text:
Page:Manual on Uniform Traffic Control Devices for Streets and Highways, 11th Edition (December 2023).pdf/342

Page 302 Section 2E.18

Standard:

Arrows used on interchange guide signs shall be of the types shown in Figure 2D-3 and shall comply with the provisions of this Section and Section 2D.08.

'''Except on Overhead Arrow-per-Lane guide signs (see Section 2E.40) and on Exit Direction signs for lane drops (see Section 2E.28), and except as provided in Paragraph 5 of this Section, directional arrows on all overhead and post-mounted Exit Direction signs shall point diagonally upward. Directional arrows on overhead Exit Direction signs shall be located on the side of the sign consistent with the direction of the exiting movement. Directional arrows on post-mounted Exit Direction signs shall be located at the bottom portion of the sign and centered under the legend.'''

Option:

On overhead Exit Direction signs that are located fully over the tapered portion of the exit ramp at the theoretical gore, and where a directional arrow to the side of the legend farthest from the roadway might create an unusually wide sign that limits the road user’s view of the arrow, the directional arrow may be placed at the bottom portion of the sign, centered under the legend.

Standard:

Directional arrows on guide signs for multi-lane exits shall be positioned below the legend over the approximate center of each lane to which the arrow applies (see Figure 2E-38).

'''Down arrows shall only be used on overhead signs to indicate a lane to be followed and shall be positioned over the approximate center of each lane pointing vertically downward toward the approximate center of that lane. Down arrows shall be used only on overhead guide signs that restrict the use of specific lanes to traffic bound for the destination(s) and/or route(s) indicated by these arrows. Down arrows shall not be used unless an arrow can be located over and pointed to the approximate center of each lane that can be used to reach the destination displayed on the sign.'''

If down arrows are used, having more than one down arrow pointing to the same lane on a single overhead sign (or on multiple signs on the same overhead sign structure) shall not be permitted.

Support:

Directional and down arrows for use on guide signs are shown in Figure 2D-3. Detailed drawings and standardized sizes based on ranges of letter heights for these arrows are provided in the “Standard Highway Signs” publication (see Section 1A.05). Information on the dimensions for arrows used in Overhead Arrow-per-Lane and Diagrammatic Advance guide signing is also provided in the “Standard Highway Signs” publication (see Section 1A.05). Sect. 2E.18


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Rh From whence comes the Verb Aglikkinniarpok, he endeavours to write better; in the Imperative Mood, Aglekkinniarit, as above.

Perpunga Attatavnut, ajuakangitomut, killagmik nunamiglo Sennaromut.

Operpunga Jeus Chritumut, Ernetuanut, Nallegautimut, Anneramit helligmit pirok, Niviaramit Mariamit erniurok; anniartok Pontius Iektitaurok, tokkorok, illirorto, allernum akkartok. Ullut pingajuane tokkoronit makitok; Killangmut Kollartok; Angume Gub tellerpiet tungane ipiarok; teranga amma tikiytomaryok, umarullo tokongarullo auikartitartorlugit.

license: Creative Commons - Attribution Share-Alike - https://creativecommons.org/licenses/by-sa/4.0/


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Rh

Operpunga Gub Anneranut, opertokartoniglo nuname: Innungliglo helligniglo illegeinik, Synderronermiglo, Timiniglo umaromaronik, tokkorublo Kingorna tokkoviungitokartomik. Amen!

Nallekam Okauia.

The Lord's Prayer.

killangmepotit, akkit uoroliruk; Nallegavet aggerle; pekoret Killangme nunam etog tamaikile: Tunniigun ullume nekikautivnik; piarauneta aketorauta, piingilaguttog akectortivut; Urennartomut piitaraunata; ajortomin annautigut: Nallegauet, Piarlo, uornartorlo pigangaukit iukangithomun. Amen.


text:
Alleyne v. United States/Opinion of the Court

JUSTICE THOMAS announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, III-B, III-C, and IV, and an opinion with respect to Parts [p103] II and III-A, in which JUSTICE GINSBURG, JUSTICE SOTOMAYOR, and JUSTICE KAGAN join.

In Harris v. United States, 536 U.S. 545 (2002), this Court held that judicial factfinding that increases the mandatory minimum sentence for a crime is permissible under the Sixth Amendment. We granted certiorari to consider whether that decision should be overruled. 568 U.S. 936 (2012).

Harris drew a distinction between facts that increase the statutory maximum and facts that increase only the mandatory minimum. We conclude that this distinction is inconsistent with our decision in Apprendi v. New Jersey, 530 U.S. 466 (2000), and with the original meaning of the Sixth Amendment. Any fact that, by law, increases the penalty for a crime is an "element" that must be submitted to the jury and found beyond a reasonable doubt. See id., at 483, n.10, 490. Mandatory minimum sentences increase the penalty for a crime. It follows, then, that any fact that increases the mandatory minimum is an "element" that must be submitted to the jury. Accordingly, Harris is overruled.

I
Petitioner Allen Ryan Alleyne and an accomplice devised a plan to rob a store manager as he drove the store's daily deposits to a local bank. By feigning car trouble, they tricked the manager to stop. Alleyne's accomplice approached the manager with a gun and demanded the store's deposits, which the manager surrendered. Alleyne was later charged with multiple federal offenses, including robbery affecting interstate commerce, 18 U.S.C. § 1951(a), and using or carrying a firearm in relation to a crime of violence, § 924(c)(1)(A). Section 924(c)(1)(A) provides, in relevant part, that anyone who "uses or carries a firearm" in relation to a "crime of violence" shall:

"(i) be sentenced to a term of imprisonment of not less than 5 years;

[p104] "(ii) if the firearm is brandished, be sentenced to a term of imprisonment of not less than 7 years; and

"(iii) if the firearm is discharged, be sentenced to a term of imprisonment of not less than 10 years."

The jury convicted Alleyne. The jury indicated on the verdict form that Alleyne had "[u]sed or carried a firearm during and in relation to a crime of violence," but did not indicate a finding that the firearm was "[b]randished." App. 40.

The presentence report recommended a 7-year sentence on the § 924(c) count, which reflected the mandatory minimum sentence for cases in which a firearm has been "brandished," § 924(c)(1)(A)(ii). Alleyne objected to this recommendation. He argued that it was clear from the verdict form that the jury did not find brandishing beyond a reasonable doubt and that he was subject only to the 5-year minimum for "us[ing] or carr[ying] a firearm." Alleyne contended that raising his mandatory minimum sentence based on a sentencing judge's finding that he brandished a firearm would violate his Sixth Amendment right to a jury trial.

The District Court overruled Alleyne's objection. It explained that, under Harris, brandishing was a sentencing factor that the court could find by a preponderance of evidence without running afoul of the Constitution. It found that the evidence supported a finding of brandishing, and sentenced Alleyne to seven years' imprisonment on the § 924(c) count. The Court of Appeals affirmed, likewise noting that Alleyne's objection was foreclosed by Harris. 457 Fed. Appx. 348 (CA4 2011) (per curiam).

II
The Sixth Amendment provides that those "accused" of a "crime" have the right to a trial "by an impartial jury." This right, in conjunction with the Due Process Clause, requires that each element of a crime be proved to the jury beyond a reasonable doubt. United States v. Gaudin, 515 U.S. 506, 510 (1995); In re Winship, 397 U.S. 358, 364 (1970). The substance and scope of this right depend upon the [p105] proper designation of the facts that are elements of the crime.

A
The question of how to define a "crime"—and, thus, how to determine what facts must be submitted to the jury—has generated a number of divided opinions from this Court. The principal source of disagreement is the constitutional status of a special sort of fact known as a "sentencing factor." This term was first used in McMillan v. Pennsylvania, 477 U.S. 79, 86 (1986), to refer to facts that are not found by a jury but that can still increase the defendant's punishment. Following 's introduction of this term, this Court has made a number of efforts to delimit its boundaries.

McMillan initially invoked the distinction between "elements" and "sentencing factors" to reject a constitutional challenge to Pennsylvania's Mandatory Minimum Sentencing Act, 42 Pa. Cons. Stat. § 9712 (1982). That law provided that anyone convicted of certain felonies would be subject to a mandatory minimum sentence if the judge found, by a preponderance of evidence, that the person visibly possessed a firearm in the course of committing specified crimes. 477 U.S., at 81, n.1. While the Court acknowledged that there were constitutional limits to the State's ability to "defin[e] crimes and prescrib[e] penalties," it found that the Commonwealth had permissibly defined visible possession as a sentencing factor, rather than an element. Id., at 86. In the Court's view, this allowed the judge, rather than the jury, to find this fact by a preponderance of evidence without violating the Constitution.

McMillan did not address whether legislatures' freedom to define facts as sentencing factors extended to findings that increased the maximum term of imprisonment for an offense. We foreshadowed an answer to this question in Jones v. United States, 526 U.S. 227, 243, n.6 (1999), but did not resolve the issue until Apprendi. There, we identified a concrete limit on the types of facts that legislatures may designate as sentencing factors.

[p106] In Apprendi, the defendant was sentenced to 12 years' imprisonment under a New Jersey statute that increased the maximum term of imprisonment from 10 years to 20 years if the trial judge found that the defendant committed his crime with racial bias. 530 U.S., at 470. In defending its sentencing scheme, the State of New Jersey argued that, under McMillan, the legislature could define racial bias as a sentencing factor to be found by the judge. We declined to extend McMillan that far. We explained that there was no "principled basis for treating" a fact increasing the maximum term of imprisonment differently than the facts constituting the base offense. 530 U.S., at 476. The historic link between crime and punishment, instead, led us to conclude that any fact that increased the prescribed statutory maximum sentence must be an " element" of the offense to be found by the jury. Id., at 483, n.10, 490. We, thus, found that Apprendi's sentence had been unconstitutionally enhanced by the judge's finding of racial bias by a preponderance of evidence. Id., at 491–492.

B
While Apprendi only concerned a judicial finding that increased the statutory maximum, the logic of Apprendi prompted questions about the continuing vitality, if not validity, of 's holding that facts found to increase the mandatory minimum sentence are sentencing factors and not elements of the crime. We responded two years later in Harris v. United States, 536 U.S. 545, where we considered the same statutory provision and the same question before us today.

In Harris, the defendant was charged, under § 924(c)(1)(A), with carrying a firearm in the course of committing a drug trafficking crime. The mandatory minimum sentence based on the jury's verdict alone was five years, but the District Court imposed a 7-year mandatory minimum sentence based on its finding, by a preponderance of evidence, that the defendant also brandished the firearm. As in this case, [p107] Harris challenged his sentence on the ground that the 7-year mandatory minimum sentence was unconstitutional under Apprendi, even though the judge's finding did not alter the maximum sentence to which he was exposed. Harris, supra, at 551.

