Crim.Law
Page 195 U. S. 79
505; 2 Blackstone 719; Coke, Elizabeth 654. Mr. Justice Story
said:
"The Constitution of the United States has exhibited great
solicitude on the subject of the trial of crimes, and has declared
that the trial of all crimes, except in cases of impeachment, shall
be by the jury, and has, in some cases, prescribed, and in others
required Congress to prescribe, the place of trial. And certain
amendments of the Constitution, in the nature of a Bill of Rights,
have been adopted, which fortify and guard this inestimable right
of trial by jury."
United States v. Gibert, 2 Sumner 19, 38.
See also
Capital Traction Co. v. Hof, 174 U. S. 1;
Natal v. Louisiana, 139 U. S. 621,
139 U. S. 624; 4
Black.Com. 280; 1 Stephen's History of the Criminal Law 123.
The contention in the present prosecutions is that, although the
positive constitutional injunction that the trial of all crimes
shall be by jury furnishes an inflexible rule that may not be
ignored in cases of felony, that rule, even where the accused
pleads not guilty, may be disregarded altogether in a trial for a
misdemeanor, provided he consents to be tried by the court without
a jury. Plainly such an exception is unauthorized by the
Constitution if its words be interpreted according to their
ordinary meaning. Nor, in my opinion, is it consistent with the
fundamental rules of criminal procedure, as established and
enforced at common law. In determining the meaning and scope of the
words "due process of law," as used in the Constitution, the
established rule is that
"we must examine the Constitution itself to see whether this
process be in conflict with any of its provisions. If not found to
be so, we must look to those settled usages and modes of proceeding
existing in the common and statute law of England before the
emigration of our ancestors, and which are shown not to have been
unsuited to their civil and political condition by having been
acted on by them after the settlement of this country."
Murray's Lessee v. Hoboken
Land Co., 18 How. 272,
59 U. S. 277.
So, in ascertaining whether, under any circumstances, a criminal
case may be tried in a federal court
Page 195 U. S. 80
without a jury --
the accused pleading not guilty -- we
must inquire whether the Constitution forbids such an exercise of
authority by the court, without a jury. If it does, that is the end
of the matter; if it does not, then, and then only, may we look to
such usages and modes of proceeding as existed at the common law
for the trial of crimes before the adoption of the
Constitution.
Proceeding on that basis, we have seen that the Constitution
expressly requires that the trial of all crimes, except
impeachment, shall be by jury, and I assert with confidence that no
precedent can be found at common law for the trial by the court,
without a jury, of any crimes except those described in adjudged
cases and by elementary authorities as minor or petty offenses
involved in the internal police of the state, and those could be
tried summarily by some court or officer, without the intervention
of a jury, only when thereunto authorized by an act of Parliament.
Except in cases of contempt, the common law, Blackstone says, was a
stranger to the summary proceedings authorized by acts of
Parliament. Bk. 4, c. 20, 280. I am not aware of, nor has there
been cited, any case in England in which, after Magna Charta, and
prior to the adoption of our Constitution, a court, tribunal,
officer, or commissioner has, without a jury, even in the case of a
petty offense, determined the question of crime or no crime, when
the defendant pleaded not guilty,
unless the authority to do so
was expressly conferred by an act of Parliament. The
exceptions to the rule at common law that all crimes must be tried
by a jury were in the mind of this Court when, in
Callan v.
Wilson, 127 U. S. 540,
127 U. S. 557, it
said:
"Except in that class or grade of offenses called petty
offenses, which, according to the common law, may be proceeded
against summarily in any tribunal
legally constituted for that
purpose, the guaranty of an impartial jury to the accused in a
criminal prosecution, conducted either in the name or by or under
the authority of the United States, secures to him the right to
enjoy that mode of trial from the first moment, and in whatever
Page 195 U. S. 81
court, he is put on trial for the offense charged. In such
cases, a judgment of conviction, not based upon a verdict of guilty
by a jury, is void."
If, in analogy to the powers exercised by the Parliament of
England prior to the adoption of our Constitution, it should be
held that Congress could treat the particular crime here in
question as a petty offense, triable by the court, without a jury
or with a jury of less than twelve persons, it is sufficient to say
that Congress has not legislated to that effect in respect of the
offense charged against these defendants, or of any other offense
defined in the acts relating to oleomargarine. If it has the power
to do so, Congress has not assumed, directly or indirectly, to
withdraw such offenses from the operation of the constitutional
provision that the trial of all crimes, except in cases of
impeachment, shall be by jury. And the question is whether, in the
face of that explicit provision and in the absence of any statute
authorizing it to be done, the court, a jury being waived, has
jurisdiction to try the accused for the crime charged.
