*317 316 ant and his counsel, heard evidence concerning the degree of defendant's guilt; and on the 12th day of May, 1891, the court adjudged the defendant guilty of murder in the first degree, and committed him to the custody of the jailer of Hudson county, to be confined in the common jail of said county until Tuesday, the 30th day of June, A. D. 1891, on which day he was condemned to be hanged. Article 1, § 7, of the constitution of the state of New Jersey, provides: "The right of a trial by jury shall remain inviolate, but the legislature may authorize the trial of civil suits, when the matter in dispute does not exceed fifty dollars, by a jury of six men." Section 68 of the criminal procedure act of the state of New Jersey provides: "All murder which shall be perpetrated by means of poison, or by lying in wait, or by any other kind of willful, deliberate, and premeditated killing, or which shall be committed in perpetrating or in attempting to perpetrate any arson, rape, sodomy, robbery, or burglary, shall be deemed murder in the first degree; and all other kinds of murder shall be deemed murder of the second degree; and the jury, before whom any person indicted for murder shall be tried, shall, if they find such person guilty thereof, designate by their verdict whether it be murder of the first or second degree; but, if such person shall be convicted on confession in open court, the court shall proceed, by examination of witnesses, to determine the degree of the crime, and give sentence accordingly." In his said petition the defendant alleged that said section 68 of the criminal procedure act of New Jersey is in violation of the constitution of the United States and of the state of New Jersey, and that his sentence and detention are illegal. He also states that, by virtue of the statutes and laws of the state of New Jersey, no right of appeal in murder cases exists, and he has no right to appeal to any higher court in the state to review or annul said illegal judgment and sentence. On the 30th day of May, 1892, this application for a writ of habeas corpus was by the circuit court of the United States for the district of New Jersey refused. * It is contended on behalf of the appellant that the judgment and sentence of the court of oyer and terminer of Hudson county, N. J., whereby he is deprived of his liberty and condemned to be hanged, are void, because the act of criminal procedure of the state of New Jersey, in pursuance of the provisions of which such judgment and sentence were rendered, is repugnant to the fourteenth amendment of the constitution of the United States, which is in these words: "Nor shall any state deprive any person of life, liberty, or property without due process of law." Such repugnancy is supposed to be found in the proposition that a verdict by a jury is an essential part in prosecutions for felonies, without which the accused cannot be said to have been condemned by "due process of law;" and that any act of a state legislature providing for the trial of felonies, otherwise than by a common-law jury, composed of 12 men, would be unconstitutional and void. Upon the question of the right of one charged with crime to waive a trial by jury, and elect to be tried by the court, when there is a positive legislative enactment, giving the right so to do, and conferring power on the court to try the accused in such a case, there are numerous decisions by state courts upholding the validity of such proceeding. Dailey v. State, 4 Ohio St. 57; Dillingham v. State, 5 Ohio St. 280; People v. Noll, 20 Cal. 164; State v. Worden, 46 Conn. 349: State v. Albee, 61 N. H. 428. If a recorded confession of every material averment of an indictment puts the confessor upon the country, the institution of jury trial and the legal effect and nature of a plea of guilty have been very imperfectly understood, not only by the authors of the constitution and their successors down to the present time, but also by all the generations of men who have lived under the common law. It is only necessary, in order to determine whether the legislature transcended its power in the act, to inquire whether it is prohibited by the constitution. The right of the accused to a trial was not affected, and we can therefore have no doubt that the proceeding to ascertain the degree of the crime where, in an indictment for murder, the defendant enters a plea of guilty, is constitutional and valid. Statutes of like or similar import have been enacted in many of the states, and have never been held unconstitutional. On the other hand, they have been repeatedly and uniformly held to be constitutional. In Ohio, the statute is: "If the offense charged is murder, and the accused be convicted by confession in open court, the court shall examine the witnesses and determine the degree of the crime, and pronounce sentence accordingly." In Dailey v. State, 4 Ohio St. 57, the statute was held to be constitutional, and a sentence thereunder valid. The statute of California in relation to this* subject is in the identical language of the statute of New Jersey. In People v. Noll, 20 Cal. 164, the defendant on arraignment pleaded guilty. Thereupon witnesses were examined to ascertain the degree of the crime. The court found it to be murder in the first degree, and sentenced him accordingly. One of the errors assigned was that, after the plea of guilty by the defendant, the court did not call a jury to hear evidence and determine the degree of guilt. The supreme court held: "The proceeding to determine the degree of the crime of murder after a plea of guilty