The Court declined to apply Apprendi to facts that increased the mandatory minimum sentence but not the maximum sentence. 536 U.S., at 557 (plurality); id. at 570 (BREYER, J., concurring in part and concurring in judgment). In the plurality's view, judicial factfinding that increased the mandatory minimum did not implicate the Sixth Amendment. Because the jury's verdict "authorized the judge to impose the minimum with or without the finding," id., at 557, the plurality was of the view that the factual basis for increasing the minimum sentence was not essential to the defendant's punishment, id., at 560–561. Instead, it merely limited the judge's "choices within the authorized range." Id., at 567. From this, the Court drew a distinction between "facts increasing the defendant's minimum sentence and facts extending the sentence beyond the statutory maximum," id., at 566. The Court limited 's holding to instances where the factual finding increases the statutory maximum sentence.

III
Alleyne contends that Harris was wrongly decided and that it cannot be reconciled with our reasoning in Apprendi. We agree.

A
The touchstone for determining whether a fact must be found by a jury beyond a reasonable doubt is whether the fact constitutes an "element" or "ingredient" of the charged offense. United States v. O'Brien, 560 U.S. 218, 224 (2010); Apprendi, supra, at 483, n.10; J. Archbold, Pleading and Evidence in Criminal Cases 52 (5th Am. ed. 1846) (hereinafter Archbold). In Apprendi, we held that a fact is by definition [p108] an element of the offense and must be submitted to the jury if it increases the punishment above what is otherwise legally prescribed. 530 U.S., at 483, n.10. While Harris declined to extend this principle to facts increasing mandatory minimum sentences, 's definition of "elements" necessarily includes not only facts that increase the ceiling, but also those that increase the floor. Both kinds of facts alter the prescribed range of sentences to which a defendant is exposed and do so in a manner that aggravates the punishment. 530 U.S., at 483, n.10; Harris, supra, at 579 (THOMAS, J., dissenting). Facts that increase the mandatory minimum sentence are therefore elements and must be submitted to the jury and found beyond a reasonable doubt.

1
At common law, the relationship between crime and punishment was clear. As discussed in Apprendi, "[t]he substantive criminal law tended to be sanction-specific," meaning "it prescribed a particular sentence for each offense." Langbein, The English Criminal Trial Jury on the Eve of the French Revolution, in The Trial Jury in England, France, Germany 1700–1900, p. 36 (A. Schioppa ed. 1987) (quoted in Apprendi, supra, at 479). The system left judges with little sentencing discretion: Once the facts of the offense were determined by the jury, the "judge was meant simply to impose [the prescribed] sentence." Langbein, supra, at 36–37; see also 3 W. Blackstone, Commentaries on the Laws of England 396 (1768) ("THE judgment, though pronounced or awarded by the judges, is not their determination or sentence, but the determination and sentence of the law" (emphasis deleted)). This Court has recognized that the same was true, in many instances, early on in this country. United States v. Grayson, 438 U.S. 41, 45 (1978); see, e.g., Commonwealth v. Smith, 1 Mass. 245 (1804) (describing state law that specified a punishment for larceny of damages three times the value of the stolen goods). While some early American statutes [p109] provided ranges of permissible sentences, K. Stith & J. Cabranes, Fear of Judging: Sentencing Guidelines in the Federal Courts 9 (1998), the ranges themselves were linked to particular facts constituting the elements of the crime, e.g., Lacy v. State, 15 Wis. 13 (1862) (discussing arson statute that provided for a sentence of 7 to 14 years where the house was occupied at the time of the offense, but a sentence of 3 to 10 if it was not); Ga. Penal Code §§ 4324–4325 (1867) (robbery "by open force or violence" was punishable by 4 to 20 years' imprisonment, while "[r]obbery by intimidation, or without using force and violence," was punishable by 2 to 5 years' imprisonment). This linkage of facts with particular sentence ranges (defined by both the minimum and the maximum) reflects the intimate connection between crime and punishment.

Consistent with this connection between crime and punishment, various treatises defined "crime" as consisting of every fact which "is in law essential to the punishment sought to be inflicted," 1 J. Bishop, Criminal Procedure 50 (2d ed. 1872) (hereinafter Bishop), or the whole of the wrong "to which the law affixes punishment," id., § 80, at 51. See also 1 J. Bishop, New Criminal Procedure § 84, p. 49 (4th ed. 1895) (defining crime as "that wrongful aggregation [of elements] out of which the punishment proceeds"); Archbold 128 (defining crime to include any fact that "annexes a higher degree of punishment"). Numerous high courts agreed that this formulation "accurately captured the common-law understanding of what facts are elements of a crime." Apprendi, 530 U.S., at 511–512 (THOMAS, J., concurring) (collecting cases). If a fact was by law essential to the penalty, it was an element of the offense.

2
From these widely recognized principles followed a well-established practice of including in the indictment, and submitting to the jury, every fact that was a basis for imposing [p110] or increasing punishment. While an exhaustive history need not be recounted here, see id., at 501–509 (THOMAS, J., concurring) (detailing practices of American courts from the 1840's onward), a few particularly salient examples illustrate the point. In Hope v. Commonwealth, 50 Mass. 134 (1845), the defendant was indicted for (and convicted of) larceny. The larceny statute established two levels of sentencing based on whether the value of the stolen property exceeded $100. Because punishment varied with value, the state high court found that value was an element of the offense:

"Our statutes, it will be remembered, prescribe the punishment for larceny, with reference to the value of the property stolen; and for this reason, as well as because it is in conformity with long established practice, the court are of [the] opinion that the value of the property alleged to be stolen must be set forth in the indictment." Id., at 137.

Numerous other contemporaneous court decisions reflect this same understanding. See, e.g., Ritchey v. State, 7 Blackf. 168, 169 (Ind. 1844) (holding that indictment for arson must allege value of property destroyed, because statute set punishment based on value); United States v. Fisher, 25 F. Cas. 1086 (No. 15,102) (CC Ohio 1849) (McLean, J.) ("A carrier of the mail is subject to a higher penalty where he steals a letter out of the mail, which contains an article of value. And when this offense is committed, the indictment must allege the letter contained an article of value, which aggravates the offense and incurs a higher penalty").

A number of contemporaneous treatises similarly took the view that a fact that increased punishment must be charged in the indictment. As one 19th-century commentator explained:

"Where a statute annexes a higher degree of punishment to a common-law felony, if committed under particular circumstances, an indictment for the offence, in [p111] order to bring the defendant within that higher degree of punishment, must expressly charge it to have been committed under those circumstances, and must state the circumstances with certainty and precision. [2 M. Hale, Pleas of the Crown *170]." Archbold 51 (15th ed. 1862).

Another explained that "the indictment must contain an allegation of every fact which is legally essential to the punishment to be inflicted." Bishop § 81, at 51. This rule "enabled [the defendant] to determine the species of offence" with which he was charged "in order that he may prepare his defence accordingly and that there may be no doubt as to the judgment which should be given, if the defendant be convicted." Archbold 44 (emphasis added). As the Court noted in Apprendi, "[t]he defendant's ability to predict with certainty the judgment from the face of the felony indictment flowed from the invariable linkage of punishment with crime." 530 U.S., at 478.

B
Consistent with common-law and early American practice, Apprendi concluded that any "facts that increase the prescribed range of penalties to which a criminal defendant is exposed" are elements of the crime. Id., at 490 (internal quotation marks omitted); id., at 483, n.10 ("[F]acts that expose a defendant to a punishment greater than that otherwise legally prescribed were by definition 'elements' of a separate legal offense"). We held that the Sixth Amendment provides defendants with the right to have a jury find those facts beyond a reasonable doubt. Id., at 484. While Harris limited Apprendi to facts increasing the statutory maximum, [p112] the principle applied in Apprendi applies with equal force to facts increasing the mandatory minimum.

It is indisputable that a fact triggering a mandatory minimum alters the prescribed range of sentences to which a criminal defendant is exposed. Apprendi, supra, at 490; Harris, 536 U.S., at 575, 582 (THOMAS, J., dissenting). But for a finding of brandishing, the penalty is five years to life in prison; with a finding of brandishing, the penalty becomes seven years to life. Just as the maximum of life marks the outer boundary of the range, so seven years marks its floor. And because the legally prescribed range is the penalty affixed to the crime, infra this page, it follows that a fact increasing either end of the range produces a new penalty and constitutes an ingredient of the offense. Apprendi, supra, at 501 (THOMAS, J., concurring); see also Bishop § 598, at 360–361 (if "a statute prescribes a particular punishment to be inflicted on those who commit it under special circumstances which it mentions, or with particular aggravations," then those special circumstances must be specified in the indictment (emphasis added)); 1 F. Wharton, Criminal Law § 371, p. 291 (rev. 7th ed. 1874) (similar).

It is impossible to dissociate the floor of a sentencing range from the penalty affixed to the crime. See Harris, supra, at 569 (BREYER, J., concurring in part and concurring in judgment) (facts increasing the minimum and facts increasing the maximum cannot be distinguished "in terms of logic"). Indeed, criminal statutes have long specified both the floor and ceiling of sentence ranges, which is evidence that both define the legally prescribed penalty. See, e.g., supra, at 108–109; N.Y. Penal Code §§ 231–232, p. 70 (1882) (punishment for first-degree robbery was 10 to 20 years' imprisonment; second-degree robbery was 5 to 15 years); Va.Code ch. 192, §§ 1–2, p. 787 (2d ed. 1860) (arson committed at night was punishable by 5 to 10 years; arson committed during the day was 3 to 10 years). This historical practice allowed those who violated the law to know, ex ante, the contours of the penalty that the legislature affixed [p113] to the crime—and comports with the obvious truth that the floor of a mandatory range is as relevant to wrongdoers as the ceiling. A fact that increases a sentencing floor, thus, forms an essential ingredient of the offense.

