This case presents the question of the constitutional validity of the Act of Congress of August 22, 1935, c. 605, 49 Stat. 682, prescribing qualifications for service as jurors in the District of Columbia, as applied to criminal prosecutions.
The respondent was convicted of petit larceny in the Police Court of the District and was sentenced to imprisonment for 240 days. The larceny was from a private
The action of the trial court was taken under the Act of August 22, 1935, which provides that persons of this description shall be eligible for jury service.
"Prior to the passage of this statute the provision with relation to the qualifications of a juror was that he should be a citizen of the United States, a resident of the District of Columbia, over twenty-one and under sixty-five years of age, able to read and write and understand the English language, and a person who had never been convicted of a felony or misdemeanor involving moral turpitude. In 1908 the Supreme Court held in Crawford v. United States, 212 U.S. 183, that an employee of the United
Dealing particularly with the qualification of governmental employees, the court answered this question in the affirmative and reversed the judgment of conviction. 65 App. D.C. 330; 83 F.2d 587. Because of the importance of the question we granted certiorari.
First. — The Sixth Amendment requires that "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury." The Amendment prescribes no specific tests. The bias of a prospective juror may be actual or implied; that is, it may be bias in fact or bias conclusively presumed as matter of law. There is no ground for a contention — and we do not find that such a contention is made — that Congress has undertaken to preclude the ascertainment of actual bias. All persons otherwise qualified for jury service are subject to examination as to actual bias. All the resources of appropriate judicial inquiry remain available
The question here is as to implied bias, a bias attributable in law to the prospective juror regardless of actual partiality. The contention of the defendant is that there must be read into the constitutional requirement an absolute disqualification in criminal cases of a person employed by the Government, — a disqualification which Congress is powerless to remove or modify. This contention gives rise to two inquiries — (1) whether, in the practice in England prior to the adoption of the Amendment, or in the colonies, there was an absolute disqualification of governmental employees to serve on juries in criminal cases, and (2) whether, either because of that practice, or in reason, such a disqualification should be regarded as essential to the impartiality of the jury and hence beyond the reach of the legislative power. The Government insists that both questions should be answered in the negative.
Second. — The Government has presented the result of elaborate research to show that throughout the long period from the development of the jury system to modern times, the English common law permitted a servant of the king to serve as a juror in crown cases, provided he had no actual bias.
Challenges at common law were to the array, that is, with respect to the constitution of the panel, or to the
Respondent's counsel quote from the commentators their statements of the reason why a crown servant was
Whatever the reason, it is manifest, to say the least, that there was no settled practice under the English law establishing an absolute disqualification of governmental employees to serve as jurors in criminal cases. And such a disqualification cannot, upon the ground of such a practice, be treated as embedded in the Sixth Amendment. See Callan v. Wilson, 127 U.S. 540, 549; Thompson v. Utah, 170 U.S. 343, 350; Patton v. United States, 281 U.S. 276, 288; Dimick v. Schiedt, 293 U.S. 474, 476, 487; Continental Bank v. Chicago R.I. & P. Ry., 294 U.S. 648, 669; 2 Story on the Constitution, § 1791.
We turn to the question whether in the colonies, or in the States at the time of the adoption of the Sixth Amendment, there was such a disqualification. We find no satisfactory evidence to that effect. Counsel for the Government say that the practice in the colonies prior to the adoption of the Federal Constitution "apparently cannot be ascertained." They say that they have searched "the available reports and authorities without finding anything of relevance." The researches of respondent's counsel
"A principal challenge is such where the cause assigned carries with it prima facie evident marks of suspicion either of malice or favour; as, that a juror is of kin to either party within the ninth degree; that he has been arbitrator on either side; that he has an interest in the cause; that there is an action depending between him and the party; that he has taken money for his verdict; that he has formerly been a juror in the same cause; that he is the party's master, servant, counsellor, steward, or attorney, or of the same society or corporation with him: all these are principal causes of challenge; which, if true, cannot be overruled, for jurors must be omni exceptione majores." 3 Bl. Com. 363.
