This Court has jurisdiction to review by writ of error, under
the Act of February 9, 1893, c. 74, § 8, a judgment of the Court of
Appeals of the District of Columbia maintaining the validity of
proceedings for a trial by a jury before a justice of peace which
were sought to be set aside on the ground that the act of Congress
authorizing such a trial was unconstitutional.
The provisions of the Constitution of the United States securing
the right of trial by jury, whether in civil or in criminal cases,
are applicable to the District of Columbia.
By the Seventh Amendment to the Constitution, either party to an
action at law (as distinguished from suits in equity and in
admiralty) in a court of the United States where the value in
controversy exceeds twenty dollars has the right to a trial by
jury.
By the Seventh Amendment to the Constitution, when a trial by
jury has been had in an action at law in a court either of the
United States or of a state, the facts there tried and decided
cannot be reexamined in any court of the United States otherwise
than according to the rules of the common law of England -- that is
to say, upon a new trial, either granted by the court in which the
first trial was had or to which the record was returnable, or
ordered by an appellate court for error in law.
Page 174 U. S. 2
"Trial by jury," in the primary and usual sense of the term at
the common law and in the American constitutions, is a trial by a
jury of twelve men, in the presence and under the superintendence
of a judge empowered to instruct them upon the law and to advise
them upon the facts, and (except upon acquittal of a criminal
charge) to set aside their verdict if in his opinion it is against
the law or the evidence.
A trial of a civil action, before a justice of the peace of the
District of Columbia, by a jury of twelve men, as permitted by the
acts of Congress, without requiring him to superintend the course
of the trial or to instruct the jury in matter of law, or
authorizing him to arrest judgment upon their verdict, or to set it
aside for any cause whatever, is not a trial by jury in the sense
of the common law and of the Constitution, and does not prevent
facts so tried from being tried anew by a common law jury in an
appellate court.
Congress, in the exercise of its general and exclusive power of
legislation over the District of Columbia, may provide for the
trial of civil causes of moderate amount before a justice of the
peace, or, in his presence, by a jury of twelve, or of any less
number, allowing to either party, where the value in controversy
exceeds twenty dollars, the right to appeal from the judgment of
the justice of the peace to a court of record, and to have a trial
by jury in that court.
The appeal authorized by Congress from judgments of a justice of
the peace in the District of Columbia to a court of record "in all
cases where the debt or damage doth exceed the sum of five dollars"
includes cases of judgments entered upon the verdict of a jury.
The right of trial by jury secured by the Seventh Amendment to
the Constitution is not infringed by the Act of Congress of
February 19, 1895, c. 100, enlarging the jurisdiction of a justice
of the peace in the District of Columbia to three hundred dollars
and requiring every appellant from his judgment to enter into an
undertaking, with surety, to pay and satisfy the final judgment of
the appellate court.
The case is stated in the opinion of the court.
MR. JUSTICE GRAY delivered the opinion of the court.
On September 8, 1896, the Capital Traction Company, a street
railway corporation in the District of Columbia, presented to the
Supreme Court of the District a petition for a writ of certiorari
to a justice of the peace, to prevent a civil
Page 174 U. S. 3
action to recover damages in the sum of $300 from being tried by
a jury before him.
The petition for a writ of certiorari alleged that Charles Hof
on August 17, 1896, caused a summons to be issued by Lewis I.
O'Neall, Esq., one of the justices of the peace in and for the
District of Columbia, summoning the Capital Traction Company to
appear before him on August 20, 1896, "to answer unto the complaint
of Charles Hof in a plea of damage of $300," and the matter was
postponed until September 8th, on which day, after the company had
put in its plea and issue had been joined thereon, the attorney for
Hof demanded of the justice of the peace that the action should be
tried by a jury, and thereupon the justice of the peace issued a
venire to a constable, commanding him to summon twelve jurors to
appear before said justice on September 10th; that the petitioner
was advised that such a demand for the so-called jury was founded
upon sections 1009-1016 of the Revised Statutes of the District of
Columbia, and was intended to subject the petitioner, without
appeal, to a form of trial before a justice of the peace, unknown
to the common law, and, as the petitioner was advised, illegal and
unconstitutional; that the petitioner was informed and believed
that Hof's claim was for damages sustained by him through its
negligence while he was a passenger on one of its cars, and that it
had a good defense on the merits to his claim, and sought a fair
opportunity to make such defense before an impartial tribunal, and
was ready and willing to give any security that might be required
for the prompt payment of any final judgment which might be
pronounced against it in due course of law.
The petition further averred that the only method in which Hof's
claim against the petitioner could be tried by a jury according to
the common law and the constitution was by removing his suit from
the justice of the peace into the Supreme Court of the District of
Columbia; that if this was not done, the petitioner would be
deprived of its constitutional right to a trial by jury, and would
be in danger of being deprived of its property without due process
of law, and would
Page 174 U. S. 4
be denied the equal protection of the laws, and that the amount
claimed by Hof was within the jurisdiction of that court.
Wherefore the petitioner prayed that a writ of certiorari might
be issued to the justice of the peace to remove Hof's claim into
that court for trial according to the course of the common law,
upon such terms as to security for costs and damages as the court
might think proper, and for such other and further relief as the
petitioner might be entitled to.
The Supreme Court of the District of Columbia granted a writ of
certiorari to the justice of the peace as prayed for, and the
justice of the peace, in his return thereto, set forth the
proceedings before him in the action of Hof against the Capital
Traction Company, showing the issue and return of the summons to
the defendant, its oral plea of not guilty, the plaintiff's joinder
of issue and demand of a jury, and the stay of further proceedings
by the writ of certiorari.
On October 6, 1896, the Supreme Court of the District of
Columbia overruled a motion of Hof to quash the writ of certiorari
and entered an order quashing all proceedings before the justice of
the peace after issue joined. 24 Wash.Law Rep. 646. Hof appealed to
the Court of Appeals of the District of Columbia, which on February
17, 1897, reversed that order and remanded the case with directions
to quash the writ of certiorari. 10 App.D.C. 205. The Capital
Traction Company thereupon sued out a writ of error from this Court
under the Act of February 9, 1893, c. 74, § 8. 27 Stat. 436.
The petition for a writ of certiorari presents for determination
a serious and important question of the validity, as well as the
interpretation and effect, of the legislation of congress
conferring upon justices of the peace in the District of Columbia
jurisdiction in civil actions in which the matter in dispute
exceeds twenty dollars in value, and providing for a trial by a
jury before the justice of the peace, an appeal from his judgment
to the Supreme Court of the District of Columbia, and a trial by
jury at the request of either party in the appellate court. This
Court therefore has jurisdiction of the writ of error.
Railroad Co. v.
Hopkins,
Page 174 U. S. 5
130 U. S. 210,
130 U. S. 224;
Parsons v. District of Columbia, 170 U. S.
45.
The Court of Appeals was unanimous in maintaining the validity
of the proceedings looking to a trial by a jury before the justice
of the peace. But there was a difference of opinion between the two
associate justices and the chief justice upon the question whether
such a trial before the justice of the peace would be a trial by
jury according to the common law and the constitution, as well as
upon the question whether the trial by jury allowed by Congress in
the Supreme Court of the District upon appeal from the judgment of
the justice of the peace, and upon the condition of giving bond to
pay the final judgment of the appellate court, satisfied the
requirements of the Constitution.
I. The Congress of the United States, being empowered by the
Constitution "to exercise exclusive legislation in all cases
whatsoever" over the seat of the national government, has the
entire control over the District of Columbia for every purpose of
government -- national or local. It may exercise within the
District all legislative powers that the legislature of a state
might exercise within the state, and may vest and distribute the
judicial authority in and among courts and magistrates, and
regulate judicial proceedings before them, as it may think fit so
long as it does not contravene any provision of the Constitution of
the United States.
Kendall v. United
States, (1838), 12 Pet. 524,
37 U. S. 619;
Mattingly v. District of Columbia (1878),
97 U. S.
687,
97 U. S. 690;
Gibbons v. District of Columbia (1886),
116 U.
S. 404,
116 U. S.
407.
It is beyond doubt at the present day that the provisions of the
Constitution of the United States securing the right of trial by
jury, whether in civil or in criminal cases, are applicable to the
District of Columbia.
Webster v.
Reid (1850), 11 How. 437,
52 U. S. 460;
Callan v. Wilson (1888),
127 U. S. 540,
127 U. S. 550;
Thompson v. Utah (1898),
170 U. S. 343.
The decision of this case mainly turns upon the scope and effect
of the Seventh Amendment of the Constitution of the United States.
It may therefore be convenient, before particularly examining the
acts of Congress now in question, to
Page 174 U. S. 6
refer to the circumstances preceding and attending the adoption
of this amendment, to the contemporaneous understanding of its
terms, and to the subsequent judicial interpretation thereof, as
aids in ascertaining its true meaning, and its application to the
case at bar.
II. The first Continental Congress, in the declaration of rights
adopted October 14, 1774, unanimously resolved that
"the respective colonies are entitled to the common law of
England, and more especially to the great and inestimable privilege
of being tried by their peers of the vicinage, according to the
course of that law."
1 Journals of Congress 28.
The ordinance of 1787 declared that the inhabitants of the
Northwest Territory should "always be entitled to the benefits of
the writ of habeas corpus, and of the trial by jury," "and of
judicial proceedings according to the course of the common law." 1
Charters and Constitutions 431.
The Constitution of the United States, as originally adopted,
merely provided, in Article III, Section 3, that "the trial of all
crimes, except in cases of impeachment, shall be by jury." In the
convention which framed the Constitution, a motion to add this
clause, "and a trial by jury shall be preserved as usual in civil
cases," was opposed by Mr. Gorham of Massachusetts on the ground
that "the constitution of juries is different in different states,
and the trial itself is usual in different cases, in different
states," and was unanimously rejected. 5 Elliott's Debates 550.
Mr. Hamilton, in No. 81 of the Federalist, when discussing the
clause of the Constitution which confers upon this Court "appellate
jurisdiction, both as to law and fact, with such exceptions and
under such regulations as the Congress shall make," and again, in
more detail, in No. 83, when answering the objection to the want of
any provision securing trial by jury in civil actions, stated the
diversity then existing in the laws of the different states
regarding appeals and jury trials, and especially pointed out that,
in the New England states, and in those alone, appeals were allowed
as of course from one jury to another until there had been two
verdicts on one side, and in no other state but Georgia was there
any
Page 174 U. S. 7
appeal from one to another jury. The diversity in the laws of
the several states, he insisted, "shows the impropriety of a
technical definition derived from the jurisprudence of any
particular state," and "that no general rule could have been fixed
upon by the convention which would have corresponded with the
circumstances of all the states." And he suggested that
"the legislature of the United States would certainly have full
power to provide that, in appeals to the Supreme Court, there
should be no reexamination of facts where they had been tried in
the original causes by juries;' but if this 'should be thought too
extensive, it might be qualified with a limitation to such causes
only as are determinable at common law in that mode of trial."
