any person who fraudulently gives away or v. Attrill, 146 U. S. 657, 667, 36 L. ed. 1123, accepts from another, or who sells, buys, 1127, 13 Sup. Ct. Rep. 224, 227, after reor uses for packing oleomargarine any such ferring to the maxim of international law stamped package, shall, for each such (The Antelope, 10 Wheat. 66, 123, 6 L. ed. offense, be fined not exceeding $100, and be 268, 282), that "the courts of no country imprisoned not more than one year." § 13. execute the penal laws of another," and obAny person who wilfully removes or defaces serving that there was great danger, when the stamps, marks, or brands on packages interpreting that maxim, of being misled containing oleomargarine taxed as provided, by the different shades of meaning allowed is guilty "of a misdemeanor, and shall be to the word "penal" in our language, this punished by a fine of not less than one hun- court said: "In the municipal law of Engdred dollars, nor more than two thousand land and America the words 'penal' and dollars, and by imprisonment for not less 'penalty' have been used in various senses. than thirty days, nor more than six Strictly and primarily, they denote punishmonths." § 15. Whenever any person en- ment, whether corporal or pecuniary, imgaged in carrying on the business of manu- posed and enforced by the state for a crime facturing oleomargarine, defrauds, or at- or offense against its laws. . . Penal tempts to defraud,*the United States of the laws, strictly and properly, are those imtax on oleomargarine produced by him, or posing punishment for an offense committed any part thereof, he forfeits the factory and against the state, and which, by the English manufacturing apparatus used by him, and and American Constitutions, the executive all oleomargarine and all raw material for of the state has the power to pardon." Bethe production of oleomargarine found in sides, the act throughout uses the words the factory and on the factory premises, "fine," and "fined,"-words which, in their and "shall be fined not less than five hun-primary sense, import the punishment of a dred dollars nor more than five thousand person convicted of crime. 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 § 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." 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 of fense, a crime against the United States,to be punished as such. Certainly the offenses prescribed in §§ 4, 6, 7, 10, 13, 15, and 17 are crimes against the United States. 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 chose to proceed by criminal information, and the accused pleaded not guilty of the crime charged. 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 II. So far it has been my object only it its adequate and necessary penalty.' Al- to show that the offense charged was a luding to the importance of this department crime against the United States. of legal science, he says: The enacting of inquire as to the mode in which it may be penalties to which a whole nation shall be legally ascertained whether an accused, subject should be calmly and maturely con- pleading not guilty, has committed the sidered.' Referring to the unwise policy of crime charged against him? Has the law inflicting capital punishment for certain designated any particular tribunal, or precomparatively slight offenses, he speaks of scribed any special mode, for trying the them as these outrageous penalties,' and issue as to his guilt? The words of the frequently refers to laws that inflict the Constitution upon this subject are clear and 'penalty of death.'" United States v. Reis-explicit. They leave no room for interpreinger, 128 U. S. 398, 402, 32 L. ed. 480, 481, | tation. Its express mandate is that "the Sup. Ct. Rep. 99, 101. So, in Huntington trial of all crimes, except in cases of im I now SCHICK v. UNITED STATES. 831 peachment, shall be by jury." Const. art. 3. | Stephen's History of the Criminal Law, is that, although the positive constitutional The contention in the present prosecutions injunction that the trial of all crimes shall may not be ignored in cases of felony, that be by jury furnishes an inflexible rule 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 common law. In determining the meaning procedure, as established and enforced at 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 v. Hoboken Land & Improv. Co. 18 How. 272, 277, 15 L. ed. 372, 374. So, Den ex dem. in ascertaining whether, under any circumstances, a criminal case may be tried in a Federal court without a jury,-the accused pleading not guilty, we must inquire whether the Constitution forbids such an exercise of authority by the court, without matter; if it does not, then, and then only, a jury. If it does, that is the end of the 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. It is suggested that if any conflict exists between the absolute requirement in the original Constitution (art. 3, § 2), that the "trial of all crimes, except in cases of impeachment, shall be by jury," and the provision in the 6th 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. posed the acceptance of the Constitution Those who opsaid, among other things, that the words of that instrument, strictly construed (art. 3, § 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 6th Amendment was adopted, in which the essential features of the trial required by § 2 of article 3 are set forth. In other words, the trial required by that section is the trial referred to in the 6th 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, 349, 42 L. ed. 1061, 1066, 18 Sup. Ct. Rep. 620; 2 Hale P. C. part 2, 161; 1 Chitty Crim.