178 A. 291 | Pa. | 1934
Lead Opinion
These appeals are from judgments of the Superior Court reversing the judgments entered in the Common Pleas of Lackawanna County in contempt proceedings. The appeals were allowed for consideration of the contention, made and sustained in the common pleas, that the Act of June 23, 1931, P. L. 925, was unconstitutional in that it conferred the right to a jury trial on one charged with indirect criminal contempt of a restraining order. It appears that, on the application of appellant, the Penn Anthracite Mining Co., an injunction was granted January 26, 1934, restraining Anthracite Miners of Pennsylvania and members thereof from interfering with the operation of appellant's mines and collieries and from intimidating its employees.
On January 31, 1934, the Penn Anthracite Mining Co. presented its petition in the trial court for a rule to show cause why the appellees here should not be adjudged in contempt of court for violation of the injunction. When *403
the rule came on for hearing, appellees objected to the proceedings on the ground that by the Act of 1931, supra, they were entitled to be admitted to bail, to be notified of the accusations against them, to be given a reasonable time to make defense and to be granted a jury trial as in the act provided. The court declined to accept that view. Testimony was taken, from which the court made findings of fact establishing that, on January 31, 1934, while appellant's employees were on their way to work at Raymond Colliery in the Borough of Archbald, a large crowd, including appellees, gathered about the automobiles containing the employees and threw stones at them, breaking the windows of the cars and striking and injuring some of the occupants. These acts were intended to, and did, intimidate many of appellant's employees, and prevented them and others from returning to work at the colliery. The appellees were adjudged guilty of contempt and fined $50 each, to be collected by the sheriff, the parties to "stand committed in his [the sheriff's] custody until the order is complied with." The court was of opinion that the power to find the fact of violation of its injunction and to inflict punishment therefor was inherent in the court — a court created by the Constitution — and, therefore, beyond the power of the legislature. The convicted parties appealed to the Superior Court and there contended that the constitutional provision for chancery powers, in the exercise of which the injunction was granted, conferred legislative authority to enact the statute. The Superior Court sustained the contention in an opinion reported in
The act is as follows: "Section 1. . . . That in all cases where a person shall be charged with indirect criminal contempt for violation of a restraining order or injunction issued by a court or judge or judges thereof, the accused shall enjoy — (a) The rights as to admission to bail that are accorded to persons accused of crime; (b) The right to be notified of the accusation and a reasonable *404 time to make a defense, provided the alleged contempt is not committed in the immediate view or presence of the court; (c) Upon demand, the right to a speedy and public trial by an impartial jury of the judicial district wherein the contempt shall have been committed, provided that this requirement shall not be construed to apply to contempts committed in the presence of the court or so near thereto as to interfere directly with the administration of justice, or to apply to the misbehavior, misconduct, or disobedience of any officer of the court in respect to the writs, orders, or process of the court; and (d) The right to file with the court a demand for the retirement of the judge sitting in the proceeding, if the contempt arises from an attack upon the character or conduct of such judge, and if the attack occurred otherwise than in open court. Upon the filing of any such demand, the judge shall thereupon proceed no further but another judge shall be designated by the presiding judge of said court. The demand shall be filed prior to the hearing in the contempt proceeding. Section 2. Punishment for a contempt specified in section one may be by fine not exceeding one hundred dollars, or by imprisonment not exceeding fifteen days in the jail of the county where the court is sitting, or both, in the discretion of the court. Where a person is committed to jail for the nonpayment of such a fine, he must be discharged at the expiration of fifteen days, but where he is also committed for a definite time, the fifteen days must be computed from the expiration of the definite time."
It is not disputed that the acts alleged to have constituted the contempt of court occurred ten miles from the courthouse and were, therefore, an indirect contempt; it is likewise undisputed that indictments would lie for the various crimes involved in the acts said to have been committed. The appeal does not, therefore, require us to determine the general scope of the term "indirect criminal contempt" as used in the statute. The provision of the Constitution directly involved is section 20 of article *405 V, in these words: "The several courts of common pleas, besides the powers herein conferred, shall have and exercise within their respective districts, subject to such changes as may be made by law, such chancery powers as are now vested by law in the several courts of common pleas of this Commonwealth, or as may hereafter be conferred upon them by law."
