This action was instituted in the District Court of the United
States for the Eastern District of Louisiana according to the forms
and proceedings, adopted and practiced in the courts of that state.
The cause was tried by a special jury, and a verdict was tendered
for the plaintiff. On the trial, the counsel for the defendant
moved the court to direct the clerk of the court to take down in
writing the testimony o� the witnesses examined in the cause, that
the same might appear on record, such being the practice of the
state courts of Louisiana, and which practice the counsel for the
defendant insisted was to prevail in the courts of the United
States, according to the Act of Congress of 26 May, 1824, which
provides that the mode of proceeding in civil causes in the courts
of the United States established in Louisiana, shall be conformable
to the laws directing the practice in the district court of the
state, subject to such alterations as the judges of the courts of
the United States should establish by rules. The court refused to
make the order or to permit the testimony to be put down in
writing, the judge expressing the opinion that the courts of the
United States are not governed by the practice of the courts of the
State of Louisiana. The defendant moved for a new trial, and the
motion being overruled, and judgment entered for the plaintiff on
the verdict, the defendant brought a writ of error to this
Court.
Under the laws of Louisiana, on the trial of a cause before a
jury, if either party desires it, the verbal evidence is to be
taken down in writing by the clerk, to be sent to the supreme court
to serve as a statement of facts in case of appeal, and the written
evidence produced on the trial is to be filed with the proceedings.
This is done to enable the appellate court to exercise the power of
granting a new trial and of revising the judgment of the inferior
court.
Held that the refusal of the judge of the district
court of the United States to permit the evidence to be put in
writing could not be assigned for error in this Court, the cause
having been tried in the court below and a verdict given on the
facts by a jury; if the same had been put in writing and been sent
up to this Court with the record, this Court, proceeding under the
Constitution of the United States and of the amendment thereto
which declares "no fact once tried by a jury shall be otherwise
reexaminable in any court of the United States than according to
the rules of the common law," is not competent to redress any error
by granting a new trial.
The proviso in the Act of Congress of 26 May, 1824, ch. 181,
demonstrates that it was not the intention of Congress to give an
absolute and imperative force to the state modes of proceeding in
civil causes in Louisiana in the courts of the United States, for
it authorizes the judge to modify them so as to adapt them to the
organization of his own courts, and it further demonstrates that no
absolute repeal was intended of the antecedent modes of proceeding
authorized in the United States courts under former acts of
Congress; for it
Page 28 U. S. 434
leaves the judge at liberty to make rules by which discrepancy
between the state laws and the laws of the United States may be
avoided.
The act of Congress having made the practice of the state courts
the rule for the courts of the United States in Louisiana, the
district court of the United States in that district is bound to
follow the practice of the state unless that court had adopted a
rule superseding the practice.
Generally speaking, matters of practice in inferior courts do
not constitute subjects upon which errors can be assigned in the
appellate court.
The trial by jury is justly dear to the American people. It has
always been an object of deep interest and solicitude, and every
encroachment upon it has been watched with great jealousy. The
right to such a trial is, it is believed, incorporated into and
secured in every state constitution in the Union.
By "common law," the framers of the Constitution of the United
States meant what the Constitution denominated in the third
article, "law," not merely suits which the common law recognized
among its old and settled proceedings, but suits in which legal
rights were to be ascertained and determined, in contradistinction
to those where equitable rights alone were regarded, and equitable
remedies were administered, or where, as in the admiralty, a
mixture of public law and of maritime law and equity was often
found in the same suit.
The amendment to the Constitution of the United States by which
the trial by jury was secured may in a just sense, be well
construed to embrace all suits which are not of equity or admiralty
jurisdiction, whatever may be the peculiar form which they may
assume to settle legal rights.
It was not the intention of Congress by the general language of
the act of 1824 to alter the appellate jurisdiction of this Court
and to confer on it the power of granting a new trial by a
reexamination of the facts tried by a jury, and to enable it, after
trial by jury, to do that, in respect to the courts of the United
States sitting in Louisiana, which is denied to such courts sitting
in all the other states of the union.
No court ought, unless the terms of an act of Congress render it
unavoidable, to give a construction to the act which should,
however unintentional, involve a violation of the Constitution. The
terms of the act of 1824 may well be satisfied by limiting its
operation to modes of practice and proceeding in the courts below,
without changing the effect or conclusiveness of the verdict of a
jury upon the facts litigated on the trial. The party may bring the
facts into review before the appellate court, so far as they bear
upon questions of law, by a bill of exceptions. If there be any
mistake of the facts, the court below is competent to redress it by
granting a new trial.
