MR. JUSTICE JACKSON delivered the opinion of the Court.
These cases present the same issue, a challenge to the constitutionality of the special or so-called "blue ribbon" jury as used by state courts in the State and County of New York.
Such a jury found Fay and Bove guilty of conspiracy to extort and of extortion. Bove was Vice-President of the International Hod Carriers, Building and Common Laborers' Union of America. Fay was Vice-President of the International Union of Operating Engineers. The City of New York awarded contracts for construction of an extensive project known as the Delaware Water Supply system to several large construction concerns. It was not denied that Fay and Bove collected
The indictment charged the crimes in seven counts. One was dismissed by the court; the remaining six were submitted to the jury. The jury acquitted the defendants on three of the counts, disagreed on another, and convicted on two counts. The convictions were affirmed on appeal by the Appellate Division of the Supreme Court,
The defendants raise no question as to the constitutionality of the general statutes of New York which prescribe the qualifications, disqualifications and exemptions for ordinary jury service. Neither is any question raised as to the administration of these general statutes by which the population of New York County, numbering some 1,800,000, is sifted to produce a general jury panel of about 60,000, unless it be that there is discrimination against women.
To qualify as a juror, a person must be an American citizen and a resident of the county; not less than 21 nor more than 70 years old; the owner or spouse of an owner of property of the value of $250; in possession of his or her natural faculties and not infirm or decrepit; not convicted of a felony or a misdemeanor involving moral turpitude; intelligent; of sound mind and good character;
Women are equally qualified with men,
The attack is focused upon the statutes and sifting procedures which shrink the general panel to the special or "blue ribbon" panel of about 3,000.
Special jurors are selected from those accepted for the general panel by the county clerk, but only after each has been subpoenaed for personal appearance and has testified under oath as to his qualification and fitness.
The special jury panel is not one brought into existence for this particular case nor for any special class of offenses or type of accused. It is part of the regular machinery of trial in counties of one million or more inhabitants. In its sound discretion the court may order trial by special jury on application of either party in a civil action and by either the prosecution or defense in criminal cases. The motion may be granted only on a showing that "by reason of the importance or intricacy of the case, a special jury is required" or "the issue to be tried has been so widely commented upon . . . that an ordinary jury cannot without delay and difficulty be obtained" or that for any other reason "the due, efficient and impartial administration of justice in the particular case would be
This special jury statute is not recent nor is the practice under it novel. The progenitor of this statute, like it in all pertinent respects, was enacted in 1896 but was repealed and simultaneously reenacted in substantially its present form in 1901.
Then, in 1901, an attack on the constitutionality of the statute was rejected by this Court. One Hall had been convicted of murder by a special jury and sentenced to death. He sued out a writ of habeas corpus which was denied below. He challenged the special panel and claimed that his conviction by its verdict was a denial of due process of law and of equal protection of the laws in violation of the Fourteenth Amendment because the jury was "taken from a particular body of citizens and not from the general body of the county as was provided in all cases wherein such special jury was not drawn." This Court affirmed, Hall v. Johnson, 186 U.S. 480, citing
Since these decisions, the special jury has been in continuous use in New York County in important cases. The District Attorney cites over one hundred murder convictions, on verdict of the special jury, considered by the Court of Appeals which affirmed judgments of death. We are asked, however, to reconsider the question and, in the light of more recent trends of decision and of particular facts about the present operation of the jury system not advanced in support of the argument in the earlier case, to disapprove the special jury system.
