« ForrigeFortsett »
istrate, 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 elec tion." And by 85, 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 as 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.
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, prohibit ing 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 with in the reasonable *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 demands 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 By the statute of Maryland of 1809, chap. object had been openly and directly pursued. 76, §§ 1, 6 (3 Kilty's Laws), the exclusive But, on the other hand, every reasonable reg- original jurisdiction of justices of the peace ulation, made by those who value this palla- was extended to all cases where the real debt dium of our rights, and directed to the at- or damages demanded did not exceed fifty tainment of the public good, must not be dollars. And by the statute of Maryland of deemed inhibited because it increases the 1852, chap. 239, their original jurisdiction burden or expense of the litigating parties." was extended to all cases of contract, tort, or "In conclusion, I am satisfied that the liber-replevin, where the sum or damage or thing ty 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 [10 Am. Dec. 186]. See also Colt v. Eves (1837) 12 Conn. 243, 253; Curtis v. Gill (1867) 34 Conn. 49.
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 Steuart 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 Before the adoption of the Constitution trial by jury, according to the course of that of the state of Maryiand, each of the stat-law.' Notwithstanding this, the legislature utes of the province "for the speedy recovery passed laws at different times, extending the of small debts out of court, before a sin-jurisdiction of justices of the peace in matgle justice of the peace," would appear to ters of contract, and giving jurisdiction *in  have restricted his civil jurisdiction to matters of tort where they had none previclaims for thirty-three shillings and four ously. These laws, of course, made no provipence, as in the statute of 1715, chap. 12, or for fifty shillings, as in the statute of 1763, chap. 21. Bacon's Laws.
By the statute of the state of Maryland of 1791, chap. 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 ex ceed twenty *shillings common money" (or
'sion 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, two and two-thirds dollars), "and either 894; Pollard v. Holeman (1816) 4 Bibb, plaintiff or defendant shall think him or her-416; Head v. Hughes (1818) 1 A. K. Marsh. self aggrieved by the judgment of any mag- 372 [10 Am. Dec. 742]; Feemster v. Ander
son (1828) 6 T. B. Mon. 537; Flint River S. B. Co. v. Foster (1848) 5 Ga. 194, 208 [48 Am. Dec. 248]; 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, 291, 292; Cooley, Const. Lim. 6th ed. 505; 1 Dillon, Mun. Corp. 4th ed. §
VI. When the District of Columbia passed under the exclusive jurisdiction of the United States, the statute of Maryland of 1791, chap. 68, above quoted (having been continued in force by the statute of that state of 1798, chap. 71, 2 Kilty), was one of the laws in force in the District.
The act of Congress of February 27, 1801, chap. 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, chap. 35 (9 Stat. at L. 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 ex pedient, 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. at L. 104, 107.
In quoting the provisions of subsequent acts of Congress, the re-enactments 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, chap. 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. at L. 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 sections 1 and 6 of the act of 1823 followed, as to jurisdictional amount, the statute of Maryland of 1809, chap. 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 a rec-  ord 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, chap. 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 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 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 therecf, 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. 88 775, 776, 1027]. 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, chap. 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 &ppellate 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. În 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 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.
The provisions of the New York statute  of 1801 (copied in the margin) were re-enacted, almost word for word, in the statutes of that state of 1808, chap. 204, § 9, and of 1813, chap. 53, § 9.
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.
"Sec. 16. If any of the persons so sum- The New York statutes of 1801, 1808, and moned and returned as jurors shall not ap- 1813, indeed, differed from the act of ConFear, or be challenged and set aside, the jus-gress of 1823, in giving a justice of the peace tice 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 oath, riz.: '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. at L. 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, 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, chap. 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, chap. 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.t
"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
The New York statute of 1818, however, like the act of Congress of 1823, extended the civil jurisdiction of a justice *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; M'Neil v. Scoffield (1808) 3 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, 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
heretofore applied by this court whenever | further enacted that every case, in which the Congress, in legislating for the District of sum demanded exceeded twenty dollars, Columbia, has borrowed from the statutes should, if either party so requested, "be tried of a state provisions which had received in by a jury" of twelve men before the justice that state a known and settled construction of the peace. before their enactment by Congress, that con- In all acts of Congress regulating judicial struction must be deemed to have been adopt-proceedings, the very word "appeal," unless ed by Congress together with the text which restricted by the context, indicates that the it expounded, and the provisions must be facts, as well as the law, involved in the construed as they were understood at the judgment below, may be reviewed in the aptime in the state. Metropolitan Railroad pellate court. Wiscart v. Dauchy (1796) Co. v. Moore (1887) 121 U. S. 558, 572 [30: 3 Dall. 321, 327 [1: 619, 622]; Re Neagle 1022, 1026]; Willis v. Eastern Trust & Bkg. (1890) 135 U. S. 1, 42 [34: 55, 64]; Dower Co. (1898) 169 U. S. 295, 307, 308 [42: 752, v. Richards (1894) 151 U. S. 658, 663, 664 758]. [38: 305, 307, 308].  *VII. 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 up. on the facts in any court of the United States.
By section 7 of the act of 1823, the right of appeal to a court of record was expressly given "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 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.
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 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 bave 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, chap. 165, § 12.
Congress, when enlarging, by the act of 1823, the exclusive original jurisdiction of justices of the peace in the District of Columbia from twenty to fifty dollars, manifestly intended that the dictates of the Constitution should be fully carried out, in letter and spirit. With this object in view, Neither the direction of section 1, that the Congress first enacted that "in all cases" be- justice of the peace should give judgment fore a justice of the peace, in which the de- "according to the laws existing in the Dismand exceeded five dollars, either the plain-trict of Columbia, and the equity and right tiff 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, 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 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
"In every action to be brought by virtue of this act, wherein the sum or balance due, or thing demanded, shall exceed twenty-five dol lars, 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, chap. 53, re-enacting the statute of 1801, chap. 165, §§ 12, 13], shall be followed, and shall be deemed to apply in every other respect." N. Y. Stat. 1818, chap. 94, § 22.
CAPITAL TRACTION Co. v. HOF.
upon the appellate court, or as substituting | circuit court in several early cases.
The trial by jury, allowed by the seventh section of the act, in a court of record, in the presence of a 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.
son v. Burr (1824) 2 Cranch, C. C. 515; Mad-
The decisions in question would appear,
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 *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 re-jury within the meaning of the Seventh turn 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 A upon it forthwith, as a thing of course. 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
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.
Amendment to the Constitution; that the
In 1863, all the powers and jurisdiction,
The foregoing decisions of the circuit court were followed in the supreme court of the District at general term in 1873, with
much discussion, in Fitzgerald v. Leisman, 3 MacArth. 6; and at special term in 1896, by Justice Bradley in [United States], Brightwood Railway Co., v. O'Neal, 24 Wash. L. Rep. 406, and by Justice Cox in the present case. Capital Traction Co. v. Hof, 24 Wash. L. 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.
VIII. The majority of the court of ap-out
Such decisions, indeed, were made by the
Apart from the inconsistencies in the opinions delivered in the courts of the District of 887 Columbia, it is quite clear that the decisions