and the ranges that lie easterly thereof; and same conclusion was thought to be inferred | made its election to take its lands in range 7 There is really nothing in the decision of Newhall v. Sanger in conflict with the views here expressed; because the court did not have before it the case of a floating grant. In a number of cases decided since the decision in Newhall v. Sanger*, that case has been referred to with approbation; and in some of them expressions have been used as if the question of floating grants to be located in larger territories had been decided therein. But we have seen that this is not correct, and we are not aware of any case in which this class of grants has been actually involved and has formed the subject of decision. EVERETT DEWITT et al. v. KATE D. McLAUGHLIN, EXrX., &c. [No. 11]. Argued with above Dec. 8, 1887. Decided May 14, 1888. This reasoning of the court in Newhall v. Sanger is entirely conclusive as to all definite grants which identified the land granted, such as the case before it then appeared to be; but is it fairly applicable to floats? that is to say, grants of a larger quantity to be located within a certain tract or territory, whether of limited extent, marked by certain bounds, or anywhere in the State, as in the case of Yturbide? Many The decree of the Circuit Court is affirmed in small grants, of only a few leagues, were sus- this and the other cases argued with it. In conceptible of location in large territories. The sequence of the death of Kate D. McLaughlin, Alvarado grant, claimed by Fremont-Fremont the decree will be entered as of the first day of v. U. S. 58 U. S. 17 How. 542 [15:241],-was the term, nunc pro tunc. only for ten square leagues within a region containing upwards of a hundred square leagues. The description in the grant was "the tract of land known as Mariposas, to the extent of ten square leagues, within the limits of the Sierra Nevada and the rivers known by the names of the Chanchilles, of the Merced, and of the San Joaquin." Did all this vast region cease to be the public domain of the United States for the sake of the ten leagues which constituted the actual grant? Would not such Judgment affirmed with costs, on the authora conclusion have been unreasonable, prejudi- ity of the decision and opinion in case No. 1027, cial to the public interest, and entirely unneces-. S. v. McLaughlin et al., ante, 213. Judgsary for the protection of the grantee? It may ment to be entered nunc pro tunc as of October be that the land office might properly suspend 10, 1887 ordinary operations in the disposal of lands within the territory indicated, and in that sense [456] they might not be considered as public lands; but why should they not be regarded as public lands disposable by Congress itself, care being taken to preserve a sufficient quantity to satisfy the grant? In error to the Circuit Court of the United Mr. W. J. Johnston and Mr. M. D. Brainard Mr. A. L. Rhodes and Mr. Henry Beard for defendant in error. GEORGE FRIEND et al. v. JOHN H. WISE, Mr W. J. Johnston and Mr. M. D. Brainard Mr. A. L. Rhodes and Mr. Henry Beard for defendant in error. Judgment affirmed with costs, on the authority of the decision and opinion in case No. 1027, U S. v. McLaughlin et al., ante, 213. Judg ment to be entered nunc pro tunc as of October 10, 1887. As we have already seen, there can be no could occur in carrying out this view. The JAMES C. CALLAN, Appt., V. COLUMBIA. (See S. C. Reporter's ed. 540-557). Right of trial by jury in District of Columbia 1. The Constitution of the United States requires the question of the time when lands claimed under *The case of Newhall v. Sanger is referred to-on Pac. R. Co. 99 U. S. 387, 89 (25:305,306); Quinn v. [457] [540] that the right of trial by jury shall be secured to the people of the District of Columbia. 2. A person charged with having committed the crime of conspiracy in the District of Columbia is entitled to a jury, when put upon his trial. Mr. Wm. A. Maury, Asst. Atty-Gen., for appellee: 113 U. S. 321 (28: 990); People v. O'Neil, 48 Cal. 257; Bell v. State, 44 Ala. 393; Jackson v. State, 6 Blackf. 461; Cancemi v. People, 18 N. Y. 128; Carpenter v. State, 4 How. (Miss). 163; 3. The jurisdiction of the Police Court of that Dis- Bowles v. State, 5 Sneed, 360; Norval v. Rice, trict, as defined by existing statutes, does not extend to the trial of infamous crimes or offenses punish- 2 Wis. 22: Doebler v. Commonwealth, 3 Serg. & able by imprisonment in the penitentiary. R. 237; Re Staff, 63 Wis. 292; Bank of Colum4. Except in those petty offenses which, accord-bia v. Okely, 17 U. S. 4 Wheat. 235 (4: 559). ing to the common law, may be proceeded against summarily, the guarantee of an impartial jury to the accused in a criminal prosecution, conducted either in the name or under the authority of the United States, secures to him the right to a jury trial the first time, and in whatever court, he is put on trial. In such cases a judgment of conviction not based upon a verdict of guilty by a jury is void. 5. To accord to the accused a right to be tried by a jury in an appellate court, after he has been once fully tried, otherwise than by a jury, in the court of original jurisdiction, and sentenced to pay a fine or be imprisoned, does not satisfy the requirements of the Constitution. [No. 1318.] Argued Jan. 16, 1888. Decided May 14, 1888. APPEAL from a judgment of the Supreme The conspiracy laid in the information is not Ex parte Wilson, 114 U. S. 417 (29: 89); Holmes v. Jennison, 39 U. S. 14 Pet. 571 (10: 594); Bank of Columbia v. Okely, 17 U. S. 4 Wheat. 