We fail to perceive on its face any constitutional offense in the statutory standards prescribed for the special panel. The Act does not exclude, or authorize the clerk to exclude, any person or class because of race, creed, color or occupation. It imposes no qualification of an economic nature beyond that imposed by the concededly valid general panel statute. Each of the grounds of elimination is reasonably and closely related to the juror's suitability for the kind of service the special panel requires or to his fitness to judge the kind of cases for which it is most frequently utilized. Not all of the grounds of elimination would appear relevant to the issues of the present case. But we know of no right of defendants to have a specially constituted panel which would include all persons who might
These are matters with which local authority must and does have considerable latitude to cope, for they affect the administration of justice which is a local responsibility. For example, in this case the time of the trial court and its entire retinue of attendants was taken while eighty-nine prospective jurors were examined. How many more would have been examined if the clerk had not already eliminated those who admit that they would not give defendants benefit of the rule that their neglect or refusal to testify in their own behalf would not create a presumption against them? Neither of these defendants saw fit to take the witness stand. The defendants themselves have complained of the exceptional publicity given to the charges in this case. How many more jurors would have been examined if the clerk had not already eliminated those who felt themselves subject to influence by publicity? These are practical matters in administering justice in which we will take care not to hamstring local authority by artificial or doctrinaire requirements.
As to the actual results of application of the statute, the litigants are in controversy. The New York courts, doubtless influenced by the fact that long ago they had upheld similar statutes, made no findings of fact and wrote no opinion on the subject. It is to be regretted that we must deal with questions of fact without aid of findings by the courts whose experience with the system and proximity to the local conditions with which the special jury customs are so interwoven would entitle their findings to very great weight. We would, in any case, be obliged on a constitutional question to reach our own conclusions, after full allowance of weight to findings of the state courts, and in this case must examine the evidence. Norris v. Alabama, 294 U.S. 587, 590; Lisenba v. California, 314 U.S. 219, 237-38; Ashcraft v. Tennessee, 322 U.S. 143, 148.
The allegations of fact upon which defendants ask us to hold these special panels unconstitutional come to three: (1) That laborers, operatives, craftsmen, foremen and service employees were systematically, intentionally and deliberately excluded from the panel. (2) That
(1) The proof that laborers and such were excluded consists of a tabulation of occupations as listed in the questionnaires filed with the clerk. The table received in evidence is set out in the margin.
It is sought to give significance to this exhibit showing the breakdown into occupations of some 2,700 special jurors, however, by reference to a tabulation of occupations of some 920,000 employees and persons seeking employment in Manhattan. The comparison is said to show a great disparity between the percentage of jurors of each occupation represented on the jury list of 1945 and the occupational distribution of the number of employed persons or experienced persons seeking employment in
An occupational comparison of the special panel with the general panel might afford some ground for an opinion on the effect of the particular practices complained of in the composition of the special panel. But no such comparison is offered. Petitioners' only statement as to the comparative make-up of the general and special panels is as follows: "While the defect of discrimination against women, particularly those who are not members of so-called `civic conscious' organizations, permeates both the general and special juries, there is no evidence whatever that laborers, operatives, service employees, craftsmen, and foremen, are excluded from the general jury panel." What is more to the point is that petitioners adduced no
On the other hand, the evidence that there has been no discrimination as to occupation in selection of the panel, while from interested witnesses, whose duty it was to administer the law, is clear and positive and is neither contradicted nor improbable. The testimony of those in charge of the selection, offered by the defendants themselves, is that without occupational discrimination they applied the standards of the statute to all whom they examined. We are unable to find that this evidence is untrue.
(2) As to the exclusion of women, it will be remembered that the law of New York gives to women the privilege to serve but does not impose service as a duty. It is said to have been found impractical to compel large numbers of women, who have an absolute exemption, to come to the clerk's office for examination since they so generally assert their exemption. Hence, only those who volunteer or are suggested as willing to serve by other women or by organizations, including the League of Women Voters, are
As to both women and men, it is complained that eliminations resulted unfairly from use of a questionnaire, which asked, "What months of the year between October 1 and June 30 would you prefer to serve (Name two or more months)." Those who stated a preference, and they were many, were excluded from the special panel although they continued eligible for the general panel. The reason given for this is that service on the general panel can be adjusted to such preferences while the special panel, because of the nature of the cases tried before it, may require service at any time and for long periods. We think the phrasing of this question is less than candid in view of this purpose. But we find no evidence that it operates more misleadingly on women than on men, or on one occupation or class than on others. While it does not commend itself, it appears to be an administrative ineptitude of no constitutional significance and of no prejudice to these defendants.