In this connection, we are confronted with the broad statement,
found in some adjudged cases as well as in elementary treatises, to
the effect that a person is entitled to waive
any
constitutional right, of whatever nature, that he possesses, and
thereby preclude himself from invoking the authority of the
Constitution for the protection or enforcement of that right. It is
suggested that, even when charged with murder, he may plead guilty,
and that the court thereupon, without the intervention of a jury,
may pronounce such judgment as the law permits or authorizes. And
it is confidently asked by those who make that suggestion, why may
not one charged with a misdemeanor, and pleading not guilty, waive
a jury altogether and consent to be tried by the court? This
argument will not stand the test of reason. It proceeds upon the
ground that jurisdiction to try a criminal case may be given by
consent of the accused and the prosecutor. But such consent could
have no legal efficacy. Undoubtedly one accused of
Page 195 U. S. 82
murder may plead guilty. But, in doing so, he renders a trial
unnecessary. The Constitution does not prohibit an accused from
pleading guilty. His right to do so was recognized long before the
adoption of that instrument, and it was never supposed that such a
plea impaired the force of the requirement that a trial for crime,
under a plea of not guilty, shall be by jury. It is not to be
assumed that the Constitution intended, when preserving the right
of trial by jury, to change any essential rule of criminal practice
established at the common law before the adoption of that
instrument. When the accused pleads guilty before a lawful
tribunal, he admits every material fact well averred in the
indictment or information, and there is no issue to be tried; no
facts are to be found; no trial occurs. After such a plea, nothing
remains to be done except that the court shall pronounce judgment
upon the facts voluntarily confessed by the accused. What the
Constitution requires is that the
trial of a crime shall
be by jury. If the accused pleads not guilty, there must, of
necessity, be a trial, for by that plea, he puts "himself on his
country, which country the jury are;" he contests, by that plea,
every fact necessary to establish his guilt; he is presumed to be
innocent; nothing is confessed, and the facts necessary to show
guilt must be judicially ascertained, in the mode prescribed by
law, before any judgment can be rendered. But the vital inquiry is
in what way, when the defendant pleads not guilty, are the facts to
be ascertained, and the plea of not guilty overcome? Under the
express words of the Constitution, the answer must be: by trial
before a jury of twelve persons, organized to determine whether the
charge of guilt be true, the function of the court being simply to
conduct the trial, and render a judgment in accordance with the
verdict of the jury as to the facts. The court and the jury, not
separately, but
together, constitute the appointed
tribunal which alone, under the law, can try the question of crime,
the commission of which by the accused is put in issue by a plea of
not guilty.
There are some things so vital in their character that they
Page 195 U. S. 83
may not be legally done or legally omitted in a criminal
prosecution, even with the consent of the accused. This is
abundantly established by authority. The grounds upon which the
decisions rest are, upon principle, applicable alike in cases of
felonies and misdemeanors, although the consequences to the accused
may be more evident as well as more serious in the former than in
the latter cases. Certain it is that felonies and misdemeanors are
equally crimes within the meaning of the constitutional provision
that the trial of all crimes shall be by jury, and there is no
warrant to construe that provision as if it read, "the trial of all
crimes, except in cases of impeachment
and in
misdemeanors, shall be by jury."
Let us look at some of the authorities in cases both of felonies
and misdemeanors, and ascertain whether the consent, express or
implied, of the accused can have the effect to dispense with the
mode of trial appointed by law for criminal cases. As the question
here presented has never been decided by this Court, and is of
importance, a somewhat extended reference to authorities is
justified.
The first case to which I call attention is
Hopt v.
Utah, 110 U. S. 574,
110 U. S. 579.
That was a case of murder arising in Utah while a territory. It
appeared that the trial, by triers appointed by the court, of
challenges of proposed jurors, was not had in the presence of the
accused. It was there argued that his presence at the trial of such
an issue was a privilege which he was entitled to waive, and that
the entire proceedings against him should not fail because he chose
not to exercise that privilege. This Court, however, held that the
trial of challenges could not legally take place except in the
actual presence of the accused. In dealing with the suggestion that
the right of the accused to be present before the triers was waived
by his failure to object to their retirement from the courtroom, or
to the trial of the several challenges in his absence, it was
said:
"We are of opinion that it was not within the power of the
accused or his counsel to dispense with the statutory requirement
as to his personal presence at the trial.
Page 195 U. S. 84
The argument to the contrary necessarily proceeds upon the
ground that he alone is concerned as to the mode by which he may be
deprived of his life or liberty, and that the chief object of the
prosecution is to punish him for the crime charged. But this is a
mistaken view as well of the relations which the accused holds to
the public as of the end of human punishment. The natural life,
says Blackstone,"
"cannot legally be disposed of or destroyed by any individual,
neither by the person himself, nor by any other of his fellow
creatures, merely upon their own authority."