Undoubtedly, as we have frequently said, the framers of the Constitution were familiar with Blackstone's Commentaries. Many copies of the work had been sold here and it was generally regarded as the most satisfactory exposition of the common law of England. Schick v. United States, 195 U.S. 65, 69. But in this instance we think the point is pressed too far. It will be observed that Blackstone does not refer specifically to the subject now under discussion. His statement has relation to masters and servants of private parties. And, while at another place he makes the general statement that challenges in criminal cases may be made "for the very same
Respondent relies upon our decision in Crawford v. United States, 212 U.S. 183. That was a prosecution in the District of Columbia for conspiracy to defraud the United States in relation to a contract with the Post Office Department. One of the grounds of reversal of the judgment of conviction was the overruling by the trial court of a challenge to a juror who was a clerk in charge of a subpostal station located in a drug store. The Court referred to the qualifications for jurors prescribed by § 215 of the Code of Laws for the District and to the provision of § 217 exempting from jury duty "salaried officers of the Government." Assuming the contention to be sound that the mere fact that a proposed juror was such a salaried officer could be ground only for his own claim of exemption, the Court expressed the opinion that the provisions of the sections of the Code did not embrace the entire subject of the qualifications of jurors; that by the common law there was a further qualification, and that under that law in force in Maryland, and applicable to the district, the court should have held the juror disqualified by reason of his employment. Id., pp. 195, 196.
In the light of the English precedents, and in the absence of any satisfactory showing of a different practice in the colonies, we are unable to accept the ruling in the Crawford case as determinative here or to reach the conclusion that it was a settled rule of the common law prior to the adoption of the Sixth Amendment that the mere fact of a governmental employment, unrelated to the particular issues or circumstances of a criminal prosecution, created an absolute disqualification to serve as a juror in a criminal case.
Third. — Even if it could be said that at common law such a disqualification existed, we are of the opinion that Congress had power to remove it. That point was not touched in the Crawford case. Indeed it was said, referring to the Code of Laws of the District of Columbia, that if the provision of § 215, together with § 217, "were alone to be considered, it might be that the juror was qualified." And, further, in referring to Block v. State, supra, the ruling there was summarized as being to the effect "that the Indiana statute upon the qualification of jurors did not strike out the rule of the common law on the subject, when not inconsistent with the statute."
Whether a clause in the Constitution is to be restricted by a rule of the common law as it existed when the Constitution was adopted depends upon the terms or nature of the particular clause. Continental Bank v. Chicago, R.I. & P. Ry., supra. We have frequently adverted to the firm place which the jury as a fact-finding body holds in our history and jurisprudence. Dimick v. Schiedt, supra, pp. 485, 486. The Constitution would have been "justly obnoxious to the most conclusive objection" if the right of trial by jury, as the bulwark of civil and political liberties, had not been recognized and confirmed "in the most solemn terms." Id.; 2 Story on the Constitution, § 1779. And the importance of safeguarding the complete integrity of the jury in the full sense of the Constitution is not to be gainsaid.
We have described the essential elements of "trial by jury." In Patton v. United States, supra, we said that these elements as recognized in this country and England when the Constitution was adopted were "(1) the jury should consist of twelve men, neither more nor less; (2) that the trial should be in the presence and under the superintendence of a judge having power to instruct them as to the law and advise them in respect of the facts; and (3) that the verdict should be unanimous." None of these elements is involved here.
The Sixth Amendment was not needed to require trial by jury in cases of crimes. That requirement is provided by Article III, § 2, paragraph 3. The Sixth Amendment provided further assurances. It added that in all criminal prosecutions the accused shall enjoy the right "to a
In construing the Seventh Amendment providing for the preservation of trial by jury in suits at common law, and that no fact tried by a jury shall be otherwise reexamined "than according to the rules of the common law," we have said that the aim of the Amendment was "to preserve the substance of the common law right of trial by jury as distinguished from mere matters of form or procedure." Baltimore & Carolina Line v. Redman, 295 U.S. 654, 657. See, also, Walker v. New Mexico & Southern Pacific R. Co., 165 U.S. 593, 596; Gasoline Products Co. v. Champlin Refining Co., 283 U.S. 494, 498. We held in Ex parte Peterson, 253 U.S. 300, that there was no constitutional obstacle to the appointment by a federal court of an auditor in aid of jury trials although the practice in question had not obtained prior to the adoption of the Constitution either in England or in the colonies in connection with trial by jury. The ruling rested upon the fundamental consideration that "New devices may be used to adapt the ancient institution to present needs and to make of it an efficient instrument
This principle of construction has also had notable application to the requirement of trial by jury in criminal prosecutions. In the recent case of Funk v. United States, 290 U.S. 371, 372, this Court, without the aid of legislative enactment, held that the wife of the defendant on trial for a criminal offence in a federal court was a competent witness in his behalf. The Court overruled cases to the contrary, sustaining the power of the federal courts "to declare and effectuate, upon common law principles, what is the present rule upon a given subject in the light of fundamentally altered conditions, without regard to what has previously been declared and practiced." It was deemed to be axiomatic "that the common law is not immutable but flexible, and by its own principles adapts itself to varying conditions." Id., p. 383. And what courts can thus do to assure the appropriate growth and adaptation of the law a fortiori can be achieved by the action of a competent legislature.