(3) A more serious allegation against the special jury panel is that it is more inclined than the general panel to convict. Extensive studies have been made by the New York State Judicial Council which is under the duty of continuous study of the procedures of the courts and of making recommendations for improvement to the Legislature.
While the Judicial Council has pointed out and investigated the different conviction ratios, it has at no time suggested that the special jury has been inclined to convict except where conviction was warranted. New York extends an appeal on law and fact as matter of right.
These defendants were convicted March 15, 1945, when the statistics offered here as to relative propensity of the two juries to convict were more than ten years old, and when the conditions which may have produced the discrepancy in ratio of convictions had long since been corrected.
The evidence in support of these objections may well, as the Judicial Council thought, warrant a political or social judgment that this special panel in 1945 was "unnecessary and undesirable" and that the Legislature should abolish it. But it is quite another matter to say that this Federal Court has a mandate from the Constitution to disable the special jury by setting aside its convictions. The great disparity between a legislative policy or a political judgment on the one hand and a constitutional or legal judgment on the other, finds striking illustration in the position taken by the highest judicial personages in New York State who joined in the recommendation to abolish the special jury.
Two members
It is not easy, and it should not be easy, for defendants to have proceedings set aside and held for naught on constitutional grounds when they have accepted as satisfactory all of the individual jurors who sat in their case, the jury exercised such discriminating and dispassionate judgment as to acquit them on three of the five counts submitted, and their conviction on a full judicial review of the facts and law has been found justified. This Court has long dealt and must continue to deal with these controversies from state courts with self-imposed restraints intended to protect itself and the state against irresponsible exercise of its unappealable power.
While this case does not involve any question as to exclusion of Negroes or any other race, the defendants rely largely upon a series of decisions in which this Court has set aside state court convictions of Negroes because Negroes were purposefully and completely excluded from the jury. However, because of the long history of unhappy relations between the two races, Congress has put these cases in a class by themselves. The Fourteenth Amendment, in addition to due process and equal protection clauses, declares that "The Congress shall have power to enforce, by appropriate legislation, the provisions of this Article." So empowered, the Congress on March 1, 1875, enacted that "no citizen possessing all other qualifications which are or may be prescribed by law shall be disqualified for service as grand or petit juror in any court of the United States, or of any State, on account of race, color, or previous condition of servitude;" and made it a crime for any officer to exclude any citizen on those grounds. 18 Stat. 336-37, 8 U.S.C. § 44. For us the majestic generalities of the Fourteenth Amendment are thus reduced to a concrete statutory command when cases involve race or color which is
It is significant that this Court never has interfered with the composition of state court juries except in cases where this guidance of Congress was applicable. In an opinion by Mr. Justice Holmes it unanimously made short work of rejecting a claim that the Fourteenth Amendment prohibits the state from excluding from the jury certain occupational groups such as lawyers, preachers, ministers, doctors, dentists, and engineers and firemen of railroad trains. Rawlins v. Georgia, 201 U.S. 638. Cf. Brown v. New Jersey, 175 U.S. 172.
We do not mean that no case of discrimination in jury drawing except those involving race or color can carry such unjust consequences as to amount to a denial of equal protection or due process of law. But we do say that since Congress has considered the specific application of this Amendment to the state jury systems and has found only these discriminations to deserve general legislative condemnation, one who would have the judiciary intervene on grounds not covered by statute must comply
These rules to confine our use of power to responsible limits have been formulated and applied even in cases where the federal race and color statute applied. Certainly they should apply with equal, if not greater, rigor in cases that are outside the statute.
It is fundamental in questioning the composition of a jury that a mere showing that a class was not represented in a particular jury is not enough; there must be a clear showing that its absence was caused by discrimination, and in nearly all cases it has been shown to have persisted over many years.
Our only source of power or guidance for interfering in this case with the state court jury system is found in the cryptic words of the Fourteenth Amendment, unaided by any word from Congress or any governing precedent in this Court. We consider first the clause which forbids a state to "deny to any person within its jurisdiction the equal protection of the laws." This prohibits prejudicial disparities before the law. Under it a system which might be constitutionally unobjectionable, if applied to all, may be brought within the prohibition if some have more favorable treatment. The inquiry under this clause involves defendants' standing before the law relative to that of others accused.