"That one who asks to have a law declared unconstitutional takes upon himself the burden of proving beyond all doubt that it is so, has been so often declared that the principle has become axiomatic. In Sharpless v. Mayor of Phila.,
The question, therefore, is: May the legislature grant the right to a jury trial to one charged with an "indirect criminal contempt for violation of a restraining order" and limit the punishment? Certainly there is no direct prohibition. The Constitution authorizes the legislature to deal with "chancery powers." What is the meaning of the words as used in the Constitution?
This term has a meaning peculiar to the equity jurisprudence of Pennsylvania, growing out of the peculiar history of equity and its administration in this Commonwealth.1 By 1873, when the Constitution was adopted, the words had acquired a well understood meaning. Equity has always been part of the law of Pennsylvania (Jordan v. Cooper, 3 S. R. *564, *578), but it was found that the common law courts could not do justice in particular cases, because they lacked the powers of a court of chancery; that is, they lacked the power to administer the equitable remedies afforded by the English Court of Chancery: Nailer v. Stanley, 10 S. R. *450, *454; Gratz v. Bayard, 11 S. R. *41, *48. In the Constitution of 1776, the courts were given "the powers of a court of chancery, so far as relates to the perpetuating of testimony, obtaining evidence from places not within this State, and the care of the persons and estates of those who are non compos mentis, and such other powers as may be found necessary by future general assemblies, not inconsistent with this constitution." Additional chancery powers were conferred from time to time, among them, by the Act of March 28, 1786, 2 Sm. L. 375, to supply defects in title occasioned by lost deeds; by the Act of September 28, 1789, 2 Sm. L. 502, to issue interrogatories to *407 garnishees. The Constitution of 1790 provided: "And the legislature shall vest in the said courts such other powers to grant relief in equity as shall be found necessary; and may, from time to time, enlarge or diminish those powers." An Act of March 31, 1792, 3 Sm. L. 66, provided for specific performance by personal representatives of deceased vendors of real estate. By the Act of January 19, 1793, 3 Sm. L. 87, the Act of 1789 was made perpetual and extended to the common pleas. An Act of 1798, 3 Sm. L. 303, conferred power to compel the production of books and papers; the Act of February 17, 1814, 6 Sm. L. 104, gave the "power, on the application of the committee, . . . to sell the estate of such lunatic"; the Act of March 22, 1825, 8 Sm. L. 405, gave "the Supreme Court . . . power to grant relief in equity, in all cases of trusts so far as regards the appointment of trustees." Gradually, a long-standing and deep-seated objection2 to the granting of chancery powers was overcome, and the Act of June 16, 1836, P. L. 784, was passed, though, even then, some of the powers were granted only to the courts of Philadelphia County. This statute, referred to later, *408 provided that "The Supreme Court, and the several courts of common pleas, shall have the jurisdiction and powers of a court of chancery, so far as relates to . . . [a number of heads of equity jurisdiction]." It is, perhaps, the first time in a general statute relating to chancery powers, that the word "jurisdiction" was associated with the word "powers."3 The Constitution of 1838 repeated the provision of the Constitution of 1790. Additions followed, until by the Act of February 14, 1857, P. L. 39, the jurisdiction and powers conferred by the Act of 1836 were extended all over the State. Between 1836 and 1927, more than a score of acts were passed conferring additional equity powers.4 In the light of the history of the development and use of the term "chancery powers," the term therefore comprehends (in the words of MITCHELL, C. J., quoted later in this opinion) "the jurisdiction, powers, practice andprocedure in equity."5 (Italics ours.) *409
In decisions of this court, the "chancery powers" have been treated as subject to legislative control. In dealing with the restriction imposed by the Act of July 12, 1842, P. L. 339, abolishing imprisonment for debt, it was said, in Ex rel. Scott v. The Jailer, 1 Grant 237 (1855): "The acts of assembly conferring chancery powers, carry with them, as a necessary incident to the jurisdiction, the authority to enforce decrees by the ordinary process of attachment, sequestration, etc.,unless that authority be excluded by legislative enactment." (Italics ours.) Legislative control was again recognized in Butler Co. v. Ry. Co.,
The development of equity jurisprudence in this State, therefore, clearly supports the view that section 20 recognized a reservation of power in the legislature to add to, take from, or otherwise change the chancery powers then, or thereafter, vested in the common pleas, as well as the administration of those chancery powers. When, for example, the legislature conferred power to grant an injunction, such as the record shows was granted in the case out of which this proceeding grew, the legislature at the same time could have regulated the procedure and practice with relation to the injunction and might then have enacted the provisions of the Act of 1931 concerning indirect criminal contempts. The power to punish such criminal violation of the decree is part of the chancery *411
powers; it is not like an ordinary contempt, as we recognized in Com. ex rel. Lieberum v. Lewis,
Appellant in this court suggests that the Superior Court erred in confusing the terms "power" and "jurisdiction." Both words are undoubtedly used properly in many different senses. But we are not convinced that the suggested distinction can be effective in displacing the well recognized and comprehensive character of the meaning of "chancery powers" in the equity jurisprudence of this Commonwealth, as shown by the history outlined above.
