DISSENTING OPINION OP
LEVINSON, J., WITH WHOM MARUMOTO, J., JOINS.I dissent.
I would hold that a specific statutory grant of summary jurisdiction (trial Avithout a jury) to the courts is *622constitutionally required for a petty offense to be tried without a jury. In the present cases there has been no legislative withdrawal of the right to a jury trial, and consequently the defendant’s convictions should be reversed because he has a constitutional right to a trial by his peers, not a judge sitting in their place.
Analysis must begin with the words of the sixth amendment to the Constitution of the United States and article I, section 11 of the Hawaii Constitution, both of which state that: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury. . . .” (emphasis added). While it would appear that the words “all” criminal prosecutions mean just that, the United States Supreme Court has held that “all” criminal prosecutions refer only to “serious” criminal prosecutions and not those it deems to be “petty”. Duncan v. Louisiana, 391 U.S. 145, 157-58, 159-60 (1968); District of Columbia v. Clawans, 300 U.S. 617 (1937).1
In justifying an interpretation of the sixth amendment which is in conflict with its plain language, the United States Supreme Court relied upon English and American practice at the time of the adoption of the Bill of Rights to determine the original understanding the constitutional fathers had in mind. Accordingly, this court is constitutionally required to look to the historical development of the use of summary jurisdiction at common law in deciding *623if those charged with “petty” crimes have a right to a jury trial. Since it is but another derogation from the plain language of the sixth amendment that the accused shall enjoy the right to a jury trial in all criminal prosecutions, such a deviation must be very soundly based in historical practice. In my judgment the decision of the majority in the present cases does not live up to the constitutional standards laid down by the United States Supreme Court.
After careful study I find that history does not support the denial of a jury trial unless such a denial is legislatively sanctioned in very specific terms. My primary reliance is laid on the learned and widely cited article by Felix Frankfurter and Thomas G. Corcoran published in the Harvard Law Eeview in 1926.2 In that article the authors made it quite clear that historically “[t]here was a specific withdrawal from trial by jury of specific offenses in specific statutes, rather than a general formula for summary procedure.” (emphasis added). Frankfurter & Corcoran, supra note 2, at 927, see also id. at 925-26. Other authorities also indicate that specific legislation was required. See T. Plucknett, A Concise History of the Common Law 438 (5th ed. 1956); 4 Blackstone, Commentaries* 280.
Such clear historical practice indicates that in petty offenses the right to a jury trial is constitutionally required unless the legislature has decided to withdraw that right. It is inconsistent, to say the least, for this court to allow, on the one hand, the clear mandates of the state and federal constitutions that there is a right to a jury trial in all criminal prosecutions to be diluted by an historical understanding that “all” crimes do not include petty crimes; then in this case, to disregard that same *624history in determining which petty offenses do not merit jury trials.3
A logical and common sense approach to the problem likewise would dictate the rule I propound. Where the right to be judged by one’s peers is to be denied, the approval of a body elected by the people is preferable to a decision by a single member of an appointed and independent judiciary. Although the state legislature has conferred jurisdiction upon district magistrates “to try all cases arising from the violation of any ordinances in force in the city and county,” HRS § 604-11, it has not limited the defendant’s right to demand a jury trial upon appeal to the circuit court under HRS § 641-1. Furthermore, a right so well grounded in the common law and fundamental to our American scheme of justice as the right to a jury trial must be dealt with expressly when it is to be altered or abridged.4
It follows from what has been said that only the state legislature may constitutionally grant summary powers to the judiciary for the traffic offenses allegedly violated. However, in spite of the fact there there has been no statutory withdrawal of the jury trial for the offenses under which the defendant was convicted, the majority *625denies Mm Ms rigM to a jury trial. It does not suffice to give the statutes granting power and jurisdiction to the district magistrate and the circuit courts a strained and tortured construction in order to comply with the majority’s version of what history requires. Since the statutes have not specifically withdrawn trial by jury for the traffic offenses of which the defendant was convicted, his convictions should be reversed and on retrial he should be entitled to a jury trial in the circuit court, unless he expressly waives it.
The division between petty and serious crimes appears difficult to articulate using any principled test. Indeed, the Court in Duncan conceded the boundaries to be “ill-defined, if not ambulatory.” 391 U.S. at 160. Further, it is not clear to me how a court can characterize as “petty” those crimes involving deprivation of liberty if the competing interest is that of speedy and efficient administration of justice. See Frankfurter & Corcoran, Petty Federal Offenses and the Constitutional Guaranty of Trial hy Jury, 39 Harv. L. Rev. 917, 927 (1926) where the authors state that it was the desire for a speedy and efficient remedy which underlay the decision to grant summary jurisdiction. Recent studies indicate that it is very doubtful whether the gain in speed and efficiency is as great as might have been initially thought. See Kalven & Zeisel, The American Jury 18-19 n.2 (1966).
Frankfurter & Corcoran, Petty Federal Offenses and the Constitutional Guaranty of Trial by Jury, 39 Harv. L. Rev. 917 (1926).
Of course there may be exceptions where the crime is incident to the orderly administration of justice and peculiarly part of the judicial function, as in the case of the contempt power. But Hawaii has statutes specifically denying a jury trial in certain contempt proceedings while allowing a jury trial in others, thus complying with the rule that specific legislation is required for denying a jury trial. See HRS § 729-1.
Whether the jury’s function is to insure accuracy of fact-finding in order to protect the innocent from being found guilty, or to provide a mechanism by which the application of legal doctrine — the “harsh rule of law” — is brought into accord with contemporary community standards or both, is yet unclear. At any rate the jury is a fundamental part of the American system of justice which allows for a defendant’s preference of “the common-sense judgment of a jury to the more tutored but perhaps less sympathetic reaction of the single judge.” Duncan v. Louisiana, 391 U.S. 145, 156 (1968). See The Supreme Court 1967 Term, 82 Harv.L. Rev. 63, 165 (1968); Note, Trial by Jury in Criminal Cases, 69 Colum. L. Rev. 419 (1969) (considering the nullification function).