2 Federalist (ed. 1788), pp. 319-321, 335-336.
At the first session of the first Congress under the
Constitution, Mr. Madison, in the House of Representatives, on June
8, 1789, submitted propositions to amend the Constitution by adding
to the clause concerning the appellate jurisdiction of this Court
the words
"nor shall any fact, triable by a jury, according to the course
of the common law, be otherwise reexaminable than according to the
principles of the common law,"
and to the clause concerning trial by jury, these words: "In
suits at common law between man and man, the trial by jury, as one
of the best securities to the rights of the people, ought to remain
inviolate." 1 Annals of Congress, 424, 435. And those propositions,
somewhat altered in form, were embodied in a single article, which
was proposed by Congress on September 25, 1789, to the legislatures
of the several states, and, upon being duly ratified by them,
became the Seventh Amendment to the Constitution, in these
words:
"In suits at common law where the value in controversy shall
exceed twenty dollars, the right of trial by jury shall be
preserved, and no fact tried by a jury shall be otherwise
reexamined in any court of the United States than according to the
rules of the common law."
A comparison of the language of the Seventh Amendment, as
finally made part of the Constitution of the United States, with
the Declaration of Rights of 1774, with the Ordinance
Page 174 U. S. 8
of 1787, with the essays of Mr. Hamilton in 1788, and with the
amendments introduced by Mr. Madison in Congress in 1789, strongly
tends to the conclusion that the Seventh Amendment, in declaring
that "no fact tried by a jury shall be otherwise reexamined, in any
court of the United States, than according to the rules of the
common law," had in view the rules of the common law of England,
and not the rules of that law as modified by local statute or usage
in any of the states.
This conclusion has been established, and "the rules of the
common law" in this respect clearly stated and defined, by judicial
decisions.
In
United States v. Wonson (1812), 1 Gall. 5, a verdict
and judgment for the defendant having been rendered in the District
Court of the United States for the District of Massachusetts in an
action of debt for a penalty, the United States appealed to the
circuit court, and were held not to be entitled to try by a new
jury in that court facts which had been tried and determined by the
jury in the court below. "We should search in vain," said Mr.
Justice Story,
"in the common law for an instance of an appellate court
retrying the cause by a jury while the former verdict and judgment
remained in full force. The practice, indeed, seems to be a
peculiarity of New England, and, if I am not misinformed, does not
exist in more than one (if any) other state in the Union."
And, after quoting the words of the Seventh Amendment, he
observed:
"Beyond all question, the common law here alluded to is not the
common law of any individual state, for it probably differs in all,
but it is the common law of England, the grand reservoir of all our
jurisprudence. . . . Now, according to the rules of the common law,
the facts once tried by a jury are never reexamined unless a new
trial is granted in the discretion of the court before which the
suit is depending, for good cause shown, or unless the judgment of
such court is reversed by a superior tribunal on a writ of error,
and a
venire facias de novo is awarded. This is the
invariable usage, settled by the decisions of ages."
1 Gallison 14, 20.
In
Parsons v.
Bedford (1830), 3 Pet. 433, this Court, on writ of
error to a lower court of the United States, held that
Page 174 U. S. 9
it had no power to reexamine facts tried by a jury in the court
below, although that court was held in Louisiana, where Congress
had enacted that the mode of proceeding should conform to the laws
directing the mode of practice in the district courts of the state,
and a statute of the state authorized its supreme court to try anew
on appeal facts tried by a jury in a district court. Mr. Justice
Story, in delivering the judgment of this Court expounding the
Seventh Amendment to the Constitution, after showing that in the
first clause the words "suits at common law" were used in
contradistinction to suits in equity and in admiralty, and
included, "not merely suits which the common law recognized among
its old and settled proceedings," but all suits in which legal
rights, and not equitable rights, were ascertained and determined,
proceeded as follows:
"But the other clause of the amendment is still more important,
and we read it as a substantial and independent clause: 'No fact
tried by a jury shall be otherwise reexamined, in any court of the
United States, than according to the rules of the common law.' This
is a prohibition to the courts of the United States to reexamine
any facts, tried by a jury, in any other manner. The only modes
known to the common law to reexamine such facts are the granting of
a new trial by the court where the issue was tried or to which the
record was properly returnable or the award of a
venire facias
de novo by an appellate court for some error of law which
intervened in the proceedings."
Id., 28 U. S.
446-448.
This last statement has been often reaffirmed by this Court.
Barreda v.
Silsbee (1858), 21 How. 146,
62 U. S. 166;
Justices v.
Murray (1869), 9 Wall. 274,
76 U. S. 277;
Miller v. Life Insurance
Co. (1870), 12 Wall. 285,
79 U. S. 300;
Insurance Co. v.
Comstock (1872), 16 Wall. 258,
83 U. S. 269;
Insurance Co. v.
Folsom (1873), 18 Wall. 237,
85 U. S. 249;
Railroad Co. v. Fraloff (1879),
100 U. S.
24,
100 U. S. 34;
Lincoln v. Power (1894),
151 U. S. 436,
151 U. S. 438;
Chicago, Burlington & Quincy Railroad v. Chicago
(1897),
166 U. S. 226,
166 U. S.
246.
The Judiciary Act of September 24, 1789, c. 20, drawn by Senator
(afterwards Chief Justice) Ellsworth, and passed -- within six
months after the organization of the government under the
Constitution, and on the day before the first ten
Page 174 U. S. 10
amendments were proposed to the legislatures of the states -- by
the first Congress, in which were many eminent men who had been
members of the convention which formed the Constitution, has always
been considered as a contemporaneous exposition of the highest
authority.
Cohens v.
Virginia (1821), 6 Wheat. 264,
19 U. S. 420;
Parsons v. Bedford, above cited;
Bors v. Preston
(1884),
111 U. S. 252,
111 U. S. 256;
Ames v. Kansas (1884),
111 U. S. 449,
111 U. S.
463-464;
Wisconsin v. Pelican Ins. Co. (1888),
127 U. S. 265,
127 U. S. 297.
That act provided, in §§ 9 and 12, that the trial of issues of fact
in a district or circuit court, in all suits, except those of
equity or admiralty jurisdiction, should be by jury; in § 13, that
the trial of issues of fact in this Court, in the exercise of its
original jurisdiction, in all actions at law against citizens of
the United States, should be by jury; in § 17, that "all the said
courts of the United States" should
"have power to grant new trials in cases where there has been a
trial by jury for reasons for which new trials have usually been
granted in the courts of law,"
and in §§ 22 and 24 that final judgments of the district court
might be reviewed by the circuit court, and final judgments of the
circuit court be reviewed by this Court, upon writ of error, for
errors in law, but not for any error in fact. 1 Stat. 77, 80, 81,
83, 84. Those provisions, so far as regards actions at law, have
since remained in force almost uninterruptedly, and they have been
reenacted in the Revised Statutes, allowing the parties, however,
to waive a jury, and have their case tried by the court. Rev.Stat.
§§ 566, 633, 648, 689, 691, 726, 1011.
The only instances that have come to our notice in which
Congress has undertaken to authorize a second trial by jury to be
had in a court of the United States, while the verdict of a jury
upon a former trial in a court of record has not been set aside,
are to be found in two temporary acts passed during the last war
with Great Britain, and in an act passed during the war of the
Rebellion, and continued in force for a short time afterwards, each
of which provided that certain actions brought in a state court
against officers or persons acting under the authority of the
United States might, after final judgment, be removed by appeal or
writ of error to the
Page 174 U. S. 11
circuit court of the United States, and that court should
"thereupon proceed to try and determine the facts and the law in
such action in the same manner as if the same had been there
originally commenced, the judgment in such case
notwithstanding."
Acts Feb. 4, 1815, c. 31, §§ 8, 13, and March 3, 1815, c. 94, §§
6, 8, 3 Stat. 199, 200, 234, 235; Act March 3, 1863, c. 81, § 5, 12
Stat. 757; Act May 11, 1866, c. 80, § 3, 14 Stat. 46. But such a
provision, so far as it authorized the facts to be tried and
determined in the circuit court of the United States in a case in
which a verdict had been returned in the state court, was held to
be inconsistent with the Seventh Amendment of the Constitution of
the United States by the Supreme Judicial Court of Massachusetts in
a case arising under the acts of 1815, and by the Supreme Court of
New York and by this Court in cases arising under the acts of 1863
and 1866.
Wetherbee v. Johnson (1817), 14 Mass. 412;
Patrie v. Murray (1864), 43 Barb. 323;
s.c. nom.
76 U. S.
Murray (1869), 9 Wall. 274;
McKee v.
Rains (1869), 10 Wall. 22.
In
Justices v. Murray, an action was brought by Patrie
against Murray, a United States marshal, and his deputy, in the
Supreme Court of the State of New York, and a verdict and judgment
for the plaintiff were rendered in that court. The defendant sued
out a writ of error from the circuit court of the United States
under the Act of Congress of March 3, 1863, c. 81, § 5, and moved
the state court to stay proceedings. The state court denied the
motion and refused to make a return to the writ of error upon the
ground that the act of Congress, so far as it provided that a case,
after verdict and judgment in a state court, might be removed to
the circuit court of the United States for trial and determination
upon both the facts and the law, in the same manner as if the case
had been originally commenced in that court, was in violation of
the Seventh Amendment of the Constitution of the United States, and
for that reason null and void.
Patrie v. Murray, 43 Barb.
323. Thereupon the circuit court of the United States, without
expressing any opinion upon this point, granted a writ of mandamus
to the clerk of the state court.
Page 174 U. S. 12
Murray v. Patrie, 1 Blatchford 343; 9 Wall. 276, note.
The judgment of the circuit court ordering a mandamus was then
brought to this Court by writ of error and reversed. Mr. Justice
Nelson, in delivering judgment, after remarking that the case
(which had been twice argued by very able counsel) had received the
most deliberate consideration of the Court, quoting the statements
of Mr. Justice Story in
Parsons v. Bedford, above cited,
and recognizing that the second clause of the Seventh Amendment
could not be invoked in a state court to prohibit it from
reexamining, on a writ of error, facts that had been tried by a
jury in a lower court, went on to say:
"It is admitted that the clause applies to the appellate powers
of the Supreme Court of the United States in all common law cases
coming up from an inferior federal court, and also to the circuit
court, in like cases, in the exercise of its appellate powers. And
why not, as it respects the exercise of these powers, in cases of
federal cognizance coming up from a state court? The terms of the
amendment are general, and contain no qualification in respect to
the restriction upon the appellate jurisdiction of the courts,
except as to the class of cases -- namely, suits at common law --
where the trial has been by jury. The natural inference is that no
other was intended. Its language, upon any reasonable, if not
necessary, interpretation, we think, applies to this entire class,
no matter from what court the case comes, of which cognizance can
be taken by the appellate court."
The
ratio decidendi, the line of thought pervading and
controlling the whole opinion, was that the Seventh Amendment
undoubtedly prohibited any court of the United States from
reexamining facts once tried by a jury in a lower court of the
United States, and that there was no reason why the prohibition
should not equally apply to a case brought into a court of the
United States from a state court. "In both instances," it was said,
"the cases are to be disposed of by the same system of laws, and by
the same judicial tribunal." 9 Wall.