is not a trial. No issue was joined upon which there could be a trial. There is no provision of the constitution which prevents a defendant from pleading guilty to the indictment instead of having a trial by jury If he elects to plead guilty to the indictment, the provision of the statute for determining the degree 320 of the guilt, for the purpose of fixing the punishment, does not deprive him of any right of trial by jury." In Connecticut, the act of 1874 provided that in all prosecutions the party accused, if he should so elect, might be tried by the court instead of by the jury, and that, in such cases, the court should have full power to try the case and render judgment. In State v. Worden, 46 Conn. 349, this statute was held not to conflict with the provisions of the state constitution, that every person accused "shall have a speedy trial by an impartial jury, and that the right of trial by jury shall remain inviolate." And, of course, the decision in the present case, of the highest court of the state of New Jersey having jurisdiction, that the statute is constitutional and valid, sufficiently and finally establishes that proposition, unless the proceedings in the case did not constitute "due process of law," within the meaning of the fourteenth amendment of the constitution of the United States. That phrase is found in both the fifth and the fourteenth amendments. In the fifth amendment the provision is only a limitation of the power of the general government; it has no application to the legislation of the several states. Barron v. Baltimore, 7 Pet. 243. But in the fourteenth amendment the provision is extended in terms to the states. The decisions already cited sufficiently show that the state courts hold that trials had under the provisions of statutes authorizing persons accused of felonies to waive a jury trial, and to submit the degree of their guilt to the determination of the courts, are "due process of law." While these decisions are not conclusive upon this court, yet they are entitled to our respectful consideration. The meaning and effect of this clause have already received the frequent attention of this court. In Murray's Lessee v. Improvement Co., 18 How. 272, the historical and critical meaning of these words was examined. The question involved was the validity of an act of congress giving a summary remedy, by a distress warrant, against the property of an official defaulter. It was contended that such a proceeding was an infringement of the fifth amendment, but this court held that, "tested by the common and statute law of England prior to the emigration of our ancestors, and by the laws of many of the states at the time of the adoption of this amendment, the proceedings authorized by the act of congress cannot be denied to be due process of law." In Walker v. Sauvinet, 92 U. S. 90, it was held that a trial by jury in suits at common law, pending in the state courts, is not a privilege or immunity of national citizenship which the states are forbidden by the fourteenth amendment of the constitution of the United States to abridge. The court, by Waite, C. J., said: “A state cannot deprive a person of his property without due process of law; but this does not necessarily imply that all trials in the state courts affecting the property of persons must be by jury. This requirement of the constitution is met if the trial is had according to the settled course of judicial proceedings. Due process of law is process due according to the law of the | land. This process in the states is regulated by the law of the state.” In Davidson v. New Orleans, 96 U. S. 97, an assessment of certain real estate in New Orleans for draining the swamps of that city was resisted, and brought into this court by a writ of error to the supreme court of the state of Louisiana. In the opinion of the court, delivered by Mr. Justice Miller, will be found an elaborate discussion of this provision as found in Magna Charta and in the fifth and fourteenth amendments to the constitution of the United States. The conclusion reached by the court was that "it is not possible to hold that a party has, without due process of law, been deprived of his property, when, as regards the issues affecting it, he has, by the laws of the state, a fair trial in a court of justice, according to the modes of proceeding applicable to such a case. Mr. Justice Bradley, while concurring in the judgment and in the general tenor of the reasoning by which it was supported, criticised the language of the court as "narrowing the scope of inquiry as to what is due process of law more than it should do." However, in the very next case in which the court had occasion to consider the provision in question, Mr. Justice Bradley was himself the organ of the court in declaring that "there is nothing in the constitution to prevent any state from adopting any system of laws or judicature it sees fit for all or any part of its territory. If the state of New York, for example, should see fit to adopt the civil law and its method of procedure for New York city and the surrounding counties, and the common law and its method of procedure for the rest of the state, there is nothing in the constitution of the United States to prevent its doing so. This would not, of itself, within the meaning of the fourteenth amendment, be a denial to any person of the equal protection of the laws. If every person residing or being in either portion of the state should be accorded the equal protection of the laws prevailing there, he could not justly complain of a violation of the clause referred