In Re Oliver

Mr. Justice Rutledge,

concurring.

I join in the Court’s opinion and decision. But there is more which needs to be said.

Michigan’s one-man grand jury, as exemplified by this record, combines in a single official the historically separate powers of grand jury, committing magistrate, prosecutor, trial judge and petit jury. This aggregated authority denies to the accused not only the right to a public trial, but also those other basic protections secured by the Sixth Amendment, namely, the rights “to be informed *279 of the nature and cause of the accusation; 1 to be confronted with the witnesses against him; 2 to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.” It takes away the security against being twice put in jeopardy for the same offense 3 and denies the equal protection of the laws by leaving to the committing functionary’s sole discretion the scope and contents of the record on appeal. 4 U. S. Const. Amend. V and XIV.

This aggregation of powers and inherently concomitant denial of historic freedoms were unknown to the common law at the time our institutions crystallized in the Constitution. They are altogether at variance with our tradition and system of government. They cannot stand the test of constitutionality for purposes of depriving any person of life, liberty or property. There is no semblance of due process of law in the scheme when it is used for those ends. 5

*280 The case demonstrates how far this Court departed from our constitutional plan when, after the Fourteenth Amendment’s adoption, it permitted selective departure by the states from the scheme of ordered personal liberty established by the Bill of Rights. 6 In the guise of permitting the states to experiment with improving the administration of justice, the Court left them free to substitute, “in spite of the absolutism of continental governments,” their “ideas and processes of civil justice” in place of the time-tried “principles and institutions of the common law” 7 perpetuated for us in the Bill of Rights. Only by an exercise of this freedom has Michigan been enabled to adopt and apply her scheme as was done in this case. It is the immediate offspring of Hurtado v. California, 110 U. S. 516 , and later like cases. 8

So long as they stand, so long as the Bill of Rights is regarded here as a strait jacket of Eighteenth Century procedures rather than a basic charter of personal liberty, like experimentations may be expected from the states. And the only check against their effectiveness will be the agreement of a majority of this Court that the experiment violates fundamental notions of justice in civilized society.

I do not conceive that the Bill of Rights, apart from the due process clause of the Fifth Amendment, incorporates all such ideas. But as far as its provisions go, I know of no better substitutes. A few may be inconvenient. But restrictions upon authority for securing personal liberty, as well as fairness in trial to deprive *281 one of it, are always inconvenient — to the authority so restricted. And in times like these I do not think substitutions imported from other systems, including continental ones, offer promise on the whole of more improvement than harm, either for the cause of perfecting the administration of justice or for that of securing and perpetuating individual freedom, which is the main end of our society as it is of our Constitution.

One cannot attribute the collapse of liberty in Europe and elsewhere during recent years solely to the “ideas and processes of civil justice” prevailing in the nations which have suffered that loss. Neither can one deny the significance of the contrast between their success in maintaining systems of ordered liberty and that of other nations which in the main have adhered more closely to the scheme of personal freedoms the Bill of Rights secures. This experience demonstrates, I think, that it is both wiser and safer to put up with whatever inconveniences that charter creates than to run the risk of losing its hard-won guaranties by dubious, if also more convenient, substitutions imported from alien traditions. 9

*282 The states have survived with the nation through great vicissitudes, for the greater part of our history, without wide departures or numerous ones from the plan of the Bill of Rights. They accepted that plan for the nation when they ratified those amendments. They accepted it for themselves, in my opinion, when they ratified the Fourteenth Amendment. Adamson v. California, 332 U. S. 46 , dissenting opinions, at 68, 123. It was good enough for our fathers. I think it should be good enough for this Court and for the states.

Room enough there is beyond the specific limitations of the Bill of Rights for the states to experiment toward improving the administration of justice. Within those limitations there should be no laboratory excursions, unless or until the people have authorized them by the constitutionally provided method. This is no time to experiment with established liberties. That process carries the dangers of dilution and denial with the chances of enforcing and strengthening.

