offense. § 4. Every person who knowingly sells or offers for sale, or delivers or offers to deliver, any oleomargarine in any other form than in new wooden or paper packages as described, or who packs in any package any oleomargarine in a manner contrary to law, or who falsely brands any package or affixes any stamp on any package denoting a less amount of tax than that required by law, "may be fined for each offense not more than $1,000, and be imprisoned not more than two years." § 6. Every manufacturer of oleomargarine who neglects to affix the required label to a package containing oleomargarine made by him, or sold or offered for sale by or for him, and every person who removes any label so affixed may be "fined $50 for each package in respect to which such offense is committed." § 7. Every officer of customs who permits imported oleomargarine "to pass out of his custody or control without compliance by the owner or importer thereof with the provisions of this section relating thereto, shall be guilty of a misdemeanor and shall be fined not less than $1,000 nor more than $5,000, and imprisoned not less than six months nor more than two years." § 10. Any person who wilfully neglects or refuses, when emptying a stamped package containing oleomargarine, to utterly destroy such stamps, "shall for each offense be fined not exceeding $50 and imprisoned not less than ten days nor more than six months. And any person who fraudulently gives away or accepts from another, or who sells, buys, or uses for packing oleomargarine, any such stamped package, shall for each such offense be fined not exceeding $100 and be imprisoned not more than one year." § 13. Any person who wilfully removes or defaces the stamps, marks or brands on packages containing oleomargarine taxed as provided, is guilty "of a misdemeanor, and shall be punished by a fine of not less than one hundred dollars, nor more than two thousand dollars, and by imprisonment for not less than thirty days nor more than six months." $15. Whenever any person engaged in carrying on the business of manufacturing oleomargarine who defrauds, or attempts to defraud, HARLAN, J., dissenting. 195 U.S. the United States of the tax on the oleomargarine produced by him, or any part thereof, forfeits the factory and manufacturing apparatus used by him, and all oleomargarine and all raw material for the production of oleomargarine found in the factory and on the factory premises, and "shall be fined not less than five hundred dollars nor more than five thousand dollars, and be imprisoned not less than six months nor more than three years." § 17. These sections are to be looked at in connection with section 11, on which this prosecution is based. That section provides "That every person who knowingly purchases or receives for sale any oleomargarine which has not been branded or stamped according to law, shall be liable to a penalty of fifty dollars for each such offense." It is true that the word "penalty" is used in several sections of this act. But it is not to be conclusively inferred therefrom that the offense described was not a crime, within the strictest meaning of that word. Referring to the words penalty," "liability," and "forfeiture," this court has said: "These words have been used by the great masters of Crown law and the elementary writers as synonymous with 'punishment,' in connection with crimes of the highest grade. Thus, Blackstone speaks of criminal law as that branch of jurisprudence which teaches of the nature, extent and degrees of every crime, and adjusts to it its adequate and necessary penalty.' Alluding to the importance of this department of legal science, he says: 'The enacting of penalties to which a whole nation shall be subject should be calmly and maturely considered.' Referring to the unwise policy of inflicting capital punishment for certain comparatively slight offenses, he speaks of them as 'these outrageous penalties,' and repeatedly refers to laws that inflict the 'penalty of death."" United States v. Reisinger, 128 U. S. 398, 402. So, in Huntington v. Attrill, 146 U. S. 657, 667, after quoting the maxim of international law in The Antelope, 10 Wh. 66, 123, that "the courts of no country execute the penal laws of another," and observ 195 U.S. HARLAN, J., dissenting. ing that there was great danger, when interpreting that maxim, of being misled by the different shades of meaning allowed to the word "penal" in our language, this court said: "In the municipal law of England and America the words 'penal' and 'penalty' have been used in various senses. Strictly and primarily, they denote punishment, whether corporal or pecuniary, imposed and enforced by the State for a crime or offense against its laws. . Penal laws, strictly and properly, are those imposing punishment for an offense committed against the State, and which, by the English and American constitutions, the executive of the State has the power to pardon." Besides the act throughout uses the words " fine," and "fined" words which, in their primary sense, import the punishment of a person convicted of crime. I cannot doubt, after a scrutiny of the entire act, that every offense prescribed by it and for which a fine is imposed, was intended to be made and is a criminal offense-a crime against the United States-to