"1 Bl.Com. 133. The public has an interest in his life and
liberty. Neither can be lawfully taken except in the mode
prescribed by law.
That which the law makes essential in
proceedings involving the deprivation of life or liberty cannot be
dispensed with or affected by the consent of the accused, much
less by his mere failure, when on trial and in custody, to object
to unauthorized methods."
4 Bl.Com. 11.
In
Thompson v. Utah, 170 U. S. 343,
170 U. S. 353,
which was a case of grand larceny, charged to have been committed
while Utah was a territory (the trial occurring after Utah became a
state), one of the questions was whether the trial by a jury
composed of eight jurors, as authorized by the statutes of the
state, was a legal trial for a crime committed when Utah was a
territory under the exclusive jurisdiction of the United States. It
was contended that, as the accused did not object, until after
verdict, to a trial by a jury of eight persons, he should not be
heard to say that the trial was in violation of his constitutional
rights. This Court overruled that contention, saying:
"It is sufficient to say that it was not in the power of one
accused of felony,
by consent expressly given or by his
silence, to authorize a jury of only eight persons to pass upon the
question of his guilt. The law in force when this crime was
committed did not permit any tribunal to deprive him of his liberty
except one constituted of
a court and a jury of twelve
persons."
After referring to
Hopt v. Utah, 110 U.
S. 574,
110 U. S. 579,
the Court proceeded:
"If one under trial for a felony
Page 195 U. S. 85
the punishment of which is confinement in a penitentiary could
not legally consent that the trial proceed in his absence, still
less could he assent to be deprived of his liberty by
a
tribunal not authorized by law to determine his guilt."
"The infirmity," says Cooley,
"in case of a trial by a jury of less than twelve, by consent,
would be that the
tribunal would be one unknown to the law,
created by mere voluntary act of the parties, and it would in
effect be an attempt to submit to a species of arbitration the
question whether the accused has been guilty of an offense against
the state."
Const.Lim. 319.
A leading case is that of
Cancemi v. People, 18 N.Y.
128, 137. Its doctrines have been widely accepted as based upon a
sound interpretation of constitutional provisions relating to
criminal prosecutions. The Court of Appeals of New York said:
"These considerations make it apparent that the right of a
defendant in a criminal prosecution to affect, by consent, the
conduct of the case should be much more limited than in civil
actions. It should not be permitted to extend so far as to work
radical changes in great and leading provisions as to the
organization of the tribunals
or the mode of proceeding
prescribed by the Constitution and the laws. Effect may justly
and safely be given to such consent in many particulars, and the
law does, in respect to various matters, regard and act upon it as
valid. Objections to jurors may be waived; the court may be
substituted for triers to dispose of challenges to jurors;
secondary in place of primary evidence may be received; admissions
of facts are allowed, and in similar particulars, as well as in
relation to mere formal proceedings generally, consent will render
valid what without it would be erroneous. A plea of guilty to any
indictment, whatever may be the grade of the crime, will be
received and acted upon if it is made clearly to appear that the
nature and effect of it are understood by the accused. In such a
case, the preliminary investigation of a grand jury, with the
admission of the accusation in the indictment, is supposed
Page 195 U. S. 86
to be a sufficient safeguard to the public interests.
But
when issue is joined upon an indictment, the trial must be by the
tribunal and in the mode which the Constitution and laws provide,
without any essential change. The public officer prosecuting for
the people has no authority to consent to such a change, nor has
the defendant. Applying the above reasoning to the present
case, the conclusion necessarily follows that the consent of the
plaintiff in error to the withdrawal of one juror, and that the
remaining eleven might render a verdict, could not lawfully be
recognized by the court at the circuit, and was a nullity. If a
deficiency of one juror might be waived, there appears to be no
good reason why a deficiency of eleven might not be, and it is
difficult to say why, upon the same principle, the entire panel
might not be dispensed with, and the trial committed to the court
alone. It would be a highly dangerous innovation, in reference to
criminal cases, upon the ancient and invaluable institution of
trial by jury, and the Constitution and laws establishing and
securing that mode of trial, for the court to allow of any number
short of a full panel of twelve jurors, and we think it ought not
to be tolerated."
Upon the general question whether the consent or silence of the
defendant can excuse the failure of the court at the trial to
enforce such essential rules as are prescribed by law for the trial
of criminal cases, the case of
Hill v. People, 16 Mich.
