mere negligence may be dangerous to them, as in selling diseased food or poison, the policy of the law may, in order to stimulate proper care, require the punishment of the negligent person, though he be ignorant of the noxious character of what he sells." This disposition of the constitutional issue left only the question of statutory construction. It was held that Congress meant to punish one who sold drugs without the written order required by the Harrison Act even though he did not know that the drugs he sold were within the statute.1 18 Presumptions in criminal prosecutions may without undue strain be included under the caption of substantive elements in crime. charged, since it may happen that the evidentiary facts are in substance the basis of conviction. In theory, of course, the issue is one of procedure and evidence, the punishment being for some further situation to which the evidentiary fact is thought to point. The offense involved in Hawes v. Georgia1 was, as stated by Mr. Justice McKenna, "knowingly permitting certain persons to locate and have on his premises apparatus for distilling and manufacturing prohibited liquors and beverages." The defendant contended that he was denied due process of law by the charge of the trial judge which in conformity to the state statute told the jury that the presence of the still on the premises was prima facie evidence of guilt and that they must upon that evidence find the defendant guilty unless he showed that the apparatus was there without his knowledge. In aid of his contention the defendant relied on the fact that in Georgia husband and wife are not competent to give evidence in a criminal case for or against each other and that the defendant cannot testify but has only the right to submit a statement not under oath. In dismissing the contention Mr. Justice McKenna pointed out that distilling spirits is not an ordinary incident of a farm and that in the present case the defendant might have called others "to testify as 18 Other issues of punishable acts are dealt with in Thomas R. Robinson, "Treason in Modern Foreign Law," 2 BOSTON UNIV. L. REV. 34, 98; Henry W. Taft, "Freedom of Speech and the Espionage Act," 55 AMER. L. REV. 695; and a note in 20 MICH. L. REV. 538 on the rights of aliens in a free speech guarantee in a state constitution, a note in 31 YALE L. J. 674 on a state sedition statute, and a note in 31 YALE L. J. 439 on making it a crime to use one's money for other purposes than paying one's debts. 19 258 U. S. -, 42 Sup. Ct. 204 (1922). to the circumstances of his acquisition, for the circumstances were not so isolated or secret as not to have been known to others." It was recognized that there must be a reasonable relation between the evidentiary fact and the facts charged as the crime, but "the principle and the presumption depending upon it" were said to be "certainly not strained against Hawes.' C. Right of Trial by Jury. 1920 The privilege, if one may say so, of being indicted by a grand jury is limited by the Fifth Amendment to prosecution "for a capital or otherwise infamous crime." It has long been established that the character of the crime depends upon the character of the punishment which under the statute may be visited upon the offender. Imprisonment in a penitentiary is infamous even though not at hard labor. In United States v. Moreland the question was whether imprisonment at hard labor not in a penitentiary is infamous. The majority in an opinion by Mr. Justice McKenna thought themselves bound by an earlier decision to answer the question in the affirmative. Mr. Justice Clarke did not sit. Mr. Justice Brandeis in a dissenting opinion concurred in by Chief Justice Taft and by Mr. Justice Holmes put the earlier case to one side as one of imprisonment by executive order and insisted that as the presence or absence of hard labor is immaterial when imprisonment is in a penitentiary so it should be immaterial when imprisonment is in a house of correction and not in a penitentiary. Appeal to history was made for the finding that "confinement at hard labor in a workhouse or house of correction did not imply infamy," and it was insisted that, even if the opposite had been true, changed conditions should move the court to find that today commitment to an industrial farm on the banks of the Occuquan River "for a short term for non-support of minor children is certainly not an infamous punishment." But the 20 Discussions of double jeopardy appear in notes on violations against both federal and state liquor laws in 21 COLUM. L. REV. 818; 70 U. PA. L. REV. 56; 8 VA. L. REV. 133; and I WIS. L. REV. 371; on prosecution for perjury at trial after acquittal of the crime charged, in 22 COLUM. L. Rev. 478; 4 ILL. L. Q. 214; and 20 MICH. L. REV. 802; on two robberies on a single occasion, in 35 HARV. L. REV. 615; and on trial for involuntary manslaughter after acquittal on charge of murder, in 70 U. PA. L. REV. 56. majority differed, so that it takes a grand jury to start such an offender on the way to work but not on the way to indolence.22 The requirement of jury trial in criminal prosecutions stipulated in the Sixth Amendment has been held not to apply to the so-called "unincorporated territories." Balzac v. Porto Rico23 held that Porto Rico's original status of an unincorporated territory