This suit was originally brought in the Parish Court of New
Orleans by the defendants in error by a petition for an attachment
against the property of the defendant in the suit, and was removed
into the District Court of the United States for the Eastern
District of Louisiana, the defendant being a citizen of the State
of Massachusetts.
The object of the suit was the recovery of the amount of certain
sales of tobacco made by the plaintiffs to a certain
Page 28 U. S. 435
Eben Fiske, represented in the petition to be the agent and
factor of the defendant, and for which he drew bills of exchange on
the defendant, and which bills were refused acceptance and payment.
After an answer had been filed, the case was submitted to a special
jury and a verdict was rendered for the plaintiffs for $6,414.
The proceedings in the case were instituted and conducted
according to the laws of Louisiana, which conform in a great degree
to the principles and practice of the civil law.
On the trial, the plaintiffs produced the bills of exchange
mentioned in the petition, and many letters written by the
defendant to Fiske. The defendant introduced as testimony other
letters written as above, and also the record of a suit brought by
the plaintiffs against Fiske on the same bills in which they charge
on oath that the sale was made to Fiske and that he was their
debtor, all which written testimony was, according to the practice
of the state courts, filed in court and forms part of the
record.
The plaintiffs also produced Fiske as a witness to prove that he
acted only as agent for the defendant, and to make him a witness,
gave a full release of all claims on him. He was objected to, but
the court overruled the objection and a bill of exceptions was
tendered and signed.
By the twelfth section of an Act of the General Assembly of
Louisiana passed 20 July, 1817, entitled an act "to amend the
several acts passed to organize the court of the state, and for
other purposes," it is among other things enacted
"That when any cause shall be submitted to a jury to be tried,
the verbal evidence shall, in all cases where an appeal lies to the
supreme court, if either party require it, and at the time when the
witnesses shall be examined, be taken down in writing by the clerk
of the court in order to be sent up to the supreme court to serve
as a statement of facts in case of appeal, and the written evidence
produced by both parties shall be filed with the proceedings."
By a law of the United States passed 26 May, 1824, the mode of
practice pursued in the state courts is directed to be followed in
the courts of the United States in Louisiana.
Page 28 U. S. 436
Under the provisions of these laws, the defendant applied to the
court to direct the clerk to take down the verbal proof offered in
the cause or to suffer his counsel, the counsel of the plaintiffs,
or the witnesses to take it down, which the judge refused to do,
whereupon a bill of exceptions was tendered and signed.
A motion was made for a new trial which was overruled, and a
judgment was entered for the amount of the verdict. This writ of
error was then prosecuted.
The plaintiff in error contended:
1. That from the facts apparent on the record, the plaintiffs
had no right of action against the defendant, and that therefore
this Court will decree a judgment to be entered in favor of the
defendant.
2. The Court will at least reverse this judgment and award a new
trial for one or all of the following reasons:
1. Because the court refused the evidence to be put upon the
record.
2. Because the whole question was a question of law, and the
decision was against law.
3. It is not, strictly, a common law proceeding, but a
proceeding under the peculiar system of Louisiana, and according to
that system the court has power to reverse the judgment under
circumstances which would not given it that power when the trial
had been according to the common law.
Page 28 U. S. 441
MR. JUSTICE STORY delivered the opinion of the Court.
The facts disclosed on the record are substantially as
follows:
The suit was originally commenced by an attachment, brought in
the Parish Court of New Orleans and removed on the petition of
defendant into the District Court of the United States for the
Eastern District of Louisiana, the plaintiffs being citizens of
Louisiana and the defendant a citizen of Massachusetts.
The petition of the plaintiffs set out the ground of their
action to be certain sales of tobacco made by them to one Eben
Fiske as the factor and agent of the defendant and for his account
at New Orleans in June and July, 1825, and certain bills of
exchange drawn in their favor by Fiske at New Orleans on the
defendant at Boston at several dates from 2 to 20 July, 1825, for
the amounts of such sales. The defendant's answer (filed in the
district court after the removal of the cause from the parish
court) contains a general traverse of the allegations of the
plaintiffs' petition, and tenders an issue tantamount to the
general issue of
nil debet. The answer concludes with a
petition of reconvention for $10,000 damages. Upon this issue the
cause was tried in the district court by consent of parties before
a special jury in March, 1826, and a verdict passed against the
defendant, who moved the court for a new trial, which motion was
overruled by the court, and final judgment rendered on the verdict
against the defendant, who thereupon sued out this writ of error.
The record presents two bills of exceptions on the part of the
defendant, now plaintiff in error.
First bill of exceptions.