In Patton v. United States, supra, the Court answered in the affirmative a question certified by the Circuit Court of Appeals, whether, in case a juror became incapacitated during a trial upon indictment, the defendant and the Government could consent "to the trial proceeding to a finality with eleven jurors" and the defendant could "thus waive the right to a trial and verdict by a constitutional jury of twelve men." The Court said that "it might be conceded, at least generally, that under the rule of the common law the accused was not permitted to waive trial by jury." But the Court did not think it necessary to consider that phase of the matter as "the rule of the common law, whether exclusive or subject to exceptions, was justified by conditions which no longer exist." Id., p. 306. And the Court found no convincing ground for holding that a waiver of a jury trial was not
The Sixth Amendment does not preclude legislation making women qualified to serve as jurors in criminal prosecutions, although that was not permitted at common law. Tynan v. United States, 297 Fed. 177, 178, 179; Hoxie v. United States, 15 F.2d 762. Although aliens are within the protection of the Sixth Amendment, the ancient rule under which an alien might have a trial by jury de medietate linguae, "one half denizens and the other aliens," — in order to insure impartiality — no longer obtains.
Impartiality is not a technical conception. It is a state of mind. For the ascertainment of this mental attitude
One of the grounds of principal challenge at common law was that a juror was "related to either party within the ninth degree, though it is only by marriage."
The ultimate question is not whether Congress has changed a common law rule, but whether, in reason, an
Why should it be assumed that a juror, merely because of employment by the Government, would be biased against the accused? In criminal prosecutions the Government is acting simply as the instrument of the public in enforcing penal laws for the protection of society. In that enforcement all citizens are interested. It is difficult to see why a governmental employee, merely by virtue of his employment, is interested in that enforcement either more or less than any good citizen is or should be. The instant case is a good illustration. The accused was on trial for theft from a store of a private corporation. Can it be seriously urged that to assure an impartial jury for his trial it is necessary to segregate governmental employees from other citizens of the District upon the theory that the former are biased against him? What possible interest in such a case has a governmental employee different from that of any citizen who wishes to see crime properly punished but is free from any actual bias against the alleged offender? And what appears to be so obviously true in this case of larceny would be true also in criminal prosecutions in general, running the gamut of offences from murder, burglary and robbery to cheats and disturbances of the peace. We think that the imputation of bias simply by virtue of governmental employment, without regard to any actual partiality growing out of the nature and circumstances of particular cases, rests on an assumption without any rational foundation.
It is said that particular crimes might be of special interest to employees in certain governmental departments, as, for example, the crime of counterfeiting, to employees of the treasury. But when we consider the range of offenses and the general run of criminal prosecutions, it is apparent that such cases of special interest
It is suggested that an employee of the Government may be apprehensive of the termination of his employment in case he decides in favor of the accused in a criminal case. Unless the suggestion be taken to have reference to some special and exceptional case, it seems to us far-fetched and chimerical. It does not rise to the dignity of an argument to be addressed to the power of Congress to provide a reasonable scheme with respect to the qualifications of jurors. It belongs in the category of "theoretic or imaginary" interests — "remote" and "insignificant" as described in the Massachusetts case above cited.
Nor are we impressed with the contention that the qualification of governmental employees for jury service in criminal cases in the District of Columbia will impair the public respect in which the processes of the law should be held. On the contrary, we think that the spectacle of the exclusion en masse from that service of a body of citizens otherwise highly desirable in point of intelligence and character — solely by reason of their employment by the Government — and the imposition in consequence of a heavier burden upon other citizens, whether that exclusion would be in deference to a supposed ancient
What has been said applies with equal force to the provisions of the statute qualifying those who receive governmental pensions and gratuities.