76 U. S.
277-279.
In
Chicago, Burlington & Quincy Railroad v. City of
Chicago, 166 U. S. 226,
166 U. S.
242-244, the same course of reasoning was followed,
Page 174 U. S. 13
and was applied to a case brought by writ of error from the
highest court of a state to this Court.
It must therefore be taken as established, by virtue of the
Seventh Amendment of the Constitution, that either party to an
action at law (as distinguished from suits in equity or in
admiralty) in a court of the United States, where the value in
controversy exceeds twenty dollars, has the right to a trial by
jury; that, when a trial by jury has been had in an action at law,
in a court either of the United States or of a state, the facts
there tried and decided cannot be reexamined in any court of the
United States, otherwise than according to the rules of the common
law of England; that, by the rules of that law, no other mode of
reexamination is allowed than upon a new trial, either granted by
the court in which the first trial was had or to which the record
was returnable, or ordered by an appellate court for error in law,
and therefore that unless a new trial has been granted in one of
those two ways, facts once tried by a jury cannot be tried anew, by
a jury or otherwise, in any court of the United States.
The case of enforcing in a court of the United States a statute
of a state giving one new trial, as of right, in an action of
ejectment is quite exceptional, and such a statute does not
enlarge, but restricts, the rules of the common law as to
reexamining facts once tried by a jury; for by the common law, a
party was not concluded by a single verdict and judgment in
ejectment, but might bring as many successive ejectments as he
pleased, unless restrained by a court of equity after repeated
verdicts against him. Bac.Abr. "Ejectment," I;
Equator Co. v.
Hall (1882),
106 U. S. 86;
Smale v. Mitchell (1892),
143 U. S.
99.
III. "Trial by jury," in the primary and usual sense of the term
at the common law and in the American Constitutions, is not merely
a trial by a jury of twelve men before an officer vested with
authority to cause them to be summoned and impaneled, to administer
oaths to them and to the constable in charge, and to enter judgment
and issue execution on their verdict; but it is a trial by a jury
of twelve men in the presence and under the superintendence of a
judge empowered to
Page 174 U. S. 14
instruct them on the law and to advise them on the facts, and
(except on acquittal of a criminal charge) to set aside their
verdict, if, in his opinion, it is against the law or the evidence.
This proposition has been so generally admitted and so seldom
contested that there has been little occasion for its distinct
assertion. Yet there are unequivocal statements of it to be found
in the books.
Lord Hale, in his History of the Common Law (chapter 12),
"touching trial by jury," says:
"Another excellency of this trial is this: that the judge is
always present at the time of the evidence given in it. Herein he
is able, in matters of law emerging upon the evidence, to direct
them, and also, in matters of fact, to give them great light and
assistance, by his weighing the evidence before them, and observing
where the question and knot of the business lies, and by showing
them his opinion even in matter of fact, which is a great advantage
and light to laymen. And thus, as the jury assist the judge in
determining the matter of fact, so the judge assists the jury in
determining points of law, and also very much in investigating and
enlightening the matter of fact whereof the jury are the
judges."
And again, in summing up the advantages of trial by jury, he
says:
"It has the advantage of the judge's observation, attention, and
assistance in point of law by way of decision, and in point of fact
by way of direction to the jury."
2 Hale Hist.Com.Law (5th ed.) 147, 156.
See also 1
Hale, P.C. 33.
The Supreme Court of Ohio held that the provision of article 1,
section 19, of the constitution of that state, requiring
compensation for private property taken for the public use to "be
assessed by a jury," was not satisfied without an assessment by a
jury of twelve men under the supervision of a court, and, speaking
by Chief Justice Thurman, said:
"That the term 'jury,' without addition or prefix, imports a
body of twelve men in a court of justice is as well settled as any
legal proposition can be. . . . We agree with Grimke, J., in
Willyard v. Hamilton, 7 Ohio, pt. 2, 111, 118, that a
jury, properly speaking, is an appendage of a court, a tribunal
auxiliary to the administration of justice in a court, that a
presiding law tribunal
Page 174 U. S. 15
is implied, and that the conjunction of the two is the peculiar
and valuable feature of the jury trial, and, as a necessary
inference, that a mere commission, though composed of twelve men,
can never be properly regarded as a jury. Upon the whole, after a
careful examination of the subject, we are clearly of the opinion
that the word 'jury' in section 19 of article 1, as well as in
other places in the constitution where it occurs, means a tribunal
of twelve men, presided over by a court, and hearing the
allegations, evidence, and arguments of the parties."
Lamb v. Lane (1854), 4 Ohio St. 167, 177, 179.
The justices of the Supreme Judicial Court of New Hampshire, in
an opinion given to the House of Representatives of the state,
said:
"The terms 'jury' and 'trial by jury' are, and for ages have
been, well known in the language of the law. They were used at the
adoption of the Constitution, and always, it is believed, before
that time, and almost always since, in a single sense. A jury for
the trial of a cause was a body of twelve men, described as
upright, well qualified, and lawful men, disinterested and
impartial, not of kin nor personal dependents of either of the
parties, having their homes within the jurisdictional limits of the
court, drawn and selected by officers free from all bias in favor
or against either party, duly impaneled under the direction of a
competent court, sworn to render a true verdict according to the
law and the evidence given them, who, after hearing the parties and
their evidence, and receiving the instructions of the court
relative to the law involved in the trial, and deliberating, when
necessary, apart from all extraneous influences, must return their
unanimous verdict upon the issue submitted to them."
Opinion of Justices (1860), 41 N.H. 550, 551.
Judge Sprague, in the District Court of the United States for
the District of Massachusetts, said:
"The Constitution secures a trial by jury without defining what
that trial is. We are left to the common law to learn what it is
that is secured. Now the trial by jury was, when the Constitution
was adopted, and for generations before that time had been, here
and in England, a trial of an issue of fact by twelve men under the
direction and superintendence of the court. This
Page 174 U. S. 16
direction and superintendence was an essential part of the
trial. . . . At the time of the adoption of the Constitution, it
was a part of the system of trial by jury in civil cases that the
court might, in its discretion, set aside a verdict. . . . Each
party -- the losing as well as the winning -- has a right to the
legitimate trial by jury, with all its safeguards, as understood
when the Constitution was adopted."
United States v. Bags of Merchandise (1863), 2 Spr.
85-88.
This Court has expressed the same idea, saying:
"In the courts of the United States, as in those of England,
from which our practice was derived, the judge, in submitting a
case to the jury, may at his discretion, whenever he thinks it
necessary to assist them in arriving at a just conclusion, comment
upon the evidence, call their attention to parts of it which he
thinks important, and express his opinion upon the facts."
Vicksburg &c. Railroad v. Putnam (1886),
118 U. S. 545,
118 U. S. 553.
And again:
"Trial by jury in the courts of the United States is a trial
presided over by a judge, with authority not only to rule upon
objections to evidence and to instruct the jury upon the law, but
also, when in his judgment the due administration of justice
requires it, to aid the jury by explaining and commenting upon the
testimony, and even giving them his opinion on questions of fact,
provided only he submits those questions to their
determination."
United States v. Philadelphia & Reading Railroad
(1887),
123 U. S. 113,
123 U. S. 114.
And see Sparf v. United States, (1895),
156 U. S.
51,
156 U. S. 102,
156 U. S. 106;
Thompson v. Utah (1898),
170 U. S. 343,
170 U. S. 350;
Cooley, Const.Law, 239.
IV. By the common law, justices of the peace had some criminal
jurisdiction, but no jurisdiction whatever of suits between man and
man. There were in England, however, courts baron, county courts,
courts of conscience, and other petty courts, which were not courts
of record, and whose proceedings varied in many respects from the
course of the common law, but which were empowered to hear and
determine in a summary way, without a jury, personal actions in
which the debt or damages demanded did not exceed forty
Page 174 U. S. 17
shillings. 3 Bl.Com. 33, 35, 81. The twelve freeholders summoned
to the County Court of Middlesex, and authorized, when there
assembled together with the county clerk, and without any judge
being present, to decide by a majority and in a summary way causes
not exceeding forty shillings, under the statute of 23 Geo. II, c.
33 (1750), commended by Blackstone, were clearly not a common law
jury. 3 Bl.Com. 83 and Coleridge's note.
In this country, before the Declaration of Independence, the
jurisdiction over small debts, which county courts and similar
courts had in England, was generally vested in single justices of
the peace. Whenever a trial by jury of any kind was allowed at any
stage of an action begun before a justice of the peace, it was done
in one of two ways -- either by providing for an appeal from the
judgment of the justice of the peace to a court of record. upon
giving bond, with surety, "to prosecute the said appeal there with
effect, and to abide the order of said court," and for a trial in
that court by common jury, as in Massachusetts, 6 Dane, Abr. 405,
442; Prov.Stats.Mass. 1697, c. 8, § 1, and 1699, c. 2, § 3 (1
Prov.Laws, State ed., pp. 283, 370), and St. 1783, c. 42, or by
providing for a trial by a jury of six before the justice of the
peace, as in New York and in New Jersey, 6 Dane Ab. 417; N.Y.Stats.
of Dec. 16, 1737, 1 Smith & Livingston's Laws, p. 238, § 4 ,
and Dec. 24, 1759, 2
ib., p. 170, § 4; N.J.Stat. February
11, 1775, Allinson's Laws, p. 468;
Wanser v. Atkinson
(1881), 14 Vroom (43 N.J.Law) 571, 572.
Justices of the peace in the District of Columbia, in the
exercise of the jurisdiction conferred upon them by Congress to try
and determine cases, criminal or civil, are doubtless in some sense
judicial officers.
Wise v.
Withers, 3 Cranch 330,
7 U. S. 336. But
they are not inferior courts of the United States, for the
Constitution requires judges of all such courts to be appointed
during good behavior. Nor are they in any sense courts of record.
They were never considered in Maryland as "courts of law."
Weikel v. Cate (1882), 58 Md. 105, 110. The statutes of
Maryland of 1715, c. 12, and of 1763, c. 21 (in Bacon's Laws of
Maryland), and of 1791, c. 68 (in
Page 174 U. S. 18
2 Kilty's Laws), defining the civil jurisdiction of justices of
the peace, were entitled acts "for the speedy recovery of small
debts out of court." And Congress has vested in them, "as
individual magistrates," the powers and duties which justices of
the peace previously had under the laws in force in the District of
Columbia. Act February 27, 1801, c. 15, § 11, 2 Stat. 107;
Rev.Stat.D.C. § 995.
A trial by a jury of twelve men before a justice of the peace,
having been unknown in England or America before the Declaration of
Independence, can hardly have been within the contemplation of
Congress in proposing, or of the people in ratifying, the Seventh
Amendment to the Constitution of the United States.
5. Another question having an important bearing on the validity
and the interpretation of the successive acts of Congress
concerning trial by jury in civil actions begun before justices of
the peace in the District of Columbia is whether the right of trial
by jury secured by the Seventh Amendment to the Constitution is
preserved by allowing a common law trial by jury in a court of
record, upon appeal from a judgment of a justice of the peace, and
upon giving bond, with surety, to prosecute the appeal, and to
abide the judgment of the appellate court.