Moreover, it is impossible to dispute that facts increasing the legally prescribed floor aggravate the punishment. Harris, supra, at 579 (THOMAS, J., dissenting); O'Brien, 560 U.S., at 240–241 (THOMAS, J., concurring in judgment). Elevating the low-end of a sentencing range heightens the loss of liberty associated with the crime: the defendant's "expected punishment has increased as a result of the narrowed range" and "the prosecution is empowered, by invoking the mandatory minimum, to require the judge to impose a higher punishment than he might wish." Apprendi, supra, at 522 (THOMAS, J., concurring). Why else would Congress link an increased mandatory minimum to a particular aggravating fact other than to heighten the consequences for that behavior? See McMillan, 477 U.S., at 88, 89 (twice noting that a mandatory minimum ups the ante for a criminal defendant); Harris, supra, at 580 (THOMAS, J., dissenting). This reality demonstrates that the core crime and the fact triggering the mandatory minimum sentence together constitute a new, aggravated crime, each element of which must be submitted to the jury.

Defining facts that increase a mandatory statutory minimum to be part of the substantive offense enables the defendant to predict the legally applicable penalty from the [p114] face of the indictment. See Apprendi, 530 U.S., at 478–479. It also preserves the historic role of the jury as an intermediary between the State and criminal defendants. See United States v. Gaudin, 515 U.S., at 510–511 ("This right was designed 'to guard against a spirit of oppression and tyranny on the part of rulers,' and 'was from very early times insisted on by our ancestors in the parent country, as the great bulwark of their civil and political liberties (quoting 2 J. Story, Commentaries on the Constitution of the United States §§ 1779, 1780, pp. 540–541 (4th ed. 1873))); Williams v. Florida, 399 U.S. 78, 100 (1970) ("[T]he essential feature of a jury obviously lies in [its] interposition between the accused and his accuser"); Duncan v. Louisiana, 391 U.S. 145, 155 (1968) ("A right to jury trial is granted to criminal defendants in order to prevent oppression by the Government").

In adopting a contrary conclusion, Harris relied on the fact that the 7-year minimum sentence could have been imposed with or without a judicial finding of brandishing, because the jury's finding already authorized a sentence of five years to life. 536 U.S., at 561. The dissent repeats this argument today. See post, at 128 (opinion of ROBERTS, C.J.) ("The jury's verdict authorized the judge to impose the precise sentence he imposed for the precise factual reason he imposed it"). While undoubtedly true, this fact is beside the point.

As noted, the essential Sixth Amendment inquiry is whether a fact is an element of the crime. When a finding of fact alters the legally prescribed punishment so as to aggravate it, the fact necessarily forms a constituent part of a [p115] new offense and must be submitted to the jury. It is no answer to say that the defendant could have received the same sentence with or without that fact. It is obvious, for example, that a defendant could not be convicted and sentenced for assault, if the jury only finds the facts for larceny, even if the punishments prescribed for each crime are identical. One reason is that each crime has different elements and a defendant can be convicted only if the jury has found each element of the crime of conviction.

Similarly, because the fact of brandishing aggravates the legally prescribed range of allowable sentences, it constitutes an element of a separate, aggravated offense that must be found by the jury, regardless of what sentence the defendant might have received if a different range had been applicable. Indeed, if a judge were to find a fact that increased the statutory maximum sentence, such a finding would violate the Sixth Amendment, even if the defendant ultimately received a sentence falling within the original sentencing range (i.e., the range applicable without that aggravating fact). Cf. Hobbs v. State, 44 Tex. 353 (1875) (reversing conviction where the defendant was indicted for a crime punishable by 2 to 5 years and sentenced to 3 years because the trial court improperly instructed the jury to sentence the defendant between 2 to 10 years if it found a particular aggravating fact); State v. Callahan, 109 La. 946, 33 So. 931 (1903) (finding ex post facto violation where a newly enacted law increased the range of punishment, even though defendant was sentenced within the range established by the prior law). The essen- [p116] tial point is that the aggravating fact produced a higher range, which, in turn, conclusively indicates that the fact is an element of a distinct and aggravated crime. It must, therefore, be submitted to the jury and found beyond a reasonable doubt.

Because there is no basis in principle or logic to distinguish facts that raise the maximum from those that increase the minimum, Harris was inconsistent with Apprendi. It is, accordingly, overruled.

C
In holding that facts that increase mandatory minimum sentences must be submitted to the jury, we take care to note what our holding does not entail. Our ruling today does not mean that any fact that influences judicial discretion must be found by a jury. We have long recognized that broad sentencing discretion, informed by judicial factfinding, does not violate the Sixth Amendment. See, e.g., Dillon v. United States, 560 U.S. 817, 828–829 (2010) ("[W]ithin established limits[,] the exercise of [sentencing] discretion does not contravene the Sixth Amendment even if it is informed by judge-found facts" (emphasis deleted and internal quotation marks omitted)); Apprendi, supra, at 481 ("[N]othing in this history suggests that it is impermissible for judges to exercise discretion—taking into consideration various factors relating both to offense and offender—in imposing a judgment within the range prescribed by statute"). This [p117] position has firm historical roots as well. As Bishop explained:

"[W]ithin the limits of any discretion as to the punishment which the law may have allowed, the judge, when he pronounces sentence, may suffer his discretion to be influenced by matter shown in aggravation or mitigation, not covered by the allegations of the indictment." Bishop § 85, at 54.

"[E]stablishing what punishment is available by law and setting a specific punishment within the bounds that the law has prescribed are two different things." Apprendi, 530 U.S., at 519 (THOMAS, J., concurring). Our decision today is wholly consistent with the broad discretion of judges to select a sentence within the range authorized by law.

IV
Here, the sentencing range supported by the jury's verdict was five years' imprisonment to life. The District Court imposed the 7-year mandatory minimum sentence based on its finding by a preponderance of evidence that the firearm was "brandished." Because the finding of brandishing increased the penalty to which the defendant was subjected, it was an element, which had to be found by the jury beyond a reasonable doubt. The judge, rather than the jury, found brandishing, thus violating petitioner's Sixth Amendment rights.

Accordingly, we vacate the Fourth Circuit's judgment with respect to Alleyne's sentence on the § 924(c)(1)(A) conviction [p118] and remand the case for resentencing consistent with the jury's verdict.

It is so ordered.


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Rh

Goods and Commodities Greenland affords for the entertaining of Commerce, or Traffick, are Whale Blubber or Far, and Unicorn Horns,  Skins and Hides, Seal and  Thee Wares they ue to barter againt Merchandizes of our Produce, as Coats and Shirts made of white, blue, red or trip'd Linen or Woollen Cloth; as alo Knives,  Needles, Hooks to angle with,  and other uch Mercchandize or hard Wares. Beides what they buy of Wood, as Rafts, Poles, Chets, and of Bras and Copper, as Kettles and the like, Tin Dihes and Plates; for which they pay to the full Price. At the Beginning of our late Settlement in thoe Parts the Trade was much briker I


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176 briker than at preent, and much more profitable; for foreign Traders flocking thither in great Numbers, have o overtock'd them with Goods, and underold one another, to draw the Natives to them from others, that the Trade is coniderably lackened and fallen. Yet I trut, that, if we once became Maters of this Trade, as it in Jutice belongs to us, by the Right the King of Denmark lawfully claims to thee Countries as much as to any Kingdom or Province ubject to him; I trut, that, with this Provio, the Trade to Greenland would provde as profitable, as any other whatoever. Which has been evidenced not long ago; when by his Majety's pecial Order Foreign Trade has been prohibited within a certain Ditance on each Side of the Colonies. For if the landing of ome Ships with Fih and Train from and others of Fih, Train,  and Butter from Iceland and Fero bring to the Traders coniderable Profit: Who would Quetion, but the ame or better Advantage may be expected from the importing Quantities of  Whale- Bones,


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Page:Dungeons & Dragons System Reference Document.pdf/105

Dancing Lights

Light

Mage Hand

Mending

Message

Minor Illusion Prestidigitation True Strike Vicious Mockery

Animal Friendship Bane Charm Person Comprehend Languages Cure Wounds Detect Magic Disguise Self Faerie Fire Feather Fall Healing Word Heroism Hideous Laughter Identify Illusory Script Longstrider Silent Image Sleep Speak with Animals Thunderwave Unseen Servant

Animal Messenger Blindness/Deafness Calm Emotions Detect Thoughts Enhance Ability Enthrall Heat Metal Hold Person Invisibility Knock Lesser Restoration Locate Animals or Plants Locate Object Magic Mouth

See Invisibility Shatter Silence Suggestion Zone of Truth

Bestow Curse Clairvoyance Dispel Magic Fear Glyph of Warding Hypnotic Pattern Major Image Nondetection Plant Growth Sending Speak with Dead Speak with Plants Stinking Cloud Tiny Hut Tongues

Compulsion Confusion Dimension Door Freedom of Movement Greater Invisibility Hallucinatory Terrain Locate Creature Polymorph

Animate Objects Awaken Dominate Person Dream Geas Greater Restoration Hold Monster Legend Lore Mass Cure Wounds Mislead Modify Memory Planar Binding Raise Dead Scrying Seeming

Teleportation Circle

Eyebite


text:
Alleyne v. United States/Concurrence Sotomayor

JUSTICE SOTOMAYOR, with whom JUSTICE GINSBURG and JUSTICE KAGAN join, concurring.

I join the opinion of the Court, which persuasively explains why Harris v. United States, 536 U.S. 545 (2002), and McMillan v. Pennsylvania, 477 U.S. 79 (1986), were wrongly decided. Under the reasoning of our decision in Apprendi v. New Jersey, 530 U.S. 466 (2000), and the original meaning of the Sixth Amendment, facts that increase the statutory minimum sentence (no less than facts that increase the statutory maximum sentence) are elements of the offense that must be found by a jury and proved beyond a reasonable doubt. Ante, at 103.

Of course, under our doctrine of stare decisis, establishing that a decision was wrong does not, without more, justify overruling it. While stare decisis is not an "inexorable command," Hohn v. United States, 524 U.S. 236, 251 (1998) (internal quotation marks omitted), it is "a basic self-governing principle within the Judicial Branch, which is entrusted with the sensitive and difficult task of fashioning and preserving a jurisprudential system that is not based upon 'an arbitrary discretion, Patterson v. McLean Credit Union, 491 U.S. 164, 172 (1989) (quoting The Federalist, No. 78, p. 490 (H. Lodge ed. 1888) (A. Hamilton)). We generally adhere to our prior decisions, even if we question their soundness, because doing so "promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process." Payne v. Tennessee, 501 U.S. 808, 827 (1991). To protect these important values, we require a special justification when departing from precedent. Dickerson v. United States, 530 U.S. 428, 443 (2000).