351, 356-358, is instructive. That was a case of murder. The
defendant was found guilty, and after the trial it was discovered
that one of the jurors was disqualified under the statutes of
Michigan. But that fact was unknown to the accused and his counsel
until after the rendition of the verdict. It was contended by the
state that, by neglecting to challenge that juror, the accused lost
the right to avail himself of the objection, and was to be deemed
to have thereby waived all objections to the juror or to a trial by
eleven qualified jurors. It should be here observed that the
Constitution of Michigan preserved the
Page 195 U. S. 87
right, in all criminal prosecutions, to "a speedy and public
trial by an impartial jury, which may consist of less than twelve
men in all courts not of record." Looking at the case as one in
which the trial had been by eleven competent jurors only, the court
considered the general question of waiver as applicable to criminal
cases. Speaking by Judge Christiancy, and observing that, under the
state constitution, there could be no reasonable doubt of the
competency of parties in civil cases to waive such an objection or
to stipulate for a trial by jury of less than twelve, the court
said:
"But a criminal prosecution, in which the people in their
sovereign capacity prosecute for a crime against the laws of the
whole society, and seek to subject the defendant to punishment,
must, it seems to us, be considered as a proceeding
in
invitum, against the will of the defendant throughout, so far
as relates to a question of this kind, or any question as to the
legal constitution of the court or jury by which he is to be tried.
It would be adding materially to the generally recognized force of
the obligation of contracts to hold that a defendant charged with a
crime might, without a trial, enter into a building contract with
the prosecuting attorney (representing the state) to go to the
penitentiary for a certain number of years in satisfaction for the
offense. And yet it would approximate such a position to hold that
he might be bound by a contract providing for a trial before a
court or jury unknown to the Constitution or the laws, the result
of which trial might be to place him in the same penitentiary. The
true theory, we think, is that the people, in their political or
sovereign capacity,
assume to provide by law the proper
tribunals and modes of trial for offenses, without consulting the
wishes of the defendant as such, and upon them therefore
devolves the responsibility not only of enacting such laws, but of
carrying them into effect by furnishing the tribunals, the panels
of jurors, and other safeguards for his trial in accordance with
the Constitution which secures his rights."
The court added some general observations which may well
Page 195 U. S. 88
be heeded by everyone charged with the administration of the
criminal laws. It said:
"But, independent of all theories and as a practical question,
we think there would be great danger in holding it competent for a
defendant in a criminal case, by waiver or stipulation, to give
authority which it could not otherwise possess to a jury of less
than twelve men for his trial and conviction, or to deprive himself
in any way of the safeguards which the Constitution has provided
him in the unanimous agreement of twelve men qualified to serve as
jurors by the general laws of the land. Let it once be settled that
a defendant may thus waive this constitutional right, and no one
can foresee the extent of the evils which might follow; but the
whole judicial history of the past must admonish us that very
serious evils should be apprehended, and that every step taken in
that direction would tend to increase the danger. One act or
neglect might be recognized as a waiver in one case, and another in
another, until the constitutional safeguards might be substantially
frittered away. The only safe course is to meet the danger
in
limine, and prevent the first step in the wrong direction. It
is the duty of courts to see that the constitutional rights of a
defendant in a criminal case shall not be violated, however
negligent he may be in raising the objection. It is in such cases
emphatically that consent should not be allowed to give
jurisdiction."
In
State v. Carman, 63 Ia. 130, 131, which was the case
of an assault with an attempt to commit murder, the Supreme Court
of Iowa said:
"In our Code of Civil Practice, it is provided that 'issues of
fact in an action in an ordinary proceeding must be tried by a
jury, unless the the same is waived.' § 2740. In our Code of
Criminal Procedure, there is no provision for the waiver of a jury.
On the other hand, it is provided that 'an issue of fact must be
tried by a jury of the county in which the indictment is found,
unless a change of venue has been awarded.' § 4350.
We regard
this provision as excluding the jurisdiction of the court, without
a jury, to try such issue. The question presented is not as to
the waiver of
Page 195 U. S. 89
mere statutory privilege, but an imperative provision, based, as
we view it, upon the soundest conception of public policy. Life and
liberty are too sacred to be placed at the disposal of any one man,
and always will be, so long as man is fallible. The innocent
person, unduly influenced by his consciousness of innocence and
placing undue confidence in his evidence, would, when charged with
crime, be the one most easily induced to waive his safeguards.
There is no resemblance between such a case and that of a person
pleading guilty. In the latter case, there is no trial, but mere
judgment upon the plea. If the language of the statute were less
imperative than it is, the adjudications would support us in
reaching the same conclusion."
