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 [35] 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 [34] 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 [36] 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]. [37] *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 [38] 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.

1898.

CAPITAL TRACTION Co. v. Hor.

upon the appellate court, or as substituting | circuit court in several early cases.
the rules of technical equity for the rules of
law.

The trial by jury, allowed by the seventh
section of the act, in a court of record, in
the presence of 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 Constitu-
tion.

David

son v. Burr (1824) 2 Cranch, C. C. 515; Mad-
dox v. Stewart (1824) 2 Cranch, C. C. 523;
Denny v. Queen (1827) 3 Cranch, C. C. 217;
Smith v. Chase (1828) 3 Cranch, C. C. 348.
Yet the appellant in one of those cases, whose
appeal had been dismissed as unauthorized
by law, was notwithstanding held liable on
his bond to prosecute the appeal. Chase v.
Smith (1830) 4 Cranch, C. Ĉ. 90.

The decisions in question would appear, by the brief notes *of them in the report of [40] Chief Justice Cranch, to have proceeded upon the assumption that the trial before a But a trial by a jury before a justice of the justice of the peace, by a jury impaneled peace, pursuant to sections 15 and 16 of the pursuant to the act of 1823, was a trial by act, was of quite a different character. Con- jury within the meaning of the Seventh gress, in regulating this matter, might Amendment to the Constitution, and theredoubtless allow cases within the original ju- fore the facts could not be tried anew upon risdiction of a justice of the peace to be appeal. In Smith v. Chase, however, that tried and decided in the first instance by any learned judge (declaring that he spoke for specified number of persons in his presence. himself only) delivered an elaborate opinion, But such persons, even if required to be in which he maintained the position that, twelve in number, and called a jury, were upon the demand of a trial by jury, the cause rather in the nature of special commission- was taken entirely out of the hands of the ers or referees. A justice of the peace, hav- justice of the peace; that he was obliged to ing no other powers than those conferred by summon and swear the jury, and to render Congress on such an officer in the District judgment according to their verdict; that ro authority was given him to instruct the of Columbia, was not, properly speaking, a judge, or his tribunal a court; least of all, jury upon matter of law or of fact, or to a court of record. The proceedings before set aside their verdict and grant a new trial; him were not according to the course of the and that the jury were not bound by his common law; his authority was created and opinion upon matter of law, but were to de[39] defined by, and *rested upon, the acts of Con- cide the law as well as the fact. 3 Cranch, gress only. The act of 1823, in permitting C. C. 351, 352. From these premises he incases before him to be tried by a jury, did ferred (by what train of reasoning does not not require him to superintend the course of clearly appear) that such a trial by a jury the trial or to instruct the jury in matter of before the justice of the peace was a trial by law; nor did it authorize him, upon the re- jury within the meaning of the Seventh turn of their verdict, to arrest judgment Amendment to the Constitution; that the upon it, or to set it aside, for any cause what- facts so tried, therefore, could not be tried Curiously enough, ever; but made it his duty to enter judgment anew in an appellate court; and that no apA real lay in such a case. upon it forthwith, as a thing of course. body of men, so free from judicial control, that opinion, purporting to have been deliv. was not a common-law jury; nor was a trial ered at December term, 1828, refers to the ty them a trial by jury, within the meaning cpinion of this court in Parsons v. Bedford, of the Seventh Amendment to the Constitu- 3 Pet. 446-448 [7: 736, 737], which was not tion. It was no more a jury, in the consti- delivered until January term, 1830. tutional sense, than it would have been, if it had consisted, as has been more usual in statutes authorizing trials by a jury before a justice of the peace, of less than twelve

men.

There was nothing, therefore, either in the Constitution of the United States, or in the act of Congress, to prevent facts once tried by such a jury before the justice of the peace from being tried anew by a constitutional jury in the appellate court.

VIII. The majority of the court of appeals, in the case at bar, in holding that no appeal lay from a judgment entered by a justice of the peace on a verdict in the District of Columbia, appears to have been much influenced by the practice, which it declared to have prevailed in the District for seventy years, in accordance with decisions made by the circuit court of the United States of the District of Columbia soon after the passage of the act of Congress of 1823. But the reasons assigned for those decisions are unsatisfactory and inconclusive.

Such decisions, indeed, were made by the

In 1863, all the powers and jurisdiction, previously possessed by the circuit court of the District, including the appellate jurisdiction from justices of the peace, were transferred by Congress to the supreme court of the District of Columbia. Act of March 3, 1863, chap. 91, §§ 1, 3, 12; 12 Stat. at L. 762-764. [Rev. Stat. D. C. §§ 760, 1027.]

The foregoing decisions of the circuit court were followed in the supreme court of the District at general term in 1873, without much discussion, in Fitzgerald v. Leisman, 3 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 pres*But each of these two [41] ent case. Capital Traction Co. v. Hof, 24 Wash. L. Rep. 646. judges, while holding himself bound by the previous decisions of the courts of the District, expressed a clear and positive opinion that they were erroneous.

Apart from the inconsistencies in the opinions delivered in the courts of the District of 887 Columbia, it is quite clear that the decisions