"Fiske, having first received from the plaintiffs a full and
absolute release (which recites that the plaintiffs had dealt with
him as the factor and agent of the defendant, and upon the credit
and responsibility of the latter alone) from all liability to them
on the contract of sale and as drawer of the bills, was produced as
a witness on the part of the plaintiffs to prove that he had
purchased the
Page 28 U. S. 442
tobacco as agent for the defendant. An objection on the part of
the defendant to the competency of Fiske on the ground of interest
was overruled by the court."
Second bill of exception.
"The defendant moved the court to direct the clerk of the court
to take down in writing the testimony of the several witnesses
examined by the respective parties in order that the same might
appear of record, such being the practice of the several courts of
the State of Louisiana according to the constitution and laws
thereof and such being the rule of practice, in the opinion of the
counsel for defendant, to be pursued in this Court according to the
Act of Congress of 26 May, 1824. But the clerk refused, &c.,
and the court refused to order the clerk to write down the same or
to permit the witnesses themselves, the counsel for either of the
parties, or any other person to write down such testimony, the
court expressing the opinion that the court of the United States is
not governed by the practice of the courts of the State of
Louisiana."
No charge or advice whatever was given or asked from the court
to the jury on any matter of law or fact in the case, nor was any
question whatever raised of the competency or admissibility of such
evidence other than the specific exception before taken to the
competency of Fiske on the sole objection of interest, the
substance of the facts proved by him being in no manner drawn in
question before the court.
The record sets out all the documentary evidence, all of which
appears to have been admitted by both parties. This consists of the
protested bills above mentioned, with an admission upon the record
by the defendant that they had been regularly returned under
protest to the plaintiffs and that plaintiffs were, at the time the
suit was commenced, the holders and owners of the same and of a
series of defendant's letters to his agent Fiske, from 26 March,
1823 to 10 August, 1825, containing evidence that Fiske, during all
that time, was settled at New Orleans and was the factor and agent
of the defendant, there to receive shipments of cargoes from Boston
for the New Orleans market and to purchase and ship from the latter
place to the
Page 28 U. S. 443
defendant at Boston cargoes of cotton and tobacco for which he
was authorized to draw bills on Parsons at Boston.
Upon the argument in this Court, the first bill of exceptions
has been abandoned as untenable, and in our judgment upon sound
reasons.
The second bill of exceptions is that upon which the Court is
now called upon to deliver its opinion.
By the Act of Louisiana of 28 January, 1817, section 10, it is
provided
"That in every case to be tried by a jury, if one of the parties
demands that the facts set forth in the petition and answer should
be submitted to the jury to have a special verdict thereon, both
parties shall proceed, before the swearing of the jury to make a
written statement of the facts so alleged and denied, the
pertinency of which statement shall be judged of by the court and
signed by the judge, and the jury shall be sworn to decide the
question of fact or facts so alleged and denied, and its verdict or
opinion thereof shall be unanimously given in open court, . . . and
be conclusive between the parties as to the facts in said cause, as
well in the court where the said cause is tried, as on the appeal,
and the court shall render judgment, provided that the jury so
sworn shall be prohibited to give any general verdict in the case,
but only a special one on the facts submitted to them."
This section points out the mode of obtaining a special verdict
in the sense of the common law. The twelfth section then provides
that when any cause shall be submitted to the court or to a jury
without statements of facts, as is provided in the tenth section of
the act, the verbal evidence shall in all cases where an appeal
lies to the supreme court of the state, if either party requires
it, and at the time when the witnesses shall be examined, be taken
down in writing by the clerk of the court in order to be sent up to
the supreme court, to serve as a statement of facts in case of
appeal, and the written evidence produced on the trial shall be
filed with the proceedings &c. The object of this section is
asserted to be to enable the appellate court in cases of general
verdicts, as well as of submissions to the court, to exercise the
power of granting a new trial and revising the judgment of the
inferior court.
Page 28 U. S. 444
It seems to be a substitute for the report of the judge who sat
as the trial in the ordinary course of proceedings at the common
law.
Of itself, the course of proceeding under the state law of
Louisiana could not have any intrinsic force or obligation in the
courts of the United States organized in that state, but by the Act
of Congress of 26 May, 1824, ch. 181, it is provided
"That the mode of proceeding in civil causes in the courts of
the United States that now are or hereafter may be established in
the State of Louisiana shall be conformable to the laws directing
the mode of practice in the district courts of the said states,
provided, that the judge of any such court of the United States may
alter the times limited or allowed for different proceedings in the
state courts and make by rule such other provisions as may be
necessary to adapt the laws of procedure to the organization of
such court of the United States and to avoid any discrepancy, if
any such should exist, between such state laws and the laws of the
United States."