*Law, 505; King v. St. Michael, 2 W. Bl. 719; Clyncard's Case, Cro. Eliz. part 2, p. 654. Mr. Justice Story said: "The Constitution of the United States that the Constitution expressly requires Proceeding on that basis, we have seen has exhibited great solicitude on the subject that the trial of all crimes, except impeachof the trial of crimes and has declared that ment, shall be by jury; and I assert, with the trial of all crimes, except in cases of confidence, that no precedent can be found impeachment, shall be by the jury; and has, without a jury, of any crimes except those in some cases, prescribed, and in others re- described in adjudged eases and by elemenat common law for the trial by the court, quired Congress to prescribe, the place of trial. And certain amendments of the Con-involved in the internal police of the state, stitution, in the nature of a Bill of Rights, and those could be tried summarily by some tary authorities as minor or petty offenses have been adopted, which fortify and guard court or officer, without the intervention of this inestimable right of trial by jury." a jury, only when thereunto authorized by United States v. Gibert, 2 Sumn. 19, 37, an act of Parliament. Except in cases of Fed. Cas. No. 15,204. See also Capital Trac- contempt, the common law, Blackstone says, tion Co. v. Hof, 174 U. S. 1, 43 L. ed. 873, was a stranger to the summary proceed19 Sup. Ct. Rep. 580; Natal v. Louisiana, ings authorized by acts of Parliament. 139 U. S. 621, 624, 35 L. ed. 288, 289, 11 Bank 4, chap. 20, p. 280. I am not aware Sup. Ct. Rep. 636; 4 Bl. Com. 280; of, nor has there been cited, any case in Eng land in which, after Magna Charta, and | fidently asked by those who make that sugprior to the adoption of our Constitution, gestion, Why may not one charged with a a court, tribunal, officer, or commissioner misdemeanor, and pleading not guilty, has, without a jury, even in the case of a waive a jury altogether, and consent to be petty offense, determined the question of tried by the court? This argument will not crime or no crime, when the defendant stand the test of reason. It proceeds upon pleaded not guilty, unless the authority to the ground that jurisdiction to try a crimdo so was expressly conferred by an act of inal case may be given by consent of the Parliament. The exceptions to the rule at accused and the prosecutor. But such concommon law that all crimes must be tried sent could have no legal efficacy. Undoubtby a jury were in the mind of this court edly one accused of murder may plead when, in Callan v. Wilson, 127 U. S. 540, guilty. But in doing so he renders a trial 557, 32 L. ed. 223, 228, 8 Sup. Ct. Rep. unnecessary. The Constitution does not 1301, 1307, it said: “Except in that class or prohibit an accused from pleading guilty. grade of offenses called petty offenses, which, His right to do so was recognized long beaccording to the common law, may be pro- fore the adoption of that instrument; and ceeded against summarily in any tribunal it was never supposed that such a plea imlegally constituted for that purpose, the paired the force of the requirement that a gauranty of an impartial jury to the ac- trial for crime, under a plea of not guilty, cused in a criminal prosecution, conducted shall be by jury. It is not to be assumed either in the name, or by or under the au- that the Constitution intended, when prethority of the United States, secures to him serving the right of trial by jury, to change the right to enjoy that mode of trial from any essential rule of criminal practice esthe first moment, and in whatever court, he tablished at the common law, before the is put on trial for the offense charged. In adoption of that instrument. When the acsuch cases a judgment of conviction, not cused pleads guilty before a lawful tribunal based upon a verdict of guilty by a jury, is he admits every material fact well averred void." 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 ac 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 legis-cused pleads not guilty, there must, of neclated 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 con essity, 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 judg ment 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 may not be legally done or legally omitted in a criminal prosecu 18. *84 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. tion, even with the consent of the accused. | low creatures, merely upon their own auThis is abundantly established by author- thority.' 1 Bl. Com. 133. The public has ity. The grounds upon which the decisions an interest in his life and liberty. Neither rest are, upon principle, applicable alike can be lawfully taken except in the mode in cases of felonies and misdemeanors, al-prescribed by law. That which the law though the consequences to the accused may makes essential in proceedings involving be more evident as well as more serious in the deprivation of life or liberty cannot be the former than in the latter cases. Certain dispensed with or affected by the consent it is, that felonies and misdemeanors are of the accused, much less by his mere failequally crimes within the meaning of the ure, when on trial and in custody, to object constitutional provision that the trial of all to unauthorized methods." 4 Bl. Com. 11. crimes shall be by jury, and there is no In Thompson v. Utah, 170 U. S. 343, 353, warrant to construe that provision as if it 42 L. ed. 1061, 1067, 18 Sup. Ct. Rep. 620, read, "the trial of all crimes, except in cases 624, which was a case of grand larceny, of impeachment and in misdemeanors, shall charged to have been committed while Utah be by jury." 