[p119] A special justification is present here. As an initial matter, when procedural rules are at issue that do not govern primary conduct and do not implicate the reliance interests of private parties, the force of stare decisis is reduced. See United States v. Gaudin, 515 U.S. 506, 521 (1995); Payne, 501 U.S., at 828, 111 S.Ct. 2597. And any reliance interest that the Federal Government and state governments might have is particularly minimal here because prosecutors are perfectly able to "charge facts upon which a mandatory minimum sentence is based in the indictment and prove them to a jury." Harris, 536 U.S., at 581 (THOMAS, J., dissenting). Indeed, even with Harris in place, prosecutors already sometimes charge such facts and seek to prove them to a jury. See Brief for National Association of Criminal Defense Lawyers et al. as Amici Curiae 26. That is precisely what happened here, where the verdict form allowed the jury to find whether petitioner had brandished a firearm yet the jury declined to make such a finding. Ante, at 104.

In this context, stare decisis does not compel adherence to a decision whose "underpinnings" have been "eroded" by subsequent developments of constitutional law. Gaudin, 515 U.S., at 521. In rejecting a constitutional challenge to a state statute that increased a defendant's minimum sentence based on judicial factfinding, McMillan relied on a distinction between "elements" and "sentencing factors." 477 U.S., at 86, 106 S.Ct. 2411. That distinction was undermined by Apprendi, where we held that a legislature may not "remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed." 530 U.S., at 490 (internal quotation marks omitted).

In Harris, we squarely confronted the question whether "McMillan stands after Apprendi." 536 U.S., at 550. Five Members of the Court recognized that the cases were in fact incompatible. See id., at 569 (BREYER, J., concurring in part and concurring in judgment); id., at 572, 583 (THOMAS, J., dissenting) ("[O]nly a minority of the Court em- [p120] brac[es] the distinction between McMillan and Apprendi that forms the basis of today's holding"). In the controlling opinion, JUSTICE BREYER nevertheless declined to apply Apprendi to mandatory minimums because, though he found no way to distinguish sentencing floors from sentencing ceilings, he could not "yet accept" Apprendi itself. 536 U.S., at 569; see also post, at 122 (BREYER, J., concurring in part and concurring in judgment).

We have said that a decision may be "of questionable precedential value" when "a majority of the Court expressly disagreed with the rationale of [a] plurality." Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 66 (1996). And Harris has stood on especially weak ground because its vitality depended upon the possibility that the Court might retreat from Apprendi. See Harris, 536 U.S., at 569–570 (opinion of BREYER, J.). That has not happened. Instead, while individual Members of this Court have continued to question Apprendi, see post, at 122–123 (opinion of BREYER, J.); post, at 133–134 (ALITO, J., dissenting), its rule has become even more firmly rooted in the Court's Sixth Amendment jurisprudence in the decade since Harris. We have applied Apprendi to strike down mandatory sentencing systems at the state and federal levels. See Cunningham v. California, 549 U.S. 270 (2007); United States v. Booker, 543 U.S. 220 (2005); Blakely v. Washington, 542 U.S. 296 (2004). And just last Term, we recognized that 's reasoning extends to criminal fines. See Southern Union Co. v. United States, 567 U.S. 343 (2012).

As a result of these decisions, Harris has become even more of an outlier. For that reason, I agree that it is appropriate for the Court to "overrule Harris and to apply 's basic jury-determination rule to mandatory minimum sentences" in order to "erase th[is] anomaly" in our case law. Post, at 123 (opinion of BREYER, J.). I do not suggest that every single factor that supports the overruling of precedent is present here. Post, at 134–135, n. (ALITO, J., [p121] dissenting). But particularly in a case where the reliance interests are so minimal, and the reliance interests of private parties are nonexistent, stare decisis cannot excuse a refusal to bring "coherence and consistency," Patterson, 491 U.S., at 173, to our Sixth Amendment law.

If any doubt remained, our decision in Ring v. Arizona, 536 U.S. 584 (2002), should remove it. Ring considered an Apprendi challenge to Arizona's capital sentencing system. There, as here, the government urged us to adhere to a pre-Apprendi decision upholding that scheme. See Walton v. Arizona, 497 U.S. 639 (1990). And there, as here, we resisted that plea. Ring, 536 U.S., at 609. This case differs in only one respect: Our post-Apprendi consideration of the issue in Harris. But for the reasons given, Harris in no way strengthens the force of stare decisis in this case. With Apprendi now firmly rooted in our jurisprudence, the Court simply gives effect to what five Members of the Court recognized in Harris: "[McMillan] and Apprendi are irreconcilable; our Sixth Amendment jurisprudence cannot be home to both." 536 U.S., at 609.

JUSTICE ALITO is therefore mistaken when he suggests that the Court overrules Harris because "there are currently five Justices willing to vote to" do so. Post, at 135, n. No doubt, it would be illegitimate to overrule a precedent simply because the Court's current membership disagrees with it. But that is not a plausible account of the decision today. The Court overrules McMillan and Harris because the reasoning of those decisions has been thoroughly undermined by intervening decisions and because no significant reliance interests are at stake that might justify adhering to their result. Likewise, JUSTICE ALITO exaggerates when he suggests that this case creates an important "precedent about precedent." Post, at 134. Rarely will a claim for stare decisis be as weak as it is here, where a constitutional rule of criminal procedure is at issue that a majority of the Court has previously recognized is incompatible with our broader [p122] jurisprudence. And finally, JUSTICE ALITO's contention that Apprendi and Harris stand on equal footing for stare decisis purposes, post, at 133–134, 134–135, n., is simply inconsistent with our last decade of Sixth Amendment jurisprudence.

Because I believe that the Court's decision to apply Apprendi to mandatory minimums is consistent with stare decisis principles, I join the opinion of the Court.


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Alleyne v. United States/Concurrence Breyer

JUSTICE BREYER, concurring in part and concurring in the judgment.

Eleven years ago, in Harris v. United States, 536 U.S. 545 (2002), I wrote that “I cannot easily distinguish Apprendi v. New Jersey, 530 U.S. 466 (2000), from this case in terms of logic.” Id., at 569 (opinion concurring in part and concurring in judgment). I nonetheless accepted ' holding because I could “[n]ot yet accept ['s] rule.” Ibid. I continue to disagree with Apprendi. See 536 U.S., at 569–570; United States v. Booker, 543 U.S. 220, 326 (2005) (opinion dissenting in part); Blakely v. Washington, 542 U.S. 296, 328 (2004) (dissenting opinion); Apprendi v. New Jersey, 530 U.S. 466, 555 (2000) (same). But Apprendi has now defined the relevant legal regime for an additional decade. And, in my view, the law should no longer tolerate the anomaly that the Apprendi/Harris distinction creates.

The Court's basic error in Apprendi, I believe, was its failure to recognize the law's traditional distinction between elements of a crime (facts constituting the crime, typically for the jury to determine) and sentencing facts (facts affecting the sentence, often concerning, e.g., the manner in which the offender committed the crime, and typically for the judge to determine). The early historical references that this Court's opinions have set forth in favor of Apprendi refer to offense elements, not to sentencing facts. Thus, when Justice Story wrote that the Sixth Amendment's guarantee of trial by jury offered securit[y] against the prejudices of judges, post, at 127 (ROBERTS, C.J., dissenting) (quoting [p123] Commentaries on the Constitution of the United States § 924, p. 657 (Abr. 1833)), he was likely referring to elements of a crime; and the best answer to JUSTICE SCALIA's implicit question in Apprendi—what, exactly, does the “right to trial by jury” guarantee?—is that it guarantees a jury's determination of facts that constitute the elements of a crime. 530 U.S., at 498–499 (concurring opinion).

Although I have set forth these minority views before, see Booker, supra, at 326 (opinion dissenting in part); Blakely, supra, at 328 (dissenting opinion); Apprendi, supra, at 555 (same), I repeat this point now to make clear why I cannot accept the dissent's characterization of the Sixth Amendment as simply seeking to prevent “judicial overreaching” when sentencing facts are at issue, post, at 127 (opinion of Roberts, C.J.). At the very least, the Amendment seeks to protect defendants against “the wishes and opinions of the government” as well. Ibid. (quoting Story, supra, § 924, at 657). And, that being so, it seems to me highly anomalous to read Apprendi as insisting that juries find sentencing facts that permit a judge to impose a higher sentence while not insisting that juries find sentencing facts that require a judge to impose a higher sentence. See Harris, supra, at 569–570 (opinion of BREYER, J.).

To overrule Harris and to apply 's basic jury-determination rule to mandatory minimum sentences would erase that anomaly. Where a maximum sentence is at issue, Apprendi means that a judge who wishes to impose a higher sentence cannot do so unless a jury finds the requisite statutory factual predicate. Where a mandatory minimum sentence is at issue, application of Apprendi would mean that the government cannot force a judge who does not wish to impose a higher sentence to do so unless a jury finds the requisite statutory factual predicate. In both instances the matter concerns higher sentences; in both instances factfinding must trigger the increase; in both instances jury-based factfinding would act as a check: in the first instance, against [p124] a sentencing judge wrongly imposing the higher sentence that the judge believes is appropriate, and in the second instance, against a sentencing judge wrongly being required to impose the higher sentence that the judge believes is inappropriate.

