Chapter LXXVI: Section 4: The United States shall guarantee to every State in (9)

An important aspect of this problem was presented, but not definitely settled, in Screws _v._ United States.[49] There State law enforcement officers had been convicted of violating a federal law making it a crime for anyone acting under color of any law willfully to deprive anyone of rights secured by the Constitution of the United States.[50] The indictment charged that in beating to death a man whom they had just arrested, these officers had deprived him of life without due process of law. The defendant claimed that the statute was unconstitutional insofar as it made criminal acts in violation of the due process clause, because that concept was too vague to supply an ascertainable standard of guilt.[51] Four opinions were written in the Supreme Court, no one of which obtained the concurrence of a majority of the Justices. To "avoid grave constitutional questions" four members construed the word "willfully" as "connoting a purpose to deprive a person of a specific constitutional right,"[52] and held that such "requirement of a specific intent to deprive a person of a federal right made definite by decision or other rule of law saves the Act from any charge of unconstitutionality on the grounds of vagueness."[53] Justices Murphy and Rutledge considered the statute to be sufficiently definite with respect to the offense charged and thought it unnecessary to anticipate doubts that might arise in other cases.[54] However, to prevent a stalemate, Justice Rutledge voted with the four members who believed the case should be reversed to be tried again on their narrower interpretation of the statute. Justices Roberts, Frankfurter and Jackson found the act too indefinite to be rescued by a restrictive interpretation. With respect to the effect of the requirement of willfulness, they said: "If a statute does not satisfy the due-process requirement of giving decent advance notice of what it is which, if happening, will be visited with punishment, so that men may presumably have an opportunity to avoid the happening * * *, then 'willfully' bringing to pass such an undefined and too uncertain event cannot make it sufficiently definite and ascertainable. 'Willfully' doing something that is forbidden, when that something is not sufficiently defined according to the general conceptions of requisite certainty in our criminal law, is not rendered sufficiently definite by that unknowable having been done 'willfully.' It is true also of a statute that it cannot lift itself up by its bootstraps."[55] In Williams _v._ United States,[56] however, it was held by a sharply divided Court that Sec. 20 did not err for vagueness where the indictment made it clear that the constitutional right violated by the defendant was immunity from the use of force and violence to obtain a confession, and this meaning was also made clear by the trial judge's charge to the jury.[57]

Statutes prohibiting the coercion of employers to hire unneeded employees,[58] establishing minimum wages and maximum hours of service for persons engaged in the production of goods for interstate commerce,[59] forbidding undue or unreasonable restraints of trade,[60] making it unlawful to build fires near any forest or inflammable material,[61] banning the receipt of contributions by members of Congress from federal employees for any political purpose,[62] or penalizing the copying or taking of documents connected with the national defense, with intent, or reason to believe that they are to be used to the injury of the United States or to the advantage of a foreign nation,[63] have been held to be sufficiently definite to be constitutional. A provision penalizing excessive charges in connection with loans from the Home Owners Loan Corporation was not rendered indefinite by the exception of "ordinary fees for services actually rendered,"[64] nor was a statute forbidding misstatement of the quantity of the contents of a package wanting in certainty by reason of a proviso permitting "reasonable variations."[65]

The constitutional right to be informed of the nature and cause of the accusation entitles the defendant to insist that the indictment apprise him of the crime charged with such reasonable certainty that he can make his defense and protect himself after judgment against another prosecution on the same charge.[66] No indictment is sufficient if it does not allege all of the ingredients which constitute the crime. Where the language of a statute is, according to the natural import of the words, fully descriptive of the offense, it is sufficient if the indictment follows the statutory phraseology;[67] but where the elements of the crime have to be ascertained by reference to the common law or to other statutes, it is not sufficient to set forth the offense in the words of the statute; the facts necessary to bring the case within the statutory definition must also be alleged.[68] If an offense cannot be accurately and clearly described without an allegation that the accused is not within an exception contained in the statutes, an indictment which does not contain such allegation is defective.[69] Despite the omission of obscene particulars, an indictment in general language is good if the unlawful conduct is so described so as reasonably to inform the accused of the nature of the charge sought to be established against him.[70] The Constitution does not require the Government to furnish a copy of the indictment to an accused.[71]

Right of Confrontation

The right of confrontation did not originate in the Sixth Amendment; it was a common law right having recognized exceptions. The purpose of the constitutional provision was to preserve that right, but not to broaden it or wipe out the exceptions.[72] The amendment does not accord a right to be apprised of the names of witnesses who appeared before a grand jury.[73] It does not preclude the admission of dying declarations,[74] nor of the stenographic report of testimony given at a former trial by a witness since deceased.[75] An accused who is instrumental in concealing a witness cannot complain of the admission of evidence to prove what that witness testified at a former trial on a different indictment.[76] If the absence of the witness is chargeable to the negligence of the prosecution, rather than to the procurement of the accused, evidence given in a preliminary hearing before a United States Commissioner cannot be used at the trial.[77] A statute which declared that the judgment of conviction against the principal felons should be conclusive evidence, in a prosecution against persons to whom they had transferred property, that the property had been stolen or embezzled from the United States, was held to contravene this clause.[78]

Assistance of Counsel

The Sixth Amendment withholds from the federal courts, in all criminal proceedings, the power to deprive an accused of his life or liberty unless he has waived, or waives, the assistance of counsel.[79] Since deportation proceedings are not criminal in character, the admission of testimony given by the alien during investigation prior to arrest did not render the hearing unfair, despite the fact that he had not been advised of his right to have counsel or to decline to answer questions as to his alienage.[80] The right to counsel is violated where, over the defendant's objection, the court requires his counsel to represent a co-defendant whose interest may possibly conflict with his;[81] likewise where the trial judge decided, without notice to a defendant and without his presence, that the latter had consented to be represented by counsel who also represented another defendant in the same case.[82] The right may be waived by a defendant whose education qualifies him to make an intelligent choice.[83] A sentence imposed upon a plea of guilty is invalid if such plea was entered through deception or coercion of the prosecuting attorney, or in reliance upon erroneous advice given by a lawyer in the employ of the Government, where the defendant did not have the assistance of counsel and had not understandingly waived the right to such assistance.[84]

Notes

[1] Callan _v._ Wilson, 127 U.S. 540 (1888).