If it were proved that in 1945 an inequality between the special jury's record of convictions and that of the ordinary jury continued as it was found by the Judicial Council to have prevailed in 1933-34 some foundation would be laid for a claim of unequal treatment. No defendant has a right to escape an existing mechanism of trial merely on the ground that some other could be devised which would give him a better chance of acquittal. But in this case an alternative system actually was provided by the state to other defendants. A state is not required to try all classes of offenses in the same forum. But a discretion, even if vested in the court, to shunt a defendant before a jury so chosen as greatly to lessen his chances while others accused of a like offense are tried by a jury so drawn as to be more favorable to them, would hardly be "equal protection of the laws." Perhaps
But the defendants have failed to show by any evidence whatever that this disparity in ratio of conviction existed in 1945 when they were tried. They show that it ever existed only by the studies and conclusions of the Judicial Council. The same source shows that it was corrected before these defendants were tried. As we have pointed out, this official body challenged the fairness of this dual system as formerly constituted and as early as 1937 declared that "A well-considered jury system will insure an impartial cross-section of the community on every petit jury,"
We hold, therefore, that defendants have not carried the burden of showing that the method of their trial denied them equal protection of the law.
The defendants' other objection is grounded on that clause of the Fourteenth Amendment which provides, "nor shall any State deprive any person of life, liberty, or property, without due process of law. . . ." It comprises
This Court, however, has never entertained a defendant's objections to exclusions from the jury except when he was a member of the excluded class. Rawlins v. Georgia, 201 U.S. 638, 640. Cf. Strauder v. West Virginia, 100 U.S. 303. Relief has been held unavailable to a negro who objected that all white persons were purposely excluded from the grand jury that indicted him. Haraway v. State, 203 Ark. 912, 159 S.W.2d 733. Nevertheless, we need not here decide whether lack of identity with an excluded group would alone defeat an otherwise well-established case under the Amendment.
These defendants rely heavily on arguments drawn from our decisions in Glasser v. United States, 315 U.S. 60; Thiel v. Southern Pacific Co., 328 U.S. 217; and Ballard v. United States, 329 U.S. 187. The facts in the present case are distinguishable in vital and obvious particulars from those in any of these cases. But those decisions were not constrained by any duty of deference to the authority of the State over local administration of justice. They dealt only with juries in federal courts. Over federal proceedings we may exert a supervisory power with greater freedom to reflect our notions of good policy than we may constitutionally exert over proceedings in state courts, and these expressions of policy are not necessarily embodied in the concept of due process.
The due process clause is one of comprehensive generality, and in reducing it to apply in concrete cases there are different schools of thought. One is that its content on any subject is to be determined by the content of certain relevant other Amendments in the Bill of Rights which originally imposed restraints on only the Federal
To treat first of the former doctrine, it steadily has been ruled that the commandments of the Sixth and Seventh Amendments, which require jury trial in criminal and certain civil cases, are not picked up by the due process clause of the Fourteenth so as to become limitations on the states. "This court has ruled that consistently with those amendments trial by jury may be modified by a state or abolished altogether." Palko v. Connecticut, 302 U.S. 319, 324, and cases there cited. Unless we are now so to change our interpretation as to withdraw from the states the power so lately conceded to be theirs, this would end the matter under the view that the force of the due process clause is exhausted when it has applied the principles of other relevant Amendments.