While Harris has been the law for 11 years, Apprendi has been the law for even longer; and I think the time has come to end this anomaly in 's application. Consequently, I vote to overrule Harris. I join Parts I, III-B, III-C, and IV of the Court's opinion and concur in its judgment.


text:
Page:Dungeons & Dragons System Reference Document.pdf/106

 Find the Path

Guards and Wards

Irresistible Dance

Mass Suggestion

Programmed Illusion

True Seeing

Arcane Sword

Etherealness

Forcecage

Magnificent Mansion

Mirage Arcane

Project Image

Regenerate

Resurrection

Symbol

Teleport

Dominate Monster

Feeblemind

Glibness

Mind Blank

Power Word Stun

Foresight

Power Word Kill

True Polymorph

Guidance

Light

Mending

Resistance

Sacred Flame

Spare the Dying

Thaumaturgy

Bane

Bless

Command

Create or Destroy Water

Cure Wounds

Detect Evil and Good

Detect Magic

Detect Poison and Disease

Guiding Bolt

Healing Word

Inflict Wounds

Protection from Evil and Good

Purify Food and Drink

Sanctuary

Shield of Faith

Aid

Augury

Blindness/Deafness

Calm Emotions

Continual Flame

Enhance Ability

Find Traps

Gentle Repose

Hold Person

Lesser Restoration

Locate Object

Prayer of Healing

Protection from Poison

Silence

Spiritual Weapon

Warding Bond

Zone of Truth

Animate Dead

Beacon of Hope

Bestow Curse

Clairvoyance

Create Food and Water

Daylight

Dispel Magic

Glyph of Warding

Magic Circle

Mass Healing Word

Meld into Stone

Protection from Energy

Remove Curse

Revivify

Sending

Speak with Dead

Spirit Guardians

Tongues

Water Walk

Banishment

Control Water

Death Ward

Divination

Freedom of Movement

Guardian of Faith Rh


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Page:The Sense of the Past (London, W. Collins Sons & Co., 1917).djvu/92

. The practical snub to poor Ralph was thus that he looked away into a world of his own off into the dark backward that at once so challenged and so escaped his successor. Just so his own was in his tremendous "pull" and reach, the fact of his positively living enjoyment of some relation or other, not to say some cluster of relations, that during those very minutes determined his considering air, and even, of a sudden, invested him with something of that effect which poor Ralph, wondering about great Italian church pictures and ruefully conscious of knowing them but by hearsay, imputed to the beauty and sincerity of the portrayed, the attentive donatorio in the corner of the Venetian or other masterpiece. What was the presence of the pious magnifico, say, but our very Ralph Pendrel's presence, not a little mixed, as he supposed that of the old-time devotee represented in the act to be, with the immemorial smoke of altar candles?—yet leaving the upper spaces, those where the sacred or the saintly image itself reigned, clear and sublime. The clearness, or call it even the sublimity, was here for all the world the same sort of thing: didn't it place round the handsome uplifted head, as by the patina of the years, the soft rub of the finger of time, that ring of mystic light? In the Titian, the Tintoret or the Veronese such a melting of the tone, such a magic as grew and grew for Ralph as soon as he once had caught 78


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Alleyne v. United States/Dissent Roberts

CHIEF JUSTICE ROBERTS, with whom JUSTICE SCALIA and JUSTICE KENNEDY join, dissenting.

Suppose a jury convicts a defendant of a crime carrying a sentence of five to ten years. And suppose the judge says he would sentence the defendant to five years, but because he finds that the defendant used a gun during the crime, he is going to add two years and sentence him to seven. No one thinks that this violates the defendant's right to a jury trial in any way.

Now suppose the legislature says that two years should be added to the five year minimum, if the judge finds that the defendant used a gun during the crime. Such a provision affects the role of the judge—limiting his discretion—but has no effect on the role of the jury. And because it does not affect the jury's role, it does not violate the jury trial guarantee of the Sixth Amendment.

The Framers envisioned the Sixth Amendment as a protection for defendants from the power of the Government. The Court transforms it into a protection for judges from the power of the legislature. For that reason, I respectfully dissent.

I
In a steady stream of cases decided over the last 15 years, this Court has sought to identify the historical understand- [p125] ing of the Sixth Amendment jury trial right and determine how that understanding applies to modern sentencing practice. Our key sources in this task have been 19th-century treatises and common law cases identifying which facts qualified as “elements” of a crime, and therefore had to be alleged in the indictment and proved to a jury beyond a reasonable doubt. See, e.g., Apprendi v. New Jersey, 530 U.S. 466, 476–483, 489–490, n.15 (2000) (collecting sources); id., at 501–518 (THOMAS, J., concurring) (same). With remarkable uniformity, those authorities provided that an element was “whatever is in law essential to the punishment sought to be inflicted.” 1 J. Bishop, Criminal Procedure 50 (2d ed. 1872); see also Apprendi, supra, at 489, n.15 ([T]he indictment must contain an allegation of every fact which is legally essential to the punishment to be inflicted (quoting United States v. Reese, 92 U.S. 214, 232 (1876) (Clifford, J., dissenting))); 1 Bishop, supra, § 87, at 55 (an indictment must include “any particular fact which the law makes essential to the punishment”).

Judging that this common law rule best reflects what the Framers understood the Sixth Amendment jury right to protect, we have struck down sentencing schemes that were inconsistent with the rule. In Apprendi, for example, the defendant pleaded guilty to a crime that carried a maximum sentence of ten years. After his plea, however, the trial judge determined that the defendant had committed the crime with a biased purpose. Under a New Jersey law, that finding allowed the judge to impose up to ten additional years in prison. Exercising that authority, the judge sentenced the defendant to 12 years. 530 U.S., at 469–471.

Because the sentence was two years longer than would have been possible without the finding of bias, that finding was “essential to the punishment” imposed. 1 Bishop, supra, at 50; see Apprendi, 530 U.S., at 491–492. Thus, in line with the common law rule, we held the New Jersey procedure unconstitutional. Id., at 497, 120 S.Ct. 2348.

[p126] Subsequent cases have worked out how this principle applies in other contexts, such as capital sentencing regimes, state and federal sentencing guidelines, or criminal fines. See Ring v. Arizona, 536 U.S. 584 (2002); Blakely v. Washington, 542 U.S. 296 (2004); United States v. Booker, 543 U.S. 220 (2005); Southern Union Co. v. United States, 567 U.S. 343 (2012). Through all of them, we have adhered to the rule, rooted in the common law understanding described above, that we laid down in Apprendi: “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S., at 490; see Blakely, supra, at 301 (quoting above statement); Booker, supra, at 231 (same); Southern Union Co., supra, at 348 (same); see also Ring, supra, at 588–589 (Sixth Amendment “does not permit a defendant to be ‘expose[d] to a penalty exceeding the maximum he would receive if punished according to the facts reflected in the jury verdict alone (quoting Apprendi, supra, at 483; alterations in original)).

We have embraced this 19th-century common law rule based not only on a judgment that it reflects the understanding in place when the Sixth Amendment was ratified, but also on the “need to give intelligible content to the right of jury trial.” Blakely, supra, at 305. As JUSTICE SCALIA wrote in Apprendi, it is unclear “what the right to trial by jury does guarantee if it does not guarantee  the right to have a jury determine those facts that determine the maximum sentence the law allows.” 530 U.S., at 498–499 (concurring opinion).

After all, if a judge's factfinding could authorize a sentence beyond that allowed by the jury's verdict alone, the jury trial would be “a mere preliminary to a judicial inquisition into the facts of the crime the State actually seeks to punish.” Blakely, supra, at 306–307. The Framers clearly envisioned [p127] a more robust role for the jury. They appreciated the danger inherent in allowing “justices named by the crown” to “imprison, dispatch, or exile any man that was obnoxious to the government, by an instant declaration, that such is their will and pleasure.” 4 W. Blackstone, Commentaries on the Laws of England 343 (1769). To guard against this “violence and partiality of judges appointed by the crown,” the common law “wisely placed th[e] strong barrier, of  trial by jury, between the liberties of the people, and the prerogative of the crown.” Ibid. The Sixth Amendment therefore provided for trial by jury as a “double security, against the prejudices of judges, who may partake of the wishes and opinions of the government, and against the passions of the multitude, who may demand their victim with a clamorous precipitancy.” J. Story, Commentaries on the Constitution of the United States § 924, p. 657 (Abr. 1833); see also The Federalist No. 83, p. 499 (C. Rossiter ed. 1961) (A. Hamilton) (discussing criminal jury trial as a protection against “judicial despotism”). Our holdings that a judge may not sentence a defendant to more than the jury has authorized properly preserve the jury right as a guard against judicial overreaching.

II
There is no such risk of judicial overreaching here. Under 18 U.S.C. § 924(c)(1)(A)(i), the jury's verdict fully authorized the judge to impose a sentence of anywhere from five years to life in prison. No additional finding of fact was “essential” to any punishment within the range. After rendering the verdict, the jury's role was completed, it was discharged, and the judge began the process of determining where within that range to set Alleyne's sentence.

Everyone agrees that in making that determination, the judge was free to consider any relevant facts about the offense and offender, including facts not found by the jury beyond a reasonable doubt.

[p128] “[B]oth before and since the American colonies became a nation, courts practiced a policy under which a sentencing judge could exercise a wide discretion in the sources and types of evidence used to assist him in determining the kind and extent of punishment to be imposed within limits fixed by law.” Williams v. New York, 337 U.S. 241, 246 (1949).

As Apprendi itself recognized, “nothing in this history suggests that it is impermissible for judges to exercise discretion—taking into consideration various factors relating both to offense and offender—in imposing a judgment within the range prescribed by statute.” 530 U.S., at 481 (emphasis deleted); see also Dillon v. United States, 560 U.S. 817, 828–829 (2010). And the majority does not dispute the point. Ante, at 116 (“Our ruling today does not mean that any fact that influences judicial discretion must be found by a jury.”). Thus, under the majority's rule, in the absence of a statutory mandatory minimum, there would have been no constitutional problem had the judge, exercising the discretion given him by the jury's verdict, decided that seven years in prison was the appropriate penalty for the crime because of his finding that the firearm had been brandished during the offense.

In my view, that is enough to resolve this case. The jury's verdict authorized the judge to impose the precise sentence he imposed for the precise factual reason he imposed it. As we have recognized twice before, the Sixth Amendment demands nothing more. See Harris v. United States, 536 U.S. 545, 568–569 (2002); McMillan v. Pennsylvania, 477 U.S. 79, 93 (1986).

III
This approach is entirely consistent with Apprendi. As I have explained, 's constraint on the normal legislative control of criminal procedure draws its legitimacy from two primary principles: (1) common law understandings of [p129] the “elements” of a crime, and (2) the need to preserve the jury as a “strong barrier” between defendants and the State. Neither of those principles supports the rule the majority adopts today.

First, there is no body of historical evidence supporting today's new rule. The majority does not identify a single case holding that a fact affecting only the sentencing floor qualified as an element or had to be found by a jury, nor does it point to any treatise language to that effect. Ante, at 109–111. To be sure, the relatively recent vintage of mandatory minimum sentencing enhancements means that few, if any, 19th-century courts would have encountered such a fact pattern. So I do not mean to suggest that the absence of historical condemnation of the practice conclusively establishes its constitutionality today. But given that 's rule rests heavily on affirmative historical evidence about the practices to which we have previously applied it, the lack of such evidence on statutory minimums is a good reason not to extend it here.

Nor does the majority's extension of Apprendi do anything to preserve the role of the jury as a safeguard between the defendant and the State. That is because even if a jury does not find that the firearm was brandished, a judge can do so and impose a harsher sentence because of his finding, so long as that sentence remains under the statutory maximum. The question here is about the power of judges, not juries. Under the rule in place until today, a legislature could tell judges that certain facts carried certain weight, and require the judge to devise a sentence based on that weight—so long as the sentence remained within the range authorized by the jury. Now, in the name of the jury right that formed a barrier between the defendant and the State, the majority has erected a barrier between judges and legislatures, establishing that discretionary sentencing is the domain of judges. Legislatures must keep their respectful distance.