The question considered and decided by this Court in
Callan
v. Wilson (1888),
127 U. S. 540,
though somewhat analogous, was essentially a different one. That
case was a criminal case, not affected by the Seventh Amendment of
the Constitution, but depending upon the effect of those other
provisions of the original Constitution and of the fifth and sixth
amendments, which declare that "the trial of all causes, except in
cases of impeachment, shall be by jury," that "no person shall be
deprived of life, liberty or property without due process of law,"
and that "in all criminal prosecutions, the accused shall enjoy the
right to a speedy and public trial by an impartial jury." The point
there decided was that a person accused of a conspiracy to prevent
another person from pursuing his lawful calling, and by
intimidations and molestations to reduce him to beggary, had the
right to a trial by
Page 174 U. S. 19
jury in the first instance, and that it was not enough to allow
him a trial by jury after having been convicted by a justice of the
peace without a jury. The decision proceeded upon the ground that
such a conspiracy was an offense of a grave character, affecting
the public at large, as well as one the punishment of which might
involve the liberty of the citizen; it was conceded that there was
a class of minor offenses to which the same rule could not apply,
and the question of applying a like rule to civil cases did not
arise in the case, and was not touched by the court.
All the other cases cited at the bar in which the Constitutional
right of trial by jury was held not to be secured by allowing such
a trial on appeal from a justice of the peace or from an inferior
court were criminal cases.
Greene v. Briggs (1852), 1
Curtis 311, 325;
Saco v. Wentworth (1853), 37 Me. 165;
In re Dana (1872), 7 Ben. 1.
On the other hand, the authority of the legislature,
consistently with Constitutional provisions securing the right of
trial by jury, to provide, in civil proceedings for the recovery of
money, that the trial by jury should not be had in the tribunal of
first instance, but in an appellate court only, is supported by
unanimous judgments of this Court in two earlier cases, the one
arising in the District of Columbia and the other in the State of
Pennsylvania.
The declaration of rights, prefixed to the Constitution of
Maryland of 1776, declared in article 3 that "the inhabitants of
Maryland are entitled to the common law of England, and the trial
by jury according to the course of that law," and in article 21
repeated the words of Magna Charta -- "No person ought to be taken
or imprisoned," etc., "or deprived of his life, liberty or
property, but by the judgment of his peers or the law of the land."
1 Charters and Constitutions 817, 818. The statute of the State of
Maryland of 1793 (chapter 30) incorporating a bank in the District
of Columbia provided that on any bill or note made or indorsed to
the bank and expressly made negotiable at the bank and not paid
when due, or within 10 days after demand, the bank, upon filing an
affidavit of its president to the sum due, might obtain
Page 174 U. S. 20
from the clerk of a court an execution against the property of
the debtor,
"and if the defendant shall dispute the whole or any part of the
said debt, on the return of the execution the court before whom it
is returned shall and may order an issue to be joined, and trial to
be had in the same court at which the return is made, and shall
make such other proceedings that justice may be done in the
speediest manner."
2 Kilty's Laws. The General Court of Maryland, in 1799, held
that this statute did not infringe the constitutional right of
trial by jury.
Bank of Columbia v. Ross, 4 Her. & McH.
456, 464-465. The statute was continued in force in the District of
Columbia by the Acts of Congress of February 27, 1801, c. 15, § 5,
and March 3, 1801, c. 24, § 5, 2 Stat. 106, 115;
Bank v.
Okely (1819), 4 Wheat. 235,
17 U. S. 246.
In
Bank of Columbia v. Okely, an execution so issued
was sought to be quashed upon the ground that the statute of
Maryland violated the Seventh Amendment of the Constitution of the
United States, as well as the Constitution of the State of
Maryland. But this Court held the statute to be consistent with
both constitutions, and, speaking by Mr. Justice Johnson, said:
"This Court would ponder long before it would sustain this
action if we could be persuaded that the act in question produced a
total prostration of the trial by jury, or even involved the
defendant in circumstances which rendered that right unavailing for
his protection. But a power is reserved to the judge to make such
rules and orders 'as that justice may be done,' and, as the
possession of judicial power imposes an obligation to exercise it,
we flatter ourselves that, in practice, the evils so eloquently
dilated on by the counsel do not exist. And if the defendant does
not avail himself of the right given him of having an issue made up
and the trial by jury which is tendered to him by the act, it is
presumable that he cannot dispute the justice of the claim. That
this view of the subject is giving full effect to the Seventh
Amendment of the Constitution is not only deducible from the
general intent, but from the express wording, of the article
referred to. Had the terms been that 'the
trial by jury
shall be preserved,' it might
Page 174 U. S. 21
have been contended that they were imperative, and could not be
dispensed with. But the words are that the
right of trial
by jury shall be preserved, which places it on the foot of a
lex pro se introducta, and the benefit of it may therefore
be relinquished. As to the words of Magna Charta, incorporated into
the Constitution of Maryland, after volumes spoken and written with
a view to their exposition, the good sense of mankind has at length
settled down to this: that they were intended to secure the
individual from the arbitrary exercise of the powers of government,
unrestrained by the established principles of private rights and
distributive justice. With this explanation, there is nothing left
to this individual to complain of. What he has lost he has
voluntarily relinquished, and the trial by jury is open to him
either to arrest the progress of the law in the first instance or
to obtain redress for oppression if the power of the bank has been
abused. The same answer is equally applicable to the argument
founded on the third article of the Maryland Constitution."
4 Wheat.
17 U. S.
243-244.
The Constitution of Pennsylvania of 1776 provided, in article 11
of the declaration of rights that, "in controversies respecting
property and in suits between man and man, the parties have a right
to trial by jury, which ought to be held sacred," and in section 25
of the frame of government that "trials shall be by jury as
heretofore," and the Constitution of 1790, in section 6 of the bill
of rights, declared that "trial by jury shall be as heretofore, and
the right thereof remain inviolate." 2 Charters and Constitutions
1542, 1546, 1554. The statutes of Pennsylvania, from 1782, required
all accounts between the state and its officers to be settled by
the comptroller general, and approved by the executive council, and
if a balance was found due to the state, authorized the comptroller
general to direct the clerk of the county where the officer resided
to issue summary process to collect the amount due. And a statute
of February 18, 1785, after reciting
"Whereas it will be agreeable to the constitution of this state,
which has declared that 'trial by jury shall be as heretofore,'
that persons conceiving themselves aggrieved by the
Page 174 U. S. 22
proceedings of the said comptroller general should be allowed to
have trial of the facts by a jury, and questions of law arising
thereupon determined in a court of record,"
enacted that any such person might appeal from the settlement or
award of the comptroller general to the supreme court of the state,
"provided the said party enter sufficient security" before a
judge
"to prosecute such appeal with effect, and to pay all costs and
charges which the supreme court shall award, and also pay any sum
of money which shall appear by the judgment of the said court to be
due from him"
to the state, and might have the whole matter tried by a jury
upon the appeal. This statute also provided that the settlement of
any account by the comptroller general, and confirmation thereof by
the executive council, whereby any sum of money should be found due
from any person to the state, should be a lien on all his real
estate throughout the state. 2 Dall.Laws Penn. 44, 247, 248,
251.
In
Livingston v.
Moore (1833), 7 Pet. 469, which came to this Court
from the circuit court of the United States for the Eastern
district of Pennsylvania, the validity of a lien so acquired by the
state was attacked on the ground, among others, that the statutes
creating it were contrary to section 6 of the Pennsylvania bill of
rights of 1790. But this Court upheld the validity of the lien, and
in an opinion delivered by Mr. Justice Johnson, after elaborately
discussing the other questions in the case, briefly disposed of
this one as follows:
"As to the sixth section of the Pennsylvania Bill of Rights, we
can see nothing in these laws on which to fasten the imputation of
a violation of the right of trial by jury, since, in creating the
lien attached to the settled accounts, the right of an appeal to a
jury is secured to the debtor."
7 Pet.
32 U. S.
552.
While, as has been seen, the Seventh Amendment to the
Constitution of the United States requires that "the right of trial
by jury shall be preserved" in the courts of the United States in
every action at law in which the value in controversy exceeds
twenty dollars, and forbids any fact once tried by a jury to "be
otherwise reexamined, in any court of the United States, than
according to the rules of the common law" (meaning
Page 174 U. S. 23
thereby the common law of England, and not the law of any one or
more of the states of the Union), yet it is to be remembered that,
as observed by Justice Johnson, speaking for this Court in
Bank
v. Okely, above cited, it is not "trial by jury," but "the
right of trial by jury," which the amendment declares "shall be
preserved." It does not prescribe at what stage of an action a
trial by jury must, if demanded, be had, or what conditions may be
imposed upon the demand of such a trial consistently with
preserving the right to it. In passing upon these questions, the
judicial decisions and the settled practice in the several states
are entitled to great weight, inasmuch as the Constitutions of all
of them had secured the right of trial by jury in civil actions by
the words "shall be preserved," or "shall be as heretofore," or
"shall remain inviolate," or "shall be held sacred," or by some
equivalent expression.
A long line of judicial decisions in the several states,
beginning early in this century, maintains the position that the
constitutional right of trial by jury in civil actions is not
infringed by a statute which sets the pecuniary limit of the
jurisdiction of justices of the peace in actions at law higher than
it was when the particular constitution was adopted, allows a trial
by jury for the first time upon appeal from the judgment of the
justice of the peace and requires of the appellant a bond, with
surety, to prosecute the appeal and to pay the judgment of the
appellate court. The full extent and weight of those precedents
cannot be justly appreciated without referring to the texts of the
statutes which they upheld, and which have not always been fully
set forth in the reports.
The leading case is
Emerick v. Harris (1808), 1 Binney
416, which arose under the statutes of Pennsylvania. The provisions
of the constitution of the state are quoted above. The provincial
statute of March 1, 1745, gave a justice of the peace jurisdiction
of actions to recover the sum of forty shillings and upwards, and
not exceeding five, and authorized any person aggrieved by his
judgment to appeal to the court of common pleas,
"first entering into recognizance, with at least one sufficient
security at least in double value of
Page 174 U. S. 24
the debt or damages sued for, and sufficient to answer all
costs, to prosecute the said appeal with effect, and to abide the
order of the said court, or in default thereof to be sent by
mittimus to the sheriff of the county, by him to be kept until he
shall give such security, or be otherwise legally discharged."