[2] Reynolds _v._ United States, 98 U.S. 145 (1879). _See also_ Lovato _v._ New Mexico, 242 U.S. 199 (1916).

[3] Balzac _v._ Porto Rico, 258 U.S. 298, 304-305 (1922).

[4] Rassmussen _v._ United States, 197 U.S. 516 (1905).

[5] 140 U.S. 453 (1891).

[6] Ibid. 464.

[7] United States _v._ Hudson & Goodwin, 7 Cr. 32, 33 (1812); United States _v._ Coolidge, 1 Wheat. 415 (1816); United States _v._ Britton, 108 U.S. 199, 206 (1883); United States _v._ Eaton, 144 U.S. 677, 687 (1892).

[8] Callan _v._ Wilson, 127 U.S. 540, 552 (1888).

[9] Schick _v._ United States, 195 U.S. 65, 68 (1904).

[10] District of Columbia _v._ Clawans, 300 U.S. 617 (1937).

[11] District of Columbia _v._ Colts, 282 U.S. 63 (1930).

[12] Callan _v._ Wilson, 127 U.S. 540 (1888).

[13] Oceanic Navigation Co. _v._ Stranahan, 214 U.S. 320 (1909); Hepner _v._ United States, 213 U.S. 103 (1909); United States _v._ Regan, 232 U.S. 37 (1914).

[14] United States ex rel. Turner _v._ Williams, 194 U.S. 279, 289 (1904); Zakonaite _v._ Wolf, 226 U.S. 272 (1912).

[15] In re Debs, 158 U.S. 564, 594 (1895); Gompers _v._ United States, 233 U.S. 604 (1914); Myers _v._ United States, 264 U.S. 95 (1924).

[16] United States _v._ Zucker, 161 U.S. 475, 481 (1896).

[17] Counselman _v._ Hitchcock, 142 U.S. 547, 563 (1892).

[18] Patton _v._ United States, 281 U.S. 276 (1930).

[19] Thompson _v._ Utah, 170 U.S. 343, 350 (1898); Rassmussen _v._ United States, 197 U.S. 518 (1905).

[20] Capital Traction Co. _v._ Hof, 174 U.S. 1, 13 (1899).

[21] Maxwell _v._ Dow, 176 U.S. 581, 586 (1900); Andres _v._ United States, 333 U.S. 740 (1948).

[22] Patton _v._ United States, 281 U.S. 276 (1930).

[23] Beavers _v._ Haubert, 198 U.S. 77 (1905).

[24] Callan _v._ Wilson, 127 U.S. 540, 557 (1888).

[25] Crawford _v._ United States, 212 U.S. 183 (1909).

[26] 299 U.S. 123 (1936).

[27] Frazier _v._ United States, 335 U.S. 497 (1948).

[28] Dennis _v._ United States, 339 U.S. 162 (1950).

[29] Stilson _v._ United States, 250 U.S. 583, 586 (1919).

[30] Reynolds _v._ United States, 98 U.S. 145 (1879).

[31] Ruthenberg _v._ United States, 245 U.S. 480 (1918).

[32] Salinger _v._ Loisel, 265 U.S. 224 (1924).

[33] Beavers _v._ Henkel, 194 U.S. 73, 83 (1904).

[34] Brown _v._ Elliott, 225 U.S. 392 (1912); Hyde _v._ United States, 225 U.S. 347 (1912); Haas _v._ Henkel, 216 U.S. 462 (1910).

[35] Burton _v._ United States, 202 U.S. 344 (1906).

[36] Armour Packing Co. _v._ United States, 209 U.S. 56 (1908).

[37] United States _v._ Johnson, 323 U.S. 273, 274 (1944).

[38] Hagner _v._ United States, 285 U.S. 427, 429 (1932).

[39] Hughes _v._ Gault, 271 U.S. 142 (1926). _Cf._ Tinsley _v._ Treat, 205 U.S. 20 (1907); Beavers _v._ Henkel, 194 U.S. 73, 84 (1904).

[40] Lamar _v._ United States, 241 U.S. 103 (1916).

[41] Jones _v._ United States, 137 U.S. 202, 211 (1890); United States _v._ Dawson, 15 How. 467, 488 (1853).

[42] Cook _v._ United States, 138 U.S. 157, 182 (1891). _See also_ United States _v._ Socony-Vacuum Oil Co., 310 U.S. 150, 250-254 (1940); _also_ United States _v._ Johnson, 323 U.S. 273 (1944).

[43] United States _v._ Potter, 56 F. 83, 88 (1892). _See also_ Viereck _v._ United States, 318 U.S. 236 (1943); Kraus Bros. _v._ United States, 327 U.S. 614, 621 (1946).

[44] United States _v._ Cohen Grocery Co., 264 F. 218, 220 (1920), affirmed 255 U.S. 81 (1921).

[45] 255 U.S. 81 (1921).

[46] Ibid. 89.

[47] 8 U.S.C. Sec. 145 (c).

[48] United States _v._ Spector, 343 U.S. 169 (1952).

[49] 325 U.S. 91 (1945).

[50] Section 20 of the Criminal Code; 18 U.S.C. Sec. 242.

[51] 325 U.S. 91, 94, 95.

[52] Ibid. 101.

[53] Ibid. 103.

[54] Ibid. 113, 135.

[55] Ibid. 154.

[56] 341 U.S. 97 (1951).

[57] _See also_ Koehler et al. _v._ United States, 342 U.S. 852 (1951).

[58] United States _v._ Petrillo, 332 U.S. 1 (1947).

[59] United States _v._ Darby, 312 U.S. 100, 125 (1941).

[60] Nash _v._ United States, 229 U.S. 373 (1913).

[61] United States _v._ Alford, 274 U.S. 264 (1927).

[62] United States _v._ Wurzbach, 280 U.S. 396 (1930).

[63] Gorin _v._ United States, 312 U.S. 19 (1941).

[64] Kay _v._ United States, 303 U.S. 1 (1938).