[p130] I find this new rule impossible to square with the historical understanding of the jury right as a defense from judges, not a defense of judges. See Apprendi, supra, at 498 (SCALIA, J., concurring) (“Judges, it is sometimes necessary to remind ourselves, are part of the State”). Just as the Sixth Amendment “limits judicial power only to the extent that the claimed judicial power infringes on the province of the jury,” Blakely, 542 U.S., at 308, so too it limits legislative power only to the extent that power infringes on the province of the jury. Because the claimed infringement here is on the province of the judge, not the jury, the jury right has no work to do.

IV
The majority offers several arguments to the contrary. I do not find them persuasive. First, the majority asserts that “because the legally prescribed range is the penalty affixed to the crime, it follows that a fact increasing either end of the range produces a new penalty and constitutes an ingredient of the offense.” Ante, at 112 (citation omitted). The syllogism trips out of the gate, for its first premise—that the constitutionally relevant “penalty” includes the bottom end of the statutory range—simply assumes the answer to the question presented. Neither of the historical sources to which the majority points gives an answer: The Bishop treatise speaks only to situations in which “a statute prescribes a particular punishment,” not a range of possible punishments. 1 Bishop, Criminal Procedure § 598, at 360–361. The Wharton treatise is similarly unhelpful, focusing on statutes that change the maximum or alter the nature of the common law crime. See 1 F. Wharton, Criminal Law § 371, p. 291 (rev. 7th ed. 1874). The sources provided in the Apprendi concurrence offer no support, for as already discussed, we lack historical evidence about the treatment of facts that altered only the floor of a sentencing range.

[p131] Second, the majority observes that “criminal statutes have long specified both the floor and ceiling of sentence ranges, which is evidence that both define the legally prescribed penalty.” Ante, at 112. Again, though, this simply assumes the core premise: That the constitutionally relevant “penalty” involves both the statutory minimum and the maximum. Unless one accepts that premise on faith, the fact that statutes have long specified both floor and ceiling is evidence of nothing more than that statutes have long specified both the floor and the ceiling. Nor does it help to say that “the floor of a mandatory range is as relevant to wrongdoers as the ceiling.” Ante, at 113. The meaning of the Sixth Amendment does not turn on what wrongdoers care about most.

More importantly, legal rules frequently focus on the maximum sentence while ignoring the minimum, even though both are “relevant” to punishment. Closest to this case, the question whether the jury right applies at all turns on whether the maximum sentence exceeds six months—not, say, whether the minimum punishment involves time in prison. Blanton v. North Las Vegas, 489 U.S. 538, 543 (1989); see also Lewis v. United States, 518 U.S. 322, 326 (1996) (“In evaluating the seriousness of the offense, we place primary emphasis on the maximum prison term authorized”). Likewise, the rights to vote and to bear arms are typically denied to felons—that is, those convicted of a crime with a maximum sentence of more than one year in prison. See Richardson v. Ramirez, 418 U.S. 24, 48 (1974); District of Columbia v. Heller, 554 U.S. 570, 626 (2008); Black's Law Dictionary 694 (9th ed. 2009). Examples of other distinctions turning only on maximum penalties abound, as in cases of recidivism enhancements that apply only to prior convictions with a maximum sentence of more than a specified number of years. See, e.g., 18 U.S.C. § 924(e)(2). That a minimum sentence is “relevant” to punishment, and that a statute defines it, does not mean it must be treated the same as the maximum sentence the law allows.

[p132] Third, the majority offers that “it is impossible to dispute that facts increasing the legally prescribed floor aggravate the punishment.” Ante, at 113. This argument proves too much, for it would apply with equal force to any fact which leads the judge, in the exercise of his own discretion, to choose a penalty higher than he otherwise would have chosen. The majority nowhere explains what it is about the jury right that bars a determination by Congress that brandishing (or any other fact) makes an offense worth two extra years, but not an identical determination by a judge. Simply calling one “aggravation” and the other “discretion” does not do the trick.

Fourth, the majority argues that “[i]t is no answer to say that the defendant could have received the same sentence with or without” a particular factual finding, pointing out “that a defendant could not be convicted and sentenced for assault, if the jury only finds the facts for larceny, even if the punishments prescribed for each crime are identical.” Ante, at 115. In that hypothetical case, the legislature has chosen to define two crimes with two different sets of elements. Courts must, of course, respect that legislative judgment. But that tells us nothing about when courts can override the legislature's decision not to create separate crimes, and instead to treat a particular fact as a trigger for a minimum sentence within the already-authorized range.

I will not quibble with the majority's application of our stare decisis precedents. But because I believe the majority's new rule—safeguarding the power of judges, not juries—finds no support in the history or purpose of the Sixth Amendment, I respectfully dissent.


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Alleyne v. United States/Dissent Alito

JUSTICE ALITO, dissenting.

The Court overrules a well-entrenched precedent with barely a mention of stare decisis. See ante, at 116, n.6. [p133] Stare decisis is, of course, not an "inexorable command" in the field of constitutional law. Payne v. Tennessee, 501 U.S. 808, 828 (1991). Nevertheless, the Court ought to be consistent in its willingness to reconsider precedent. If Harris v. United States, 536 U.S. 545 (2002), and McMillan v. Pennsylvania, 477 U.S. 79 (1986), can be cast aside simply because a majority of this Court now disagrees with them, that same approach may properly be followed in future cases. See Arizona v. Gant, 556 U.S. 332, 358–364 (2009) (ALITO, J., dissenting).

If the Court is of a mind to reconsider existing precedent, a prime candidate should be Apprendi v. New Jersey, 530 U.S. 466 (2000). Although Apprendi purported to rely on the original understanding of the jury trial right, there are strong reasons to question the Court's analysis on that point. See, e.g., Bibas, Judicial Fact-Finding and Sentence Enhancements in a World of Guilty Pleas, 110 Yale L.J. 1097, 1123–1132 (2001) (critiquing the historical evidence relied upon by the Apprendi majority and concurrence, and concluding (1) that the "broad judicial discretion" characteristic of eighteenth-century common-law misdemeanor sentencing "undercuts the suggestion that sentencing was the sacred province of juries alone," (2) that even the "nineteenth-century tradition was not uniform, suggesting that the common law had no fixed rule on the subject," and (3) that "no eighteenth-century evidence link[ed] this [nineteenth-century] tradition back to the time of the Founding"); Little & Chen, The Lost History of Apprendi and the Blakely Petition for Rehearing, 17 Fed. Sentencing Rep. 69, 69–74 (2004) ("Blakely and Apprendi were undoubtedly founded on an erroneous historical understanding of the Framers' views in 1790 when they wrote the 6th Amendment's jury-trial guarantee. The fact that the Framers themselves wrote over a dozen indeterminate sentencing ranges in the first federal crime bill (see 1 Stat. 112–118 ), has simply been overlooked by the Court"); Mitchell, 's Domain, [p134] 2006 S. Ct. Rev. 297, 298–299 (2006) (arguing, in the context of defending a broader conception of the jury right, that "'s historical claim that sentencing enhancements were treated as 'elements' of offenses whenever they increased a defendant's maximum punishment is demonstrably mistaken" and that "the platitudes from Joel Prentiss Bishop's nineteenth-century treatises, which the pro-Apprendi Justices repeatedly invoke to support this assertion [that sentencing enhancements that increased a maximum punishment were treated as elements of the offense], are patently false and did not accurately describe the law in actual court decisions of that era" (footnotes omitted)).

The Court's decision creates a precedent about precedent that may have greater precedential effect than the dubious decisions on which it relies.

title: Alleyne v. United States/Dissent Alito


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United States Reports/Volume 571

 * 571 U.S. 1 (2013) Madigan v. Levin (per curiam)
 * 571 U.S. 3 (2013) Stanton v. Sims (per curiam)
 * 571 U.S. 12 (2013) Burt v. Titlow
 * 571 U.S. 28 (2013) Ford Motor Co. v. United States (per curiam)
 * 571 U.S. 31 (2013) United States v. Woods
 * 571 U.S. 49 (2013) Atlantic Marine Construction Co. v. United States District Court
 * 571 U.S. 69 (2013) Sprint Communications, Inc. v. Jacobs
 * 571 U.S. 83 (2013) Unite Here Local 355 v. Mulhall (per curiam)
 * 571 U.S. 87 (2013) Kansas v. Cheever
 * 571 U.S. 99 (2013) Heimeshoff v. Hartford Life & Accident Insurance Co.
 * 571 U.S. 117 (2014) Daimler AG v. Bauman
 * 571 U.S. 161 (2014) Mississippi ex rel. Hood v. AU Optronics Corp.
 * 571 U.S. 177 (2014) Ray Haluch Gravel Co. v. Central Pension Fund of International Union of Operating Engineers and Participating Employers
 * 571 U.S. 191 (2014) Medtronic, Inc. v. Mirowski Family Ventures, LLC
 * 571 U.S. 204 (2014) Burrage v. United States
 * 571 U.S. 220 (2014) Sandifer v. United States Steel Corp.
 * 571 U.S. 237 (2014) Air Wisconsin Airlines Corp. v. Hoeper
 * 571 U.S. 263 (2014) Hinton v. Alabama (per curiam)
 * 571 U.S. 277 (2014) Walden v. Fiore
 * 571 U.S. 292 (2014) Fernandez v. California
 * 571 U.S. 320 (2014) Kaley v. United States
 * 571 U.S. 359 (2014) United States v. Apel
 * 571 U.S. 377 (2014) Chadbourne & Parke LLP v. Troice
 * 571 U.S. 415 (2014) Law v. Siegel
 * 571 U.S. 429 (2014) Lawson v. FMR LLC

title: United States Reports/Volume 571


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PREFACE In no particular have modern historical studies made greater progress than in the reproduction and publication of documentary sources from which our knowledge of the most varied peoples and periods is drawn. In American history whole libraries of such sources have appeared or are promised. These are chiefly in English, although the other languages of Europe are of course often largely represented. The employment of such sources from the early epochs of the world’s history involves either a knowledge of ancient languages on the part of the user, or a complete rendition of the documents into English. No attempt has ever been made to collect and present all the sources of Egyptian history in a modern language. A most laudable beginning in this direction, and one that has done great service, was the Records of the Past; but that series never attempted to be complete, and no amount of editing could make consistent with themselves the uncorrelated translations of the large number of contributors to that series.