But this Court has construed it to be inherent in the independent concept of due process that condemnation shall be rendered only after a trial, in which the hearing is a real one, not a sham or pretense. Palko v. Connecticut, 302 U.S. 319, 327; Mooney v. Holohan, 294 U.S. 103; Moore v. Dempsey, 261 U.S. 86. Trial must be held before a tribunal not biased by interest in the event. Tumey v. Ohio, 273 U.S. 510. Undoubtedly a system of exclusions could be so manipulated as to call a jury before which defendants would have so little chance of a decision on the evidence that it would constitute a denial of due process. A verdict on the evidence, however, is all an accused can claim; he is not entitled to a set-up that will give a chance of escape after he is properly proven guilty Society also has a right to a fair trial. The defendant's
To establish the unfairness of this tribunal and the lack of due process afforded to one who is being tried before it, the defendants assert two defects in its composition: first, that it unconstitutionally excluded women, and, second, that it unconstitutionally excluded laborers, craftsmen, service employees, and others of like occupation, amounting in sum to the exclusion of an economic class.
Assuming that defendants, not being women, have standing to complain of exclusion of women from the general and special jury panels, we are unable to sustain their objection. Approximately 7,000 women were on the general panel of 60,000 and 30 were on the special panel. One served on the jury which convicted the petitioners. The proportion of women on the jury panels did not equal their proportion of the population. There may be no logical reason for this, but there is an historical one. Until recently, and for nearly a half-century after the Fourteenth Amendment was adopted, it was universal practice in the United States to allow only men to sit on juries. The first state to permit women jurors was Washington, and it did not do so until 1911.
The other objection which petitioners urge under the due process clause is that the special jury panel was invalidated by exclusion of an economic group comprising such specified classifications as laborers, craftsmen and service employees. They argue that the jury panel was chosen "with a purpose to obtain persons of conservative views, persons of the upper economic and social stratum in New York County, persons having a tendency to convict defendants accused of crime, and to exclude those who might understand the point of view of the laboring man." As we have pointed out, there is no proof of exclusion of these.
Even in the Negro cases, this Court has never undertaken to say that a want of proportionate representation of groups, which is not proved to be deliberate and intentional, is sufficient to violate the Constitution. Akins v. Texas, 325 U.S. 398. If the Court has hesitated to require proportional representation where but two groups need be considered and identification of each group is fairly clear, how much more imprudent would it be to require proportional representation of economic classes. The occupations which are said to comprise the economic class allegedly excluded from the special panel are separated by such uncertain lines that the defendants' two exhibits are based on different classifications which are numerous and overlapping.
No significant difference in viewpoint between those allegedly excluded and those permitted to serve has been
Nor is there any such persuasive reason for dealing with purposeful occupational or economic discriminations if they do exist as presumptive constitutional violations, as would be the case with regard to purposeful discriminations because of race or color. We do not need to find
There may be special cases where exclusion of laborers would indicate that those sitting were prejudiced against labor defendants, as where a labor leader is on trial on charges growing out of a labor dispute. The situation would be similar to that of a Negro who confronts a jury on which no Negro is allowed to sit. He might very well say that a community which purposely discriminates against all Negroes discriminates against him. But it is quite different if we assume that "persons of conservative views" do predominate on the special jury. Does it follow that "liberals" would be more favorably disposed toward a defense that nominal labor leaders were hiring out to employers to "handle" their labor problems? Does it follow that a jury from the "upper economic and social stratum" would be more disposed to convict those who so undertake to serve two masters than "those who might understand the point of view of the laboring man"? We should think it might be the other way about and defendants offer nothing but assertion to convince us. Our attention, moreover, is called to federal court records which show that Fay reported a net taxable income of over $65,000 for the years 1940 to 1942, while Bove reported over $39,000 for a similar period, both of them exclusive of the sums received from the contractors and involved in these charges. These earnings do not identify them very closely with the viewpoint of the depressed classes. The group with which they might be most closely identified is organized labor. But it cannot be claimed that union members were excluded from this special panel since three
The function of this federal Court under the Fourteenth Amendment in reference to state juries is not to prescribe procedures but is essentially to protect the integrity of the trial process by whatever method the state sees fit to employ. No device, whether conventional or newly devised, can be set up by which the judicial process is reduced to a sham and courts are organized to convict. They must be organized to hear, try and determine on the evidence and the law. But beyond requiring conformity to standards of fundamental fairness that have won legal recognition, this Court always has been careful not so to interpret this Amendment as to impose uniform procedures upon the several states whose legal systems stem from diverse sources of law and reflect different historical influences.