In
State v. Mansfield, 41 Mo. 470, 476, which involved
the question of the right of the accused in capital crimes and
felonies to waive his right to a jury of twelve persons, after
referring to
Cancemi v. People, 18 N.Y. 128, the Supreme
Court of Missouri, speaking by Judge Wagner, conceded that, in
cases of misdemeanor
created by statute, the
legislature, under the laws of that state, might provide
for their prosecution in a summary way, without the formality of an
indictment, and that the accused could waive a jury, or agree on a
certain number. But there was no such statute in Missouri, and the
court, in respect of the general question of the waiver of a jury,
said:
"Another good and sufficient reason, it occurs to us, is, that
the prisoner's consent cannot change the law. His right to be tried
by a jury of twelve men is not a mere privilege; it is
a
positive requirement of the law. He can unquestionably waive
many of his legal rights or privileges. He may agree to certain
facts, and dispense with formal proofs; he may consent to the
introduction of evidence not strictly legal, or forbear to
interpose challenges to the jurors;
but he has no power to
consent to the creation of a new tribunal unknown to the law, to
try his offense. The law, in its wisdom, has declared what
shall be a legal jury in the trial of criminal cases; that it shall
be composed of twelve, and
a defendant,
Page 195 U. S. 90
when he is upon trial, cannot be permitted to change the law
and substitute another and a different tribunal to pass upon his
guilt or innocence. The law as to criminal trials should be
based upon fixed standards, and should be clear, definite, and
uniform, and absolute. If one juror can be withdrawn, there is no
reason why six or eight may not be, and thus the accused, through
persuasion or other causes, may have his life put in jeopardy or be
deprived of his liberty through a body constituted in a manner
unknown to the law. Aside from the illegality of such a procedure,
public policy condemns it. The prisoner is not in a condition to
exercise a free and independent choice without often creating
prejudice against him."
In
Wilson v. State, 16 Ark. 601, 608, which was a case
of larceny, the Supreme Court of Arkansas said:
"Hence, there would seem to be no other mode for the trial of a
criminal issue than that by jury. The difficulty is not obviated by
any waiver of this mode of trial,
because the legislature has
provided no other mode, in lieu of it, in such an event, as it has
in civil cases. Nothing short of a confession of the facts, or the
finding of them by the verdict of the jury, can regularly authorize
the judgment of the court. If the accused would not only waive
his right to a trial by jury, but go further and withdraw his plea,
and then confess the facts charged against him in the indictment,
the court would be authorized to render a judgment against him; but
so long as his plea of not guilty is in, there is no mode by
which the court can dispose of it, although the accused may waive a
trial by jury, with all its attendant privileges, and desire ever
so much that the issue may be disposed of by a reference of it to
the judge, or any other referee or arbitrator, and the
prosecuting attorney may desire the same, and act in concert with
the accused, for the simple reason that the law makes no provision
for any such referee or arbitrator in criminal cases. The only
provision is for a confession of the facts, or a trial by jury to
determine them."
A leading case upon the subject of trial by jury is that of
Page 195 U. S. 91
Work v. Ohio, 2 Ohio St. 296, 302, 305. That was an
information charging the defendant with assault and battery. The
trial took place under an act of the Ohio Legislature which
permitted a trial in such a case by a jury of six men
notwithstanding the Constitution of Ohio provided that the right of
trial by jury should be inviolate. The defendant pleaded not
guilty, but was found guilty, and sentenced to pay a fine of $100
and costs. In discussing the history of trial by jury, the court,
speaking by Judge Ranney, said:
"In what does the privilege of this great bulwark of personal
liberty consist? The Constitution furnishes no answer, nor was it
necessary that it should. If ages of uninterrupted use can give
significance to language, the right of jury trial and the habeas
corpus stand as representatives of ideas as certain and definite as
any other in the whole range of legal learning. The institution of
the jury, referred to in our Constitution, and its benefits secured
to every person accused of crime, is precisely the same in every
substantial respect, as that recognized in the great charter, and
its benefits secured to the freemen of England, and again and again
acknowledged in fundamental compacts as the great safeguard of
life, liberty, and property; the same, brought to this continent by
our forefathers, and perseveringly claimed as their birthright in
every contest with arbitrary power, and finally, an invasion of its
privileges prominently assigned as one of the causes which was to
justify them in the eyes of mankind in waging the contest which
resulted in independence. . . . We are of opinion it was this very
tribunal, thus constituted, that those who framed and adopted the
Constitution of this state intended to perpetuate, and make the
safeguard of innocence, by securing its benefits to every person
accused of crime, in any of its courts. There is certainly nothing
in our history which points to a different conclusion. For half a
century before its adoption, similar provisions had been so
considered and acted upon. Until the passage of this law,
no
person had ever been convicted of crime, by less than the
Page 195 U. S. 92
concurring assent of twelve of his peers, and no law has
ever attempted to authorize it to be done. If the power exists
to diminish the number of the jury, it may be applied to all cases,
and it may be reduced to two as well as to six.