The author is only too well aware of the difficulties involved in such a project. In mere bulk alone it has been a considerable enterprise, in view of the preliminary tasks made necessary by the state of the published texts. These I have indicated briefly in the chapter on the sources herein (Vol. I, §§ 27-32). Under these circumstances, the author’s first obligation has been to go behind the publications to the original documents themselves, wherever necessary. The method pursued has also been indicated herein (Vol. I, §§ 33-37). The task has consumed years, and demanded protracted sojourn among the great col-

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The aim of this work is to present to English readers what Muslims the world over hold to be the meaning of the words of the Koran, and the nature of that Book, in not unworthy language and concisely, with a view to the requirements of English Muslims. It may be reasonably claimed that no Holy Scripture can fairly presented by one who disbelieves its inspiration and its message; and this is the first English translation of the Koran by an Englishman who is a Muslim. Some of the translations include commentation offensive to Muslims, and almost all employ a style of language which Muslims at once recognise as unworthy. The Koran cannot be translated. That is the belief of old-fashioned Sheykhs and the view of the present writer. The Book is here rendered almost literally and every effort has been made to choose befitting language. But the result is not the Glorious Koran, that inimitable symphony, the very sounds of which move men to tears and ecstasy. It is only an attempt to present the meaning of the Koran—and peradventure something of the charm—in English. It can never take the place of the Koran in Arabic, nor is it meant to do so.

Before publication the work has been scrutinised word by word and thoroughly revised in Egypt with the help of one whose mother-tongue is Arabic, who has studied the Koran and who knows English; and when difficulties were encountered the translator had recourse to perhaps the greatest living authority on the subject. Every care has thus been taken to avoid unwarrantable renderings. On the one or two occasions where there is departure from the traditional interpretation, the traditional rendering will be found in a footnote.

The translator's thanks are due to Lord Lloyd for an introduction of great use in Egypt; to Dr. F. Krenkow for supplying him with old meanings of Arabic words not to be found in dictionaries; to Muhammad Ahamad Al-Ghamrawi Bey of the Cairo College of Medicine for his invaluable and patient help with the revision of the maunscript, a work which occupied three months; the the Sheykh Mustafa


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 Al-Marâghi, former Rector of Al-Azhar University, for his advice and guidance in the revision; and to His Excellency Fuad Bey Salîm Al-Higâzi, by whose efforts such revision was made possible.

The mușhaf (copy of the Koran) which has been used throughout is a lithography copy of that written by Al-Hajj Muhammad Shakarzâdeh at the command of Sultan Mahmûd of Turkey in 1246 A.H. In the Introduction and the notes to individual sûrahs, Ibn Hishâm (Bûlâq ed. 1295 A.H.) has been followed, with occasional reference to the much later, much abbreviated, but more critical Life of the Prophet by Ibn Khaldûn (published as an appendix to his Târîkh, Bûlâq ed.). Other Sîrahs, like that of Abû’l-Fidâ, late in date and uncritical, have been read but not followed. Of commentators Al-Beyḍawi and Zamakhshari must be mentioned, while for reference during the work of revision, the brief commentary of Al-Jalâleyn was kept at hand. Wâḥidi's Asbâu 'n-Nuzûl has been largely consulted, and for the authenticity of Traditions the translator has relied upon Bukhâri.


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PREFACE lections of Europe. In this work a related enterprise has been of the greatest assistance. A mission to the museums of Europe to collect and copy their Egyptian monuments for a commission of the four Royal Academies of Germany (Berlin, Leipzig, Géttingen, and Munich), in order to make these documents available for an exhaustive Egyptian Dictionary endowed by the German Emperor, enabled the author to copy from the originals practically all the his- torical monuments of Egypt in Europe. The other sources of material, and particularly the papers of the Dictionary just mentioned, have enabled the author to base the trans- Jations in these volumes directly, or practically so, upon the originals themselves in almost all cases.

Unfortunately, the possession of these materials is but the beginning of the difficulties which beset such an enter- prise. In the preface to the first edition of his English Dictionary, Noah Webster complains of the difficulties caused by the new meanings taken on by English words as they are modified by the new environment which envelops them in America. If such changes are involved in the voyage across the Atlantic, and the lapse of a few genera- tions, how much wider and deeper is the gulf due to the total difference between the semitropical northern Nile valley of millenniums ago, and the English-speaking world of this twentieth century! The psychology of early man is something with which we have as yet scarcely begun to operate. His whole world and his whole manner of think- ing are sharply differentiated from our own. His organi- zation, socially, industrially, commercially, politically; his tools, his house, his conveniences, constantly involve insti- tutions, adjustments, and appliances totally unknown to this modern age and this western world. In the transla- tion of the New Testament for the tribes of Alaska, I am

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United States Reports/Volume 572

 * 572 U.S. 1 (2014) Lozano v. Montoya Alvarez
 * 572 U.S. 25 (2014) BG Group PLC v. Republic of Argentina
 * 572 U.S. 65 (2014) Rosemond v. United States
 * 572 U.S. 93 (2014) Marvin M. Brandt Revocable Trust v. United States
 * 572 U.S. 118 (2014) Lexmark International, Inc. v. Static Control Components, Inc.
 * 572 U.S. 141 (2014) United States v. Quality Stores, Inc.
 * 572 U.S. 157 (2014) United States v. Castleman
 * 572 U.S. 185 (2014) McCutcheon v. Federal Election Commission
 * 572 U.S. 273 (2014) Northwest, Inc. v. Ginsberg
 * 572 U.S. 291 (2014) Schuette v. Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality by Any Means Necessary (BAMN)
 * 572 U.S. 393 (2014) Prado Navarette v. California
 * 572 U.S. 415 (2014) White v. Woodall
 * 572 U.S. 434 (2014) Paroline v. United States
 * 572 U.S. 489 (2014) Environmental Protection Agency v. EME Homer City Generation, L.P.
 * 572 U.S. 545 (2014) Octane Fitness, LLC v. Icon Health & Fitness, Inc.
 * 572 U.S. 559 (2014) Highmark, Inc. v. Allcare Health Management System, Inc.
 * 572 U.S. 565 (2014) Town of Greece v. Galloway
 * 572 U.S. 639 (2014) Robers v. United States
 * 572 U.S. 650 (2014) Tolan v. Cotton (per curiam)
 * 572 U.S. 663 (2014) Petrella v. Metro-Goldwyn-Mayer, Inc.
 * 572 U.S. 701 (2014) Hall v. Florida
 * 572 U.S. 744 (2014) Wood v. Moss
 * 572 U.S. 765 (2014) Plumhoff v. Rickard
 * 572 U.S. 782 (2014) Michigan v. Bay Mills Indian Community
 * 572 U.S. 833 (2014) Martinez v. Illinois (per curiam)
 * 572 U.S. 844 (2014) Bond v. United States
 * 572 U.S. 898 (2014) Nautilus, Inc. v. Biosig Instruments, Inc.
 * 572 U.S. 915 (2014) Limelight Networks, Inc. v. Akamai Technologies, Inc.
 * 572 U.S. 1301 (2014) Teva Pharmaceuticals USA, Inc. v. Sandoz, Inc. (Roberts, C.J., in chambers)

title: United States Reports/Volume 572


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“and

Given under the official seal of the Minister of Pensions and National Insurance this 29th day of October, nineteen hundred and fifty -seven.

34666

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 almost all Scotch houses are; flowering plants in the windows.

Went on to visit his grave. He lies at a corner of the churchyard, and his second son, Francis Wallace, beside him. There is no stone to mark the spot; but a hundred guineas have been collected, to be expended on some sort of monument. "There," said the bookseller, pointing to a pompous monument, "there lies Mr. Such-a-one"—I have forgotten his name,—"a remarkably clever man; he was an attorney, and hardly ever lost a cause he undertook. Burns made many a lampoon upon him, and there they rest, as you see." We looked at the grave with melancholy and painful reflections, repeating to each other his own verses:—

The churchyard is full of grave-stones and expensive monuments in all sorts of fantastic shapes—obelisk-wise, pillar-wise, etc. In speaking of Gretna Green, I forgot to mention that we visited the churchyard. The church is like a huge house; indeed, so are all the churches, with a steeple, not a square tower or spire,—a sort of thing more like a glass-house chimney than a Church of England steeple; grave-stones in abundance, few verses, yet there were some—no texts. Over the graves of married women the maiden name instead of that of the husband, "spouse" instead of "wife," and the place of abode preceded by "in" instead of "of." When


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 our guide had left us, we turned again to Burns's house. Mrs. Burns was gone to spend some time by the sea-shore with her children. We spoke to the servant-maid at the door, who invited us forward, and we sate down in the parlour. The walls were coloured with a blue wash; on one side of the fire was a mahogany desk, opposite to the window a clock, and over the desk a print from the Cotter's Saturday Night, which Burns mentions in one of his letters having received as a present. The house was cleanly and neat in the inside, the stairs of stone, scoured white, the kitchen on the right side of the passage, the parlour on the left. In the room above the parlour the poet died, and his son after him in the same room. The servant told us she had lived five years with Mrs. Burns, who was now in great sorrow for the death of "Wallace." She said that Mrs. Burns's youngest son was at Christ's Hospital.

We were glad to leave Dumfries, which is no agreeable place to them who do not love the bustle of a town that seems to be rising up to wealth. We could think of little else but poor Burns, and his moving about on that unpoetic ground. In our road to Brownhill, the next stage, we passed Ellisland at a little distance on our right, his farmhouse. We might there have had more pleasure in looking round, if we had been nearer to the spot; but there is no thought surviving in connexion with Burns's daily life that is not heart-depressing. Travelled through the vale of Nith, here little like a vale, it is so broad, with irregular hills rising up on each side, in outline resembling the old-fashioned valances of a bed. There is a great deal of arable land; the corn ripe; trees here and there—plantations, clumps, coppices, and a newness in everything. So much of the gorse and broom rooted out that you wonder why it is not all gone, and yet there seems to be almost as much gorse and broom as corn; and they grow one among another you know not how. Crossed the Nith; the vale becomes narrow, and very pleasant; corn fields, green hills, clay


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 cottages; the river's bed rocky, with woody banks. Left the Nith about a mile and a half, and reached Brownhill, a lonely inn, where we slept. The view from the windows was pleasing, though some travellers might have been disposed to quarrel with it for its general nakedness; yet there was abundance of corn. It is an open country—open, yet all over hills. At a little distance were many cottages among trees, that looked very pretty. Brownhill is about seven or eight miles from Ellisland. I fancied to myself, while I was sitting in the parlour, that Burns might have caroused there, for most likely his rounds extended so far, and this thought gave a melancholy interest to the smoky walls. It was as pretty a room as a thoroughly dirty one could be—a square parlour painted green, but so covered over with smoke and dirt that it looked not unlike green seen through black gauze. There were three windows, looking three ways, a buffet ornamented with tea-cups, a superfine largeish looking-glass with gilt ornaments spreading far and wide, the glass spotted with dirt, some ordinary alehouse pictures, and above the chimney-piece a print in a much better style—as William guessed, taken from a painting by Sir Joshua Reynolds—of some lady of quality, in the character of Euphrosyne. "Ay," said the servant-girl, seeing that we looked at it, "there's many travellers would give a deal for that, it's more admired than any in the house." We could not but smile; for the rest were such as may be found in the basket of any Italian image and picture hawker.