As there is no violation of a federal statute alleged, the challenge to this judgment under the due process clause must stand or fall on a showing that these defendants have had a trial so unfair as to amount to a taking of their liberty without due process of law. On this record we think that showing has not been made.
Affirmed.
MR. JUSTICE MURPHY, dissenting.
The equal protection clause of the Fourteenth Amendment prohibits a state from convicting any person by use of a jury which is not impartially drawn from a cross-section of the community. That means that juries must
Preliminarily, it should be noted that legislation by Congress prohibiting the particular kind of inequality here involved is unnecessary to enable us to strike it down under the Constitution. While Congress has the power to enforce by appropriate legislation the provisions of the Fourteenth Amendment, and has done so relative to discrimination in jury selection on the basis of race or color, its failure to legislate as to economic or other discrimination in jury selection does not permit us to stand idly by. We have consistently interfered with state procedure and state legislation when we felt that they were inconsistent with the Fourteenth Amendment or with the federal commerce power despite Congressional silence on the matter involved. See, e.g., West Virginia State Board of Education v. Barnette, 319 U.S. 624; Nippert v. Richmond, 327 U.S. 416; Morgan v. Virginia, 328 U.S. 373. And so in this case we are entitled to judge the action of New York by constitutional standards without regard to the absence of relevant federal legislation.
The constitutional vice inherent in the type of "blue ribbon" jury panel here involved is that it rests upon intentional and systematic exclusion of certain classes of people who are admittedly qualified to serve on the general jury panel. Whatever may be the standards erected by jury officials for distinguishing between those eligible
The selection of the "blue ribbon" panel in this case rests upon the "degree of intelligence as revealed by the questionnaire" sent to prospective jurors, augmented by personal interviews. The questionnaire, however, does not purport to be a test of native intelligence, nor does it appear to offer any sound basis for distinguishing the intelligence of one person from another. The undeniable result has been to permit the jury officials to formulate whatever standards they desire. whether in terms of "intelligence" or some other factor, to eliminate persons from the "blue ribbon" panel, even though they admittedly are qualified for general jury service. That fact is strikingly borne out by the statistics compiled in this case as to the personnel of the "blue ribbon" panel. Certain classes of individuals are totally unrepresented on the panel despite their general qualifications and despite the fact that high intelligence is to be found in such classes.
Percentage of Percentage of total experienced representation on labor forces in "blue ribbon" Manhattan. panel. Professional and semi-professional .. 12.1 18.8 Proprietors, managers and officials . 9.3 43 Clerical, sales and kindred workers . 21.3 38 Craftsmen, foremen and kindred workers ......................... 7.7 0.2 Operatives and kindred workers ...... 17 0 Service workers ..................... 27.6 0 Laborers ............................ 4.9 0 Farmers ............................. 0.1 0
The Court points out some of the difficulties involved in comparing the personnel of the panel with 1940 census figures. But we are dealing here with a very subtle and sophisticated form of discrimination which does not lend itself to easy or precise proof. The proof here is adequate enough to demonstrate that this panel, like every discriminatorily selected "blue ribbon" panel, suffers from a constitutional infirmity. That infirmity is the denial of equal protection to those who are tried by a jury drawn from a "blue ribbon" panel. Such a panel is narrower and different from that used in forming juries to try the vast majority of other accused persons. To the extent of that difference, therefore, the persons tried by "blue ribbon" juries receive unequal protection.
