§ 41 (U. S. Comp. Stat. 1901, p. 2235); 32 | as if it were a criminal prosecution. It Stat. at L. 193, chap. 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. 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 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 *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“fined $50 for each package in respect to 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 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 I. That this is a criminal prosecution, than two years." 10. Any person who and that the mode of procedure must be wilfully neglects or refuses, when emptydetermined by the established rules governing a stamped package containing oleomaring the conduct of trials in criminal cases, garine, to utterly destroy such stamps, is, in my judgment, not to be doubted. The record itself describes the information as a criminal information, and the case was tried statute. "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 wilfully 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, 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 § 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." v. Attrill, 146 U. S. 657, 667, 36 L. ed. 1123, I cannot doubt, after a scrutiny of the 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 92 peachment, shall be by jury.” Const. art. 3. | Stephen's History of the Criminal Law, When the Constitution was placed before | 123. 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. 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." Den ex dem. Murray v. Hoboken Land & Improv. Co. 18 How. 272, 277, 15 L. ed. 372, 374. So, 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 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. 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. Those who opposed the acceptance of the Constitution said, 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 Proceeding on that basis, we have seen said: "The Constitution of the United States that the Constitution expressly requires 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 at common law for the trial by the court, in some cases, prescribed, and in others redescribed in adjudged eases and by elemenquired Congress to prescribe, the place of tary authorities as minor or petty offenses 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 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; i'of, nor has there been cited, any case in Eng 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. Undoubt 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 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 courtedly one accused of murder may plead when, in Callan v. Wilson, 127 U. S. 540, 557, 32 L. ed. 223, 228, 8 Sup. Ct. Rep. 1301, 1307, 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 gauranty 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. In such cases a judgment of conviction, not based upon a verdict of guilty by a jury, is void." 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 If, in analogy to the powers exercised by is no issue to be tried; no facts are to be the Parliament of England prior to the found; no trial occurs. After such a plea adoption of our Constitution, it should be nothing remains to be done except that the held that Congress could treat the particu-court shall pronounce judgment upon the lar 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 facts voluntarily confessed by the accused. What the Constitution requires is that the trial of a crime shall be by jury. If the ac 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 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 may not be legally done or legally omitted in a criminal prosecu 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 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. In Thompson v. Utah, 170 U. S. 343, 353, 42 L. ed. 1061, 1067, 18 Sup. Ct. Rep. 620, 624, 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 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, or thorized by law to determine his guilt." 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. 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 fel24 S. C.-53. "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, 136. 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, |