This proviso demonstrates that it was not the intention of
Congress to given an absolute and imperative force to the modes of
proceeding in civil causes in Louisiana in the court of the United
States, for it authorizes the judge to modify them so as to adapt
them to the organization of his own court. It further demonstrates
that no absolute repeal was intended of the antecedent modes of
proceeding authorized in the courts under the former acts of
Congress, for it leaves the judge at liberty to make rules by which
to avoid any discrepancy between the state laws and the laws of the
United States, and what is material to be observed, there is no
clause in the act pointing in the slightest manner to any
intentional change of the mode in which the Supreme Court of the
United States is to exercise its appellate power in causes tried by
jury, and coming from the courts of the United States in Louisiana
or giving it authority to revise the judgments thereof in any
matters of fact beyond what the existing laws of the United States
authorized.
Whether the District Court in Louisiana had adopted any rules on
this subject so as to modify or suspend the operation
Page 28 U. S. 445
of the Louisiana state practice in relation to the taking down
the verbal testimony of witnesses, does not appear upon this
record. The court expressed an opinion "that the court of the
United States is not governed by the practice of the courts of the
State of Louisiana," and this would be correct if, in the
particular complained of, the court had adopted any rule
superseding that practice. If no such rule had been adopted, the
act of Congress made the practice of the state the rule for the
court of the United States. Unless, then, such a special rule
existed, the court was bound to follow the general enactment of
Congress on the subject and pursue the state practice.
But admitting that the decision of the court below was wrong and
that the party was entitled to have his testimony taken down in the
manner prayed for, still it is important to consider whether this
is such an error as can be redressed by this Court upon a writ of
error.
Generally speaking, matters of practice in inferior courts do
not constitute subjects upon which error can be assigned in the
appellate court. And unless it shall appear that this Court, if the
omitted evidence had been before it on the record, would have been
entitled to review that evidence and might, if upon such review it
had deemed the conclusion of the jury erroneous, have reversed the
judgment and directed a new trial in the court below, there is no
ground upon which the present writ of error can be sustained.
It was competent for the original defendant to have raised any
points of law growing out of the evidence at the trial by a proper
application to the court, and to have brought any error of the
court in its instruction or refusal by a bill of exceptions before
this Court for revision. Nothing of this kind was done or proposed.
No bill of exceptions was tendered to the court, and no points of
law are brought under review. The whole object, therefore, of the
application to record the evidence, so far at least as this Court
can take cognizance of it, was to present the evidence here in
order to establish the error of the verdict in matters of fact.
Could such matters be properly cognizable in this Court upon the
present writ of error? It is very certain that they
Page 28 U. S. 446
could not upon any suit and proceedings in any court of the
United States sitting in any other state in the union than
Louisiana.
The trial by jury is justly dear to the American people. It has
always been an object of deep interest and solicitude, and every
encroachment upon it has been watched with great jealousy. The
right to such a trial is, it is believed, incorporated into and
secured in every state constitution in the Union, and it is found
in the Constitution of Louisiana. One of the strongest objections
originally taken against the Constitution of the United States was
the want of an express provision securing the right of trial by
jury in civil cases. As soon as the Constitution was adopted, this
right was secured by the Seventh Amendment of the Constitution
proposed by Congress, and which received an assent of the people so
general as to establish its importance as a fundamental guarantee
of the rights and liberties of the people. This amendment declares
that
"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 once tried by a jury shall be otherwise
reexaminable in any court of the United States than according to
the rules of the common law."
At this time there were no states in the union the basis of
whose jurisprudence was not essentially that of the common law in
its widest meaning, and probably no states were contemplated in
which it would not exist. The phrase "common law," found in this
clause, is used in contradistinction to equity and admiralty and
maritime jurisprudence. The Constitution had declared, in the third
article,
"That the judicial power shall extend to all cases in law and
equity arising under this Constitution, the laws of the United
States, and treaties made or which shall be made under their
authority,"
&c., and to all cases of admiralty and maritime
jurisdiction. It is well known that in civil causes in courts of
equity and admiralty, juries do not intervene, and that courts of
equity use the trial by jury only in extraordinary cases to inform
the conscience of the court. When, therefore, we find that the
amendment requires that the right of trial by jury shall be
preserved in suits at common
Page 28 U. S. 447
law, the natural conclusion is that this distinction was present
to the minds of the framers of the amendment. By "common law" they
meant what the Constitution denominated in the third article "law,"
not merely suits which the common law recognized among its old and
settled proceedings, but suits in which legal rights were to be
ascertained and determined, in contradistinction to those where
equitable rights alone were recognized and equitable remedies were
administered, or where, as in the admiralty, a mixture of public
law and of maritime law and equity was often found in the same
suit. Probably there were few if any states in the union in which
some new legal remedies differing from the old common law forms
were not in use, but in which, however, the trial by jury
intervened, and the general regulations in other respects were
according to the course of the common law. Proceedings in cases of
partition and of foreign and domestic attachment might be cited as
examples variously adopted and modified. In a just sense, the
amendment then may well be construed to embrace all suits which are
not of equity and admiralty jurisdiction, whatever may be the
peculiar form which they may assume to settle legal rights. And
Congress seems to have acted with reference to this exposition in
the Judiciary Act of 1789, ch. 20 (which was contemporaneous with
the proposal of this amendment), for in the ninth section it is
provided that "the trial of issues in fact in the district courts
in all causes, except civil causes of admiralty and maritime
jurisdiction, shall be by jury," and in the twelfth section it is
provided that "the trial of issues in fact in the circuit courts
shall in all suits, except these of equity, and of admiralty and
maritime jurisdiction, be by jury," and again, in the thirteenth
section, it is provided that "the trial of issues in fact in the
supreme court in all actions at law against citizens of the United
States shall be by jury."