In addition, as illustrated in this case, the distinction that is drawn in fact between "blue ribbon" jurors and general jurors is often of such a character as to destroy the representative nature of the "blue ribbon" panel. There is no constitutional right to a jury drawn from a group of uneducated and unintelligent persons. Nor is there any right to a jury chosen solely from those at the lower end of the economic and social scale. But there is a constitutional right to a jury drawn from a group which represents a cross-section of the community. And a cross-section of the community includes persons with varying degrees of training and intelligence and with varying economic and social positions. Under our Constitution, the jury is not to be made the representative of the most intelligent, the most wealthy or the most successful, nor
The Court demonstrates rather convincingly that it is difficult to prove that the particular petitioners were prejudiced by the discrimination practiced in this case. Yet that should not excuse the failure to comply with the constitutional standard of jury selection. We can never measure accurately the prejudice that results from the exclusion of certain types of qualified people from a jury panel. Such prejudice is so subtle, so intangible, that it escapes the ordinary methods of proof. It may be absent in one case and present in another; it may gradually and silently erode the jury system before it becomes evident. But it is no less real or meaningful for our purposes. If the constitutional right to a jury impartially drawn from a cross-section of the community has been violated, we should vindicate that right even though the effect of the violation has not yet put in a tangible appearance. Otherwise that right may be irretrievably lost in a welter of evidentiary rules.
Since this "blue ribbon" panel falls short of the constitutional standard of jury selection, the judgments below should be reversed.
MR. JUSTICE BLACK, MR. JUSTICE DOUGLAS and MR. JUSTICE RUTLEDGE join in this dissent.
FootNotes
Total number of special jurors on file in New York County
Clerk's Office ........................................ 2,911 Total number with classifiable occupations ............... 2,743 Auditors and accountants ................................. 166 Bankers .................................................. 170 Manufacturers ............................................ 106 Real Estate Brokers ...................................... 117 Retired .................................................. 62 Architects and engineers ................................. 229 Educators, teachers, librarians .......................... 27 Executives, managers of industrial enterprises ........... 470 Stock brokers ............................................ 185 Salesmen, promoters of business enterprises and advertising men ....................................... 438 Newspaper men, editorial writers and others engaged in the dissemination of information .......................... 148 Mechanics ................................................ 5 Insurance men ............................................ 166 Travel agency men ........................................ 10 Civil service employees .................................. 21 Office clerks ............................................ 94 Retail merchants ......................................... 144 Entertainers ............................................. 26 Building and construction superintendents ................ 70 Chemists and physicists .................................. 66 Attorneys ................................................ 5 Laborers ................................................. None Labor union representatives .............................. 1 Housewives ............................................... 20
— There are only about 30 women on the entire special jury list —
Petitioners' attorneys requested the Bureau of Labor Statistics of the United States Department of Labor to conform the classifications of the above table to the Census classifications. In the table thus prepared, twenty-one persons are classed as civil service employees and a note cautions that "Some members of this group undoubtedly belong elsewhere, as under service trades, or laborers." One hundred and sixty-five persons are listed as unclassifiable in the Bureau's table.