244 (4: 561); Edwards v. State, 45 N. J. L. 419; Rev. Stat. D. C. § 1049; 1 Dill. Mun. Corp. § 367; Emporia v. Volmer, 12 Kan. 622; v Whitney, 108 Mass. 5; Cooley, Const. Lim. 5th ed. p. 410, note 5, p. 507; Dillingham v. State, 5 Ohio. St. 280; Sedgw. Stat. & Const. L. 491, and notes; Tennessee v. Sneed, 96 U. S. 74 (24: 612); Terry v. Anderson, 95 U. S. 633 (24: 366); Antoni v. Greenhow, 107 U. S. 775 Re-|(27: 471); Byers v. Commonwealth, 42 Pa. 89; McGear v. Woodruff, 33 N. J. L. 213. Jones . Robbins, 8 Gray, 329, Commonwealth Court of the District of Columbia refusing, upon writ of habeas corpus, to discharge appellant, who was convicted in the Police Court of the District of Columbia of the crime of conspiracy, found guilty by the court and sentenced to pay a fine or be imprisoned, and upon which sentence he was imprisoned. versed. The facts are fully stated in the opinion. Messrs. J. H. Ralston and Chas S. Moore, for appellant and petitioner: The crime of conspiracy is an infamous crime, only cognizable upon indictment or presentation by a grand jury. U. S. v. Buell, 1 MacArth. 502. The Police Court of the District of Columbia, so far as crimes against the United States are concerned, is a United States Court, and its judge should therefore be appointed during good behavior, as directed by the Constitution, instead of for a term of six years. Mr. Justice Harlan delivered the opinion of the court: This is an appeal from a judgment refusing, upon writ of habeas corpus, to discharge the appellant from the custody of the appellee as Marshal of the District of Columbia. It appears that by an information filed by the United States in the Police Court of the District, the petitioner, with others, was charged with the crime of conspiracy, and having been found guilty by the court was sentenced to pay a fine of $25, and upon default in its payment Rev. Stat. D. C. § 1049; Dred Scott v. Sand- to suffer imprisonment in jail for the period of ford, 60 U. S. 19 How. 436 (15: 713); American thirty days. He perfected an appeal to the Ins. Co. v. 356 Bales of Cotton, 26 U. S. 1 Pet. Supreme Court of the District, but having sub546 (7.256); Pollard v. Hagan, 44 U. S. 3 How. sequently withdrawn it, and having refused to 223 (11: 570); U. S. v. More, 7 U. S. 3 Cranch, pay the fine imposed upon him, he was com159 (2: 397); Re Hennick, 5 Mackey, 503; Ermitted to the custody of the Marshal, to the parte Milligan, 71 U. S. 4 Wall. 122 (18: 296); end that the sentence might be carried into State v. Young, 3 Kan. 445; Shafer v. Mumma, effect. 17 Md. 331; Priddle's Case, Leach, Cr. Cas. 442. The constitutional provisions as to jury trial were violated when the police judge refused a jury to petitioner. The contention of the petitioner is that he is restrained of his liberty in violation of the Constitution. The various grounds of this contention will be considered, so far as it is necessary to do so, after we shall have ascertained the precise nature of the offense of which the pe Const. art. III, § 2; Fifth Amend; Cooley, The information shows that one Franz That, during those months, there was in the [541 branch of a larger association known as "The | you are hereby notified that the following That, during the period named, Edward C. Linden, Louis P. Wild, John N. Pistorio, James C. Callan (the appellant), Joseph B. Caldwell, George N. Sloan, John Fallon, Anton Fischer and Frank Pistorio were members of the said local assembly, each pursuing the calling of a musician; That, on the 17th of July, 1887, said local association imposed upon Franz Krause, one of its members, two fines, one of $25 and the other of $50, which he refused to pay upon the ground that they were illegal; and "By order of the Assembly. "[SEAL.] E. C. LINDEN, JR., To this information the defendants interposed a demurrer, which was overruled. They united in requesting a trial by jury. That request was denied, and a trial was had before the court, without the intervention of a jury, and with the result already stated. It is contended by the appellant that the Constitution of the United States secured to him the right to be tried by a jury, and, that right having been denied, the police court was without jurisdiction to impose a fine upon him, or to order him to be imprisoned until such fine was paid. This precise question is now, for the first time, presented for determination by this court. If the appellant's position be sustained, it will follow that the statute (Rev. Stat. Dist. Col. § 1064) dispensing with a petit jury, in prosecutions by information in the police court, is inapplicable to cases like the present one. That said Linden, Wild, Pistorio, Callan, Caldwell, Sloan, Fallon, Fischer, with sundry other persons, whose names were unknown, did, on the 7th day of August, 1887, unlawfully and maliciously combine, conspire and confederate together to extort from Krause the sum [542] of $75 on account of said fines; to prevent the parties first above named-Krause, Naecker, and others-and each of them, from pursuing their calling and trade anywhere in the United States; and to "boycott," injure, molest, oppress, intimidate, and reduce to beggary and want, not only said persons and each of them, but any person who should work with or for them, or should employ them or either of them. The information charges that the manner in which the defendants, so conspiring, proposed to effect said result, was to refuse to work as musicians, or in any other capacity, with or The third article of the Constitution profor the persons first above named, or with or for vides that "the trial of all crimes, except in any person, firm or corporation, working with cases of impeachment, shall be by jury; and or employing them; to request and procure all such trial shall be held in the State where the other members of said organizations, and all said crime shall have been committed; but other workmen and tradesmen, not to work as when not committed within any State, the musicians, or in any capacity, with or for them, trial shall be at such place or places as the Conor either of them; or for any person, firm or gress may by law have directed." The Fifth corporation that employed or worked with Amendment provides that no person shall "be them or either of them, and to warn and threat- deprived of life, liberty or property without en every person, firm or corporation that em- due process of law." By the Sixth Amendployed or proposed to employ the said persons, ment it is declared that "in all criminal prosor either of them, that if they did not forth-ecutions the accused shall enjoy the right to with cease to so employ them and refuse to employ them, and each of them, such person, firm or corporation, so warned and threatened, would be deprived of any custom or patronage, as well from the persons so combining and conspiring as from all other members of said organization in and out of the District. The information further charges that, on the "SANCTUARY WASHINGTON MUSICAL ASSEM- "WASHINGTON, D. C., August 8, 1887. a speedy and public trial, by an impartial jury The contention of the appellant is that the The contention of the government is that the Constitution does not require that the right of trial by jury shall be secured to the people of the District of Columbia; that the original 15 225 [543] [548] [549] Upon a careful examination of this position we are of opinion that it cannot be sustained without violence to the letter and spirit of the Constitution. provision, that when a crime was not commit- the United States, as well those permanent- The third article of the Constitution provides for a jury in the trial of "all crimes, except in cases of impeachment." The word "crime," in its more extended sense, comprehends every violation of public law; in a limited sense, it embraces offenses of a serious or atrocious character. In our opinion, the provision is to be interpreted in the light of the principles which, at common law, determined whether the accused, in a given class of cases, was entitled to be tried by a jury. It is not to be construed as relating only to felonies, or offenses punishable by confinement in the penitentiary. It embraces as well some classes of misdemeanors, the punishment of which involves or may involve the deprivation of the liberty of the citizen. It would be a narrow construction of the Constitution to hold that no prosecution for a misdemeanor is a prosecution for a "crime" within the meaning of the third article, or a "criminal prosecution" within the meaning of the Sixth Amendment. And we do not think that the amendment was intended to supplant that part of the third article which relates to trial by jury. There is no necessary conflict between them. Mr. Justice Story says that the amendment "in declaring that the accused shall enjoy the right to a speedy and public trial by an impartial jury of the State or district wherein the crime shall have been committed (which district shall be previously ascertained by law), and to be informed of the nature and cause of the accusation, and to be confronted with the witnesses against him, does but follow out the established course of the common law in all trials for crimes." Story, Const. § 1791. And as the guarantee of a trial by jury, in the third article, implied a trial in that mode and according to the settled rules of the common law, the enumeration, in the Sixth Amendment, of the rights of the accused in criminal prosecutions is to be taken as a declaration of what those rules were, and is to be referred to the anxiety of the people of the States to have in the supreme law of the land, and so far as the agencies of the General Government were concerned, a full and dis[550] tinct recognition of those rules, as involving the fundamental rights of life, liberty, and property. This recognition was demanded and secured for the benefit of all the people of It is next insisted that the constitutional guarantee of trial by jury in all criminal prosecutions-even supposing it to exist for the people of the District-has not been denied. Passing by so much of the argument as rests upon the slight difference in phraseology between the third article and the Sixth Amendment-the former de claring that the trial of all crimes "shall be" by jury, and the latter that the accused shall "enjoy the right" to trial in that mode-we come to the consideration of the main proposition advanced on behalf of the government, upon this branch of the case. It