The same
constitutional provision that secures the right in a charge
involving the life of the accused secures it also in every other
criminal case. It is no answer to say that this would not
likely be done. If it had been deemed safe to leave it to the
discretion of the general assembly, no constitutional provision was
needed; but, whether needed or not, it has been ordained by a power
which both the general assembly and this Court are bound to
obey."
Again:
"But, without pursuing these considerations further, our opinion
is that the essential and distinguishing features of the trial by
jury as known at common law, and generally, if not universally,
adopted in this country, were intended to be preserved, and its
benefits secured to the accused in all criminal cases, by the
constitutional provisions referred to. That it is beyond the power
of the general assembly to impair the right, or materially change
its character; that the number of jurors cannot be diminished, or a
verdict authorized, short of a unanimous concurrence of all the
jurors. It follows that the act under which this conviction was
obtained, insofar as it provides for a jury of six only, and
authorizes a conviction upon their finding, is unconstitutional and
void."
In
United States v. Taylor, 11 F. 470, which was a
criminal prosecution by information for the offense of carrying on
the business of a retail dealer in liquors without having paid the
special taxes required by law, the main question was as to the
authority of the court to direct a verdict of guilty under the
evidence. It was held by Judge McCrary that no such power existed
in the court. In the course of his opinion, he said that the
constitutional guaranty of a jury in a criminal case was a right
that
could not be waived, and that such a trial before the
court, by the prisoner's consent, was erroneous. It appears
from the report of that case that Mr.
Page 195 U. S. 93
Justice Miller was consulted by Judge McCrary, and concurred in
the latter's views.
Among the cases cited by Judge McCrary was
State v.
Maine, 27 Conn. 281, which was a criminal information for
placing a nuisance in a highway. The defendant pleaded not guilty.
The case,
by agreement of the parties, was tried by the
court, which found the facts, and reserved the questions of law
arising thereon for the advice of the Supreme Court of Errors. The
judges of the latter court unanimously held that,
"
as no statute conferred on the superior court the power to
try this or any other criminal charge, excepting through the
intervention of a jury, the court below could not legally try
the case in the manner in which it had done, and would not be able
to render a legal judgment on the facts if the advice of this Court
was given upon them. They therefore refused to entertain the
case."
In
Neales v. State, 10 Mo. 498, which is an indictment
for unlawfully carrying on the business of a dramshop keeper
without having a license therefor, it appears that the defendant
pleaded not guilty, and,
neither party requiring a jury,
the case was submitted to the court, who found him guilty and
assessed a fine of $30 against him. The Supreme Court of Missouri,
in which state there was a constitutional provision providing that
the right of trial by jury should remain inviolate, said:
"Another objection, equally fatal to the judgment, was the trial
of the cause by the court on the plea of not guilty. It has
heretofore been virtually decided by this Court in two cases that,
unless the defendant pleads guilty to the charge contained in the
indictment, the court cannot try the issue and assess a fine
against him.
Thomas v. State, 6 Mo. 457;
Ross v.
State, 9 Mo. 687. It is exclusively the province of a jury
to try the issue of not guilty, and the consent of the
defendant for the court to try the same cannot confer such power on
the court."
A case directly in point is that of
State v. Stewart,
89 N.C. 563, 564. That was an indictment for an assault and
battery.
Page 195 U. S. 94
The defendant pleaded not guilty. A jury trial was waived, the
court found the facts, and adjudged the accused guilty. The
judgment was arrested and the state appealed. The Supreme Court of
North Carolina said:
"It is a fundamental principle of the common law, declared in
'Magna Charta' and again in our Bill of Rights, that 'no person
shall be convicted of any crime but by the unanimous verdict of a
jury of good and lawful men, in open court.' Art. I, section 13.
The only exception to this is
where the legislature may provide
other means of trial for petty misdemeanors, with the right of
appeal -- proviso in same section.
This is not one of the petty
misdemeanors embraced in the proviso, and if it was, no such means
of trial as that adopted in this case has been provided by the
legislature. The court here has undertaken to serve in the double
capacity of judge and jury, and try the defendant without a jury,
which it had no authority to do, even with the consent of the
prisoner."
Later, in
State v. Holt, 90 N.C. 749, 754, which was an
indictment for cruelty to animals, the same court, after observing
that it was the province and duty of the judiciary to watch over
and protect the fundamental rights in all matters that come before
them, said:
"There was not the remotest purpose in this case, we are sure,
to infringe the right of trial by jury in a criminal action, but,
for convenience sake and to save time (because the facts were not
disputed), the facts of the case were agreed upon by the state and
the defendant, and submitted to the judge, instead of letting a
jury hear the evidence, and render a verdict upon the issue or find
a special verdict. In our judgment, this was not only irregular,
but wholly without the sanction of law.
