David Josiah Brewer

“ 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 ”

“ 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. ”

“ 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 ”

“ 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 authority to try the crime in a mode inconsistent with the one prescribed by the law. ”

“ The question presented is not as to the waiver of 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. ”

“ The case is embraced by the very words of the Constitution; for the offense charged is a crime,-none the less 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? ”

“ In such a case the preliminary investigation of a grant jury, with the admission of the accusation in the indictment, is supposed 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. ”

“ 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. ”

“ 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. ”

“ 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.' Book 4, chap. ”

“ 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 ”

“ 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. ”

“ If that be so, surely the offense prescribed in § 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 § 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 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. ”

“ If one juror can be withdrawn, there is no reason why six or eight may not be, not 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. ”

“ 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. ”

“ 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 ”

“ 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. ”

“ There are some things so vital in their character that they 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. ”

“ 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, in so far as it provides for a jury of six only, and authorizes a conviction upon their finding, is unconstitutional and void.'
In United States v. ”