There is no basis for the fear, suggested in argument, that the exercise of jurisdiction under such conditional grant will result in loss of respect for the court; the United States District Courts have not suffered in that regard because indirect criminal contempts are triable by jury (Michaelson v. U.S.,
We adopt the distinction taken in that quotation as of particular significance in our consideration of the Act of 1931. While the legislature may not abolish the common pleas, it may abolish or change any or all chancery powers conferred on those courts. In short, it may deal with chancery powers to any extent consistent with maintaining the integrity of the courts of common pleas. They do not lose their character as constitutional courts by also exercising the chancery powers granted, or by being limited in the exercise of such powers; they remain courts of common pleas. This Act of 1931 (as Mr. Justice SUTHERLAND said of the Clayton Act, under consideration in the Michaelson case) "does not interfere with the power to deal summarily with contempts committed in the presence of the court or so near thereto as to obstruct the administration of justice, and is in express terms carefully limited to the cases of contempt specifically defined." When legislation touching judicial power not affected by the statute is enacted, a very different question from that now before us will be presented. We think it *413 cannot be said beyond all doubt that the act is unconstitutional.
The judgments of the Superior Court are affirmed.
Concurrence Opinion
I have no doubt of the constitutionality of the Act of June 23, 1931, P. L. 925. When article V, section 20 of the Constitution says that the chancery powers of the courts of common pleas are "subject to such changes as may be made by law," it does not mean (as appellant contends it does) chanceryjurisdiction, i. e., what fields the courts may act in; it means what the courts may do when they get into the fields assigned them.
Since appellant bases a large part of its argument on the theory that the courts have inherent power to punishsummarily all kinds of contempts, including an indirect contempt, criminal in nature as the one was here, I wish to go on record as not subscribing to this doctrine. Appellant makes the novel argument that "the power to punish for contempt . . . is not a 'chancery power,' neither is it a common law power" and it "is not derived from statute." If it is none of these (which run the gamut of judicial powers except, of course, a power expressly conferred by the Constitution), it must be something akin to the divine right of kings, of which Blackstone aptly said (volume IV, 436 [Lewis's ed., page 1792]): "The claim [in the reign of James I] of a more absolute power inherent in the kingly office than had ever been carried into practice, soon awakened the sleeping lion [the people]. . . . They examined into the divinity of this claim, and found it weakly and fallaciously supported; and common reason assured them that, if it were of human origin, no Constitution could establish it without power of revocation, no precedent could sanctify, no length of time could confirm it. The leaders felt the pulse of the nation, and found they had ability as well as inclination to resist it. . . ." The claim of "inherent power" is always invoked by every governmental agency *414 which is reaching out for more power, as did King James and Charles the First, and unless the dynamism of this doctrine is restrained, it leads to absolutism. One of the grievances enumerated in the Declaration of Independence was the assumption by the king and parliament of "inherent powers," the language of the declaration being that "He [the king] has combined with others to subject us to a jurisdiction foreign to our Constitution, and unacknowledged by our laws; . . . anddeclaring themselves invested with power [italics supplied] to legislate for us in all cases whatsoever." Protest is then made against the "attempts to extend an unwarrantable jurisdiction over us."