to, for, as before said, it has respect to persons and classes of persons. It means that no person or class of persons shall be denied the same protection of the laws which is enjoyed by other persons or other classes in the same place and under like circumstances. The fourteenth amendment does not profess to secure to all persons in the United States the benefit of the same laws and the same remedies. Great diversities in these respects may exist in two states separated only by an imaginary line. On one side of this line there may be a right of trial by jury, and on the other side no such right. Each state prescribes its own modes of ju 2 * dicial proceedings. In Ex parte Wall, 107 U. S. 265, 2 Sup. | Ct. Rep. 569, it was held that a proceeding, whereby an attorney at law was stricken from the roll for contempt, was within the jurisdiction of the court of which he was a member, and was not an invasion of the constitutional provision that no person shall be deprived of life, liberty, or property without due process of law, but that the proceeding itself was due process of law. The dissent of Mr. Justice Field in that case did not impugn the view of the court as to what constituted due process of law, but was put upon the proposition that an attorney at law cannot be summarily disbarred for an indictable offense not connected with his professional conduct. fluous. The natural and obvious inference One of the latest and most carefully considered expressions of this court is found in the case of Hurtado v. California, 110 U. S. 516, 4 Sup. Ct. Rep. 111, 292. The question in the case was the validity of a provision in the constitution of the state of California, authorizing prosecutions for felonies by information, after examination and commit-proval. ment by a magistrate, without indictment by a grand jury. In the Case of Kemmler, reported in 136 U. S. 436, 10 Sup. Ct. Rep. 930, a fruitless effort was made to induce this court to hold that a statute of the state of New York, providing that punishment of death should be inflicted by an electrical apparatus, was void under the fourteenth amendment, and it was said: "The enactment of this statute was in itself within the legitimate sphere of the legislative power of the state, and in the observance of those general rules prescribed by our systems of jurisprudence; and the legislature of the state of New York determined that it did not inflict cruel and unusual punishment, and its courts have sustained that determination. We cannot perceive that the state has thereby abridged the privileges or immunities of the petitioner, or deprived him of due process of law." In pursuance of that provision and of legislation in accordance with it, Hurtado was charged in an information with the crime of murder, and, without any investigation of the cause by a grand jury, was tried, found guilty, and condemned to death. From this judgment an appeal was taken to the supreme court of California, which affirmed the judgment. 63 Cal. 288. This court, in reviewing and affirming the judgment of the supreme court of California, said: "We are to construe this phrase-due process of law -in the fourteenth amendment* by the usus loquendi of the constitution itself. The same words are contained in the fifth amendment. That article makes specific and express provision for perpetuating the institution of the grand jury, so far as relates to Applying the principles of these decisions. prosecutions for the more aggravated crimes to the case before us, we are readily brought under the laws of the United States. It de- to the conclusion that the appellant. in volclares that no person shall be held to answer untarily availing himself of the provisions of for a capital or otherwise infamous crime, the statute and electing to plead guilty, was unless on a presentment or indictment of a deprived of no right or privilege within the grand jury, * nor be deprived of life, protection of the fourteenth amendment. liberty, or property without due process of The trial seems to have been conducted in law.' According to a recognized canon of strict accordance with the forms prescribed interpretation, especially applicable to formal by the constitution and laws of the state, and solemn instruments of constitutional law, and with special regard to the rights of the we are forbidden to assume, without clear accused thereunder. The court refrained reason to the contrary, that any part of from at once accepting his plea of guilty, this most important amendment is super-assigned him counsel, and twice adjourned, * * process of law, and in violation of the constitution of the United States. for a period of several days, in order that | unlawfully kept and detained without due he might be fully advised of the truth, force, and effect of his plea of guilty. Whatever may be thought of the wisdom of departing, in capital cases, from time-honored procedure, there is certainly nothing in the present record to enable this court to perceive that the rights of the appellant, so far as the laws and constitution of the United States are concerned, have been in any wise infringed. Other propositions are discussed in the brief of the appellant's counsel, but they are either without legal foundation or suggest questions that are not subject to our revision. The judgment of the circuit court is affirmed. Mr. Justice HARLAN assents to the conclusion, but does not agree in all the reasoning of the opinion. (146 U. S. 271) In re CROSS. (December 5, 1892.) CRIMINAL LAW-WRIT OF ERROR-POSTPONE- Re7. St. D. C. § 845, provides that when judgment of