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 The first case to which I call attention is was in violation of his constitutional rights. Hopt v. Utah, 110 U. S. 574, 579, 28 L. ed. This court overruled that contention, say262, 265, 4 Sup. Ct. Rep. 202. That was ing: "It is sufficient to say that it was not a case of murder arising in Utah while a in the power of one accused of felony, by territory. It appeared that the trial, by consent expressly given or by his silence, to triers appointed by the court, of challenges authorize a jury of only eight persons to of proposed jurors, was not had in the pres- pass upon the question of his guilt. The ence of the accused. It was there argued law in force when this crime was committed that his presence at the trial of such an did not permit any tribunal to deprive him issue was a privilege which he was entitled of his liberty, except one constituted of a to waive, and that the entire proceedings court and a jury of twelve persons.” After against him should not fail because he referring to Hopt v. Utah, 110 U. S. 574, chose not to exercise that privilege. This 579, 28 L. ed. 262, 265, 4 Sup. Ct. Rep. 202, court, however, held that the trial of chal- the court proceeded: "If one under trial for lenges could not legally take place except a felony the punishment of which is conin the actual presence of the accused. In finement in a penitentiary could not legally dealing with the suggestion that the right consent that the trial proceed in his abof the accused to be present before the sence, still less could he assent to be detriers was waived by his failure to object prived of his liberty by a tribunal not auto their retirement from the court room, orthorized by law to determine his guilt.” to the trial of the several challenges in his "The infirmity," says Cooley, "in case of absence, it was said: "We are of opinion a trial by a jury of less than twelve, by that it was not within the power of the ac- consent, would be that the tribunal would cused or his counsel to dispense with the be one unknown to the law, created by mere statutory requirement as to his personal voluntary act of the parties; and it would presence at the trial. * The argument to the in effect be an attempt to submit to a contrary necessarily proceeds upon the species of arbitration the question whether ground that he alone is concerned as to the the accused has been guilty of an offense mode by which he may be deprived of his against the state." Const. Lim. 319. life or liberty, and that the chief object of A leading case is that of Cancemi v. Peothe prosecution is to punish him for the ple, 18 N. Y. 128, 136. Its doctrines have crime charged. But this is a mistaken view been widely accepted as based upon a sound as well of the relations which the accused interpretation of constitutional provisions holds to the public as of the end of human relating to criminal prosecutions. The court punishment. The natural life, says Black- of appeals of New York said: "These constone, 'cannot legally be disposed of or de-siderations make it apparent that the right stroyed by any individual, neither by the of a defendant in a criminal prosecution to person himself, nor by any other of his fel-affect, by consent, the conduct of the case, 24 S. C.-53. *86 should be much more limited than in civil | that one of the jurors was disqualified unactions. It should not be permitted to ex-der the statutes of Michigan. But that fact tend so far as to work radical changes in was unknown to the accused and his coungreat and leading provisions as to the or- sel until after the rendition of the verdict. ganization of the tribunals or the mode of It was contended by the state that by neg proceeding prescribed by the Constitution |lecting to challenge that juror, the accused and the laws. Effect may justly and safely lost the right to avail himself of the objecbe given to such consent in many particu- tion; and was to be deemed to have thereby lars; and the law does, in respect to various waived all objections to the juror or to a matters, regard and act upon it as valid. trial by eleven qualified jurors. It should Objections to jurors may be waived; the be here observed that the Constitution of court may be substituted för triers to dis-Michigan preserved the right, in all crim pose of challenges to jurors; secondary in inal prosecutions, to "a speedy and public place of primary evidence may be received; trial by an impartial jury, which may conadmissions of facts are allowed; and in sim- sist of less than twelve men in all courts ilar particulars, as well as in relation to not of record." Looking at the case as one mere formal proceedings generally, consent in which the trial had been by eleven comwill render valid what without it would be petent jurors only, the court considered the erroneous. A plea of guilty to any indict-general question of waiver as applicable to ment, whatever may be the grade of the criminal cases. Speaking by Judge Chris crime, will be received and acted upon if it tiancy, and observing that under the state is made clearly to appear that the nature | Constitution there could be no reasonable and effect of it are understood by the ac- doubt of the competency of parties in civil cused. In such a case the preliminary in- | cases to waive such an objection, or to stipvestigation of a grand jury, with the admis-ulate for a trial by jury of less than twelve, sion of the accusation in the indictment, is the court said: "But a criminal prosecusupposed to be a sufficient safeguard to the tion, in which the people in their sovereign public interests. But when issue is joined capacity prosecute for a crime against the upon an indictment, the trial must be by laws of the whole society, and seek to subthe tribunal and in the mode which the Con- ject the defendant to punishment, must, it stitution and laws provide, without any es- seems to us, be considered as a proceeding sential change. The public officer prosecut-in invitum, against the will of the defendant ing 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 institution or the laws, the result of which novation, 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 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 Con 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 be heeded by every one* charged with the administration of the |