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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 *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, chap. 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 assists 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, pp. 111, 118 [30 Am. Dec. 195], 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 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.
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 of or against either party, duly empaneled 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 the Justices (1860) 41 N. H. 550, 551.
The Justices of the supreme judicial court of New Hampshire, in an opinion given to the house of representatives of the state,
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 direction and superintendence was an essen-  tial 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. 1363 Bags of Merchandise (1863) 2 Sprague, 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 & M. Railroad Co. v. Putnam (1886) 118 U. S. 545, 553 [30: 257, 258]. 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 Co. (1887) 123 U. S. 113, 114 [31: 138, 139]. And see Sarf v. Unitel States (1895) 156 Ú.
5. 51, 102, 106 [39: 343, 361, 363]; Thomp-| Speedy Recovery of Small Debts out of son v. Utah (1898) 170 U. S. 343, 350 [42: Court." And Congress has vested in them, 1061, 1066]; Miller on the Constitution, 511; "as individual magistrates," the powers and Cooley, Principles of Constitutional Law, duties which justices of the peace previously had under the laws in force in the District of Columbia. Act of February 27, 1801, chap. 15, § 11; 2 Stat. at L. 107; Rev. Stat. D. C. § 995.
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 ex ceed forty *ahillings. 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., chap. 33 (1750) commended by Blackstone, were clearly not a common-law jury. 3 Bl. Coin. 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 a common jury, as in Massachusetts; (6 Dane, Abr. 405, 442; Mass. Prov. Stats. 1697, chap. 8, § 1, and 1699, chap. 2, § 3 (1 Prov. Laws, State ed. pp. 283, 370), and Stat. 1783, chap. 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, Abr. 417; N. Y. Stats. of December 16, 1737, 1 Smith & Livingston's Laws, p. 238, § 4, and of December 24, 1759, 2 Id. p. 170, § 4; N. J. Stat. February 11, 1775, Allinson's Laws, p. 468; Wanser v. Atkinson (1881) 43 N. J. L. 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, 336 [2: 457, 458]. 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, chap. 12, and of 1763, chap. 21 (in Bacon's Laws of Maryland), and of 1791, chap 68 (in 2 Kilty's 18] Laws) defining the civil jurisdiction of justices of the peace, were entitled acts "for the
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.
V. 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. App. 540 [32: 223] 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 *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 Curt. C. C. 311, 325; Saco v. Wentworth (1853) 37 Me. 165 [58 Am. Dec. 786]; Re Dana (1873) 7 Ben. 1.
On the other hand, the authority of the leg- | himself of the right given him, of having an islature, consistently with constitutional pro- issue made up, and the trial by jury, which visions securing the right of trial by jury is tendered to him by the act, it is presumable to provide, in civil proceedings for the re- that he cannot dispute the justice of the covery of money, that the trial by jury claim. That this view of the subject is givshould not be had in the tribunal of first in- ing full effect to the Seventh Amendment of stance, but in an appellate court only, is sup- the Constitution is not only deducible from ported by unanimous judgments of this the general intent, but from the express wordcourt in two earlier cases, the one arising ing of the article referred to. Had the terms in the District of Columbia, and the other in been that 'the trial by jury shall be prethe state of Pennsylvania. served,' it might 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 writ ten 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. 243, 244 [4: 561].
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." I Charters and Constitutions, 817, 818. The statute of the state of Mary. land of 1783, chap. 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 ten days after demand, the bank, upon filing an affidavit of its president to the sum due,  might obtain 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 The Constitution of Pennsylvania of 1776 at which the return is made, and shall make provided, in article 11 of the declaration of such other proceedings that justice may be rights, that "in controversies respecting done in the speediest manner." 2 Kilty's property, and in suits between man and man, Laws. The general court of Maryland, in the parties have a right to trial by jury, 1799, held that this statute did not infringe which ought to be held sacred," and, in secthe constitutional right of trial by jury. tion 25 of the Frame of Government, that Bank of Columbia v. Ross, 4 Harr. & McH."trials shall be by jury as heretofore;" and 456, 464, 465. The statute was continued in the Constitution of 1790, in section 6 of the force in the District of Columbia by the acts bill of rights, declared that "trial by jury of Congress of February 27, 1801, chap. 15, shall be as heretofore, and the right thereof § 5, and March 3, 1801, chap. 24, § 5. 2 remain inviolate." 2 Charters and ConstiStat. at L. 106, 115; Bank of Columbia v. tutions, 1542, 1546, 1554. The statutes of Okely (1819) 4 Wheat. 235, 246 [4: 559- Pennsylvania, from 1782, required all ac 562]. counts 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 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 Su
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
preme Court shall award, and also pay any | justice of the peace, and requires of the ap-
In Livingston v. Moore (1833) 7 Pet. 469,
The leading case is Emerick v. Harris (1808) i Binn. 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 pounds; and authorized any person ag grieved 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 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 Pa. 304, 307. The statute of April 5, 1785, enlarged the summary jurisdiction of a justice of the peace to sums not exceeding ten pounds; 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 Philadel phia the jurisdiction of justices of the peace. 2 Dall. Laws Pa. 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 excecding twenty pounds, with a right of ap peal, after judgment, if the amount exceeded five pounds, to the court of common pleas, "in the same mauner, and subject to all other restrictions and provisions," as in the statute of 1745. 3 Dall. Laws Pa. 536-538. In support of a writ of certiorari to quash a judgment for cleven pounds and six shillings, rendered in the alderman's court of Philadelphia upon default of the defendant, it was argued "that the Constitution, by di
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 re-examined, in any court of the United States, than according to the rules  of the common law," meaning 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 of Columbia 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 ques-recting that trial by jury should be as heretions, the judicial decisions and the settled tofore, and the right thereof remain inviopractice in the several states are entitled to late, had interdicted the legislature from great weight, inasmuch as the Constitutions abolishing or abridging this right in any of all of them had secured the right of trial case in which it had existed before the Conby jury in civil actions, by the words "shall stitution; that a prohibition to do this dibe preserved," or "shall be as heretofore," or rectly was a prohibition to do it indirectly, "shall remain inviolate," or "shall be held sa- either by deferring the decision of a jury uncred," or by some equivalent expression. til 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
A long line of judicial decisions in the sev-
the statute of 1809, chap. 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, chap. 59, further extended the jurisdiction of a justice of the peace to one hundred dollars. 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 sub-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 be longed 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) 8 Yerg. 444, 446; *followed in Pryor v. Hays (1836)  9 Yerg. 416.
The Constitution of Tennessee of 1796 de clared that "the right of trial by jury shall  remain inviolate." 2 Charters and Constitutions, 1674. At the time of the adoption of that Constitution, as appears by the territorial statute of 1794, chap. 1, §§ 52, 54, justices of the peace had jurisdiction only of actions for twenty dollars and under; and either party night 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, chap. 7, to fifty dollars, "subject, nevertheless, to ap-diction, with the right of appeal, as it existpeal by either party, to be tried in the county ed when the Constitution was adopted, is court by a jury, as in other cases." And violation of the above privilege, secured by
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 anyone 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 juris
before." But the supreme court of Pennsylvania held that the statute of 1794 was a constitutional regulation of judicial proceedings by legislative authority. 1 Binn. 424, 428. See also M'Donald v. Schell (1820) 6 Serg. & R. 240; Biddle v. Commonwealth (1825) 13 Serg. & R. 405, 410; Haines v. Levin (1866) 51 Pa. 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 scription 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. (2 Murph.) 41, 45 [5 Am. Dec. 518]; followed in Wilson v. Simonton (1821) 8 N. C. (1 Hawks) 482.