In the first crimes act of April 30, 1790, it was provided that "the trial of crimes committed on the high seas, or in any place out of the jurisdiction of any particular State, shall be in the district where the offender is apprehended, or into which he may first be brought." In other words, the provisions of the Sixth Amendment were held by Congress to apply only to crimes committed within a State and within its jurisdiction.19

§ 413. Jury Trial in the District of Columbia and the Territories

In Callan v. Wilson20 it was held that the right of jury trial necessarily applied within the District of Columbia and the Territories.21 As to this the court say that this right "was demanded and secured for the benefit of all the people of the United States, as well those permanently or temporarily residing in the District of Columbia as those residing in the several States. There is nothing in the history of the Constitution or of the original amendments, to justify the assertion that the people of this District may be lawfully deprived of the benefit of any of the constitutional guarantees of life, liberty, and property- especially of the privilege of trial by jury in criminal cases."

§ 414. Unanimity.

In Springville v. Thomas22 it was claimed that the territorial legislature of Utah was empowered by the organic act [of Congress] September 9, 1850, to provide that unanimity of action on the part of the jurors in civil cases was not necessary to a valid verdict. The Supreme Court, however, said: "In our opinion the Seventh Amendment secured unanimity in finding a verdict as

19 United States v. Dawson, 15 How. 467; 14 L. ed. 775; Jones v. United States, 137 U. S. 202; 11 Sup. Ct. Rep. 80; 34 L. ed. 691.

20 127 U. S. 540; 8 Sup. Ct. Rep. 1301; 32 L. ed. 223.

21 By the later Insular Cases four of the justices held that this is true only as to "incorporated” territories, while Justice Brown held that it applies only when Congress has expressly or impliedly extended the Constitution to the territory in question.

22 166 U. S. 707; 17 Sup. Ct. Rep. 717; 41 L. ed. 1172.

an essential feature of trial by jury in common-law cases, and the act of Congress could not impart the power to change the constitutional rule, and could not be treated as attempting to do so." The reasoning thus applied to the Seventh Amendment would of course equally apply to the Sixth Amendment. It is clear, however, that this dictum has been overruled by the Insular Cases so far at least as regards the power of Congress over unincorporated territories.

§ 415. Twelve Jurors Required.

This declaration in Springville v. Thomas is quoted with approval in Thompson v. Utah,23 the court adding: "It is equally beyond question that the provisions of the National Constitution. relating to criminal prosecutions apply to the territories of the United States." Assuming this to be true the court, in this latter case go on to inquire whether the jury referred to in the Constitution is necessarily a jury of twelve persons, neither more nor less. This inquiry is resolved in the affirmative, and the court say: "When Thompson's crime was committed, it was his constitutional right to demand that his liberty should not be taken from him except by the joint action of the court and the unanimous verdict of a jury of twelve persons." 24

§ 416. Courts and Actions in which Jury not Required.

The right of trial by jury provided for in the Constitution applies only in the federal courts, and in them it applies only to those cases in which, by common practice at the time the Constitution was adopted, it was employed in the colonies and in Eng

23 170 U. S. 343; 18 Sup. Ct. Rep. 620; 42 L. ed. 1061.

24 In Capital Traction Co. v. Hof (174 U. S. 1; 19 Sup. Ct. Rep. 580; 43 L. ed. 873) the court say: "It is beyond question at the present day, that the provisions of the Constitution of the United States securing the right of trial by jury, whether in civil or in criminal cases, are applicable to the District of Columbia" (quoting Webster v. Reid, 11 How. 437; 13 L. ed. 7¤1; Callan v. Wilson, 127 U. S. 540; 8 Sup. Ct. Rep. 1301; 32 L. ed. 223; Thompson v. Utah, 170 U. S. 343; 18 Sup. Ct. Rep. 620; 42 L. ed. 1061).

land. Thus it does not apply to equity causes, to cases in admiralty and to military courts, nor where the special prerogative rights of courts are involved, as, for example, in proceedings for disbarment or for contempt.'

25

A serious constitutional question might, however, be raised by a legislative attempt to extend equity jurisdiction over a matter not essentially equitable in nature, and thus render it triable without a jury. As to such action upon the part of the States, the federal question involved would be one of due process of law.20 In habeas corpus proceedings a jury is neither required nor proper.

It has been held that due process of law does not require a jury

25 In Re Debs (158 U. S. 564; 15 Sup. Ct. Rep. 900; 39 L. ed. 1092), after asserting that it is often within the competence of a court of equity to enjoin the commission of an act; even though that act be also forbidden by the criminal law, the court declare: "Nor is there in this any invasion of the constitutional right of trial by jury .. the power of a court to make an order carries with it the equal power to punish for a disobedience of that order, and the inquiry as to the question of disobedience has been, from time immemorial, the special function of the court. And this is no technical rule. In order that a court may compel obedience to its orders it must have the right to inquire whether there has been any disobedience thereof. To submit the question of disobedience to another tribunal, be it a jury or another court, would operate to deprive the proceeding of half its efficiency."