[65] United States _v._ Shreveport Grain & Elevator Co., 287 U.S. 77 (1932).

[66] United States _v._ Cruikshank, 92 U.S. 542, 544, 558 (1876); United States _v._ Simmons, 96 U.S. 360 (1878); Bartell _v._ United States, 227 U.S. 427 (1913); Burton _v._ United States, 202 U.S. 344 (1906).

[67] Potter _v._ United States, 155 U.S. 438, 444 (1894).

[68] United States _v._ Carll, 105 U.S. 611 (1882).

[69] United States _v._ Cook, 17 Wall. 168, 174 (1872).

[70] Rosen _v._ United States, 161 U.S. 29, 40 (1896).

[71] United States _v._ Van Duzee, 140 U.S. 169, 173 (1891).

[72] Salinger _v._ United States, 272 U.S. 542, 548 (1926).

[73] Wilson _v._ United States, 221 U.S. 361 (1911).

[74] Kirby _v._ United States, 174 U.S. 47, 61 (1809); Robertson _v._ Baldwin, 165 U.S. 275, 282 (1897).

[75] Mattox _v._ United States, 156 U.S. 237, 240 (1895).

[76] Reynolds _v._ United States, 98 U.S. 145, 160 (1879).

[77] Motes _v._ United States, 178 U.S. 458 (1900).

[78] Kirby _v._ United States, 174 U.S. 47 (1899).

[79] Johnson _v._ Zerbst, 304 U.S. 458, 463 (1938).

[80] United States ex rel. Bilokumsky _v._ Tod, 263 U.S. 149 (1923).

[81] Glasser _v._ United States, 315 U.S. 60 (1942).

[82] United States _v._ Hayman, 342 U.S. 205 (1952).

[83] Adams _v._ United States, 317 U.S. 269 (1942).

[84] Walker _v._ Johnston, 312 U.S. 275 (1941); Von Moltke _v._ Gillies, 332 U.S. 708 (1948). _See also_ United States ex rel. McCann _v._ Adams, 320 U.S. 220 (1943).

AMENDMENT 7

CIVIL TRIALS

Page
Trial by jury in civil cases 891
Origin and purpose of the amendment 891
Trial by jury, elements of, preserved 891
To what courts and cases applicable 892
Cases not governed by the amendment 893
Restrictive force of the amendment 894
Judge and jury 895
Line drawn by the common law 895
Directed verdicts 896
Waiver of right of trial by jury 897
Appeals from State courts to the Supreme Court 897

CIVIL TRIALS

Amendment 7

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

Trial by Jury in Civil Cases

ORIGIN AND PURPOSE OF THE AMENDMENT

Late in the Federal Convention it was moved that a clause be inserted in article III, section 2 of the draft Constitution to read "* * * and a trial by jury shall be preserved as usual in civil cases." The proposal failed when it was pointed out that the make-up and powers of juries differed greatly in different States and that a uniform provision for all States was impossible.[1] The objection evidently anticipated that in cases falling to their jurisdiction on account of the diversity of citizenship of the parties, the federal courts would conform their procedure to the laws of the several States.[2] The omission, however, raised an objection to the Constitution which "was pressed with an urgency and zeal * * * well-nigh preventing its ratification."[3] Nor was the agitation assuaged by Hamilton's suggestion in The Federalist that Congress would have ample power, in establishing the lower federal courts and in making "exceptions" to the Supreme Court's appellate jurisdiction, to safeguard jury trial in civil cases according to the standards of the common law.[4] His argument bore fruit, nevertheless, in the Seventh Amendment, whereby, in the words of the Court, the right of trial by jury is preserved as it "existed under the English common law when the amendment was adopted."[5]

TRIAL BY JURY, ELEMENTS OF, PRESERVED

"Trial by jury," in the sense of Amendment VII, "is a trial by a jury of twelve men, in the presence and under the superintendence of a judge empowered to instruct them on the law and to advise them on the facts and (except in acquittal of a criminal charge) to set aside their verdict if in his opinion it is against the law or the evidence."[6] A further requisite is "that there shall be a unanimous verdict of the twelve jurors in all federal courts where a jury trial is held."[7] Assuming such a jury, the amendment has for its primary purpose the preservation of "* * * the common law distinction between the province of the court and that of the jury, whereby, in the absence of express or implied consent to the contrary, issues of law are resolved by the court and issues of fact are to be determined by the jury under appropriate instructions by the court."[8] But the amendment "does not exact the retention of old forms of procedure" nor does it "prohibit the introduction of new methods of ascertaining what facts are in issue * * *" or new rules of evidence.[9]

TO WHAT COURTS AND CASES APPLICABLE

Amendment VII governs only courts which sit under the authority of the United States,[10] including courts in the territories[11] and the District of Columbia.[12] It does not apply to a State court even when it is enforcing a right created by federal statute.[13] Its coverage is "* * * limited to rights and remedies peculiarly legal in their nature, and such as it was proper to assert in courts of law and by the appropriate modes and proceedings of courts of law."[14] The term "common law" is used in contradistinction to suits in which equitable rights alone were recognized at the time of the framing of the amendment and equitable remedies were administered.[15] Hence it does not apply to cases where recovery of money damages is incident to equitable relief even though damages might have been recovered in an action at law.[16] Nor does it apply to cases in admiralty and maritime jurisdiction, in which the trial is by a court without a jury.[17] Nor does it reach statutory proceedings unknown to the common law, such as an application to a court of equity to enforce an order of an administrative body.[18]

CASES NOT GOVERNED BY THE AMENDMENT

Omission of a jury has been upheld in the following instances on the ground that the suit in question was not a suit at common law within the meaning of the Seventh Amendment;

(1) Suits to enforce claims against the United States.[19]

(2) Suit authorized by Territorial law against a municipality, based upon a moral obligation only.[20]

(3) Suit to cancel a naturalization certificate for fraud.[21]

(4) Order of deportation of an alien.[22]

(5) Assessment of damages in patent infringement suit.[23]

(6) Longshoremen's and Harbor Workers' Compensation Act.[24]

(7) Jurisdiction of bankruptcy court to examine into reasonableness of fees paid by person for legal services in contemplation of bankruptcy.[25]