It remains only to say that, in the face of so broad a departure from so many specific constitutional guaranties or, if the other view is to control, from their aggregate summarized in the concept of due process as representing fundamental ideas of fair play and justice in civilized society, such as the record in this case presents, this Court’s eyes need not remain closed nor its hand idle until the case is returned to the state supreme court for reaffirmation of its position or confirmation of our views expressed in the Court’s opinion. Neither Rescue Army v. Municipal Court, 331 U. S. 549 , nor Musser v. Utah, 333 U. S. 95 , presented a situation like the one tendered here, whether *283 in relation to the disentanglement of constitutional issues from questions of state law or, consequently, in respect to the breadth and clarity of the state’s departure from federal constitutional commands. Neither case therefore requires or justifies the disposition of this cause according to the procedure there followed. This case is neither unripe for decision nor wanting of sufficient basis in the record for exercise of that function.

Mr. Justice Frankfurter.

Under the Fourteenth Amendment, a State may surely adopt as its own a procedure which was the established method for prosecuting crime in nearly half the States which ratified that amendment. And so, it may abolish the grand jury, 1 or it may reduce the size of the grand *284 jury, and even to a single member. A State has great leeway in devising its judicial instruments for probing into conduct as a basis for charging the commission of crime. It may, at the same time, surround such preliminary inquiry with safeguards, not only that crime may be detected and criminals punished, but also that charges may be sifted in secret so as not to injure or embarrass the innocent.

Flouting of such a judicial investigatory system may be prevented by the hitherto constitutionally valid power to punish for contempt. There must, however, be such recalcitrance, where the basis of punishment is testimony given or withheld, that the administration of justice is actively blocked. See Ex parte Hudgings, 249 U. S. 378 . And the procedural safeguards of “due process” must be observed. Due notice of the charge and a fair opportunity to meet it, are indispensable. This involves an opportunity to canvass the charge in the open and not behind closed doors. So long as a man has ample opportunity to demonstrate his innocence before he is hustled off to jail, he cannot complain that a State has seen fit to devise a new procedure for satisfying that opportunity. Just as it is not violative of due process for a State to take private property for public use and leave to a later stage the constitutional vindication of the right to compensation, it does not seem to me that it would be violative of due process to allow the judge-grand juror of Michigan to find criminal contempt for conduct in his proceedings without the familiar elements of an open trial, provided that the State furnishes the accused a public tribunal before which he has full opportunity to be quit of the finding.

But an opportunity to meet a charge of criminal contempt must be a fair opportunity. It would not be fair, if in the court in which the accused can contest for the first time the validity of the charge against him, he comes *285 handicapped with a finding against him which he did not have an adequate opportunity of resisting.

We are here dealing with the attempt of a State having the seventh largest population in the Union to curb or mitigate the commission of crimes by effective prosecution. This procedure has been in operation for over thirty years. It was not heedlessly entered into nor has it been sporadically pursued. In a series of cases it has had the sanction of the highest court of Michigan. While there are indications in the opinion of the Supreme Court of Michigan from which we could infer the constitutional inadequacy of the procedure pursued in this case, we should not decide constitutional issues and conclude that the Michigan system offends the Constitution of the United States, without a clearer formulation of what it is that actually happens under this system, or did happen here, than the case before us reveals.

It is to me significant that the precise issues on which this Court decides this case have never been explicitly challenged before, or passed on, by the Supreme Court of Michigan in the series of cases in which that court had adjudicated controversies arising under the Michigan grand jury system. If a State has denied the due process required by the Fourteenth Amendment, it is more consonant with the delicate relations between the United States and the courts of the United States, and the States and the courts of the States, that the courts of the States be given the fullest opportunity, by proper presentation of the issues, to make such a finding of unconstitutionality.

I do not think that we have had that in this case. For instance, while I could regard it inadmissible under the Fourteenth Amendment to have only a partial and mutilated record of the proceedings before the grand juror-judge when the contemnor for the first time has the opportunity to meet the accusation against him publicly, the petitioner himself in this case seems to repel the *286 suggestion that that is his complaint. 2 Certainly, as Me. Justice Jackson points out, the first ground of the Court’s opinion was not made the basis for inviting our review here. I agree with him in concluding that in the light of our decision the other day in Musser v. Utah, 333 U. S. 95 , in conjunction with Rescue Army v. Municipal Court, 331 U. S. 549 , the cause should be returned to the Supreme Court of Michigan to enable that court to pass upon these issues.