The doctrine that courts of equity "from time immemorial" had the "inherent power" to punish for contempt has been repudiated by modern juristic scholarship. Within the present century it has been demonstrated that the power of English courts of chancery to deal summarily with constructive contempts of court, has not existed immemorially, as the advocates of inherency claim, but is the offspring of the oppressive Star Chamber courts, of which courts Blackstone in volume IV, 267 (Lewis's ed., page 1660), says, quoting from Lord CLARENDON, that when they were in existence and functioning, "any disrespect to any acts of state or to the persons of statesmen was in no time more penal, and the foundations of right [were] never more in danger to be destroyed." Sir JOHN CHARLES FOX, late Senior Master of the Supreme Court, English Chancery Division, offers proof in his "History of Contempt of Court," page 4, that "in early times criminal contempt committed by a stranger out of court was proceeded against like any other trespass in the common law courts, with the assistance of a jury, unless the contempt was confessed." Felix Frankfurter and James M. Landis in an article on "The Power to Regulate Contempts," contained in 37 Harvard Law Review 1010, 1046, say: "Until 1720 there is no instance in the common law precedents of punishment otherwise *415 than after trial in the ordinary course and not by summary process."
The Supreme Court of the United States has recognized the fact that contempts such as we now have before us were punished in the early law of England by the usual criminal procedure, i. e., after trial by jury. In Michaelson v. U.S.,
That the American people have resented the assumption by certain judges of "inherent power" to proceed summarily against persons for alleged constructve contempt of court is a matter of history. One hundred and five years ago Federal District Judge PECK imprisoned and disbarred a lawyer for the latter's criticisms of the former's opinion. For this he was impeached. At the trial the defense was that the action complained of was based on common law precedents. Twenty-one senators pronounced the judge guilty and twenty-two not guilty.1 *416 The next day the House began measures "to define by statute all offenses which may be punishable as contempts of the courts of the United States and to limit the punishment of the same." The judiciary committee headed by James Buchanan brought in a bill "declarative of the law concerning contempts of court." It passed, and Daniel Webster favorably reported the bill from the judiciary committee of the Senate. It became a law, and forty years later the Supreme Court sustained it (Ex parte Robinson, 19 Wall. [U.S.] 505). Many states copied this law which greatly restricted judicial power over "constructive contempts." See also the cases of Respublica v. Passmore (1802), 3 Yeates (Pa.) 441, and Respublica v. Oswald (1788), 1 Dallas (Pa.) 318.
Even if British courts possessed 200 years ago the inherent power to punish summarily constructive contempts, that fact would to-day constitute inadequate support for appellant's position. "It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV." (Holmes, "The Path of the Law.") It no more follows that Pennsylvania courts possess the power of certain British courts of the 18th Century to punish summarily for constructive contempts than it follows that the chief executive of this Commonwealth possesses all the "inherent powers" of the British 18th Century chief executive. It might as well be argued that because, as Blackstone says (volume I, 246 [Lewis's ed., page 221]), "The king can do no wrong" and "in him is no folly or weakness," the same is true of the successive governors of this Commonwealth. We should not in this time and country accept all claimed judicial power as "inherent" simply because some judges think they inherit all the power exercised by the 17th and 18th Centuries English judges, many of whom were animated in their official actions by the same spirit that characterized the arrogant and odious Judge JEFFREYS. The only "inherent judicial power" that is entitled to recognition here is that power which is inherent in the sense of being necessarily *417 implied in an express grant of power. Measured by this reasonable standard, the power to adjudge a person guilty of an act of contempt committed away from the court is not an implied power necessary to the complete exercise of the judicial power expressly granted. This has been decided by the highest court in the land, for the decision in Michaelson v. United States, supra, supports the proposition that while the power to punish for contempts is "essential to the administration of justice," an act of Congress (the Clayton Act) requiring the court beforeproceeding to punish for contempt to submit the question ofwhether or not a contempt has been committed to thedetermination of a jury, does not so interfere with thejudicial functions of a court as to make the actunconstitutional. In the light of this opinion the difference between constitutional courts and courts created by statute isof no materiality in a question of the kind now before us, for when Congress "ordains and establishes a court" (as the Constitution says Congress may do), it must be a complete court, not one impotent to discharge judicial functions. Appellant claims there is a distinction between courts created by the Constitution and those created by statute. This distinction does not affect in the slightest the validity of the reasoning that the only kind of courts the Constitution of the United States authorizes Congress to create are courts capable of adequately discharging judicial functions, and that since the United States Supreme Court has decided that for Congress to pass a law taking away from the statutory federal courts the power to punish for criminal contempt is constitutional, it follows that the highest court in the land does not look upon such a law as emasculatory of any judicialpower vital to the discharge of the important duties of thecircuit and district courts of the United States.