1 Dall.Laws Penn. 304, 307. The statute of April 5, 1785,
enlarged the summary jurisdiction of a justice of the peace to sums
not exceeding ten and, for the avowed purpose of conforming to the
Constitution of the state, gave an appeal to the court of common
pleas, upon the like terms as by the statute of 1745. And the
statute of March 11, 1789, conferred upon the aldermen of the City
of Philadelphia the jurisdiction of justices of the peace. 2
Dall.Laws Penn. 304, 305, 660. The statute of April 19, 1794,
extended the jurisdiction of justices of the peace, as well as of
the aldermen of Philadelphia, to demands not exceeding twenty, with
a right of appeal, after judgment, if the amount exceeded five, to
the court of common pleas, "in the same manner, and subject to all
other restrictions and provisions," as in the statute of 1745. 3
Dall.Laws Penn. 536-538. In support of a writ of certiorari to
quash a judgment for eleven pounds and six shillings rendered in
the Alderman's Court of Philadelphia upon default of the defendant,
if was argued
"that the Constitution, by directing that trial by jury should
be as heretofore, and the right thereof remain inviolate, had
interdicted the legislature from abolishing or abridging this right
in any case in which it had existed before the Constitution; that a
prohibition to do this directly was a prohibition to do it
indirectly, either by deferring the decision of a jury until one,
two, or more previous stages of the cause had been passed or by
clogging the resort to that tribunal by penalties of any kind,
either forfeiture of costs, security upon appeal, or delay; that
the power to obstruct at all implied the power to increase the
obstructions until the object became unattainable, and that, the
instant the enjoyment of the right was to be purchased by
sacrifices unknown before the Constitution, the right was violated,
and ceased to exist as before."
But the Supreme Court of Pennsylvania held that the statute of
1794 was a constitutional
Page 174 U. S. 25
regulation of judicial proceedings by legislative authority. 1
Binney 424, 428.
See also McDonald v. Schell (1820), 6 S.
& R. 240;
Biddle v. Commonwealth (1825), 13 S. &
R. 405, 410;
Haines v. Levin (1866), 51 Pa.St. 412.
Soon after the decision in
Emerick v. Harris, a similar
decision was made by the Supreme Court of North Carolina. In the
constitution of that state of 1776, it was declared that
"in all controversies at law respecting property, the ancient
mode of trial by jury is one of the best securities of the rights
of the people, and ought to remain sacred and inviolable."
2 Charters and Constitutions 1410. When that Constitution was
formed, justices of the peace had jurisdiction over sums of twenty
shillings and under. In 1803, the legislature extended their
jurisdiction to thirty pounds, "subject nevertheless to the right
of appeal, as in similar cases" -- a statute of 1794 having
provided that in all cases of appeals from the judgment of a
justice, the appellant's subscription and acknowledgment of the
security, attested by the justice
"shall be sufficient to bind the security to abide by and
perform the judgment of the court, and where judgment shall be
against the appellant, the same shall be entered on motion against
the security, and execution shall issue against the principal or
against both principal and security, at the option of the
plaintiff."
2 Martin's Laws of North Carolina pp. 60, 207. "The legislature
has," said the court,
"given to either party the right of appealing to a court, where
he will have the benefit of a trial by jury. It cannot therefore be
said that the right of such trial is taken away. So long as the
trial by jury is preserved through an appeal, the preliminary mode
of obtaining it may be varied at the will and pleasure of the
legislature. The party wishing to appeal may be subjected to some
inconvenience in getting security, but this inconvenience does not
in this, nor in any other case where security is required, amount
to a denial of right."
Keddie v. Moore (1811), 6 N.C. 41, 45, followed in
Wilson v. Simonton (1821), 8 N.C. 482.
The Constitution of Tennessee of 1796 declared that "the right
of trial by jury shall remain inviolate." 2 Charters and
Page 174 U. S. 26
Constitutions, 1674. At the time of the adoption of that
Constitution, as appears by the territorial statute of 1794, c. 1,
§§ 52, 54, justices of the peace had jurisdiction only of actions
for twenty dollars and under, and either party might appeal to the
county court,
"first giving security for prosecuting such appeal with effect,
which said appeal shall be tried and determined at the first court,
by a jury of good and lawful men, and determination thereon shall
be final."
The jurisdiction of a justice of the peace was extended by the
statute of 1801, c. 7, to fifty dollars, "subject, nevertheless, to
appeal by either party, to be tried in the county court by a jury,
as in other cases." And the statute of 1809, c. 63, provided that
an appeal from the judgment of a justice of the peace should not be
granted unless the appellant "enter into bond with good and
sufficient security, with a condition to prosecute said appeal,"
and that if the papers should not be returned to the clerk of the
county court at the return term, it should
"be lawful for the appellee, on the production of the papers in
the cause, to move for judgment against the appellant and his
securities for the amount of the debt and costs if he should have
been the original defendant, if not, for the amount of costs."
1 Scott's Laws of Tennessee, pp. 476, 695, 1166. The statute of
1831, c. 59, further extended the jurisdiction of a justice of the
peace to $100. Public Acts of Tennessee of 1831, p. 83. In a case
arising under the last statute, the Supreme Court of Tennessee,
while Chief Justice Catron (afterwards a justice of this Court) was
a member thereof, declared it to have been settled by a long series
of its decisions, beginning under the statute of 1801, that such a
statute was constitutional upon the ground that,
"inasmuch as the party was in all cases allowed his appeal, when
he could have a trial by jury, the right of trial by a jury was not
taken away, so that the terms of requiring bail or security for the
money belonged to the legislature to provide, and though the
security required in the cases of appeal differed from those cases
where the party was brought into court by original writ, still, as
it did not take away the right of trial by jury, the act was not
unconstitutional."
Morford v. Barnes (1835)
Page 174 U. S. 27
8 Yerg. 444, 446, followed in
Pryor v. Hays (1836), 9
Yerg. 416.
The Constitution of Connecticut of 1818, article 1, section 21,
likewise declared that "the right of trial by jury shall remain
inviolate." 1 Charters and Constitutions 259. At the time of its
adoption, the jurisdiction of justices of the peace in actions of
trespass was limited to fifteen dollars. In the Revised Laws of
1821, tit. 2, § 23, their jurisdiction was extended to thirty-five
dollars, but in demands for more than seven dollars, an appeal was
allowed to the county court, the appellant to
"give sufficient bond, with surety, to the adverse party, to
prosecute such appeal to effect, and to answer all damages in case
he make not his plea good."
The Supreme Court of Connecticut held the statute
constitutional, and Chief Justice Hosmer, in delivering judgment,
said:
"I admit that the trial by jury must continue unimpaired, and
shall not now dispute that there can be no enlargement of a
justice's jurisdiction, which shall take from any one the legal
power of having his cause heard by a jury, precisely as it might
have been before the Constitution was adopted. It is indisputable
that a justice of the peace is empowered to hear all causes
personally, and that he cannot try them by a jury. The question,
then, is brought to this narrow point -- whether the enlargement of
a justice's jurisdiction with the right of appeal, as it existed
when the Constitution was adopted, is a violation of the above
privilege secured by that instrument. I am clear that it is not,
and that a construction of this nature is equally unwarranted by
the words and by the intention of the Constitution. An instrument
remains inviolate if it is not infringed, and, by a violation of
the trial by jury I understand taking it away, prohibiting it, or
subjecting it to unreasonable and burdensome regulations which, if
they do not amount to a literal prohibition, are at least virtually
of that character. It never could be the intention of the
Constitution to tie up the hands of the legislature so that no
change of jurisdiction could be made and no regulation even of the
right of trial by jury could be had. It is sufficient, and within
the reasonable
Page 174 U. S. 28
intendment of that instrument if the trial by jury be not
impaired, although it may be subjected to new modes and even
rendered more expensive if the public interest demand such
alteration. A law containing arbitrary and unreasonable provisions,
made with the intention of annihilating or impairing the trial by
jury, would be subject to the same considerations as if the object
had been openly and directly pursued. But, on the other hand, every
reasonable regulation made by those who value this palladium of our
rights, and directed to the attainment of the public good, must not
be deemed inhibited because it increases the burden or expense of
the litigating parties. . . . In conclusion, I am satisfied that
the liberty of appeal preserves the right of trial by jury
inviolate, within the words and fair intendment of the
Constitution, and that no such unreasonable hardship is put on the
appellant, by the bond required for the prosecution of the appeal,
as to justify the assertion that the right of trial by jury is in
any manner impaired."
Beers v. Beers (1823), 4 Conn. 535, 538-540.
See
also Colt v. Eves (1837), 12 Conn. 243, 253;
Curtis v.
Gill (1867), 34 Conn. 49.
Before the adoption of the Constitution of the State of
Maryland, each of the statutes of the province "for the speedy
recovery of small debts out of court, before a single justice of
the peace" would appear to have restricted his civil jurisdiction
to claims for thirty-three shillings and four pence, as in the
statute of 1715, c. 12, or for fifty shillings, as in the statute
of 1763, c. 21. Bacon's Laws.
By the statute of the State of Maryland of 1791, c. 68, "for the
speedy recovery of small debts out of court," § 1, any one justice
of the peace of the county wherein the debtor resided was vested
with jurisdiction to try, hear, and determine "all cases where the
real debt and damages doth not exceed ten pounds current money" (or
twenty-six and two-thirds dollars),
"and, upon full hearing of the allegations and evidences of both
parties, to give judgment according to the laws of the land, and
the equity and right of the matter."
By § 6, his jurisdiction was made exclusive to that extent. By §
4,
"in all cases where the debt or demand doth exceed twenty
Page 174 U. S. 29
shillings common money [or two and two-thirds dollars], and
either plaintiff or defendant shall think him or herself aggrieved
by the judgment of any magistrate, he or she shall be at liberty to
appeal to the next county court, before the justices thereof, who
are hereby, upon the petition of the appellant, in a summary way,
empowered and directed to hear the allegations and proofs of both
parties, and determine upon the same according to the law of the
land, and the equity and right of the matter,"
and "either of the said parties may demand a trial by jury or
leave the cause to be determined by the court, at their election."
And by § 5, the appellant was required to give bond, with
sufficient sureties, in double the sum to be recovered, to
prosecute his appeal, and to pay the appellee
"in case the said judgment shall be affirmed, as well the debt,
damage and cost adjudged by the justice from whose judgment such
appeal shall be made, as also all cost and damage that shall be
awarded by the court before whom such appeal shall be heard, tried
and determined."
Latrobe's Justices' Practice (1st ed. 1826), pp. 56, 112, 360,
362; 2 Kilty's Laws.
By the statute of Maryland of 1809, c. 76, §§ 1, 6 (3 Kilty's
Laws), the exclusive original jurisdiction of justices of the peace
was extended to all cases where the real debt or damages demanded
did not exceed fifty dollars. And by the statute of Maryland of
1852, c. 239, their original jurisdiction was extended to all cases
of contract, tort, or replevin where the sum or damage or thing
demanded did not exceed one hundred dollars, with a right of appeal
to the county court, and was made concurrent with that of the
county court where it exceeded fifty dollars.
In
Stewart v. Baltimore (1855), 7 Md. 500, the Court of
Appeals of Maryland, speaking by Judge Eccleston, said:
"In the third section of the old bill of rights, it was declared
'that the inhabitants of Maryland are entitled to the common law of
England, and the trial by jury, according to the course of that
law.' Notwithstanding this, the legislature passed laws at
different times extending the jurisdiction of justices of the peace
in matters of contract and giving jurisdiction
Page 174 U. S. 30
in matters of tort where they had none previously. These laws,
of course, made no provision for trials by jury except on appeal to
the county courts, and yet they were constantly acquiesced in, and
not considered as being repugnant to the bill of rights."
The court then referred to
Morford v. Barnes, Beers v.