(8) Final decision of customs appraisers in regard to value of imports.[26]

It has been further held that there was no infringement of the constitutional right to trial by jury in the following circumstances:

(1) A territorial statute requiring specific answers to special interrogations, in addition to a general verdict.[27]

(2) A rule of a District of Columbia court authorizing judgment by default in an action _ex contractu_, on failure to show by affidavit a good defense.[28]

(3) A federal court's observance of a State statute making a certified copy of a coroner's verdict _prima facie_ evidence of the facts stated.[29]

(4) A federal statute (24 Stat. 379) giving _prima facie_ effect to findings of the Interstate Commerce Commission.[30]

(5) An order of a District of Columbia court appointing an auditor in a law case to examine books and papers, make computations, hear testimony, and render a report which will serve as _prima facie_ evidence of the facts found and conclusions reached, unless rejected by the court.[31]

(6) A decree of the Supreme Court enjoining, in the exercise of its original jurisdiction, the State of Louisiana from continuing to trespass upon lands under the ocean beyond its coasts and requiring the State to account for the money derived from that area.[32]

RESTRICTIVE FORCE OF THE AMENDMENT

But the absolute right to a trial of the facts by a jury may not be impaired by any blending with a claim, properly cognizable at law, of a demand for equitable relief in aid of the legal action or during its pendency. Such aid in the federal courts must be sought in separate proceedings.[33] Federal statutes from Revised Statutes (Sec. 723) through the Judicial Code (Sec. 267), prohibiting courts of the United States to sustain suits in equity where the remedy is complete at law, serve to guard the right of trial by jury, and should be liberally construed.[34] So also should Equity Rule 30, requiring the answer to a bill in equity to state any counterclaim arising out of the same transaction; such rule was not intended to change the line between law and equity, and must be construed as referring to equitable counterclaims only.[35] Nor may the distinction between law and equity, so far as federal courts are concerned, be obliterated by State legislation.[36] So, where State law, in advance of judgment, treated the whole proceeding upon a simple contract, including determination of validity and of amount due, as an equitable proceeding, it brought the case within the federal equity jurisdiction on removal. Ascertainment of plaintiff's demand being properly by action at law, however, the fact that the equity court had power to summon a jury on occasion did not afford an equivalent of the right of trial by jury secured by the Seventh Amendment.[37] But where State law gives an equitable remedy, such as to quiet title to land, the federal courts will enforce it if it does not obstruct the rights of the parties as to trial by jury.[38] An order of the Court of Claims attempting to reinstate a dismissed case in violation of plaintiff's right to dismiss violates the latter's right to trial by jury and may be corrected by mandamus.[39]

Judge and Jury

LINE DRAWN BY THE COMMON LAW

As was noted above, the primary purpose of the amendment was to preserve the historic line separating the province of the jury from that of the judge, without at the same time preventing procedural improvement which did not transgress this line. Elucidating this formula, the Court has achieved the following results: It is constitutional for a federal judge, in the course of trial, to express his opinion upon the facts, provided all questions of fact are ultimately submitted to the jury;[40] to call the jury's attention to parts of the evidence he deems of special importance,[41] being careful to distinguish between matters of law and matters of opinion in relation thereto;[42] to inform the jury when there is not sufficient evidence to justify a verdict, that such is the case;[43] to direct the jury, after plaintiff's case is all in, to return a verdict for the defendant on the ground of the insufficiency of the evidence;[44] to set aside a verdict which in his opinion is against the law or the evidence, and order a new trial;[45] to refuse defendant a new trial on the condition, accepted by plaintiff, that the latter remit a portion of the damages awarded him;[46] but not, on the other hand, to deny plaintiff a new trial on the converse condition, although defendant accepted it.[47]

DIRECTED VERDICTS

In 1913 the Court held, in Slocum _v._ New York Life Insurance Company,[48] that where upon the evidence a federal trial court, sitting in New York, ought to have directed a verdict for one party but the jury found for the other contrary to the evidence, the amendment rendered it improper for a federal appeals court to order, in accordance with New York practice, the entry of a judgment contrary to the verdict; that the only course open to either court was to order a new trial. While plainly in accordance with the common law as it stood in 1791, the decision was five-to-four and was subjected to a heavy fire of professional criticism urging the convenience of the thing and the theory of the capacity of the common law for growth.[49] It has, moreover, been impaired, if not completely undermined by certain more recent holdings. In the first of these,[50] in which the same Justice spoke for the Court as in the Slocum Case, it was held that a trial court had the right to enter a judgment on the verdict of the jury for the plaintiff after overruling a motion by defendant for dismissal on the ground of insufficient evidence. The Court owned that its ruling was out of line with some of its expressions in the Slocum Case.[51] In the second case[52] the Court sustained a United States district court in Arkansas, in an action between parties of diverse citizenship, in rejecting a motion by defendant for dismissal and peremptorily directing a verdict for the plaintiff. The Supreme Court held that there was ample evidence to support the verdict and that the trial court, in following Arkansas procedure, had acted consistently with the Federal Conformity Act.[53] In the third case,[54] which involved an action against the Government for benefits under a war risk insurance policy which had been allowed to lapse, the trial court directed a verdict for the Government on the ground of the insufficiency of the evidence and was sustained in so doing by both the circuit court of appeals and the Supreme Court. Three Justices, speaking by Justice Black, dissented in an opinion in which it is asserted that "today's decision marks a continuation of the gradual process of judicial erosion which in one-hundred-fifty years has slowly worn away a major portion of the essential guarantee of the Seventh Amendment."[55] That the Court should experience occasional difficulty in harmonizing the idea of preserving the historic common law covering the relations of judge and jury with the notion of a developing common law is not surprising.