========================================================= | Experienced Labor Force [a] |----------------------------------- | Total | Occupation | | |----------------------------------| | | | Seeking | | Total | Employed | work, | | | [c] | experienced | ---------------------|---------|----------|-------------| | A | B | C | | | | | Total[b] _____ | 921,183 | 778,202 | 142,981 | | | | | Professional and | | | | semiprofessional __ | 111,600 | 98,343 | 13,257 | Proprietors, | | | | managers and | | | | Officials _________ | 85,969 | 81,234 | 4,735 | Clerical, sales and | | | | kindred workers ___ | 196,037 | 169,066 | 26,971 | Craftsmen, foremen | | | | and kindred | | | | workers ___________ | 70,497 | 54,217 | 16,280 | Operatives and | | | | kindred workers ___ | 156,581 | 128,253 | 28,328 | Service workers ____ | 254,595 | 216,992 | 37,603 | Laborers, except | | | | farm ______________ | 45,375 | 29,869 | 15,506 | Farmers, farm | | | | managers, farm | | | | laborers __________ | 529 | 228 | 301 | | | | Percent | | | Total ________ | 100.0 | 100.0 | 100.0 | | | | | Professional and | | | | semiprofessional __ | 12.1 | 12.6 | 9.3 | Proprietors, | | | | managers and | | | | officials _________ | 9.3 | 10.4 | 3.3 | Clerical, sales and | | | | kindred workers ___ | 21.3 | 21.7 | 18.9 | Craftsmen, foremen | | | | and kindred | | | | workers ___________ | 7.7 | 7.0 | 11.4 | Operatives and | | | | kindred workers ___ | 17.0 | 16.5 | 19.8 | Service workers ____ | 27.6 | 27.9 | 26.3 | Laborers, except | | | | farm ______________ | 4.9 | 3.8 | 10.8 | Farmers, farm | | | | managers, farm | | | | laborers __________ | 0.1 | [d] | 0.2 | ========================================================= =================================================================== | | |----------------------------------| | Males | | | Occupation |----------------------------------| Special | | | Seeking | Jurors | Total | Employed | work, | | | [c] | experienced | ---------------------|---------|----------|-------------|---------- | D | E | F | G | | | | Total[b] _____ | 589,431 | 489,618 | 99,813 | 2,664 | | | | Professional and | | | | semiprofessional __ | 61,191 | 53,416 | 7,775 | 501 Proprietors, | | | | managers and | | | | officials _________ | 73,732 | 69,509 | 4,223 | 1,146 Clerical, sales and | | | | kindred workers ___ | 112,316 | 95,853 | 16,463 | 1,012 Craftsmen, foremen | | | | and kindred | | | | workers ___________ | 67,504 | 51,618 | 15,886 | 5 Operatives and | | | | kindred workers ___ | 98,493 | 79,562 | 18,931 | _______ Service workers ____ | 131,112 | 110,157 | 20,955 | _______ Laborers, except | | | | farm ______________ | 44,578 | 29,293 | 15,285 | _______ Farmers, farm | | | | managers, farm | | | | laborers __________ | 505 | 210 | 295 | _______ | | Percent | Total _______ | 100.0 | 100.0 | 100.0 | 100.0 | | | | Professional and | | | | semiprofessional __ | 10.4 | 10.9 | 7.8 | 18.8 Proprietors, | | | | managers and | | | | officials _________ | 12.5 | 14.2 | 4.2 | 43.0 Clerical, sales and | | | | kindred workers ___ | 19.1 | 19.6 | 16.5 | 38.0 Craftsmen, foremen | | | | and kindred | | | | workers ___________ | 11.4 | 10.5 | 15.9 | 0.2 Operatives and | | | | kindred workers ___ | 16.7 | 16.2 | 19.0 | _______ Service workers ____ | 22.2 | 22.5 | 21.0 | _______ Laborers, except | | | | farm ______________ | 7.6 | 6.0 | 15.3 | _______ Farmers, farm | | | | managers, farm | | | | laborers __________ | 0.1 | [d] | 0.3 | _______ ===================================================================
[a] Includes the employed (except those on public emergency work) and experienced workers seeking work. Source: U.S. Bureau of the Census. Sixteenth Census of the United States, 1940, Population, v. III, part 4, New York State Table 10a, pp. 363-365.
[b] Omitting the unclassified, as well as housewives, retired persons, and others not in the labor force.
[c] Except on public emergency work.
[d] Less than one-tenth of one percent.
Even among the early seaboard States, the English common law had rivals. The Swedes on the banks of the Delaware held one of the earliest jury trials on this continent. The Governor followed Swedish law and custom in calling to his aid in judging "assistants" who were selected from among "the principal and wisest inhabitants" and were both judges and jurors and sometimes witnesses. See 1 Johnson, The Swedish Settlements on the Delaware (1911) 450 et seq. In New York, there was a deep and persistent influence from Roman Dutch law. Upon capitulation of New Amsterdam, it was stipulated that certain Dutch law, and judgments and customs should be respected. But even beyond this, in the organization of the courts the Dutch rule persisted although contrary to the "Duke's Laws" enacted by the conqueror. The history of the early Dutch influence in New York court procedure was preserved by the diligence and foresight of Judge Daly. 1 E.D. Smith's Reports (New York Common Pleas) xvii, xxxiv, xxxvii. The Roman-Dutch element in New York law is recognized by its courts, e.g., Dunham v. Williams, 37 N.Y. 251, 253; Van Giessen v. Bridgford, 83 N.Y. 348, 356; Smith v. Rentz, 131 N.Y. 169, 175, 30 N.E. 54, 56.
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