Furthermore, the distinction between constitutional courts and statutory courts is very much overdone. What *418 the United States Supreme Court said on this alleged distinction is this: "The power — i. e., to punish for contempt — has been limited and defined by the act of Congress, March 2, 1831, and the act in terms applies to all courts. Whether it can be held to limit the authority of the Supreme Court, which derives its existence and powers from the Constitution, may perhaps be a matter of doubt [italics supplied], but that it applies to the circuit and district courts there can be no question": Ex parte Robinson, supra, (19 Wall. 505). In the Michaelson case, the Supreme Court used these words: "The only substantial difference between such a proceeding as we have here, and a criminal prosecution by indictment or information is that in the latter the act complained of is the violation of a law and in the former the violation of a decree. In the case of the latter, the accused has a constitutional right of trial by jury; while in the former he has not. The statutory extension of this constitutional right to a class of contempts which are properly described as 'criminal offenses' does not, in our opinion, invade the powers of the courts as intended by the Constitution to violate that instrument in any other way." It will be noticed that when Mr. Justice SUTHERLAND used the phrase, "the powers of the courts," he did not say "inferior, or subordinate, or statutory courts."
The most extraordinary doctrine advanced by the appellant is that "the power of a constitutional court to punish for contempt is a sort of judicial police power — a power which the legislature may regulate but cannot destroy, unless it may also destroy the court itself." When any agency of government can find no other justification for its act, it always invokes the so-called "police power" as though the mere repeating of this formula justifies any arbitrary authority assumed. Mr. Justice MILLER in Loan Assn. v. Topeka,
What justification is there for the appellant's fear that a jury will not convict the respondents if they are in fact guilty of violence and intimidation? Juries represent the average of the community and if any community falls so low in the scale of civilization as to tolerate violence and mob lawlessness, no one or more judges can save it from the fate its supineness inevitably invites. There is no excuse in this country for any person's expressing his political, economic, or social views through violence, and the worst enemy of labor is the member of a labor organization who counsels violence or who resorts to it. Uncurbed violence means anarchy and the American people will not permit their government to abdicate to anarchy.
Trial by jury is the corner-stone of our administration of justice. Though imperfect, like all other human institutions, it has stood the test of time. Even when chief magistrates of the United States have been assassinated, the responsibility has been placed upon twelve jurors and not upon a single judge to pass upon the guilt of the accused. The Encyclopedia Britannica, 14th ed., volume 14, page 632, says of Magna Carta: "The famous clause promising that no freeman shall be taken or imprisoned or disseised or outlawed or exiled . . . without the judgment of his peers or by the law of the land, was a guarantee of security against arbitrary rule to all men, whether barons or simple free men." This clause is in substance reiterated in section 9 of Pennsylvania's "Declaration of Rights." Blackstone, volume IV, 268, says in regard to certain offenses tried before a court of admiralty without a jury: "As this court proceeded without jury, in a method much conformed to the civil law, the exercise of a criminal jurisdiction there was contrary to the genius of the law of England, inasmuch as a man might be there deprived of his life by the opinion of a single judge, without the judgment of his peers. And besides, . . . innocent persons might thus fall a sacrifice *420 to the caprice of a single man. . . ." One of the grievances complained of in the Declaration of Independence was the "depriving us in many cases of the benefits of trial by jury."