WAIVER OF RIGHT OF TRIAL BY JURY

Parties have a right to enter into a stipulation waiving a jury and submitting the case to the court upon an agreed statement of facts, even without any legislative provision for waiver.[56] "* * * Congress has, by statute, provided for the trial of issues of fact in civil cases by the court without the intervention of a jury, only when the parties waive their right to a jury by a stipulation in writing. Revised Statutes sections 648, 649."[57] This statutory provision for a written stipulation, however, does not preclude other kinds of waivers.[58] But every reasonable presumption should be indulged against a waiver.[59] None is to be implied from a request for a directed verdict.[60]

APPEALS FROM STATE COURTS TO THE SUPREME COURT

The last clause of Amendment VII is not restricted in its application to suits at common law tried before juries in United States courts. It applies equally to a case tried before a jury in a State court and brought to the United States Supreme Court on appeal.[61]

Notes

[1] 2 Farrand, Records, 628.

[2] _See_ Federal Conformity Act, 28 U.S.C.A. Sec. 724.

[3] 2 Story, Commentaries on the Constitution, Sec. 1763.

[4] Federalist, Nos. 81 and 83.

[5] Baltimore & C. Line _v._ Redman, 295 U.S. 654, 657 (1935); Parsons _v._ Bedford, 3 Pet. 433, 446-448 (1830).

[6] Capital Traction Co. _v._ Hof, 174 U.S. 1, 13, 14 (1899). Here it was held that a civil trial before a justice of the peace in the District of Columbia, although by a jury of twelve men, was not a jury trial in the sense of Amendment VII.

[7] Maxwell _v._ Dow, 176 U.S. 581, 586 (1900). _See also_ American Publishing Co. _v._ Fisher, 166 U.S. 464 (1897); Springville _v._ Thomas, 166 U.S. 707 (1897); Andres _v._ United States, 333 U.S. 740, 748 (1948).

[8] Baltimore & C. Line _v._ Redman, 295 U.S. 654, 657 (1935); Walker _v._ New Mexico, & S.P.R. Co., 165 U.S. 593, 596 (1897); Gasoline Products Co. _v._ Champlin Ref. Co., 283 U.S. 494, 497-499 (1931); Dimick _v._ Schiedt, 293 U.S. 474, 476, 485-486 (1935).

[9] Gasoline Products Co. _v._ Champlin Ref. Co., 283 U.S. 494, 498 (1931); Ex parte Peterson, 253 U.S. 300, 309 (1920).

[10] Pearson _v._ Yewdall, 95 U.S. 294, 296 (1877). _See also_ Edwards _v._ Elliott, 21 Wall. 532, 557 (1874); Justices of the Sup. Ct. _v._ United States ex rel. Murray, 9 Wall. 274, 277 (1870); Walker _v._ Sauvinet, 92 U.S. 90 (1876); St. Louis & K.C. Land Co. _v._ Kansas City, 241 U.S. 419 (1916).

[11] Webster _v._ Reid, 11 How. 437, 460 (1851); Kennon _v._ Gilmer, 131 U.S. 22, 28 (1889).

[12] Capital Traction Co. _v._ Hof, 174 U.S. 1, 5 (1899).

[13] Minneapolis & St. L.R. Co. _v._ Bombolis, 241 U.S. 211 (1916), which involved The Federal Employers Liability Act of 1908. The ruling is followed in four other cases in the same volume. _See_ ibid. 241, 261, 485 and 494.

[14] Shields _v._ Thomas, 18 How. 253, 262 (1856).

[15] Parsons _v._ Bedford, 3 Pet. 433, 447 (1830); Barton _v._ Barbour, 104 U.S. 126, 133 (1881).

[16] Clark _v._ Wooster, 119 U.S. 322, 325 (1886); Pease _v._ Rathbun-Jones Eng. Co., 243 U.S. 273, 279 (1917).

[17] Parsons _v._ Bedford, above; Waring _v._ Clarke, 5 How. 441, 460 (1847). _See also_ The "Sarah," 8 Wheat. 390, 391 (1823), and cases there cited.

[18] Labor Board _v._ Jones & Laughlin, 301 U.S. 1, 48 (1937). _See also_ Interstate Commerce Commission _v._ Brimson, 154 U.S. 447, 488 (1894); Yakus _v._ United States, 321 U.S. 414, 447 (1944).

[19] McElrath _v._ United States, 102 U.S. 426, 440 (1880). _See also_ Galloway _v._ United States, 319 U.S. 372, 388 (1943).

[20] Guthrie Nat. Bank _v._ Guthrie, 173 U.S. 528, 534 (1899). _See also_ United States _v._ Realty Co., 163 U.S. 427, 439 (1896); Jefferson City Gaslight Co. _v._ Clark, 95 U.S. 644, 653 (1877).

[21] Luria _v._ United States, 231 U.S. 9, 27 (1913).

[22] Gee Wah Lee _v._ United States, 25 F. (2d) 107 (1928); certiorari denied, 277 U.S. 608 (1928).

[23] Filer & S. Co. _v._ Diamond Iron Works, 270 F. 489 (1921); certiorari denied, 256 U.S. 691 (1921).

[24] Crowell _v._ Benson, 285 U.S. 22, 45 (1932).

[25] In re Wood and Henderson, 210 U.S. 246 (1908).

[26] Auffmordt _v._ Hedden, 137 U.S. 310, 329 (1890).

[27] Walker _v._ New Mexico & S.P.R. Co., 165 U.S. 593, 598 (1897).

[28] Fidelity & D. Co. _v._ United States, 187 U.S. 315, 320 (1902).

[29] Jensen _v._ Continental Life Ins. Co., 28 F. (2d) 545 (1928), certiorari denied, 279 U.S. 842 (1929).

[30] Meeker _v._ Lehigh Valley R. Co., 236 U.S. 434, 439 (1915).

[31] Ex parte Peterson, 253 U.S. 300 (1920).

[32] United States _v._ Louisiana, 339 U.S. 699 (1950).

[33] Scott _v._ Neely, 140 U.S. 106, 109 (1891). _See also_ Bennett _v._ Butterworth, 11 How. 669 (1850); Hipp _v._ Babin, 19 How. 271, 278 (1857); Lewis _v._ Cocks, 23 Wall. 466, 470 (1874); Killian _v._ Ebbinghaus, 110 U.S. 568, 573 (1884); Buzard _v._ Houston, 119 U.S. 347, 351 (1886).

[34] Schoenthal _v._ Irving Trust Co., 287 U.S. 92, 94 (1932).