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 reexaminable, in any court of
the United States than according to the rules of common law." This
is a prohibition to the
Page 28 U. S. 448
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. The Judiciary Act of 1789, ch. 20, sec. 17, has given
to all the courts of the United States "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 the appellate jurisdiction has also been amply given by the
same act (sec. 22, 24) to this Court, to redress errors of law, and
for such errors to award a new trial, in suits at law which have
been tried by a jury.
Was it the intention of Congress, by the general language of the
act of 1824, to alter the appellate jurisdiction of this Court and
to confer on it the power of granting a new trial by a
reexamination of the facts tried by the jury to enable it, after
trial by jury, to do that in respect to the courts of the United
States, sitting in Louisiana, which is denied to such courts
sitting in all the other states in the union? We think not. No
general words purporting only to regulate the practice of a
particular court to conform its modes of proceeding to those
prescribed by the state to its own courts ought in our judgment to
receive an interpretation which would create so important an
alteration in the laws of the United States securing the trial by
jury. Especially ought it not to receive such an interpretation
when there is a power given to the inferior court itself to prevent
any discrepancy between the state laws and the laws of the United
States, so that it would be left to its sole discretion to
supersede or to give conclusive effect in the appellate court to
the verdict of the jury.
If, indeed, the construction contended for at the bar were to be
given to the act of Congress, we entertain the most serious doubts
whether it would not be unconstitutional. No court ought, unless
the terms of an act rendered it unavoidable, to give a construction
to it which should involve a
Page 28 U. S. 449
violation, however unintentional, of the Constitution. The terms
of the present act may well be satisfied by limiting its operation
to modes of practice and proceeding in the court below without
changing the effect or conclusiveness of the verdict of the jury
upon the facts litigated at the trial. Nor is there any
inconvenience from this construction, for the party has still his
remedy by bill of exceptions to bring the facts in review before
the appellate court so far as those facts bear upon any question of
law arising at the trial, and if there be any mistake of the facts,
the court below is competent to redress it by granting a new
trial.
Our opinion being that, if the evidence were now before us, it
would not be competent for this Court to reverse the judgment for
any error in the verdict of the jury at the trial, the refusal to
allow that evidence to be entered on the record is not matter of
error for which the judgment can be reversed.
The judgment is therefore affirmed with six percent damages
and costs.
MR. JUSTICE McLEAN, dissenting.
This cause was removed from the District Court of Louisiana by a
writ of error, and a reversal of the judgment is prayed for on the
errors assigned.
The suit was originally brought in the Parish Court of the
Parish of New Orleans, and was removed to the district court of the
United States, which exercises the powers of a circuit court.
In their petition, the plaintiffs below state that one Eben
Fiske, as agent at New Orleans for William Parsons, the defendant,
residing at Boston, purchased from the plaintiffs large quantities
of tobacco and drew bills on the defendant in payment which he
refused to honor. The plaintiffs claim $10,000.
The defendant in his answer denies the material facts set forth
in the petition. A jury was empanelled and a verdict rendered for
$6,484. On the trial, the bills of exchange were produced, and a
great number of business letters between Parsons and Fiske were
read.
Fiske was sworn as a witness, though objected to on the
Page 28 U. S. 450
ground of interest, but a release removed the objection to his
competency.
The first assignment of error relied on is that from the facts
apparent on the record, the plaintiffs had no right of action
against the defendant, and that therefore this Court will decree a
judgment to be entered in favor of the defendant.
2. That they will, at least, reverse this judgment, and award a
new trial, for one of the following reasons:
1. Because the court refused to direct the evidence to be put
upon the record.