There is no statute
that authorizes such procedure, and the Constitution forbids
it. 'No person shall be convicted of any crime but by the unanimous
verdict of a jury of good and lawful men, in open court.' No jury
was impaneled to try the issue; there was no verdict of a jury;
there was no conviction. The judgment of the court had nothing to
warrant it, and there was nothing upon
Page 195 U. S. 95
which it could properly rest.
The defendant could not
consent to a conviction by the court. It had no authority to try
the issue of fact raised by the pleadings. The defendant did
not plead guilty; he did not enter the plea of
nolo
contendere, or submit; he pleaded
autrefois convict,
and a jury must try the issue raised by that plea.
State v.
Stewart, 89 N.C. 563;
State v. Moss, 2 Jones 66; 1
Bishop, Cri.Pl. § 759, and cases there cited;
Cancemi v.
People, 18 N.Y. 128.
The legislature has not provided a
means for the trial of cases like this different from the ordinary
method provided by law. The court erred in passing upon the
facts agreed upon and submitted to it without the finding of a
jury, and for such error the judgment must be reversed and the
court proceed to dispose of the case according to law."
Running through the adjudged cases is the thought that the facts
necessary to be proved in order to sustain the charge of crime,
where the plea is not guilty, must be ascertained in the mode
ordained by law for such purpose. " When therefore" says
Blackstone,
"a prisoner on his arraignment hath pleaded not guilty, and for
his trial hath put himself upon the country, which country the jury
are, the sheriff of the county must return a panel of jurors,
liberos et legales homines, de vicineto."
Bk. 4, c. 27, *350. Now all will agree that when the crime
charged is a felony, a trial in a circuit or district court of the
United States, even with the consent of the accused, without a jury
composed of twelve persons would be unauthorized and unavailing for
any legal purpose. Why? Because, and only because, the law, the
supreme law of the land, has declared that the trial of all crimes
shall be by jury. And perhaps all will agree that the
constitutional injunction applies with like force to such
misdemeanors as by statute are punishable with imprisonment, and
that a circuit or district court of the United States is without
jurisdiction, under a plea of not guilty, no jury being impaneled,
to try any crime against the United States involving
life or
liberty. The consent of the accused in such a case certainly
cannot confer upon the court
Page 195 U. S. 96
authority to try the crime in a mode inconsistent with the one
prescribed by the law.
In my judgment, the same principle must apply in the present
case, although a fine only can be imposed. The case is embraced by
the very words of the Constitution; for the offense charged is a
crime -- nonetheless a crime because only a fine is involved -- and
the constitutional mandate is that the trial of all crimes, except
impeachment, shall be by jury. By what authority can a federal
court except from the operation of the constitutional mandate a
crime punishable by fine? It is said that only the property of the
accused can be affected, and therefore to his consent in this
criminal case should be accorded the same effect as is given to his
consent in a purely civil case to which he might be a party, and
which involved no element of crime. In this view I cannot concur.
Something more than property is involved in a criminal case,
although the penalty imposed may be simply a fine. Whether the
accused has violated the laws of his country, and whether he shall
be branded by the judgment of a court as a criminal, are things of
more consequence to the public than property the value of which is
to be measured in money. What shall constitute a crime, how that
crime shall be tried, and in what way the guilt of the accused
shall be manifested when he pleads not guilty are exclusively for
the government to declare and regulate, and it is not for the
accused and the prosecutor, by the device of an agreement between
them, to evade the requirements of the Constitution and provide a
tribunal for the determination of the issue of crime or no crime
different from that designated by the law. Crime or no crime, if
the plea be not guilty, can be established in a court of the United
States only by the verdict of a jury.
Undoubtedly, as already indicated, there were petty or minor
crimes which at common law could be tried without a jury, and it
may be assumed for the purposes of this case that the
constitutional provision that all crimes except impeachment
Page 195 U. S. 97
shall be tried by jury is to be interpreted in the light of that
fact. But it may be repeated that the trial even of such cases
without a jury was contrary to the genius of the common law, and
was allowed by the courts
only in obedience to acts of
Parliament, which was not bound by a written constitution, and
whose authority in matters of legislation was omnipotent, and
therefore not to be disputed by any English court. An enumeration
of all crimes against the United States which may be reasonably
declared to belong to the class known at the common law as petty
offenses, punishable
under legislative sanction without
the intervention of a jury, need not here be attempted. Nor is it
necessary to express any final judgment upon the question whether
the particular crime here involved might,
by statute, be
placed in that class and tried without a jury. It is enough to say
that, even if Congress could place it in that class, and authorize
its trial by summary proceedings, without a jury, or with a jury of
less than twelve, it has not done so. The case therefore is
controlled by the express constitutional injunction that all
crimes, except in cases of impeachment, shall be tried by a jury.