[35] American Mills Co. _v._ American Surety Co., 260 U.S. 360, 364 (1922). _See also_ Stamey _v._ United States, 37 F. (2d) 188 (1929).

[36] Thompson _v._ Central Ohio R. Co., 6 Wall. 134 (1868).

[37] Whitehead _v._ Shattuck, 138 U.S. 146 (1891); Buzard _v._ Houston, 119 U.S. 347 (1886); Greeley _v._ Lowe, 155 U.S. 58, 75 (1894).

[38] Clark _v._ Smith, 13 Pet. 195 (1839); Holland _v._ Challen, 110 U.S. 15 (1884); Reynolds _v._ Crawfordsville First Nat. Bank, 112 U.S. 405 (1884); Chapman _v._ Brewer, 114 U.S. 158 (1885); Cummings _v._ Merchants Nat. Bank, 101 U.S. 153, 157 (1880); United States _v._ Landram, 118 U.S. 81 (1886); More _v._ Steinbach, 127 U.S. 70 (1888). _Cf._ Re Simons, 247 U.S. 231 (1918).

[39] Ex parte Skinner & Eddy Corp., 265 U.S. 86, 96 (1924).

[40] Vicksburg & M.R. Co. _v._ Putnam, 118 U.S. 545, 553 (1886); United States _v._ Reading Railroad, 123 U.S. 113, 114 (1887).

[41] 118 U.S. 545; where are cited Carver _v._ Jackson ex dem. Astor et al., 4 Pet. 1, 80 (1830); Magniac _v._ Thompson, 7 Pet. 348, 390 (1833); Mitchell _v._ Harmony, 13 How. 115, 131 (1852); Transportation Line _v._ Hope, 95 U.S. 297, 302 (1877).

[42] Games _v._ Dunn, 14 Pet. 322, 327 (1840).

[43] Sparf _v._ United States, 156 U.S. 51, 99-100 (1895); Pleasants _v._ Fant, 22 Wall. 116, 121 (1875); Randall _v._ Baltimore & Ohio R.R. Co., 109 U.S. 478, 482 (1883); Meehan _v._ Valentine, 145 U.S. 611, 625 (1892); Coughran _v._ Bigelow, 164 U.S. 301 (1896).

[44] Treat Mfg. Co. _v._ Standard Steel & Iron Co., 157 U.S. 674 (1895); Randall _v._ Baltimore & Ohio R.R. Co., 109 U.S. 478, 482 (1883) and cases there cited.

[45] Capital Traction Co. _v._ Hof, 174 U.S. 1, 13 (1899).

[46] Arkansas Land & Cattle Co. _v._ Mann, 130 U.S. 69, 74 (1889).

[47] Dimick _v._ Schiedt, 293 U.S. 474, 476-478 (1935).

[48] 228 U.S. 364 (1913).

[49] _See_ Austin Wakeman Scott, Fundamentals of Procedure in Actions at Law (1922), 103 and articles there cited.

[50] Baltimore & C. Line _v._ Redman, 295 U.S. 654 (1935).

[51] Ibid. 661.

[52] Lyon _v._ Mutual Benefit Assn., 305 U.S. 484 (1939).

[53] 28 U.S.C.A. Sec. 724.

[54] Galloway _v._ United States, 319 U.S. 372 (1943).

[55] Ibid. 397. As a matter of fact, the case being a claim against the United States need not have been tried by a jury except for the allowance of Congress.

[56] Henderson's Distilled Spirits, 14 Wall. 44, 53 (1872). _See also_ Rogers _v._ United States, 141 U.S. 548, 554 (1891); Parsons _v._ Armor, 3 Pet. 413 (1830); Campbell _v._ Boyreau, 21 How. 223 (1859).

[57] Baylis _v._ Travelers' Ins. Co., 113 U.S. 316, 321 (1885), holding it error for a judge, in absence of any waiver, to find the facts and render judgment thereon.

[58] Duignan _v._ United States, 274 U.S. 195, 198 (1927), holding jury trial waived by an appearance and participation in the trial without demanding a jury.

[59] Hodges _v._ Easton, 106 U.S. 408, 412 (1883).

[60] Aetna Insurance Co. _v._ Kennedy, 301 U.S. 389 (1937).

[61] _See_ Justices of the Sup. Ct. _v._ United States ex rel. Murray, 9 Wall. 274 (1870); Chicago, B. & Q.R. Co. _v._ Chicago, 166 U.S. 226, 242 (1897).

AMENDMENT 8

BAIL, FINES, AND OTHER PUNISHMENT FOR CRIME

Page Excessive bail 903 Excessive fines 904 Cruel and unusual punishments 904

PUNISHMENT FOR CRIME

Amendment 8

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

When the Bill of Rights was being debated in Congress, two members took exception to this proposal. One "objected to the words 'nor cruel and unusual punishment,' the import of them being too indefinite."[1] Another leveled a similar criticism at the entire amendment; "What is meant by the terms excessive bail? Who are to be the judges? What is understood by excessive fines? It lies with the court to determine. No cruel and unusual punishment is to be inflicted; it is sometimes necessary to hang a man, villains often deserve whipping, and perhaps having their ears cut off; but are we in future to be prevented from inflicting these punishments because they are cruel? If a more lenient mode of correcting vice and deterring others from the commission of it could be invented, it would be very prudent in the Legislature to adopt it; but until we have some security that this will be done, we ought not to be restrained from making necessary laws by any declaration of this kind."[2]

Excessive Bail

A United States District Court fixed the bail of twelve persons who were arrested on charge of conspiring to violate the Smith Act[3] at $50,000 each. This was on the theory advanced by the Government that each petitioner was a pawn in a conspiracy and in obedience to a superior would flee the jurisdiction, a theory to support which no evidence was introduced. The Court held that bail set before trial at a figure higher than reasonably calculated to assure the presence of defendant at his trial is "excessive" in the sense of the Eighth Amendment, and that the case of each defendant must be determined on its merits. Bail of larger amount than that usually fixed for serious crimes must be justified by evidence to the point.[4] But the power of the Attorney General, under Sec. 23 of the Internal Security Act of 1950,[5] to hold in custody without bail, at his discretion, pending determination as to their deportability, aliens who are members of the Communist Party of the United States, is not unconstitutional.[6]