Beers, and
McDonald v. Schell, above cited, and
added:
"These cases fully establish the principle that where a law
secures a trial by jury upon an appeal, it is no violation of a
constitutional provision for guarding that right although such law
may provide for a primary trial without the intervention of a jury.
This is upon the ground that the party, if he thinks proper, can
have his case decided by a jury before it is finally settled."
7 Md. 511, 512.
To the like general effect are the following: Kentucky Stat.
January 30, 1812, §§ 4-6, 2 Morehead & Brown's Digest, pp. 893,
894;
Pollard v. Holeman (1816), 4 Bibb 416;
Head v.
Hughes (1818), 1 A. K. Marsh 372;
Feemster v.
Anderson (1828), 6 T. B. Monoe 537;
Steamboat Co. v.
Foster (1848), 5 Ga. 194, 208;
Lincoln v. Smith
(1855), 27 Vt. 328, 361;
Lamb v. Lane (1854), 4 Ohio St.
167, 180;
Norton v. McLeary (1858), 8 Ohio St. 205, 209;
Reckner v. Warner (1872), 22 Ohio St. 275, 292; Cooley,
Const.Lim. (6th ed.) 505; 1 Dill. Mun.Corp. (4th ed.) § 439.
6. When the District of Columbia passed under the exclusive
jurisdiction of the United States, the statute of Maryland of 1791,
c. 68, above quoted (having been continued in force by the statute
of that state of 1798, c. 71, 2 Kilty), was one of the laws in
force in the District.
The Act of Congress of February 27, 1801, c. 15, in § 1, enacted
that the laws in force in the State of Maryland as they then
existed should be and continue in force in that part of the
District which had been ceded by that state to the United States,
which, since the retrocession of the County of Alexandria to the
State of Virginia by the Act of Congress of July 9, 1846, c. 35, 9
Stat. 35, is the whole of the District of Columbia, and, in § 11,
provided for the appointment of "such number of discreet persons to
be justices of the peace" in the District of Columbia as the
President should think expedient,
Page 174 U. S. 31
who should continue in office five years and who should
"in all matters civil and criminal, and in whatever relates to
the conservation of the peace, have all the powers vested in, and
shall perform all the duties required of, justices of the peace, as
individual magistrates, by the laws hereinbefore continued in force
in those parts of said District for which they shall have been
respectively appointed, and they shall have cognizance in personal
demands of the value of twenty dollars, exclusive of costs, which
sum they shall not exceed, any law to the contrary
notwithstanding."
2 Stat. 104, 107.
In quoting the provisions of subsequent acts of Congress, the
reenactments of them in the corresponding sections of the Revised
Statutes of the District of Columbia will be referred to in
brackets.
On March 1, 1823, Congress took up the subject in the act of
1823, c. 24, entitled "An act to extend the jurisdiction of
justices of the peace in the recovery of debts in the District of
Columbia." 3 Stat. 743.
The first section of that act gave to any one justice of the
peace, of the county wherein the defendant resided, jurisdiction to
try, hear, and determine
"all cases where the real debt or damages do not exceed the sum
of fifty dollars, exclusive of costs, . . . and, upon full hearing
of the allegations and evidence of both parties, to give judgment,
according to the laws existing in the said District of Columbia,
and the equity and right of the matter, in the same manner and
under the same rules and regulations, to all intents and purposes,
as such justices of the peace are now authorized and empowered to
do when the debt and damages do not exceed the sum of twenty
dollars, exclusive of costs."
[Rev.Stat.D.C. §§ 997, 1006.] And, by section 6, the
jurisdiction of justices of the peace up to fifty dollars was made
exclusive. [Rev.Stat.D.C. § 769.] The reference in section 1 was
evidently to the Act of Congress of February 27, 1801, § 11, above
quoted, and §§ 1 and 6 of the act of 1823 followed, as to
jurisdictional amount, the statute of Maryland of 1809, c. 76, §§
1, 6.
Sections 3 and 4 of the act of Congress of 1823 made it the duty
of every justice of the peace to keep a docket containing
Page 174 U. S. 32
a record of his proceedings, and subjected him to damages to any
person injured by his neglect to keep one. [Rev.Stat.D.C. §§ 1000,
1001.] Those provisions were evidently taken from the statute of
Maryland of 1809, c. 76, §§ 4, 5. But they never were considered,
either in the State of Maryland or in the District of Columbia, as
making a justice of the peace a court of record.
By section 7 of the Act of Congress of 1823,
"in all cases where the debt or demand both exceed the sum of
five dollars, and either plaintiff or defendant shall think him or
herself aggrieved by the judgment of any justice of the peace, he
or she shall be at liberty to appeal to the next circuit court in
the county in which the said judgment shall have been rendered,
before the judges thereof, who are hereby, upon the petition of the
appellant, in a summary way, empowered and directed to hear the
allegations and proofs of both parties, and determine upon the same
according to law, and the equity and right of the matter; . . . and
either of the said parties may demand a trial by jury, or leave the
cause to be determined by the court, at their election."
[Rev.Stat. D.C. §§ 1027, 775. 776.] These provisions (increasing
the requisite sum, however, from twenty shillings, or two and
two-thirds dollars, to five dollars) were evidently copied from the
statute of Maryland of 1791, c. 68, § 4, above cited, and the
provision of § 5 of that statute, which required the appellant to
give bond, with sureties, to pay, if the judgment should be
affirmed, as well the sum and costs adjudged by the justice of the
peace as also those awarded by the appellate court, was not
repealed or modified by the Act of Congress of 1823, and appears to
have been considered as still in force in the District of Columbia.
Butt v. Stinger (1832), 4 Cranch C.C. 252.
The same act of 1823, for the first time in the legislation of
Congress, provided that actions might be tried by a jury before a
justice of the peace, as follows:
"SEC. 15. In every action to be brought by virtue of this act
where the sum demanded shall exceed twenty dollars, it shall be
lawful for either of the parties to the suit, after issue joined
and before the justice shall proceed to inquire into
Page 174 U. S. 33
the merits of the cause, to demand of the said justice that such
action be tried by a jury, and upon said demand, the said justice
is hereby required to issue a venire under his hand and seal,
directed to any constable of the county where said cause is to be
tried, commanding him to summon twelve jurors to be and appear
before the justice issuing such venire at such time and place as
shall be therein expressed, and the jurors thus summoned shall
possess the qualifications, and be subject to the exceptions, now
existing by law in the District of Columbia."
"SEC. 16. If any of the persons so summoned and returned as
jurors shall not appear, or be challenged and set aside, the
justice before whom said cause is to be tried shall direct the
constable to summon and return forthwith a
tales, each of
whom shall be subject to the same exceptions as the jurors
aforesaid, so as to make up the number of twelve, after all causes
of challenge are disposed of by the justice, and the said twelve
persons shall be the jury who shall try the cause, each of whom
shall be sworn by the justice well and truly to try the matter in
difference between the parties, and a true verdict to give,
according to evidence, and the said jury, being sworn, shall sit
together and hear the proofs and allegations of the parties, in
public, and when the same is gone through with, the justice shall
administer to the constable the following lowing oath,
viz.:"
"You do swear, that you will keep this jury together in some
private room, without meat or drink except water; that you will not
suffer any person to speak to them, nor will you speak to them
yourself, unless by order of the justice, until they have agreed on
their verdict."
"And when the jurors have agreed on their verdict, they shall
deliver the same publicly to the justice, who is hereby required to
give judgment forthwith thereon, and the said justice is hereby
authorized to issue execution on said judgment in the manner, and
under the limitations, hereinbefore directed."
3 Stat. 746. [Rev.Stat.D.C. §§ 1009-1017].
These sections, providing for a trial by a jury before the
justice of the peace, would appear, from their position in the act,
to have been added, by an afterthought, to the scheme of the
earlier sections, derived from the legislation of Maryland,
Page 174 U. S. 34
and providing for a trial without any jury before a justice of
the peace, and for a trial by jury, if demanded by either party, in
an appellate court, and were evidently taken, in great part
verbatim, from the twelfth section of the statute of New York of
1801, c. 165 (which gave justices of the peace jurisdiction of
actions in which the debt or damages did not exceed twenty-five
dollars), as modified by the twenty-second section of the statute
of New York of 1818, c. 94, which extended their civil jurisdiction
to fifty dollars. The material parts of both those statutes are
copied, for convenience of comparison, in the margin. [
Footnote 1]
Page 174 U. S. 35
The provisions of the New York statute of 1801 (copied in the
margin) were reenacted, almost word for word, in the statutes of
that State of 1808, c. 204, § 9, and of 1813, c. 53, § 9.
The New York statutes of 1801, 1808, and 1813, indeed, differed
from the act of Congress of 1823 in giving a justice of the peace
civil jurisdiction up to twenty-five dollars only, in authorizing
every action "brought by virtue of this act," without restriction
of amount, to be tried by a jury before a justice of the peace, in
providing for a jury of six, instead of a jury of twelve, men, and
in the mode of selecting the jury, but were construed to authorize
the justice of the peace (as the Act of Congress of 1823 afterwards
did in terms) to award a tales in case of a default of the jurors
summoned on the venire.
Zeely v. Yansen (1807), 2 Johns.
386.
The New York statute of 1818, however, like the Act of Congress
of 1823, extended the civil jurisdiction of a justice
Page 174 U. S. 36
of the peace to fifty dollars, and (in the section copied in the
margin) provided for a trial by a jury of twelve men before the
justice of the peace, although it differed from the act of Congress
in allowing such a trial to be had only when the sum demanded
exceeded twenty-five dollars, whereas the act of Congress allowed
it whenever the sum demanded exceeded twenty dollars.
The New York statute of 1801, also, in its first section,
differed from the act of Congress by expressly authorizing a
justice of the peace to hold a court, and vesting him with all the
powers of a court of record, and, in the twelfth section, by not
requiring the justice of the peace to give judgment "forthwith"
upon the verdict of the jury.
Yet under that statute, it was held by the supreme court of the
State of New York, in per curiam opinions, doubtless delivered by
Chancellor (then Chief Justice) Kent, and, before the passage of
the Act of Congress of 1823, was understood to be settled law in
that state that, upon a trial by a jury before a justice of the
peace (differing in these respects from a trial by jury in a
superior court), the jury were to decide both the law and the
facts, and the justice was bound to render judgment, as a thing of
course, upon the verdict of the jury, and had no authority to
arrest the judgment, or to order a new trial.
Felter v.
Mulliner (1807), 2 Johns. 181;
McNeil v. Scoffield
(1808), 2 Johns. 436;
Hess v. Beekman (1814), 11 Johns.
457; Cowen's Justice of the Peace (1st ed. 1821) 541, 544.
By a familiar canon of interpretation heretofore applied by this
Court whenever Congress, in legislating for the District of
Columbia, has borrowed from the statutes of a state provisions
which had received in that state a known and settled construction
before their enactment by Congress, that construction must be
deemed to have been adopted by Congress together with the text
which it expounded, and the provisions must be construed as they
were understood at the time in the state.