death or confinement in the penitentiary is pronounced the court shall, on application of the condemned to enable him to apply for a writ of error, postpone the final execution to a reasonable time beyond the next term of the court, in no case exceeding 30 days. Held, that this is not a limitation of the time of execu tion, and when the judgment is affirmed on writ of error the court should set another day for execution, although the 30 days have passed. Petition by William Douglass Cross for writs of habeas corpus and certiorari. Denied. Conceding that the time of execution is not part of the sentence of death unless made so by statute, it is insisted that in the District the time has been made a part of the sentence by section 845, which provides that when the judgment is death or confinement in the penitentiary the court shall on the application of the party condemned, to enable him to apply for a writ of error, "postpone the final execution thereof to a reasonable time beyond the next term of the court, not exceeding in any case thirty days after the end of such term." *The argument is that the time fixed by such a postponement is to be regarded as a time fixed by statute, and that the power of the court to set a day for execution is thereby exhausted. The supreme court of the District, upon the prior application, held that this provision related simply to the right of the accused to a postponement of the day of executing his sentence in case he should apply for it in order to have a review of an alleged error, and that, with the exception of this restriction in the matter of fixing a day for execution, the power of the court was not made the subject of legislation, but was left as it had been at common law. We concur with the views expressed by that court, and in the conclusion reached, that if the time for execution had passed, in any case, the court could make a new order. Unquestionably, congress did not intend that the execution of a sentence should not be carried out, if judgment were affirmed on writ of error, except where the appellate court was able to announce a result within the time allowed for the application for the writ to be made. The postponements were C. Maurice Smith and Joseph Shillington, rendered necessary by reason of delays occafor petitioner. sioned by the acts of the condemned in his own interest, and the position that he there Mr. Chief Justice FULLER delivered the by became entitled to be set at large cannot opinion of the court. This is a petition for writs of habeas corpus and certiorari. The matters set up will be found sufficiently reported in Cross v. Burke, 13 Sup. Ct. Rep. 22, and Cross v. U. S., 145 U. S. 571, 12 Sup. Ct. Rep. 842. The application to us is, in effect, the same as that made to the supreme court of the District of Columbia, whose judgment denying the writ of habeas corpus was brought to this court by appeal, upon the hearing of which the merits were fully argued, although we were obliged to decline jurisdiction. Petitioner contends that the postponement of the execution of the sentence of death pronounced against him, by virtue of an order of the supreme court of the District in general term on January 21, 1892, and subsequent postponements by that court in special term, were without authority of law, and in violation of section 845 of the Revised Statutes of the District, and that, therefore, he is | be sustained. McElvaine v. Brush, 142 U.S. 155, 159, 12 Sup. Ct. Rep. 156; People v. Trezza, 128 N. Y. 529, 536, 28 N. E. Rep. 533. 2 It may be admitted that section 1040 of the Revised Statutes applies only to cases which can be brought to this court; but, apart from the fact that, as pointed out in Cross v. U. S., ubi supra, the supreme court of the District, whether sitting in general or in special term, is still the supreme court, it is unnecessary to consider the validity of the postponement, since section 845 of the Revised Statutes of the District has not the effect contended for. Without reference to the state of case when a statute fixes or limits the time, the sentence of death remained in force, and was sufficient authority for holding the convict in confinement after the day fixed had passed, when it became the duty of the court to assign, if there had been no⇒ other disposition of the case, a new time for execution. Rex v. Harris, 1 Ld. Raym. 482;* Rex v. Rogers, 3 Burrows, 1809, 1812; Rex v. Wyatt, Russ. & R. 230; Ex parte Howard, 17 N. H. 545; State v. Kitchens, 2 Hill, (S. C.) 612; Bland v. State, 2 Ind. 608; Lowenberg v. People, 27 N. Y. 336; State v. Oscar, 13 La. Ann. 297; State v. Cardwell, 95 N. C. 643; Ex parte Nixon, 2 S. C. 4. The application for the writs must be denied. (146 U. S. 387) ILLINOIS CENT. R. CO. v. STATE OF ILLINOIS et al. CITY OF CHICAGO v. ILLINOIS CENT. R. CO. et al. STATE OF ILLINOIS v. ILLINOIS CENT. R. Co. et al. (December 5, 1892.) Nos. 419, 608, 609. CONSTITUTIONAL LAW-TIDE LANDSLANDS UNDER THE GREAT LAKES-RIPARIAN RIGHTS. 1. The common-law doctrine as to the dominion, sovereignty, and ownership of lands under tide waters on the borders of the sea applies equally to the lands beneath the navigable waters of the Great Lakes; and in this country such dominion, sovereignty, and ownership belongs to the states, respectively, within whose borders such lands are situated, subject always to the right of congress to control the navigation so far as may be necessary for the regulation of foreign and interstate commerce. 