has not been changed by subsequent congressional legislation.2 Illustrations of the familiar point that contempt proceedings are outside of the requirements of indictment or trial by jury appear in two cases. The issue in Union Tool Co. v. Wilson25 was mainly one of federal practice, but it appears from the opinion that fines for contempt of court may be in part criminal and in part remedial and that when a single order has these two aspects "the criminal feature of the order is dominant and fixes its character for the purposes of review."26 In Howat v. Kansas Chief Justice Taft declares that "an injunction duly issuing out of a court of general jurisdiction with equity powers, upon pleadings properly invoking its action, and served upon persons made parties therein and within the jurisdiction, must be obeyed by them, however erroneous the action of the court may be, even if the error be in the assumption of the validity of a seeming, but void law going to the merits of the case." Therefore the court refused to consider the constitutionality of the Kansas Industrial Relations Act in writs of error from judgments of the 22 In 70 U. PA. L. Rev. 233 is a note on denial of jury trial for a misdemeanor, and in 70 U. PA. L. KEV. 318 a note on denial of jury trial for newly-created offense. Statutes authorizing vasectomy on criminals and denying a hearing are considered in 2 BOSTON UNIV. L. Rev. 38 and 20 MICH. L. REV. 101. A case denying the legality of a trial at a term of court called by the governor is noted in 35 HARV. L. REV. 460. 23 258 U. S. —, 42 Sup. Ct. 342 (1922), 21 MICH. L. REV. 63. See 36 HARV. L. REV. 105. 24 Phases of criminal prosecution and punishment are dealt with in Oliver P. Field, "Ex Post Facto in the Constitution," 20 MICH, L. REV. 315; Clarence E. Laylin and Alonzo H. Tuttle, "Due Process and Punishment," 20 MICH. L. REV. 614. 25 259 U. S., 42 Sup. Ct. 427 (1922), 26 Contempt for assault on juror after verdict is discussed in 6 MINN. L. REV. 243; for criticising a terminated case, in 31 Yale L. J. 216; for charge against a judge by a grand jury, in 70 U. PA. L. Rev. 331. 27 258 U. S. -, 42 Sup. Ct. 277 (1922), 21 MICH, L. REV. 308, state court imposing imprisonment for contempts of court in declining to give testimony and in disobeying an injunction against causing or calling a strike. Juries are not needed in court martial proceedings. Judicial review as a constitutional right limits itself to issues of jurisdiction. The requisites of jurisdiction were found to be satisfied in Collins v. McDonald,28 The ingenuity of some arid-minded individual included in the Volstead Act a device for imposing what was called a tax upon persons selling liquor in violation of the act. To this was added a further penalty. Both exactions were declared in Lipke v. Lederer to be penal in character. In refusing to assume that Congress meant to authorize the enforcement of penalties for crime "through the secret findings and summary action of executive authorities," the court observed that "the guaranties of due process of law and trial by jury are not to be forgotten or disregarded." 28 28 258 U. S. 42 Sup. Ct. 326 (1922). The power of a governor to declare martial law in the absence of troops is discussed in 35 HARV. L REV. 338. 29 259 U. S. -, 42 Sup. Ct. 549 (1922), 21 MICH. L. REV. 68, 2929. See 22 COLUM. L. REV. 761. VIII. JURISDICTION AND PROCEDURE OF COURTS I. A. Whether a Dispute is a Case or Controversy. BY THE terms of Article III of the Constitution the federal ju dicial power extends to cases and controversies of various kinds, and it is established that no dispute, even though otherwise. cognizable, can be brought before the federal courts unless they are technically a case or a controversy. In illustration of this, Fairchild v. Hughes' held that a private citizen with no other interest at stake than his personal opposition to woman suffrage can not bring a bill to restrain the Secretary of State from issuing a proclamation declaring the ratification of the Nineteenth Amendment. In the course of the opinion Mr. Justice Brandeis declared: "Plaintiff's alleged interest in the question submitted is not such as to afford a basis for this proceeding. It is frankly a proceeding to have the Nineteenth Amendment declared void. In form it is a bill in equity; but it is not a case, within the meaning of section 2 of article 3 of the Constitution, which confers judicial power on the federal courts, for no claim of plaintiff is brought before the courts for determination by such regular proceedings as are established by law or custom for the protection or enforcement of rights, or the prevention, redress, or punishment of wrongs'." So also in Texas v. Interstate Commerce Commission in which a state brought in the United States Supreme Court an original bill to enjoin the enforcement of certain provisions of the Transportation Act of 1920, Mr. Justice Van Devanter disposed of some of its allegations by saying: "The bill is of unusual length, 65 printed pages. Much of it is devoted to the presentation of an abstract question of legislative power-whether the matters dealt with in several of the provisions of 437 For the preceding instalments, see 21 MICH. L Rev. 63. 74, 290, and 1238 U. S. - 42 Sup, Ct. 274 (1922). 2258 U. S. 158, 42 Sup. Ct. 261 (1922). |