Metropolitan Railroad
v. Moore (1887),
121 U. S. 558,
121 U. S. 572;
Willis v. Eastern Trust Co. (1898),
169 U.
S. 295,
169 U. S.
307-308.
Page 174 U. S. 37
7. The questions of the validity and the effect of the act of
Congress of 1823 then present themselves in this aspect:
The Seventh Amendment to the Constitution of the United States
secures to either party to every suit at law in which the value in
controversy exceeds twenty dollars the right of trial by jury, and
forbids any such suit in which there has once been a trial by jury
within the sense of the common law and of the Constitution to be
tried anew upon the facts in any court of the United States.
Congress, when enlarging, by the Act of 1823 the exclusive
original jurisdiction of justices of the peace in the District of
Columbia from twenty dollars to fifty collars, manifestly intended
that the dictates of the Constitution should be fully carried out
in letter and spirit. With this object in view, Congress first
enacted that "in all cases" before a justice of the peace in which
the demand exceeded five dollars, either the plaintiff or the
defendant should have a right to appeal from the judgment of the
justice of the peace to the circuit court of the United States, and
either of the parties might elect to have "a trial by jury" in that
court. Congress also, by way of additional precaution, further
enacted that every case in which the sum demanded exceeded twenty
dollars should, if either party so requested, "be tried by a jury"
of twelve men before the justice of the peace.
In all acts of Congress regulating judicial proceedings, the
very word "appeal," unless restricted by the context, indicates
that the facts, as well as the law, involved in the judgment below,
may be reviewed in the appellate court.
Wiscart v.
Dauchy (1796), 3 Dall. 321, 327 [argument of
counsel -- omitted];
In re Neagle (1890),
135 U. S.
1,
135 U. S. 42;
Dower v. Richards (1894),
151 U.
S. 658,
151 U. S.
663-664.
By section 7 of the act of 1823, the right of appeal to a court
of record was expressly give
"in all cases where the debt or demand doth exceed the sum of
five dollars, and either plaintiff or defendant shall think him or
herself aggrieved by the judgment of any justice of the
Page 174 U. S. 38
peace."
The words "in all cases," in their natural meaning, include
cases which have been tried by a jury before the justice of the
peace as well as those tried by him without a jury, and we perceive
no necessity and no reason for restricting their application to the
latter class of cases, and thereby allowing the fact that, upon the
demand of one party, the case has been tried by a jury before the
justice of the peace, to prevent the other party from appealing to
a court of record, and obtaining a trial by jury in that court.
Neither the direction of section 1 that the justice of the peace
should give judgment "according to the laws existing in the
District of Columbia, and the equity and right of the matter," nor
the similar direction of section 7 that the case should be
determined on appeal "according to law, and the equity and right of
the matter," can reasonably be construed as conferring chancery
jurisdiction either upon the justice of the peace or upon the
appellate court, or as substituting the rules of technical equity
for the rules of law.
The trial by jury, allowed by the seventh section of the act, in
a court of record, in the presence of judge having the usual powers
of superintending the course of the trial, instructing the jury on
the law and advising them on the facts, and setting aside their
verdict, if, in his opinion, against the law or the evidence, was
undoubtedly a trial by jury in the sense of the common law and of
the Seventh Amendment to the Constitution.
But a trial by a jury before a justice of the peace, pursuant to
sections 15 and 16 of the act was of quite a different character.
Congress, in regulating this matter, might doubtless allow cases
within the original jurisdiction of a justice of the peace to be
tried and decided in the first instance by any specified number of
persons in his presence. But such persons, even if required to be
twelve in number and called a "jury," were rather in the nature of
special commissioners or referees. A justice of the peace, having
no other powers than those conferred by Congress on such an officer
in the District of Columbia, was not, properly speaking, a judge,
or his tribunal a court -- least of all a court of record. The
proceedings before him were not according to the course of the
common law. His authority was created and defined by, and
Page 174 U. S. 39
rested upon, the acts of Congress only. The Act of 1823, in
permitting cases before him to be tried by a jury, did not require
him to superintend the course of the trial or to instruct the jury
in matter of law, nor did it authorize him, upon the return of
their verdict, to arrest judgment upon it or to set it aside for
any cause whatever, but made it his duty to enter judgment upon it
forthwith, as a thing of course. A body of men so free from
judicial control was not a common law jury; nor was a trial by them
a trial by jury within the meaning of the Seventh Amendment to the
Constitution. It was no more a jury in the constitutional sense
than it would have been if it had consisted, as has been more usual
in statutes authorizing trials by a jury before a justice of the
peace, of less than twelve men.
There was nothing, therefore, either in the Constitution of the
United States or in the act of Congress to prevent facts, once
tried by such a jury before the justice of the peace, from being
tried anew by a constitutional jury in the appellate court.
8. The majority of the Court of Appeals, in the case at bar, in
holding that no appeal lay from a judgment entered by a justice of
the peace on a verdict in the District of Columbia, appears to have
been much influenced by the practice, which it declared to have
prevailed in the District for seventy years in accordance with
decisions made by the circuit court of the United States of the
District of Columbia soon after the passage of the act of Congress
of 1823. But the reasons assigned for those decisions are
unsatisfactory and inconclusive.
Such decisions indeed were made by the circuit court in several
early cases.
Davidson v. Burr (1824), 2 Cranch C.C. 515;
Maddox v. Stewart (1824), 2 Cranch C.C. 523;
Denny v.
Queen (1827), 3 Cranch C.C. 217;
Smith v. Chase
(1828), 3 Cranch C.C. 348. Yet the appellant in one of those cases,
whose appeal had been dismissed as unauthorized by law, was
notwithstanding held liable on his bond to prosecute the appeal.
Chase v. Smith (1830), 4 Cranch C.C. 90.
The decisions in question would appear, by the brief notes
Page 174 U. S. 40
of them in the reports of Chief Justice Cranch to have proceeded
upon the assumption that the trial before a justice of the peace by
a jury impaneled pursuant to the Act of 1823, was a trial by jury,
within the meaning of the Seventh Amendment to the Constitution,
and therefore the facts could not be tried anew upon appeal. In
Smith v. Chase, however, that learned judge (declaring
that he spoke for himself only) delivered an elaborate opinion in
which he maintained the position that, upon the demand of a trial
by a jury, the cause was taken entirely out of the hands of the
justice of the peace; that he was obliged to summon and swear the
jury, and to render judgment according to their verdict; that no
authority was given him to instruct the jury upon matter of law or
of fact or to set aside their verdict and grant a new trial, and
that the jury were not bound by his opinion upon matter of law, but
were to decide the law as well as the fact. 3 Cranch C.C. 351, 352.
From these premises, he inferred (by what train of reasoning does
not clearly appear) that such a trial by a jury before the justice
of the peace was a trial by jury within the meaning of the Seventh
Amendment to the Constitution, that the facts so tried therefore
could not be tried anew in an appellate court, and that no appeal
lay in such a case. Curiously enough, that opinion, purporting to
have been delivered at December term, 1828, refers to the opinion
of this Court in
Parsons v.
Bedford, 3 Pet. 446,
28 U. S. 448,
which was not delivered until January term, 1830.
In 1863, all the powers and jurisdiction previously possessed by
the circuit court of the District, including the appellate
jurisdiction from justices of the peace, were transferred by
Congress to the Supreme Court of the District of Columbia. Act
March 3, 1863, c. 91, §§ 1, 3, 12; 12 Stat. 762-764 [Rev.Stat. D.C.
§§ 760, 1027].
The foregoing decisions of the circuit court were followed in
the Supreme Court of the District at general term in 1873, without
much discussion, in
Fitzgerald v. Leisman, 3 McArthur 6,
and at special term in 1896, by Justice Bradley, in
Brightwood
Railway v. O'Neal, 24 Wash.Law Rep. 406, and by Justice Cox in
the present case.
Traction
Page 174 U. S. 41
Co. v. Hof, 24 Wash.Law Rep. 646. But each of these two
judges, while holding himself bound by the previous decisions of
the courts of the District, expressed a clear and positive opinion
that they were erroneous.
Apart from the inconsistencies in the opinions delivered in the
courts of the District of Columbia, it is quite clear that the
decisions of those courts, especially when they involve questions
of the interpretation of the Constitution of the United States and
of the constitutionality and effect of acts of Congress, cannot be
considered as establishing the law or as relieving this Court from
the responsibility of exercising its own judgment.
Ex Parte
Wilson (1885),
114 U. S. 417,
114 U. S. 425;
Andrews v. Hovey (1888),
124 U. S. 694,
124 U. S. 717;
The J. E. Rumbell (1893)
148 U. S. 1,
148 U. S. 17.
9. The legislation of Congress since the act of 1823 has not
changed the character of the office, or the nature of the powers,
of the justices of the peace in the District of Columbia, or of the
juries summoned to try cases before those justices. The principal
changes have been by enlarging the limits of the civil jurisdiction
of the justices of the peace, and by expressly requiring security
on appeals from their judgments.
By the Act of February 22, 1867, c. 63, § 1, 14 Stat. 401,
Congress enlarged the jurisdiction of justices of the peace in the
District of Columbia to
"all cases where the amount claimed to be due for debt or
damages arising out of contracts, express or implied, or damages
for wrongs or injuries to persons or property, does not exceed one
hundred dollars, except in cases involving the title to real
estate, actions to recover damages for assault, or assault and
battery, or for malicious prosecution, or actions against justices
of the peace or other officers for misconduct in office, or in
actions for slander, verbal or written."
[Rev.Stat. D.C. § 997.] And on the same day, Congress, by the
Act of 1867, c. 64, 14 Stat. 403, provided that
"no appeal shall be allowed from a judgment of a justice of the
peace unless the appellant, with sufficient surety or sureties,
approved by the justice, enter into an undertaking to satisfy and
pay all intervening damages and costs arising on the appeal,"
and that,
"when such
Page 174 U. S. 42
undertaking has been entered into, the justice shall immediately
file the original papers, including a copy of his docket entries,
in the office of the clerk of the Supreme Court of the District of
Columbia, and thereupon, as soon as the appellant shall have made
the deposit for costs required by law, or obtained leave from one
of the justices, or from the court, to prosecute his appeal without
a deposit, the clerk shall docket the cause,"
and it should be proceeded with substantially in the manner
prescribed by the act of Congress of 1823. [Rev.Stat. D.C. §§
1027-1029, 1029, 774.]
In 1874, the provisions above quoted of the acts of 1823 and
1867 were reenacted, with hardly any change, except by subdividing
and transposing §§, in the Revised Statutes of the District of
Columbia at the places above referred to in brackets.
By the Act of February 19, 1895, c. 100, §§ 1, 2, justices of
the peace of the District of Columbia have been granted (with the
same exceptions as in the Act of February 22, 1867, c. 63, also
excepting, however, actions for damages for breaches of promise to
marry, and not excepting actions for assault or for assault and
battery) exclusive original jurisdiction of
"all civil pleas and actions, including attachment and replevin,
where the amount claimed to be due or the value of the property
sought to be recovered does not exceed"
one hundred dollars, and concurrent original jurisdiction with
the Supreme Court of the District of Columbia where it is more than
one hundred and not more than three hundred dollars, "and where the
sum claimed exceeds twenty dollars, either party shall be entitled
to a trial by jury." And, by § 3,
"no appeal shall be allowed from the judgment of a justice of
the peace in any common law action unless the matter in demand in
such action, or pleaded in setoff thereto, shall exceed the sum of
five dollars, nor unless the appellant, with sufficient surety
approved by the justice, enters into an undertaking to pay and
satisfy whatever final judgment may be recovered in the appellate
court."