Excessive Fines

The Supreme Court has had little to say with reference to excessive fines or bail. In an early case it held that it had no appellate jurisdiction to revise the sentence of an inferior court, even though the excessiveness of the fine was apparent on the face of the record.[7] In a dissenting opinion in United States ex rel. Milwaukee Publishing Co. _v._ Burleson,[8] Justice Brandeis intimated that the additional mailing costs incurred by a newspaper to which the second-class mailing privilege had been denied constituted, in effect, a fine for a past offense which, since it was made to grow indefinitely each day, was an unusual punishment interdicted by the Constitution.[9]

Cruel and Unusual Punishments

The ban against "cruel and unusual punishment" has received somewhat greater attention. In Wilkerson _v._ Utah[10] the Court observed that: "Difficulty would attend the effort to define with exactness the extent of the constitutional provision which provides that cruel and unusual punishments shall not be inflicted, but it is safe to affirm that punishments of torture, ... and all others in the same line of unnecessary cruelty, are forbidden by that Amendment to the Constitution."[11] Shooting as a mode of executing the death penalty was sustained over the objection that it was cruel and unusual.

A partially successful effort has been made to enlarge the concept of unusual punishment to cover penalties which shock the sense of justice by their absolute or relative severity. Justice Field pointed the way for this development in his dissenting opinion in O'Neil _v._ Vermont,[12] wherein the majority refused to apply the Eighth Amendment to a State. With the concurrence of two other Justices he wrote that the amendment was directed "against all punishments which by their excessive length or severity are greatly disproportioned to the offenses charged."[13] Eighteen years later a divided Court condemned a Philippine statute prescribing fine and imprisonment of from twelve to twenty years for entry of a known false statement in a public record, on the ground that the gross disparity between this punishment and that imposed for other more serious fines made it cruel and unusual, and as such, repugnant to the Bill of Rights.[14] No constitutional infirmity was discovered in a measure punishing as a separate offense each act of placing a letter in the mails in pursuance of a single scheme to defraud.[15]

Notes

[1] 1 Annals of Congress 754 (1791).

[2] Ibid.

[3] 18 U.S.C. Sec. 371, 2385.

[4] Stack _v._ Boyle, 342 U.S. 1 (1951).

[5] 8 U.S.C.A. Sec. 156 (a) (1); 64 Stat. 1011.

[6] Carlson _v._ Landon, 342 U.S. 524 (1952).

[7] Ex parte Watkins, 7 Pet. 568, 574 (1833).

[8] 255 U.S. 407 (1921).

[9] Ibid. 435.

[10] 99 U.S. 130 (1879).

[11] Ibid. 135.

[12] 144 U.S. 323 (1892).

[13] Ibid. 339, 340.

[14] Weems _v._ United States, 217 U.S. 349, 371, 382 (1910).

[15] Badders _v._ United States, 240 U.S. 391 (1916). _Cf._ Donaldson _v._ Read Magazine, 333 U.S. 178, 191 (1948).

AMENDMENT 9

RIGHTS RETAINED BY THE PEOPLE

Amendment 9

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

The only right which the Supreme Court has explicitly acknowledged as protected by this amendment is the right to engage in political activity. That recognition was accorded by way of _dictum_ in United Public Workers _v._ Mitchell, where the powers of Congress to restrict the political activities of federal employees was sustained.[1] An argument that the competition of the TVA in selling electricity at rates lower than those previously charged by private companies serving the area amounted to an indirect regulation of the rates of those companies and a destruction of the liberty said to be guaranteed by the Ninth Amendment to the people of the States to acquire property and employ it in a lawful business, was summarily rejected.[2] Previously the Court had upheld the right of the TVA to sell electricity, saying that the Ninth Amendment did not withdraw the right expressly granted by section 3 of article IV to dispose of property belonging to the United States.[3]

Notes

[1] 330 U.S. 75, 94 (1947).

[2] Tennessee Electric Power Co. _v._ T.V.A., 306 U.S. 118, 143, 144 (1939).

[3] Ashwander _v._ T.V.A., 297 U.S. 288, 330, 331 (1936). _See also_ the language of Justice Chase in Calder _v._ Bull, 3 Dall. 386, 388 (1798); and of Justice Miller for the Court in Loan Asso. _v._ Topeka, 20 Wall. 655, 662-663 (1874).

AMENDMENT 10

RESERVED STATE POWERS

Page Scope and purpose 915 The taxing power 916 The commerce power 917 Police power 918 State activities and instrumentalities 919

RESERVED STATE POWERS

Amendment 10

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Scope and Purpose

"The Tenth Amendment was intended to confirm the understanding of the people at the time the Constitution was adopted, that powers not granted to the United States were reserved to the States or to the people. It added nothing to the instrument as originally ratified * * *."[1] That this provision was not conceived to be a yardstick for measuring the powers granted to the Federal Government or reserved to the States was clearly indicated by its sponsor, James Madison, in the course of the debate which took place while the amendment was pending concerning Hamilton's proposal to establish a national bank. He declared that: "Interference with the power of the States was no constitutional criterion of the power of Congress. If the power was not given, Congress could not exercise it; if given, they might exercise it, although it should interfere with the laws, or even the Constitutions of the States."[2] Nevertheless, for approximately a century, from the death of Marshall until 1937, the Tenth Amendment was frequently invoked to curtail powers expressly granted to Congress, notably the powers to regulate interstate commerce, to enforce the Fourteenth Amendment and to lay and collect taxes.