2. Because the whole question was a question of law, and the
decision was against law.
3. It is not strictly a common law proceeding; but a proceeding
under the peculiar system of Louisiana; and according to that
system, the court has power to reverse the judgment, under
circumstances which would not give it that power where the trial
had been according to the common law.
As this cause involves a constitutional question which has not
been settled by this Court, and as I am so unfortunate as to differ
in opinion with a majority of the members of the Court, I shall
with great deference present my views of the case.
In the State of Louisiana, the principles of the common law are
not recognized; neither do the principles of the civil law of Rome
furnish the basis of their jurisprudence. They have a system
peculiar to themselves, adopted by their statutes, which embodies
much of the civil law, some of the principles of the common law,
and, in a few instances, the statutory provisions of other states.
This system may be called the civil law of Louisiana, and is
peculiar to that state.
The modes of proceeding in their courts are more nearly
assimilated to the forms of chancery than to those of the common
law. The plaintiff files his petition, in which he sets forth the
ground of complaint land the relief prayed for. Process issues
against the defendant, and when he is in court he is ruled to
answer the bill. The answer is filed, in which he admits, denies,
or avoids the facts set forth in the petition,
Page 28 U. S. 451
the same as in a suit in chancery, and he is permitted in his
answer to set up a demand against the plaintiff, which he may
recover if sustained.
When the cause is brought to a hearing, the court decides the
facts and the law, if neither party requires a jury. The testimony
is taken down at the trial, and either party may move for a new
trial or take an appeal to the superior court.
If an appeal be taken, the testimony forms a part of the record,
and is reexamined by the appellate court. Either party has a right
to require a jury in the inferior court and also to demand that the
testimony be taken down at the trial so that it may form a part of
the record and be considered by the appellate court should an
appeal be taken.
If either party desires what is called in the statute a special
verdict, each party makes a statement of facts which exhibit the
grounds of controversy, and these statements are submitted to the
jury with the testimony in the case. In this case also, if either
party requires it, the testimony must be taken down at the
trial.
The facts found by the jury are examined by the appellate court,
and its judgment is given on the facts without the intervention of
a jury.
Such is the outline of the course of practice in the courts of
Louisiana. A court of chancery there is as little known, and the
rules of its proceedings as little regarded, as are those of a
court of common law. Redress is sought in substantially the same
manner for an injury done to the person, his property or character.
Whether he seeks to recover a debt or asks the specific execution
of a contract or to avoid a contract on the ground of fraud or
accident, the mode of proceeding is the same; he files his petition
and the defendant must answer.
In thus repudiating the forms and principles of the common law,
the State of Louisiana has pursued a course different from her
sister states. This has resulted from the views of jurisprudence
derived by the great mass of her citizens from the foreign
governments with which they were recently connected.
It is no doubt a wise policy to adapt the principles of
Page 28 U. S. 452
government to the moral and social condition of the governed.
This is no less true in a judicial than it is in a political point
of view, and where an intelligent people possess the sovereign
power, they will not fail to secure this first object of a good
government.
By an Act of Congress of 26 May, 1824, it is provided that
"The mode of proceeding in civil causes in the court of the
United States that now are, or hereafter may be established in the
State of Louisiana shall be conformable to the laws directing the
mode of practice in the district courts of the said state,
provided, that the judge of any such court of the United States may
alter the times limited or allowed for different proceedings in the
state courts, and make by rule such other provisions as may be
necessary to adapt the said laws of procedure to the organization
of such court of the United States and to avoid any discrepancy, if
any such exist, between such state laws and the laws of the United
States."
There is no evidence before the Court that the power given to
the district judge in this proviso has been exercised; the first
part of the section, which adopts in the district Court of the
United States the same mode of proceeding in civil actions as is
established in the court of the state, must therefore be considered
as in force. And until this power be exercised, this section is a
virtual repeal of so much of the Judiciary Act of 1789, and all
other acts prior to 1824, which came within its provisions. It is
contended, that whatever may be the rules of practice in the
District Court of Louisiana, they do not confer jurisdiction on
this Court. The force of this objection is admitted.
Any law regulating the practice of an inferior court does not
confer jurisdiction on an appellate court; but where such court has
jurisdiction of the case, it must be governed in its decision by
the rules of practice in the court below.
This Court has jurisdiction by writ of error to revise the final
judgment, in any civil action, of a circuit court of the United
States where the matter in controversy exceeds two thousand
dollars. Whether this judgment be obtained by the forms of the
civil or the common law is immaterial.
Page 28 U. S. 453
The only essential requisites to give jurisdiction are that it
be a civil action involving a matter in controversy exceeding
$2,000 and that the judgment be final.