66

In Eilenbecker v. Dist. Court of Plymouth Co. (134 U. S. 31; 10 Sup. Ct. Rep. 424; 33 L. ed. 801), the court say: If it has ever been understood that proceedings according to the common law for contempt of court have been subject to the right of trial by jury, we have been unable to find any instance of it. It has always been one of the attributes, one of the powers necessarily incident to a court of justice—that it should have this power of vindicating its dignity, of enforcing its orders, of protecting itself from insult, without the necessity of calling upon a jury to assist it in the exercise of this power."

In Ex parte Robinson (19 Wall. 513; 22 L. ed. 205), the court say: "The moment the courts of the United States were called into existence and invested with jurisdiction over any subject, they became possessed of this power." Cf. Ex parte Terry, 128 U. S. 289; 9 Sup. Ct. Rep. 77; 32 L. ed.

26 Mugler v. Kansas, 123 U. S. 623; 8 Sup. Ct. Rep. 273; 31 L. ed. 205.

in the execution of political and executive functions, as, for example, the enforcement of the Chinese exclusion acts.27

§ 417. Petty Offenses.

It has been generally recognized by courts, federal as well as state, that the guarantee of the right to a trial by jury does not apply to the petty offenses which, at the time the Constitution was adopted, it was generally recognized might be more summarily dealt with. The enjoyment of the right is not, however, limited to felonies.28

27 See Chapter LXIV. In Fong Yue Ting v. United States (149 U. S. 698; 13 Sup. Ct. Rep. 1016; 37 L. ed. 905), the court say: "The proceeding before a United States judge, as provided for in section 6 of the Act of 1892, is in no proper sense a trial and sentence for a crime or offense. It is simply the ascertainment, by appropriate and lawful means, of the fact whether the conditions exist upon which Congress has enacted that an alien of this class may remain within the country. The order of deportation is not a punishment for a crime. It is not a banishment in the sense in which that word is often applied to the expulsion of a citizen from his country by way of punishment. It is but a method of enforcing the return to his own country of an alien who has not complied with the conditions upon the performance of which the government of the nation, acting within its constitutional authority and through the proper departments, has determined that his continuing to reside here shall depend. He has not, therefore, been deprived of life, liberty, or property, without due process of law; and the provisions of the Constitution, securing the right of trial by jury, and prohibiting unreasonable searches and seizures, and cruel and unusual punishments, have no application."

66

28 In Callan v. Wilson (127 U. S. 540; 8 Sup. Ct. Rep. 1301; 32 L. ed. 223), the court say: The third article of the Constitution provides for a jury in the trial of all crimes, except in cases of impeachment. The word 'crime,' in its more extended sense, comprehends every violation of public law; in a limited sense, it embraces offenses of a serious or atrocious character. In our opinion, the provision is to be interpreted in the light of the principles which, at common law, determined whether the accused, in a given class of cases, was entitled to be tried by a jury. It is not to be construed as relating only to felonies, or offenses punishable by confinement in the penitentiary. It embraces as well some classes of misdemeanors, the punishment of which involves or may involve the deprivation of the liberty of the citizen. It would be a narrow construction of the Constitution to hold that no prosecution for a misdemeanor is a prosecution for a 'crime' within the meaning of the third article, or a 'criminal prosecution' within the meaning of the Sixth Amendment. And we do not think that the amendment was intended to supplant that part of the third article which relates to trial by jury."

In Callan v. Wilson,29 which was an appeal from a judgment refusing, upon writ of habeas corpus, to discharge the appellant from the custody of the marshal of the District of Columbia, the appellant having been sentenced to jail for thirty days upon conviction without jury trial in the police court of the District upon a charge of conspiracy, the Supreme Court, after reviewing cases in the States, and lower federal courts, declare: "Except in that class or grade of offenses called petty offenses, which, according to common law, may be proceeded against summarily in any tribunal legally constituted for that purpose, the guarantee by 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 to trial for the offense charged. In such cases, a judgment of conviction, not based upon a verdict of guilty by a jury, is void. To accord to the accused a right to be tried by a jury in an appellate court, after he has been once fully tried, otherwise than by a jury, in a court of original jurisdiction, and sentenced to pay a fine or be imprisoned for not paying it, does not satisfy the requirements of the Constitution."

§ 418. Infamous Crimes.

The provision of the Fifth Amendment that no one shall be held to trial for a criminal offense unless on a presentment or indictment of a grand jury, is expressly limited to capital or other infamous crimes.30 It would seem that there is no hard and fast definition, in American law at least, of an "infamous crime," each case having thus to be decided on its merits. Possibly the best general discussion of the meaning of the term is, however, that of the court in Ex parte Wilson,31 where it is said: "Nor can we accede to the proposition which has been sometimes main

29 127 U. S. 540; 8 Sup. Ct. Rep. 1301; 32 L. ed. 223.

30" Cases arising in the land or naval forces, or in the militia, when in actual service in time of war and public danger" are excepted from the grand jury requirement.

31 114 U. S. 417; 5 Sup. Ct. Rep. 935; 29 L. ed. 89.