is this: that the requirements of the Constitution are fully inet, where the accused is accorded, at some stage of the prosecution against him, the right of trial by jury. Such right, it is argued, is sufficiently recognized in the following sections of the Revised Statutes of the District of Columbia, defining and regulating the power and jurisdiction of the police court: "Sec. 1073. Any party deeming himself aggrieved by the judgment of the police court may appeal to the supreme court. Sec. 1074. In all appeals the party apply ing for appeal shall enter into recognizance, with sufficient surety to be approved by the judge, for his appearance at the criminal term of the supreme court then in session, or at the next term thereof if the criminal term be not then in session, there to prosecute the appeal [55 and to abide by the judgment of the supreme court. "Sec. 1075. Upon such recognizance being given all further proceedings in police court shall be stayed." "Sec. 1077. Upon the failure of any party appealing from the judgment of the police court to the supreme court to enter into recognizance, as provided for in section ten hundred and seventy-four, he shall be committed to jail to await his trial upon his appeal, and the trial shall be had in the supreme court as though such recognizance had been entered into." * guaranteed that "the right of trial by jury shall remain inviolate," the court said: "Extensive and summary police powers are constantly exercised in all the States of the Union for the repression of breaches of the peace and petty offenses, and these statutes are not supposed to conflict with the constitutional provisions securing to the citizen a trial by jury. This constitutional provision does not prevent the enforcement of the by-laws of a municipal corporation without a jury trial." McGear v. Woodruff, 33 N. J. L. 213. In State v. Conlin, 27 Vt. 318, 323, the court sustains the right of "Sec. 773. Appeals from the police court the Legislature to provide for the punishment shall be tried on the information filed in the of minor offenses, having reference to the intercourt below, certified to supreme court, by anal police of the State, "with fine only, or imjury in attendance thereat, as though the case prisonment in the county jail for a brief and had originated therein, and the judgment in limited period." See also Williams v. Augusta, the supreme court shall be final in the case." 4 Ga. 509. These provisions undoubtedly secure the right of appeal from the police court to the Supreme Court of the District, and a trial by jury in the latter court. But the fact remains that [552] the accused may, under the statute, be tried in the court of original jurisdiction, upon the is-lations, as, for example, those concerning marsue of guilt or innocence; and by its judgment, unless he gives security for his appearance in another court, he may be deprived of his liberty. The police court is not, in such cases, an examining court merely, but a trial court, in the fullest sense of those words. According to many adjudged cases, arising under Constitutions which declare, generally, that the right of trial by jury shall remain inviolate, there are certain minor or petty offenses that may be proceeded against summarily, and without a jury; and, in respect to other offenses, the constitutional requirement is satisfied if the right to a trial by jury in an appellate court is accorded to the accused. Byers v. Commonwealth, 42 Pa. 89, 94, affords an illustration of the first of the above classes. It was there held that while the founders of the Commonwealth of Pennsylvania brought with them to their new abode the right of trial by jury, and while that mode of trial was considered the right of every Englishman, too sacred to be surrendered or taken away, "summary convictions for petty offenses against statutes were always sustained, and they were never supposed to be in conflict with the common-law right to a trial by jury.' So, in State v. Glenn, 54 Md. 573, 600, 605, it was said that "in England, notwithstanding the provision in the Magna Charta of King John, art. 46, and in that of 9 Hen. 3, chap. 29, which declares that no freeman shall be taken, imprisoned, or condemned but by lawful judgment of his peers, or by the law of the laud, it has been the constant course of legislation in that kingdom, for centuries past, to confer summary jurisdiction upon justices of the peace for the trial and conviction of parties for minor and statutory police offenses. * * * The doctrines of many of the cases are thus kets, streets, water works, city officers, etc., The same author says, in respect to the other And when it is declared that the party is entitled to a speedy trial by an impartial jury, that must be understood as referring to such crimes and accusations as have, by the regular course of the law and the established modes of procedure, as theretofore practiced, been the subjects of Somewhat different views have been expressed jury trial. It could never have been intended by the District Court of the United States for to embrace every species of accusation involv- the Southern District of New York. Charles ing either criminal or penal consequences." So, A. Dana having been charged by information 3] also, in New Jersey, where the Constitution in the Police Court of the District of Columbia [554] |