The forms of proceeding adopted under the Louisiana practice in
the district court constitute no objection to a revision of its
final judgments by writ of error.
In the case of
Parsons v. Armor, brought to this Court
by writ of error from Louisiana and decided the present term, the
Court has sustained its jurisdiction. That case in no respect
differs in principle from this except that the amount due was
ascertained by the court in that cause, and in this by a jury. Both
causes were brought against Parsons to recover the price of certain
quantities of tobacco sold to Fiske, the alleged agent of the
defendant. The same testimony was used in both causes, with the
exception of the bills of exchange.
In the case of
Armor, the Court looked into the
testimony, which was certified as a part of the record. From this
testimony it appeared that Fiske acted as the factor of Parsons,
and in no other respect as his agent; that Parsons looked to Fiske
for the faithful disbursement of the funds placed in his hands, and
the purchases were made in his name, and the payments sometimes in
drafts, and at others in cash; that the credit was given to Fiske
and not to Parsons by the vendors of the articles purchased. The
Court therefore reversed the judgment obtained against Parsons in
the district court.
The testimony thus examined by the Court was not made a part of
the record by a bill of exceptions, but was taken down at the
trial. Had this been done in a case at common law, the Court would
not have considered the testimony as a part of the record, and
consequently it could not have looked into it in deciding the
cause. But the practice of the district court, under the sanctions
of the act of 1824 was considered as presenting the testimony in
that cause as fully to the consideration of this Court as in a case
at common law, where it is embodied in a bill of exceptions. The
facts being ascertained by the Court, on weighing the testimony,
the law was pronounced in its judgment.
Page 28 U. S. 454
The law of Louisiana requires the testimony to be taken down, if
demanded by either party, as well where a jury is empanelled as
where the cause is submitted to the court. But in the case under
consideration, the court, at the trial, refused to order the
testimony to be taken in writing, although a motion to that effect
was made. This refusal is the principal ground on which the
plaintiff in error relies for the reversal of this judgment. He
claimed a right secured to him by law, which was refused; and he
seeks redress by writ of error.
This redress cannot be given, it is urged; because, if the
testimony had been taken down, it could have been of no advantage
to the plaintiff in error, as this Court could not examine it. And
why may not this testimony be examined by the Court the same as in
the case of
Armor. The facts are the same, and no
difference exists in the merits of the claims.
The reply is that in this case, a jury passed upon the claim,
and in the other the court, exercising the functions of a jury,
decided both the fact and the law. The difference then consists in
this -- that the jury found the facts in the one case and the court
in the other, and in both cases the law was pronounced by the
court.
This difference in the mode of decision, it would seem, ought
not to affect the judgment of this Court unless there be some
positive provision of law which must control it.
The seventh article of the amendment of the Constitution is
referred to a conclusive on the point. It reads
"In all 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."
To this objection an answer may be given which to me is
satisfactory.
This is not a suit at common law, and therefore does not come
strictly within the provision of the article.
In what respect can this action be compared to a suit at common
law?
Page 28 U. S. 455
It was commenced by petition, and in all the stages through
which it has been carried, no step has been taken in conformity to
the common law, unless it be that the matter in controversy was
submitted to a jury and a bill of exceptions taken. Does this make
it a common law proceeding? A jury is often called to try matters
of fact in a chancery case, and in the admission of evidence the
rules of the common law are observed. But does this make the
principal proceeding an action at law? Surely not. And can the same
mode of trial under the statute of Louisiana have that effect? The
proceedings under this statute are as dissimilar to the common law
process as are the rules of chancery. The whole proceeding under
the statute is in derogation of the common law. How then can it be
called a common law proceeding? If it contain one feature of the
common law, that does not change the character of the suit. The
mode of redress is, under the special provisions of the statute, a
remedy created by the law of the state. Can this procedure be
called a suit at common law?
The words in the latter clause of the seventh article "and no
fact tried by a jury shall be otherwise reexamined in any court of
the United States" refer to the first clause of the sentence, which
limits the trial to "suits at common law." If this were not the
true construction of the sentence, facts found by a jury in an
issue directed by a court of chancery would be conclusive on the
chancellor. The verdict has never been so considered, and
especially in the appellate courts of chancery. If the intervention
of a jury in this case does not change its character so as to make
it a common law proceeding, then there is no difference in
principle between this case and that of
Armor. As the
Court in that cause looked into the testimony to ascertain the
facts so as to apply the principles of law, why not do the same in
this? In that case, the judgment of the circuit court was reversed;
a reversal in this case would render it proper to send down the
cause for trial.