28 Stat. 668.
Under the act of 1895, as under the previous acts of Congress,
where the matter in controversy exceeds five dollars in value, an
appeal lies to a court of record from any judgment
Page 174 U. S. 43
of a justice of the peace, whether rendered upon a verdict or
not, and either party may have a trial by a common law jury in the
appellate court, and the trial by jury in that court is, and the
trial before a justice of the peace is not, a trial by jury, within
the meaning of the Seventh Amendment to the Constitution.
The only question remaining to be considered is of the
constitutionality of the provisions of the act of 1895, by which
the civil jurisdiction of justices of the peace is extended to
three hundred dollars, and either party, on appealing from the
judgment of the justice of the peace to the Supreme Court of the
District of Columbia, is required to enter into an undertaking to
pay and satisfy whatever judgment may be rendered in that
court.
For half a century and more, as has been seen, after he adoption
of the earliest constitutions of the several states, their courts
uniformly maintained the constitutionality of statutes more than
doubling the pecuniary limit of the civil jurisdiction of justices
of the peace as it stood before the adoption of constitutions
declaring that trial by jury should be preserved inviolate,
although those statutes made no provision for a trial by jury,
except upon appeal from the judgment of the justice of the peace,
and upon giving bond with surety to pay the judgment of the
appellate court. And such appears to have been understood to be the
law of Maryland and of the District of Columbia before and at the
time of the passage of the Act of Congress of 1823.
Legislation increasing the civil jurisdiction of justices of the
peace to two or three hundred dollars, and requiring each appellant
from the judgment of a justice of the peace to a court of record,
in which a trial by jury may be had for the first time, to give
security for the payment of the judgment of the court appealed to,
has not generally been considered as unreasonably obstructing the
right of trial by jury, as is shown by the numerous statutes cited
in the margin, [
Footnote 2]
Page 174 U. S. 44
from which it appears that the civil jurisdiction of justices of
the peace has been increased to three hundred dollars in
Pennsylvania, Ohio, Michigan, Kansas, Arkansas, Colorado, and
California, to two hundred and fifty dollars in Missouri, and to
two hundred dollars in New York, Indiana, Illinois, Wisconsin,
Delaware, North Carolina, Mississippi, and Texas, and that the
appellant is required (at least when the appeal is to operate as a
supersedeas) to enter into a bond or recognizance not only to
prosecute his appeal, but to pay the judgment of the appellate
court, in all those states except Pennsylvania, and in that state
any corporation, except a municipal corporation, is required to
give such a bond, but other appellants are required to give bond
for the payment of costs only. And we have not been referred to a
single decision in any of those states that holds such a statute to
be unconstitutional in any respect.
The legislature, in distributing the judicial power between
courts of record, on the one hand, and justices of the peace or
other subordinate magistrates, on the other, with a view to prevent
unnecessary delay and unreasonable expense, must have a
considerable discretion whenever, in its opinion, because
Page 174 U. S. 45
of general increase in litigation, or other change of
circumstances, the interest and convenience of the public require
it, to enlarge within reasonable bounds the pecuniary amounts of
the classes of claims entrusted in the first instance to the
decision of justices of the peace, provided always, the right of
trial by jury is not taken away in any case in which it is secured
by the Constitution.
Having regard to the principles and to the precedents applicable
to this subject, we should not be warranted in declaring that the
Act of Congress of 1895 so unreasonably obstructs the right of
trial by jury that it must for this reason be held to be
unconstitutional and void.
10. Upon the whole matter, our conclusion is that Congress, in
the exercise of its general and exclusive power of legislation over
the District of Columbia, may provide for the trial of civil causes
of moderate amount by a justice of the peace, or, in his presence,
by a jury of twelve, or of any less number, allowing to either
party, where the value in controversy exceeds twenty dollars, the
right to appeal from the judgment of the justice of the peace to a
court of record, and to have a trial by jury in that court; that
Congress, in every case where the value in controversy exceeds five
dollars, has authorized either party o appeal from the judgment of
the justice of the peace, although entered upon the verdict of a
jury, to the Supreme Court of the District of Columbia, and to have
a trial by jury in that court; that the trial by a jury of twelve,
as permitted by Congress to be had before a justice of the peace,
is not, and the trial by jury in the appellate court is, a trial by
jury, within the meaning of the common law and of the Seventh
Amendment to the Constitution; that therefore the trial of facts by
a jury before the justice of the peace does not prevent those facts
from being reexamined by a jury in the appellate court; that the
right of trial by jury in the appellate court is not unduly
obstructed by the provisions enlarging the civil jurisdiction of
justices of the peace to three hundred dollars, and requiring every
appellant to give security to pay and satisfy the judgment of the
appellate court; that the legislation of Congress upon the subject
is in all respects consistent
Page 174 U. S. 46
with the Constitution of the United States, and that, upon these
grounds (which are substantially those taken by Chief Justice Alvey
below) the judgment of the Court of Appeals quashing the writ of
certiorari to the justice of the peace must be affirmed.
The effect of so affirming that judgment will be to leave the
claim of Hof against the Capital Traction Company open to be tried
by a jury before the justice of the peace, and, after his judgment
upon their verdict, to be taken by appeal to the Supreme Court of
the District of Columbia, and to be there tried by jury on the
demand of either party.
Judgment affirmed.
MR. JUSTICE BREWER concurred in the judgment of affirmance, but
dissented from so much of the opinion as upheld the validity of the
provision of the act of Congress requiring every appellant from the
judgment of a justice of the peace to give bond, with surety, for
the payment of the judgment of the appellate court.
MR. JUSTICE BROWN did not sit in this case, or take any part in
its decision.
[
Footnote 1]
"In every action to be brought by virtue of this act, it shall
be lawful for either of the parties to the suit, or the attorney of
either of them, after issue joined and before the court shall
proceed to inquire into the merits of the cause, to demand of the
said court that such action be tried by a jury, and upon such
demand the said justice holding such court is hereby required to
issue a venire, directed to any constable of the city or town where
the said cause is to be tried, commanding him to summon twelve good
and lawful men, being freeholders or freemen of such city, or being
freeholders of such town, where said cause is to be tried, and who
shall be in nowise of kin to the plaintiff or defendant, nor
interested in such suit, to be and appear before such justice
issuing such venire at such time and place as shall be expressed in
such venire, to make a jury for trial of the action between the
parties mentioned in the said venire. [It is then provided that the
names of the jurors so summoned shall be written on separate papers
and put into a box.] And on the trial of such cause, such justice
or such indifferent person as he shall appoint for that purpose
shall draw out six of the said papers one after another, and if any
of the persons whose names shall be so drawn shall not appear or
shall be challenged and set aside, then such further number thereof
shall be drawn as shall make up the number of six who do appear,
after all legal causes of challenge allowed by the said justice,
unless the said parties agree that the said constable shall summon
six men at his discretion, and the said six persons so first drawn
and appearing, and approved by the court as indifferent, shall be
the jury who shall try the cause, to each of whom the said justice
shall administer the following lowing oath:"
"You do swear in the presence of Almighty God that you will well
and truly try the matter in difference between ___ plaintiff and
___ defendant, and a true verdict will give according to
evidence."
"And after the said jury have taken the oath aforesaid, they
shall sit together, and hear the several proofs and allegations of
the parties, which shall be delivered in public in their presence.
[Provision is then made for the form of oath to be administered to
witnesses.] And after hearing the proofs and allegations, the jury
shall be kept together in some convenient place until they all
agree upon a verdict, and for which purpose a constable shall be
sworn, and to whom the said justice shall administer the following
oath,
viz.,"
"You do swear in the presence of Almighty God, that you will, to
the utmost of your ability, keep every person sworn on this inquest
together in some private and convenient place, without meat or
drink, except water; you will not suffer any person to speak to
them nor speak to them yourself, unless by order of the justice,
unless it be to ask them whether they have agreed on their verdict,
until they have agreed on their verdict."
"And when the jurors have agreed on their verdict, they shall
deliver the same to the justice in the same court, who is hereby
required to give judgment thereupon, and to award execution in
manner hereafter directed."
N.Y.Stat. 1801, c. 165, § 12.
"In every action to be brought by virtue of this act wherein the
sum or balance due or thing demanded shall exceed twenty-five
dollars, if either of the parties, the agent or attorney of either
of them, after issue joined and before the court shall proceed to
inquire into the merits of the cause, shall demand of the court
that such action be tried by a jury and that such jury shall
consist of twelve men, the venire to be issued shall in every such
case require twenty good and lawful men to be summoned as jurors,
and the jury for the trial of every such issue shall in such cases
consist of twelve men, instead of six, as in other cases of trial
before a justice, and the provisions in the ninth and tenth
sections of the act above mentioned [of 1813, c. 53, reenacting the
statute of 1801, c. 165, §§ 12, 13] shall be followed, and shall be
deemed to apply in every other respect."
N.Y.Stat. 1818, c. 94, § 22.
[
Footnote 2]
Arkansas. Digest 1894, §§ 4317, 4431, 4432.
California. Code of Civil Procedure 1872, §§ 114, 974, 978.
Colorado. Rev.Stat. 1867, c. 50, §§ 1, 38, 39; Gen.Laws 1877, §§
1482, 1519, 1520; Gen. St. 1883, §§ 1924, 1979, 1980.
Delaware. Rev.Stat. 1893, c. 99, §§ 1, 25.
Illinois. Rev.Stat. 1874, c. 79, §§ 13, 62; Starr & Curtis'
Stat. 1896, c. 79, §§ 16, 115.
Indiana. Rev.Stat. 1881, §§ 1433, 1500.
Kansas. Gen. St. 1868, c. 81, §§ 2, 121; Gen.Stat. 1897, c. 103,
§§ 20, 188.
Michigan. Rev.Stat. 1872, §§ 5249, 5433; Howell's Stat. 1882, §§
6814, 7000.
Mississippi. Code 1892, §§ 82, 2394.
Missouri. Rev.Stat. 1889, §§ 6122, 6328.
New York. St. 1861, c. 158; Rev.Stat. 1875 (6th ed.) pt. 3, tit.
2, § 56; tit. 4, § 53.
North Carolina. Code 1883, §§ 834, 884.
Ohio. Rev.Stat. 1880, §§ 585, 6584.
Pennsylvania. Stat. July 7, 1879, c. 211; Purdon's Digest 1885
(11th ed.) "Justice of the Peace," §§ 35, 99, 100.
Texas. Rev.Stat. 1879, §§ 1539, 1639; Rev.Stat. 1895, §§ 1568,
1670.
Wisconsin. Rev.Stat. 1878, §§ 3572, 3756; Rev.Stat. 1898, §§
3572, 3760.