William and I walked out after dinner; Coleridge was not well, and slept upon the carriage cushions. We made our way to the cottages among the little hills and knots of wood, and then saw what a delightful country this part of Scotland might be made by planting forest trees. The ground all over heaves and swells like a sea; but for miles there are neither trees nor hedgerows, only "mound" fences and tracts; or slips of corn, potatoes, clover—with hay between, and barren land;


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 He displayed no emotion of any kind.

Placidly and unconcernedly he resumed his nocturnal strolling. Presently he crossed the Seine and came into the richer areas of the city. It was some twenty minutes later that he came to a stop before a certain house in a quiet but aristocratic thoroughfare.

The shop, for shop it was, was a restrained and unpretentious one. D. Papopolous, dealer in antiques, was so known to fame that he needed no advertisement, and indeed most of his business was not done over a counter. M. Papopolous had a very handsome apartment of his own overlooking the Champs Élysées, and it might reasonably be supposed that he would have been found there and not at his place of business at such an hour, but the man with the white hair seemed confident of success as he pressed the obscurely placed bell, having first given a quick glance up and down the deserted street.

His confidence was not misplaced. The door opened and a man stood in the aperture. He wore gold rings in his ears and was of a swarthy cast of countenance.

"Good evening," said the stranger. "Your master is within?"

"The master is here, but he does not see chance visitors at this time of night," growled the other.

"I think he will see me. Tell him that his friend M. le Marquis is here."

The man opened the door a little wider and allowed the visitor to enter.

The man who gave his name as M. le Marquis had shielded his face with his hand as he spoke. When the man-servant returned with the information that M.


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 Papopolous would be pleased to receive the visitor a further change had taken place in the stranger's appearance. The man-servant must have been very unobservant or very well trained for he betrayed no surprise at the small black satin mask which hid the other's features. Leading the way to a door at the end of the hall, he opened it and announced in a respectful murmur: "M. le Marquis."

The figure which rose to receive this strange guest was an imposing one. There was something venerable and patriarchal about M. Papopolous. He had a high domed forehead and a beautiful white beard. His manner had in it something ecclesiastical and benign.

"My dear friend," said M. Papopolous.

He spoke in French and his tones were rich and unctuous.

"I must apologize," said the visitor, "for the lateness of the hour."

"Not at all. Not at all," said M. Papopolous—"an interesting time of night. You have had, perhaps, an interesting evening?"

"Not personally," said M. le Marquis.

"Not personally," repeated M. Papopolous, "no, no, of course not. And there is news, eh?"

He cast a sharp glance sideways at the other, a glance that was not ecclesiastical or benign in the least.

"There is no news. The attempt failed. I hardly expected anything else."

"Quite so," said M. Papopolous; "anything crude"

He waved his hand to express his intense distaste for crudity in any form. There was indeed nothing


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 the fancy of it, would have expressed the supernatural even as the circling nimbus expresses.

He had at intervals an eye to his watch, but what kept him on and on was precisely the force of the stillness in which nothing happened. There had come to him at the end of an hour or two a special and peculiar sense of being alone in the house. If his good friends in charge were below—he had had with them this evening no contact—never were good friends so respectful of what he was quite ready to call for their sake his absurdity. He was fully aware of how absurd it might appear in a quiet gentleman of unannounced intentions to perambulate an ordered house after the fashion of some carpet-man or plumber deprived by a catastrophe of foot-rule or pocket-book. He listened at the mouth of the lower regions and found them soundless; he remounted to the chambers above, and then he again descended to apply that test. Practically, in any case, he was beyond all observation and if self-effaced agents but worked to make him feel so, that only assured the freedom. Perhaps they had in fact gone out, finding him in murmured counsel more uncanny than they liked; it came to him whimsically while he paused anew at one of the windows as if on purpose to feel cut off by the gathering night and the patter of cold rain, it came to him agreeably that they might have been scared of a person whose range was so 79


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102 benefit of shade, and a view of the magnificent Country. The Pictures are attached to the rafters; those from Scripture History on the Cathedral-bridge, amount, according to my notes, to 240. Subjects from the Old Testament face the Passenger as he goes towards the Cathedral, and those from the New as he returns. The pictures on these Bridges, as well as those in most other parts of Switzerland, are not to be spoken of as works of art; but they are instruments admirably answering the purpose for which they were designed.

The following Stanzas were suggested by the " of ," at, on the outside walls of which the chief exploits of the Hero are painted: it is said to stand upon the very ground where grew the Lime Tree against which his Son was placed when the Father's archery was put to proof under the circumstances so famous in Swiss History.

What though the Italian pencil wrought not here, Nor such as did the public meed bestow On Marathonian valour, yet the tear Springs forth in presence of this gaudy show, While narrow cares their limits overflow. Thrice happy, Burghers, Peasants, Warriors old, Infants in arms, and Ye, that as ye go Home-ward or School-ward, ape what ye behold; Heroes before your time, in frolic fancy bold!

But when that calm Spectatress from on high Looks down—the bright and solitary Moon, Who never gazes but to beautify; And snow-fed torrents, which the blaze of noon


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 Roused into fury, murmur a soft tune That fosters peace, and gentleness recals; Then might the passing Monk receive a boon Of saintly pleasure, from these pictured walls, While, on the warlike groups, the mellowing lustre falls.

How blest the souls who when their trials come Yield not to terror or despondency, But face like that sweet Boy their mortal doom, Whose head the ruddy Apple tops, while he Expectant stands beneath the linden tree, Not quaking like the timid forest game; He smiles—the hesitating shaft to free, Assured that Heaven its justice will proclaim, And to his Father gives its own unerring aim.

In the 3d of the Desultory Stanzas, I am indebted to M. Ramond, who has written with genuine feeling on these subjects.


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 usual amount of rice. This is a very moderate request, since the religious possess no income or chaplaincies, and it will bring but little additional ex- pense upon your Majesty's royal exchequer, as the monasteries sustained by your royal crown are but few; and if your Majesty gives commands to this effect, they will be much advantaged and favored. [In the margin: "Let the governor give information of conditions in this matter, and what he deems best for the future. Let him make a report of everything in minute detail."]

Item: The said father Fray Francisco de Ortega declares that fourteen years ago, when he came from those islands the first time, your Majesty at his request and supplication granted favor to that province, by ordering your royal officials to give annually, to each religious who was a priest, two arrobas of wine for the mass, and to each convent of his order in the province six jars of oil for the lamp of the most holy sacrament, as was done throughout Nueva España. This was not fulfilled, because before the arrival of the time for the royal officials to give this alms the said convent of St. Augustine was burned; and among the property and papers destroyed was your Majesty's royal decree, bestowing the said favor. He begs and entreats your Majesty, in confirmation of the said favor and alms, to issue your royal decree, inserting the first decree therein, so that henceforth the said grant may take effect; and to direct the officials of the royal treasury in Mexico to send the things granted in kind to the royal officials of Manila, so that the latter may give them to the monasteries of the said order, in pursuance of and conformity with your Majesty's commands. By


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 so doing the decree will be fulfilled and the expense to your Majesty's royal exchequer will also be diminished. [In the margin: "Have this decree renewed."]

Further, he declares that at the convent of San Augustin de Manila the novices are taught, and that the arts and theology have been and will be regularly studied there. It is a seminary whence they go, and will continue to go, to other districts to preach to and convert those natives, and to instruct those already converted, and to administer the sacraments of our holy Catholic faith. There they receive and lodge the religious going to those islands from this kingdom to engage in the apostolic work of the conversion of those natives. The house is poor, so that with its present resources it is impossible to support eight friars, without the alms that your Majesty ordered to be given for four—there being, as a general rule, more than twenty religious in the said convent. He begs and entreats your Majesty, in consideration of the aforesaid, to order the grant increased to the number of twelve religious, more or less, as may be your Majesty's pleasure. They will receive this as a great help and bounty. [In the margin: "That which is provided for the second section above."]

Item: He begs and entreats your Majesty, in consideration of the aforesaid and of the fact that the convent at Manila is an infirmary for all that province, where all those engaged in the conversion and administration of the sacraments in the Indian villages come for treatment when sick, to grant bounty and alms to the said convent, by ordering that the physician and the medical supplies necessary for the treatment of the said religious be at the cost of your


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 Majesty's royal exchequer, as your Majesty has done in the kingdom of Peru. [In the margin: "Let him be given the decree in accordance with the declaration made."]

The said father Fray Francisco de Ortega informs your Majesty that the bishop of those islands, of his own notion and at his own pleasure, placed religious of his own order of St. Dominic in a settlement of Sangleys (natives of the kingdom of China) near the city of Manila, and across a river that flows through it. From the beginning when that island was gained and settled, the religious of the order of St. Augustine have had the said Chinese and natives in charge, to whose conversion and baptism they have paid special attention. From the monastery of his order to the place where the Dominican fathers have settled the distance is but two shots of an arquebus. This is in direct opposition to your Majesty's orders and the commands of your royal decrees—namely, that wherever the monastery of one order is established, no other shall be placed except at the distance appointed by your Majesty. As most of the Chinese settled there are idolatrous heathen, it is a great disadvantage for them to be mingled with the newly-converted Christian Indians, the natives of another race; and from this mingling arise many offenses against God our Lord. In order to avoid these, it would be advisable for your Majesty to have those Chinese removed thence to the place where the rest of their nation have settled, leaving those natives free. It would be well also to decree that the Dominican fathers there shall settle in another place, where there is greater need for them; and that your Majesty entrust the execution of all the above to the governor