But the circuit court in this case refused to order the
testimony to be taken down at the trial. This is undoubtedly error
if this Court could examine the testimony as it did in
Page 28 U. S. 456
Armor's Case. Had that case been considered by the
court as a suit at common law, it must have been dismissed or the
judgment affirmed. It was under the particular practice of the
district court that this Court considered itself authorized to look
into the testimony which formed a part of the record in that cause,
and by this procedure established the fact that it was not strictly
an action at common law. This appears to me to relieve the case
under consideration from difficulty. For if the suit of
Armor was not a common law proceeding, neither is this
suit, and consequently it is free from any constitutional objection
in this Court.
The objection made that if Congress, by adopting the practice of
the Louisiana courts, may evade the provisions of the Seventh
Amendment, and that they may abolish the trial by jury in the
courts of the United States by creating special remedies not known
to the common law, is answered by saying that Congress has the
power to do much which it is not probable it will do. Has it not
power to repeal the acts which confer jurisdiction on the courts of
the United States, and which regulate their practice? This would
not only take away the right of trial by jury in such courts, but
all trials of every description. Is it at all probable that this
power will be exercised? The answer must be in the negative, and so
must the answer to an inquiry whether Congress, by creating new
remedies, will dispense with the trial by jury.
Is this article of the Constitution to be construed to mean, by
the words "suits at common law," all suits which are not properly
called cases of equity, of admiralty and maritime jurisdiction?
Under the practice of Louisiana, how are such suits to be
distinguished? The form of action is the same in equity as at law,
and if in all cases where a legal right could be prosecuted in
other states at the common law they are to be denominated actions
at law in Louisiana, the design of Congress in adopting the
Louisiana practice is defeated. The act of 1824 intended to relieve
the parties to a suit in the district court in Louisiana from the
forms of the common law, or the special regulations of
Page 28 U. S. 457
the Judiciary Act of 1789, because they were not adapted to the
modes of proceeding in that court.
Suppose Congress had specially provided that in all trials
before the District Court of Louisiana, the testimony should be
taken down, and that it should form a part of the record so as to
present the facts to the Supreme Court in the same manner as though
they had been embodied in a prayer for special instructions to the
jury and brought up by bill of exceptions; might not this Court
determine the questions of law arising in the case? This, it
appears to me, is neither more nor less than has been done by the
act of 1824.
Are all the laws of the different states for the valuation of
improvements by commissioners where a recovery for land is had
against a
bona fide occupant who claimed title
unconstitutional? If suit be brought in the state courts, these
laws are enforced as constitutional, but if brought in the circuit
court of the United States they are unconstitutional. This would
make the constitutionality of acts depend not upon a construction
of the Constitution, but upon the jurisdiction where the action is
brought. It would give redress in the state courts which in the
United States courts would be unconstitutional.
This would be the inevitable consequence if the provision in the
seventh article be restricted in its application to the courts of
the United States, and be construed to embrace every species of
action where a legal right is prosecuted. And if to escape this
consequence the provision of the article be extended to embrace all
cases which come within the above construction, without reference
to the jurisdiction where the remedy is sought, then all laws
extending the jurisdiction of justices of the peace above twenty
dollars are unconstitutional, and also every arbitration system
which does not require a jury. An appeal from the judgment of a
justice of the peace will not evade the constitutional objection,
for the judgment is final and the question involves the right of
the justice to give judgment in the case without the intervention
of a jury.
Suppose Congress, for the purpose of adjusting land titles in a
district of country, should establish a special court,
Page 28 U. S. 458
called commissioners, to examine and determine between the
different claimants; would their proceedings be valid under the
Seventh Amendment of the Constitution? This mode has been adopted
by Congress to settle claims to lands under the Louisiana Treaty,
and the acts of the commissioners have been confirmed. If such a
proceeding was to be denominated the prosecution of a legal right,
and consequently a suit at common law, because it was not a case in
equity, the decision was void under the seventh article and also
any act of legislation confirming it.
From the foregoing considerations I am brought to the conclusion
that this case is not strictly a suit at common law, and that this
Court may, under the act of 1824, as it did in the case of
Armor, look into the record, and from the facts there set
forth determine the question of law; and as the court below refused
to order the testimony to be taken down, I think the defendant has
been deprived of a right secured to him by law, and that for this
error the judgment should be reversed and the cause sent down for
further proceedings with instructions to the district court to
order the testimony to be taken down at the trial.
This cause came on to be heard on the transcript of the record
from the District Court of the United States for the District of
Louisiana and was argued by counsel, on consideration whereof it is
ordered and adjudged by this Court that the judgment of the said
district court in this cause be and the same is hereby affirmed
with costs and damages at the rate of six percentum per annum.