The first, and logically the strongest, effort to set up the Tenth Amendment as a limitation on federal power was directed to the expansion of that power by virtue of the necessary and proper clause. In McCulloch _v._ Maryland,[3] the Attorney-General of Maryland cited the charges made by the enemies of the Constitution that it contained "* * * a vast variety of powers, lurking under the generality of its phraseology, which would prove highly dangerous to the liberties of the people, and the rights of the states, * * *" and he cited the adoption of the Tenth Amendment to allay these apprehensions, in support of his contention that the power to create corporations was reserved by that amendment to the States.[4] Stressing the fact that this amendment, unlike the cognate section of the Articles of Confederation, omitted the word "expressly" as a qualification of the powers granted to the National Government, Chief Justice Marshall declared that its effect was to leave the question "whether the particular power which may become the subject of contest has been delegated to the one government, or prohibited to the other, to depend upon a fair construction of the whole instrument."[5]

The Taxing Power

Not until after the Civil War was the idea that the reserved powers of the States comprise an independent qualification of otherwise constitutional acts of the Federal Government actually applied to nullify, in part, an act of Congress. This result was first reached in a tax case--Collector _v._ Day.[6] Holding that a national income tax, in itself valid, could not be constitutionally levied upon the official salaries of State officers, Justice Nelson made the sweeping statement that "* * * the States within the limits of their powers not granted, or, in the language of the Tenth Amendment, 'reserved,' are as independent of the general government as that government within its sphere is independent of the States."[7] In 1939, Collector _v._ Day was expressly overruled.[8] Nevertheless, the problem of reconciling State and national interests still confronts the Court occasionally, and was elaborately considered in New York _v._ United States,[9] where, by a vote of six-to-two, the Court upheld the right of the United States to tax the sale of mineral waters taken from property owned by a State. Speaking for four members of the Court, Chief Justice Stone justified the tax on the ground that "The national taxing power would be unduly curtailed if the State, by extending its activities, could withdraw from it subjects of taxation traditionally within it."[10] Justices Frankfurter and Rutledge found in the Tenth Amendment "* * * no restriction upon Congress to include the States in levying a tax exacted equally from private persons upon the same subject matter."[11] Justices Douglas and Black dissented, saying: "If the power of the federal government to tax the States is conceded, the reserved power of the States guaranteed by the Tenth Amendment does not give them the independence which they have always been assumed to have."[12]

The Commerce Power

A year before Collector _v._ Day was decided, the Court held invalid, except as applied in the District of Columbia and other areas over which Congress has exclusive authority, a federal statute penalizing the sale of dangerous illuminating oils.[13] The Court did not refer to the Tenth Amendment. Instead, it asserted that the "* * * express grant of power to regulate commerce among the States has always been understood as limited by its terms; and as a virtual denial of any power to interfere with the internal trade and business of the separate States; except, indeed, as a necessary and proper means for carrying into execution some other power expressly granted or vested."[14] Similarly, in the Employers' Liability Cases,[15] an act of Congress making every carrier engaged in interstate commerce liable to "any" employee, including those whose activities related solely to intrastate activities, for injuries caused by negligence, was held unconstitutional by a closely divided Court, without explicit reliance on the Tenth Amendment. Not until it was confronted with the Child Labor Law, which prohibited the transportation in interstate commerce of goods produced in establishments in which child labor was employed, did the Court hold that the State police power was an obstacle to adoption of a measure which operated directly and immediately upon interstate commerce. In Hammer _v._ Dagenhart,[16] five members of the Court found in the Tenth Amendment a mandate to nullify this law as an unwarranted invasion of the reserved powers of the States. This decision was expressly overruled in United States _v._ Darby.[17]

During the twenty years following Hammer _v._ Dagenhart, a variety of measures designed to regulate economic activities, directly or indirectly, were held void on similar grounds. Excise taxes on the profits of factories in which child labor was employed,[18] on the sale of grain futures on markets which failed to comply with federal regulations,[19] on the sale of coal produced by nonmembers of a coal code established as a part of a federal regulatory scheme,[20] and a tax on the processing of agricultural products, the proceeds of which were paid to farmers who complied with production limitations imposed by the Federal Government,[21] were all found to invade the reserved powers of the States. In Schechter Poultry Corporation _v._ United States[22] the Court, after holding that the commerce power did not extend to local sales of poultry, cited the Tenth Amendment to refute the argument that the existence of an economic emergency justified the exercise of what Chief Justice Hughes called "extraconstitutional authority."[23]

In 1941 the Court came full circle in its exposition of this amendment. Having returned to the position of John Marshall four years earlier when it sustained the Social Security[24] and National Labor Relations Acts,[25] it explicitly restated Marshall's thesis in upholding the Fair Labor Standards Act in United States _v._ Darby.[26] Speaking for a unanimous Court, Chief Justice Stone wrote: "The power of Congress over interstate commerce 'is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the Constitution.' * * * That power can neither be enlarged nor diminished by the exercise or non-exercise of state power. * * * It is no objection to the assertion of the power to regulate interstate commerce that its exercise is attended by the same incidents which attend the exercise of the police power of the states. * * * Our conclusion is unaffected by the Tenth Amendment which * * * states but a truism that all is retained which has not been surrendered."[27]

Police Power

But even prior to 1937 not all measures taken to promote objectives which had traditionally been regarded as the responsibilities of the States had been held invalid. In Hamilton _v._ Kentucky Distilleries Co.,[28] a unanimous Court, speaking by Justice Brandeis, upheld "War Prohibition", saying: "That the United States lacks the police power, and that this was reserved to the States by the Tenth Amendment, is true. But it is none the less true that when the United States exerts any of the powers conferred upon it by the Constitution, no valid objection can be based upon the fact that such exercise may be attended by the same incidents which attend the exercise by a State of its police power."[29] And in a series of cases, which today seem irreconcilable with Hammer _v._ Dagenhart, it sustained federal laws penalizing the interstate transportation of lottery tickets,[30] of women for immoral purposes,[31] of stolen automobiles,[32] and of tick-infested cattle.[33] It affirmed the power of Congress to punish the forgery of bills of lading purporting to cover interstate shipments of merchandise,[34] to subject prison made goods moved from one State to another to the laws of the receiving State,[35] and to regulate prescriptions for the medicinal use of liquor as an appropriate measure for the enforcement of the Eighteenth Amendment.[36] But while Congress might thus prevent the use of the channels of interstate commerce to frustrate State law, it could not itself, the Court held, undertake to punish a violation of that law by discriminatory taxation; and in United States _v._ Constantine,[37] a grossly disproportionate excise tax imposed on retail liquor dealers carrying on business in violation of local law was held unconstitutional.

State Activities and Instrumentalities