In appellant's brief is the following contemptuous reference to trial by jury: "It seems to the appellant to be unthinkable that the vindication of the dignity, authority and prestige of the court should thus be committed to the determination of twelve persons picked up at random." The answer is that for a century and a half the "dignity, authority and prestige" of this and other Commonwealths when menaced by murderers, kidnappers and other felons has been "committed to the determination of twelve persons picked up at random" (i. e., twelve jurors) and has been by such persons amply vindicated. The most eminent statesmen, lawyers, and jurists of America have paid tribute to the jury system. Joseph H. Choate in his address before the American Bar Association on August 18, 1898, said: "It is the best method yet devised for the determination of disputed questions of fact in the administration of justice." In his argument before the United States Supreme Court in Ex parte Milligan, 4 Wall. 2, Jeremiah S. Black said: "It is the best protection for innocence and the surest mode of punishing guilt that has yet been discovered." The Supreme Court of the United States in its decision in that case said: "Milligan was denied a great guarantee of freedom when he was denied a trial by jury. . . . The illustrious men who framed the Constitution were full of wisdom, and they knew that a trial by an established court, assisted by an impartial jury, was the only sure way of protecting the citizen against oppression and wrong." Alexander Hamilton, in the Federalist, No. 58, (Lodge ed.) 521, said: "Arbitrary impeachments, arbitrary methods of prosecuting pretended offenses, and arbitrary punishments upon arbitrary convictions, have ever appeared to me to be the great engines of judicial despotism." *421
Another fallacy in appellant's argument is that the Act of 1931 takes away from the court the right to punish for disobedience to its process. What is taken away is only the right of the judge whose order the respondent is accused of disobeying, to determine unaided by a jury the fact of disobedience. Appellant might as well say that because a state cannot execute a murderer until a jury pronounces the alleged murderer guilty, the state is deprived of the power to punish murderers. The word "court" and the word "judge" are not synonymous, and to require a judge to share with a jury the administration of justice does not take away power from "a court." Originally the court was the king and when that court spoke, it was the sovereign speaking. In this country no single official is sovereign and he can speak for the sovereign only so far as the sovereign people have authorized him so to do. In a homicide case, the trial judge and the jury constitute the court. "A court is a tribunal organized according to law, . . . not an individual holding a judicial office": People v. Village of Haverstraw,
Appellant in its reply brief declares that the contempt here charged was "a direct defiance of the writ of process of a court" and therefore "the court concededly had the right to issue" process. No one challenges the right of the court to issue process, but what is now challenged is the right of the court after respondents are brought in on its process, to adjudge them guilty of the contempt charged, without a trial byjury. For a judge to have the right (1) to grant an injunction, (2) to issue process against those accused of violating it outside the court room,2 and (3) then to determine the guilt of the accused, *422 makes for speed but speed often makes for injustice. If juries cannot be trusted to render verdicts in cases of criminal contempts, why trust them to render verdicts in the thousands of important criminal and civil cases tried daily in the United States? Alleged disobeyers of a judge's orders are as much entitled to the constitutional right of trial by jury as the alleged violators of state and federal laws.
No human being is ever benign enough to be entrusted with absolute power. Unless we have a jury trial in these contempt cases, one individual acts as lawyer, judge, and jury. The judge issues the injunction, i. e., "makes the law" for a given situation, then tries him who is accused of its disobedience. What security has a citizen against a judge armed with this unrestrained power to condemn and who perhaps has a prejudice against the man he thinks has been contemptuous toward his command? What respect is the public likely to have for a penalty imposed by a judge on a verdict of guilty rendered by himself as sole juror?3 In such a case the people instead of *423 upholding the judge usually sympathize with the man sentenced. It is a deep seated human instinct to rebel against arbitrary power. The reign of law depends on public respect for judicial decrees and judgments. Punishment called for by the verdict of an impartial jury, i. e., a tribunal close to the life of the people, commands respect and silences any suggestion that injustice has been done. The influence of the procedure prescribed in the Act of 1931 is a salutary one. Citizens called for jury service in such a case will feel it a duty and an honor to coöperate with the judges of the courts in protecting property, curbing violence, and maintaining the supremacy of the law.
The belief in the capacity of our people for self-government is the genius of the American system and those who mistrust trial by jury apparently have little faith in our form of government. Speaking for the Supreme Court in Gompers v. U.S.,
Appellant's counsel characterize the Act of 1931 as "camouflaging the destruction of judicial power" and as "undermining the injunction," which they describe as *424 "the only remaining bulwark of public and private safety." This is reminiscent of the rejoinder of those who throughout history when brought to book for reaching out for more power or for some particularly highhanded exercise of the power they had, have attempted to portray themselves as "saviors of the state."4 It is true now as of old that "power breeds arrogance and arrogance corrupteth the understanding heart." The law which takes away from an individual judge alone the power to accuse, try, convict and punish an alleged offender charged with criminal contempt, the charge being based on an act already done, not in the presence of the court, and which requires the judge to submit the question of the defendant's guilt to that "old adjudicating democracy, the jury," is, in my judgment, clearly constitutional.