Fourth. Respondent also raises the question of the validity of the statute under the due process clause of the Fifth Amendment. For the reasons already given, we find nothing arbitrary or capricious in the legislative action.
The judgment of the Court of Appeals is reversed and the judgment of conviction is affirmed.
MR. JUSTICE McREYNOLDS, MR. JUSTICE SUTHERLAND, and MR. JUSTICE BUTLER are of opinion that the case is controlled by our decision in Crawford v. United States, 212 U.S. 183, and that the rule there laid down should not now be departed from. They think the opinion of the court below is sound, and that its judgment should be affirmed.
MR. JUSTICE STONE took no part in the consideration or decision of this case.
"All executive and judicial officers of the Government of the United States and of the District of Columbia, all officers and enlisted men of the Army, Navy, Marine Corps, and Coast Guard of the United States in active service, those connected with the police and fire departments of the United States and of the District of Columbia, counselors and attorneys at law in actual practice, ministers of the gospel and clergymen of every denomination, practicing physicians and surgeons, keepers of hospitals, asylums, almshouses, or other charitable institutions created by or under the laws relating to the District of Columbia, captains and masters and other persons employed on vessels navigating the waters of the District of Columbia shall be exempt from jury duty, and their names shall not be placed on the jury lists.
"All other persons, otherwise qualified according to law whether employed in the service of the Government of the United States or of the District of Columbia, all officers and enlisted men of the National Guard of the District of Columbia, both active and retired, all officers and enlisted men of the Military, Naval, Marine, and Coast Guard Reserve Corps of the United States, all notaries public, all postmasters and those who are the recipients or beneficiaries of a pension or other gratuity from the Federal or District Government or who have contracts with the United States or the District of Columbia, shall be qualified to serve as jurors in the District of Columbia and shall not be exempt from such service: Provided, That employees of the Government of the United States or of the District of Columbia in active service who are called upon to sit on juries shall not be paid for such jury service but their salary shall not be diminished during their term of service by virtue of such service, nor shall such period of service be deducted from any leave of absence authorized by law."
This Act amended the prior provision known as § 217 of the Code of Law for the District of Columbia approved March 3, 1901 (Code D.C. 1929, Tit. 18, § 360) which provided:
"Exemption from jury service. — All executive and judicial officers, salaried officers of the Government of the United States and of the District of Columbia, all officers and enlisted men of the National Guard for the District of Columbia, both active and retired, and those connected with the police or fire departments, counselors and attorneys at law in actual practice, ministers of the gospel and clergymen of every denomination, practicing physicians and surgeons, keepers of hospitals, asylums, almshouses, or other charitable institutions created by or under the laws relating to the District, captains and masters and other persons employed on vessels navigating the waters of the District shall be exempt from jury duty, and their names shall not be placed on the jury lists."
Challenge Challenge "Author: In Principal To Favor Fitzherbert ............................. No Yes Chief Justice Brooke .................... No No Staunforde .............................. No Yes Coke .................................... No No Lord Hale ............................... No Yes Chief Justice Rolle ..................... No Yes Duncombe ................................ No No Hawkins ................................. Doubtful Doubtful Matthew Bacon ........................... Doubtful Doubtful Viner ................................... No Yes Hargrave ................................ No No Chitty .................................. Doubtful Yes
Year Book (1346) 19 Ass. 62, pl. 6 ...... No No Year Book, 4 Henry VII 8, P. pl. 7 ...... No No Year Book, 4 Henry VII, 3 H. pl. 5 ...... No No Rex v. Genney, (1508) Keilw. 102a ...... No No Reg. v. Tutchin, 14 St. Tr. 1095, 1101 (1816) ................................. Doubtful No Rex v. Hampden, (1683) 9 St. Tr., 1054, 1057-1061 .............................. No Not decided Rex v. Parkyns (1695) 13 St. Tr. No. 163. No No Rex v. Rowan (1793) 22 St. Tr. 1034, 1037-1039 .............................. No No Rex v. Kirwan, (1812) 31 St. Tr. 543 .... No Not decided King v. Edmonds, (1812) 4B. & Ald. 471, 106 Eng. Rpt. 1009 ..................... No No Reg. v. Lacey, (1848) 3 Cox Cr. C. 517-519 ................................. No Not decided"