2. The title which a state holds to lands under tide waters bordering on the sea or under the navigable waters of the Great Lakes, lying within her limits, is different in character from the title of the state to lands intended for sale, or from that of the United States to the public lands which are open to pre-emption and sale. It is a title held in trust for the people of the state, that they may enjoy the navigation of the waters, carry on commerce over them, and have liberty of fishing therein, free from obstruction or interference by private parties, and it is not within the legislative power of the state to abdicate this trust by a grant whereby it surrenders its property and general control over the lands of an entire harbor, bay, sea, or lake, though it may grant parcels thereof for the foundations of wharves, piers, docks, and other structures in aid of commerce, or parcels which, being occupied, do not substantially impair the public interest in the waters remaining. Mr. Justice Shiras, Mr. Justice Gray, and Mr. Justice Brown dissenting. 3. Act Ill. April 16, 1869, purporting to grant to the Illinois Central Railroad Company all the right and title of the state to the submerged lands constituting the bed of Lake Michigau, for one mile from the shore opposite the company's tracks and breakwater in the city of Chicago, to be held in perpetuity without power to alienate the fee, was in excess of the legislative power of the state, and inoperative to affect, modify, or in any respect control the sovereignty and dominion of the state over such lands, or its ownership thereof, and was annulled by the repealing act of April 15, 1873, which was valid and effective to that extent. Mr. Justice Shiras, Mr. Justice Gray, and Mr. Justice Brown, dissenting. 4. The reclamation by the Illinois Central Railroad Company from the waters of Lake Michigan of a tract 200 feet wide, extending along the front of the city of Chicago, and the construction of its tracks, crossings, guards, etc., and the erection of the breakwater on the east thereof, and the necessary works for the protection of the shore on the west, all as required by the ordinance under which it was permitted to enter the city, did not interfere with any useful freedom in the use of the waters of the lake for commerce,-foreign, interstate, or domestic,-or constitute such an encroachment upon the domain of the state as to require the interposition of a court for their removal, or for any restraint in their use. 33 Fed. Rep. 730, affirmed. 5. The railroad company did not, however, acquire, by such reclamation, an absolute fee in the lands reclaimed, or any right of use, disposal, or control, except for a right of way and for railroad purposes; nor did it thereby acquire any rights, as a riparian owner, to reclaim still further lands from the lake for its use, or for the construction of piers, docks, and wharves in furtherance of its business. 6. In respect to the lots lying north of Randolph street, in said city, and the lots in front of Michigan avenue, all bordering on the lake, and to which the company acquired the fee by purchase, it was vested with riparian rights, and thereby became entitled to fill up the shallow waters of the lake, and to construct piers, wharves, docks, and slips not extending beyond the point of navigability. 33 Fed. Rep. 730, affirmed. 7. The fee in the streets, alleys, commons, and public grounds, as exhibited on the maps of subdivision of fractional sections 10 and 15, lying on the lake front of Chicago, is vested in the city, together with the riparian rights appertaining thereto; and these rights were not divested by the fact that the Illinois Central Railroad occupied the lands underlying the immediate front, and filled them in for its right of way, under authority of a city ordinance; and the city still has the right to exercise such riparian rights, subject to the terms of the ordinance and to the authority of the state to prescribe the lines beyond which no structures may be extended, and also subject to such supervision and control as the United States may lawfully exercise. 33 Fed. Rep. 730, affirmed. Appeals from the circuit court of the United States for the northern district of Illinois. Modified and affirmed. B. F. Ayers and John N. Jewett, for Illinois Cent. R. Co. John S. Miller and S. S. Gregory, for the City of Chicago. George Hunt, for the State of Illinois. *Mr. Justice FIELD delivered the opinion of the court. This suit was commenced on the 1st of March, 1883, in a circuit court of Illinois, by an information or bill in equity filed by the attorney general of the state, in the name of its people, against the Illinois Central Railroad Company, a corporation created under its laws, and against the city of Chicago. The United States were also named as a party defendant, but they never appeared in the suit, and it was impossible to bring them in as a party without their consent. The alleged grievances arose solely from the acts and claims of the railroad company, but the city of Chicago was made a defendant because of its interest in the subject of the litigation. The railroad company filed its answer in the state court at the first term after the commencement of the suit, and upon its petition the case was removed to the circuit court of the United States for the northern district of Illinois. In May following the city appeared to the suit and filed its answer, admitting all the allegations of fact in the bill. A subsequent motion by the complainant to remand the case to the state court was denied. 16 Fed. Rep. 881. The pleadings were afterwards altered in various particulars. An amended information or bill was filed by the 233 433 |