The requirement, of course, contemplates that the accused be so informed sufficiently in advance of trial or sentence to enable him to determine the nature of the plea to be entered and to prepare his defense if one is to be made. Cf. White v. Ragen, 324 U. S. 760, 764 ; Powell v. Alabama, 287 U. S. 45 .

The only “witness” in this case was the grand jury-judge who, so far as the record discloses, did not submit to cross-examination.

As the Court’s opinion notes, the state supreme court has held that the witness may be reexamined and recommitted for a further 60-day period after serving the first sentence of that length, unless he reappears and answers the same questions to the satisfaction of the one-man grand jury. In re Ward, 295 Mich. 742, 747 .

Cf. Cochran v. Kansas, 316 U. S. 255 . So far as appears, only persons committed or fined by a one-man grand jury are subjected in Michigan to this attenuated appellate procedure. Others convicted of crime, including criminal contempt, apparently are afforded rights to complete and nondiscretionary records on appeal.

The immediate shift of the proceeding from inquisitorial to punitive function converts it from a grand jury investigation to a proceeding in criminal contempt.

Cf. Adamson v. California, 332 U. S. 46, dissenting opinion of MR. Justice Black at 68.

See Hurtado v. California, 110 U. S. 516, 531 .

E. g., Twining v. New Jersey, 211 U. S. 78 ; Adamson v. California, 332 U. S. 46 .

1 do not think it can be demonstrated that state systems, freed of the Bill of Rights’ “inconveniences,” have been more fair, just, or efficient than the federal system of administering criminal justice, which has never been clear of their restraints.

Notwithstanding Betts v. Brady, 316 U. S. 455 , and its progeny, I cannot imagine that state denial of the right to counsel beyond that permissible in the federal courts or indeed of any other guaranty of the Sixth Amendment could bring an improvement in the administration of justice.

The guaranties seemingly considered most obstructive to that process are those of the Fifth Amendment requiring presentment or indictment of a grand jury and securing the privilege against self-incrimination; the rights to jury trial and to the assistance of counsel secured by the Sixth Amendment; and the requirements relating to suits at common law of the Seventh Amendment. Whatever inconveniences these or any of them may be thought to involve are far out *282 weighed by the aggregate of security to the individual afforded by the Bill of Rights. That aggregate cannot be secured, indeed it may be largely defeated, so long as the states are left free to make broadly selective application of its protections.

In sustaining this power of the States, the Court enunciated a principle the force of which has not lessened with time: “The Constitution of the United States was ordained, it is true, by descendants of Englishmen, who inherited the traditions of English law and history; but it was made for an undefined and expanding future, and for a people gathered and to be gathered from many nations and of many tongues. And while we take just pride in the principles and institutions of the common law, we are not to forget that in lands where other systems of jurisprudence prevail, the ideas and processes of civil justice are also not unknown. Due process of law, in spite of the absolutism of continental governments, is not alien to that code which survived the Roman Empire as the foundation of modern civilization in Europe, and which has given us that fundamental maxim of distributive justice — swum cuique tribuere. There is nothing in Magna Charta, rightly construed as a broad charter of public right and law, which ought to exclude the best ideas of all systems and of every age; and as it was the characteristic principle of the common law to draw its inspiration from every fountain of justice, we are not to assume that the sources of its supply have been exhausted. On the contrary, we should expect that the new and various experiences of our own situation and system will mould and shape it into new and not less useful forms.” Hurtado v. California, 110 U. S. 516, 530-31 .

“Neither in our brief nor in our argument before the court have we urged this court to reverse this conviction merely because the partial return of the witness’s testimony to the Supreme Court constituted a denial of due process. . . . The questions we present are much more basic, — the denial of due process in the original commitment. . . . [To] us it is much more shocking that an accused charged with contempt not committed in open court be denied any trial in the lower court than that he be given a trial only upon an incomplete record in the appellate court.” Petitioner’s “Brief in Answer to Brief of State Bar of Michigan,” pp. 13-14.