In re Dana

6 F. Cas. 1140, 7 Ben. 1

• Court: District Court, S.D. New York
• Decided: July 15, 1873
• Status: Published

Opinion

BLATCHFORD, District Judge,

in refusing to grant the application, said, in substance: The 3d subdivision of the 2d section of the 3d article of the constitution of the United States is in these words: “The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the state where the said crimes shall have been committed; but when not committed within any state, the trial shall be at such place or places as the congress may by law have directed.” The 0th amendment to the constitution is as follows: “In all criminal prosecutions the accused shall enjoy the right to a speedy-and public trial, by an impartial jury of the state and district wherein the crime shall have boon committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor; and to have the assistance of counsel for his defence.” The application for the granting of the warrant of removal is resisted on the part of the defendant, on the ground that so much of the act of June 17. 1870, as provides for a trial of the information in this case by the court without a jury, is repugnant to the foregoing provisions of the constitution, and, therefore, void. It seems to me impossible to doubt the correctness of this proposition with reference to the offence of libel, charged in this case. Even if it were to be conceded, that, notwithstanding the provision in the constitution, “the trial of all crimes, except in cases of impeachment, shall he by jury,” congress has the right to provide for the trial, in the District of Columbia, by a court without a jury, of such offences as were, by the laws and usages in force at the time of the adoption of the constitution, triable without a jury, it is a matter of history, that the offence of libel was always triable, and tided, by a jury. It is, therefore, one of the crimes which must, under the constitution, be tried by a jury. The act of 1870 provides that the information in this case shall not be tried by a jury, but shall be tried by the court. It is true, that it gives to the defendant, after judgment, if he deems himself aggrieved thereby, the right to appeal to another court, where the information must be tried by a jury. But this does not remove the objection. If congress has the power to deprive the defendant of his right to a trial by jury, for one trial, and to put him, if convicted, to an appeal to another court, to secure a trial by jury, it is difficult to see why it may not also have the power to provide for several trials by a court, without a jury, on several successive convictions, before allowing a trial by a jury. In my judgment, the accused is entitled, not to be first convicted by a court, and then to be acquitted by a jury, but to be convicted or acquitted in the first instance by a jury. As, therefore, the defendant, if removed to the District of Columbia, will be tried in a manner forbidden by the constitution, I must decline to grant the warrant.