be punished as such. Certainly the offenses prescribed in sections four, six, seven, ten, thirteen, fifteen and seventeen are crimes against the United States. If that be so, surely the offense prescribed in section 11 is a crime and not a mere penalty recoverable only by some form of proceeding of a civii nature. This view is substantially conceded by the Solicitor General when he says that "in view of the word 'offense' in section 11 of the oleomargarine act, there is ground for saying that the penalty which it provides was imposed as a fine for the violation of what is made a misdemeanor." If the United States could have proceeded in some form of civil action to recover the fine imposed by that section, it has not done so. It chose to proceed by criminal information, and the accused pleaded not guilty of the crime charged. II. So far it has been my object only to show that the offense charged was a crime against the United States. I now inquire as to the mode in which it may be legally ascertained whether an accused, pleading not guilty, has committed the crime charged against him. Has the law designated any particular tribunal or prescribed any special mode for trying the issue of his guilt? The words of the Constitution upon this subject are clear and explicit. They leave no room for interpretation. Its express mandate is that "the trial of all crimes, except in cases of impeachment, shall be by jury." Const. Art. 3. When the Constitution was placed before the people for adoption or rejection many deemed those words, explicit as they were, inadequate to secure all the benefits of a jury trial as it existed at common law. It is suggested that if any conflict exists between the absolute requirement in the original Constitution, (Art. 3, § 2,) that the "trial of all crimes, except in cases of impeachment, shall be by jury," and the provision in the Sixth Amendment, that the accused, in every criminal prosecution, "shall enjoy the right to a speedy and public trial, by an impartial jury,' etc., the latter, having been last adopted, must control. But there is no such conflict. Those who opposed the acceptance of the Constitution said, among other things, that the words of that instrument, strictly construed, (Art. 3, § 2,) admitted of a secret trial, or of one that might be indefinitely postponed to suit the purposes of the Government, or of one taking place in a State or district other than that in which the crime was committed. The framers of the Constitution disclaimed any such evil purposes; but in order to meet the objections of its opponents, and to remove all possible ground of uneasiness on the subject, the Sixth Amendment was adopted, in which the essential features of the trial required by section 2 of Article 3 are set forth. In other words, the trial required by that section is the trial referred to in the Sixth Amendment. And the jury referred to in both the original Constitution and in the Amendments was, the authorities all agree, the historical jury of the common law, consisting of twelve persons. no more and no less, whose unanimous verdict was necessary to conviction. Thompson v. Utah, 170 U. S. 343, 349; 2 Hale's P. C. 161; 4 Chitty's Cr. Law, 505; 2 Blackstone, 719; Coke, Elizabeth, 654. Mr. Justice Story said: "The Constitution of the United States has exhibited great solicitude on the subject of the trial of crimes, and has declared that the trial of all crimes, except in cases of impeachment, shall be by jury; and has in some cases prescribed and in others required Congress to prescribe, the place of trial. And certain amendments of the Constitution, in the nature of a bill of rights, have been adopted, which fortify and guard this inestimable right of trial by jury." United States v. Gibert, 2 Sumner, 19, 38. See also Capital Traction Co. v. Hof, 174 U. S. 1; Natal v. Louisiana, 139 U. S. 621, 624; 4 Black. Com. 280; 1 Stephens' History of the Criminal Law, 123. The contention in the present prosecutions is that although the positive constitutional injunction that the trial of all crimes shall be by jury furnishes an inflexible rule that may not be ignored in cases of felony, that rule, even where the accused pleads not guilty, may be disregarded altogether in a trial for a misdemeanor, provided he consents to be tried by the court without a jury. Plainly, such an exception is unauthorized by the Constitution if its words be interpreted according to their ordinary meaning. Nor, in my opinion, is it consistent with the fundamental rules of criminal procedure, as established and enforced at common law. In determining the meaning and scope of the words "due process of law," as used in the Constitution, the established rule is that "we must examine the Constitution itself, to see whether this process be in conflict with any of its provisions. If not found to be so, we must look to those settled usages and modes of proceeding existing in the common and statute law of England, before the emigration of our ancestors, and which are shown not to have been unsuited to their civil and political condition by having been acted on by them after the settlement of this country." Murray's Lessee v. Hoboken Land Co., 18 How. 272, 277. So, in ascertaining whether under any circumstances a criminal case may be tried in a Federal court |