The agreement of the accused and the prosecutor cannot confer
jurisdiction, much less have the effect to displace the mode of
trial established by the fundamental law, and substitute for it one
inconsistent with the principles of the common law, as unmodified
by any valid statute.
It is said that the nature of the offense and the amount of
punishment prescribed must determine whether it is to be classed
among serious or petty offenses. This, I take it, means that it is
for the court, in the exercise of its inherent powers, to determine
whether the offense is a serious one, to be tried alone by a jury,
or a petty one, which may be tried without a jury. But the
judiciary had no such function at common law. No court at common
law assumed, without a jury, to try any offense, however trivial or
petty, except under the authority of a statute conferring authority
to that end. If the offense is punishable only by a fine of fifty
dollars,
Page 195 U. S. 98
as is the case here -- is it to be deemed a petty offense? And
yet is one punishable by a fine of $500 to be deemed a serious one?
Must there not be some fixed rule or limit on the subject? In my
judgment, the Constitution establishes a rule which must be
respected by every branch of the government. Yet, under the
principles now announced, an offense punishable by a fine of five
or ten thousand dollars may be regarded, if the court so wills, as
a petty offense, triable without a jury. I cannot understand where
the judiciary derives its authority to prescribe any rule on the
subject, in face of the absolute constitutional requirement that
all crimes, except in cases of impeachment, shall be tried by a
jury, and in face of the further significant fact that no court at
common law ever assumed to regard any crime, however trivial, as
triable without a jury except under express legislative
sanction.
Again, it is said that in the original draft of the Constitution
the words were "the trial of all criminal offenses . . . shall be
by jury," and that these words were changed in the Convention so as
to read "the trial of all crimes." Strangely enough, it is supposed
that this change of words justifies the conclusion that the framers
of the Constitution intended to dispense with a jury in such
criminal offenses as the courts, uncontrolled by statute, deemed
petty, as contrasted with those that they deemed serious. To say
that "crimes" means something different from "criminal offenses" is
something that I cannot comprehend. A crime is a criminal offense
and a criminal offense is a crime. But the contention of the
prosecution, even if sound, does not answer the suggestion that, at
common law, it was never the province of a court, by any inherent
power it possessed, to prescribe what criminal offenses or crimes
were triable, and what need not be tried, by jury. My point is that
no criminal offense or crime against the United States can be tried
except by jury, if the plea be not guilty, unless it be a petty
offense or crime, and unless the legislative department declares
that it may be so
Page 195 U. S. 99
tried. If the offense or crime be, in reality, in its essence, a
petty one, then Congress may authorize it to be tried without a
jury. But Congress has not so declared in respect of the offense or
crime charged against the present defendant. The trial by jury is
not one of form, but of the very substance of the mode prescribed
for the trial of crimes. It may not be waived merely by the consent
of the accused and the prosecutor. In the present case, the court,
as I think, entrenches upon the domain of the legislative
department of the government. It assumes without authority to
prescribe a rule of criminal procedure which Congress has not, in
its wisdom, undertaken to prescribe. It has made, not declared,
law. There is no tendency, in these latter days, more dangerous
than the assumption by one department of the government of powers
that belong to another department.
It is contended that this mode of trial, at least in
misdemeanors involving only a fine, ought to be sanctioned --
indeed, encouraged -- as convenient both for the government and the
accused. What was said by Blackstone when referring to summary
proceedings authorized by acts of Parliament in particular cases
may well be repeated at this day, whenever it is proposed, upon
grounds of convenience, to dispense with juries in criminal
prosecutions, and thereby introduce a new mode for the trial of
crimes. He said:
"And, however
convenient these may appear at first (as
doubtless all arbitrary powers, well executed, are the most
convenient), yet let it be again remembered, that delays and little
inconveniences in the forms of justice are the price that all free
nations must pay for their liberty in more substantial matters;
that these inroads upon this sacred bulwark of the nation are
fundamentally opposite to the spirit of our Constitution, and that,
though begun in trifles, the precedent may gradually increase and
spread, to the utter disuse of juries in questions of the most
momentous concern."
Book 4, c. 27, 350.
I insist that, as the offense charged in each of these cases
Page 195 U. S. 100
was a crime against the United States; as the Constitution
expressly declares, without qualification, that the trial of all
crimes, except impeachment, shall be by jury; as Congress has not
assumed to declare that this case and like ones may be tried
without a jury, the parties assenting, and as the trial of these
cases by the court alone, without a jury, has no other sanction
than the consent of the accused and the district attorney, the
judgment in each case should be reversed, and each case remanded
with directions to set aside the judgment, grant a new trial, and
take such further proceedings as may be in conformity with law.