884

TRIAL BY JURY IN CIVIL CASES.

N. J. C. 1, 7;
Wis. C. 1, 5;

Neb. C. 1, 6;

inviolate, R. I. C. 1, 15; Ct. C. 1, 21; N. Y. C. 1, 2; Pa. C. 1, 6; O. C. 1, 5; Ill. C. 2, 5; Mich. C. 6, 27; Iowa C. 1, 9; Minn. C. 1, 4; Kan. C. (Bill of Rights) 5; Md. (Declaration of Rights) 5; Del. C. 1, 4; Ky. C. 13, 8; Tenn. C. 1, 6; Mo. C. 2, 28; Ark. C. 2, 7; Tex. C. 1, 15; Cal. C. 1, 7; Nev. C. 1, 3; S. C. C. 1, 11; Ga. C. 6, 18, 1; Ala. C. 1, 12; Miss. C. 1, 12; Fla. C. (Declaration of Rights) 3; N. M. 95, 1; 1851, July 12, § 12; Ariz. (Bill of Rights) 8.

"In three this provision applies only to civil cases, - Ind. C. 1, 20; W. Va. C. 3, 13; Ore. C. 1, 17. So, in five, only to controversies concerning property and suits between two or more persons (i.e. civil suits), - N. H. C. 1, 20; Mass. C. 1, 15; Me. C. 1, 20; Va. C. 1, 13; N. C. C. 1, 19. And in two it is provided that the right shall only in civil cases exist when an issue of fact proper for a jury is joined in a court of law, Vt. C. 1, 12; Md. C. 15, 6.

"In Texas the Constitution provides that the legislature shall pass laws to regulate trial by jury, and maintain its purity and efficiency.

"§ 73. Exceptions. (A) In three States there is no constitutional right to trial by jury when the amount in controversy does not exceed a certain sum;1 as in detail $5: Md. C. 15, 6; $20: W. Va. C. 3, 13; $100: N. H. C. 1, 20.

"In one there is no jury in civil cases before a justice, W. Va. But in one the right always exists.when the title to real estate is involved, - N. H. And in three the right is expressly declared to extend to all cases at law, without regard to the amount in controversy: Wis., Minn., Ark.

"(B) The Constitutions of nine States make an exception to the right to a jury in cases heretofore used and practised,' --- N. H., Mass., Me., N. Y., Pa., Ill., Md., Del., Mo.

66

N. H.,

(C) In two the legislature may alter the law trial by jury as to causes arising on the high seas, or concerning mariners' wages, Mass.

"(D) In four the legislature may in civil cases authorize a trial by a jury of less than twelve men, - Mich. C. 4, 46; Col. C. 2, 23; Fla. C. 6, 12; La. C. 116. So, in eight States, in inferior courts (as before a justice of the peace), — Ill.; Iowa; N. C. (six men) C. 4, 27; Neb.; W. Va.; Mo.; Tex. C. 5, 17 (six men in the county court); Ga. (but not less than five men). So, in New Jersey, in civil suits involving less than $50, by a jury of six men. And in California the parties may agree on a jury less than twelve in number. In West Virginia no jury is allowed in cases tried before a justice of the peace, except on appeal therefrom.

66

(E) And by the Constitutions of three States, in civil actions, three fourths of a jury may render a verdict, Tex. C. 5, 13; Cal.; Nev.

1 "See § 72, note1. 2 This would seem to follow from the silence of the Constitution in other States. 3 The wording is, however, ambiguous.

TRIAL BY JURY IN CRIMINAL CASES.

trial by jury may be prescribed by law,

885

"§ 74. Waiver. By the Constitutions of eleven States the right to a waived by the parties in all civil cases in the manner Vt. C. 2, 31; N. Y. C. 1, 2; Pa. C. 5, 27; Wis. C. Md. C. 4, 1, 8; N. C. C. 4, 13; Ark. C. 2, 7; Cal. C. 1, 7; Nev. C. 1, 3; Fla. C. (Declaration of Rights) 3; Ariz. (Bill of Rights) 82.

1, 5; Minn. C. 1, 4;

"And by that of two States the right shall be deemed waived, in all civil cases, unless demanded by the parties, or one of them, in the manner prescribed by law, Mich. C. 6, 27, Tex. C. 5, 10.

"So, in one State, the Constitution only provides that the right shall be preserved if required by either party, W. Va. C. 3, 13."

66

"§ 131. Jury Trial.

IN CRIMINAL CASES.

(A) In most States the Constitution provides that all persons so accused shall have a speedy public trial by an impartial jury, — Me. C. 1, 6; Vt. C. 1, 10; R. I. C. 1, 10; N. J. C. 1, 8; Pa. C. 1, 9; O. C. 1, 10; Ind. C. 1, 13; Ill. C. 2, 9; Mich. C. 6, 28; Iowa C. 1, 10; Minn. C. 1, 6; Kan. C. (Bill of Rights) 10; Neb. C. 1, 11; Md. (Declaration of Rights) 21; Del. C. 1, 7; Va. C. 1, 10; Mo. C. 2, 22; Ark. C. 2, 10; Tex. C. 1, 10; Ore. C. 1, 11; Col. C. 2, 16; S. C. C. 1, Ga. C. 1, 1, 5; La. C. 7; N. M. 95, 1; 1851, July 12, § 8.

13;

“So, in several, all persons prosecuted by indictment or information, Ct. C. 1, 9; Wis. C. 1, 7; Ky. C. 13, 12; Miss. C. 1, 7; N. M. 50, 7. And in two States, all persons prosecuted by indictment (or presentment), - Tenn. C. 1, 9; Ala. C. 1, 7; Wash. 766.

"In several, the provision is simply that the accused shall have a speedy and public trial, Cal. C. 1, 13; Dak. C. Cr. P. 11; Ida. Cr. Pr. 10; Mon. Cr. Pr. 9; Uta. Cr. Pr. 7; Ariz. 426.

66

(B) And in three, the Constitution provides that (except as below) the legislature shall make no law subjecting a person to capital (or infamous, in Massachusetts) punishment without trial by jury, — N. H. C. 1, 16; Mass. C. 1, 12; S. C. C. 1, 14.

66

'(C) In two, that the right by jury shall remain inviolate in criminal - N. Y. C. 1, 2; Col. C. 2, 23; Fla. C. (Declaration of Rights) 3.

cases,

See also § 72 for other States.

“(D) In several, that no person shall be convicted of any crime but by the verdict of a lawful jury in open court, — W. Va. C. 3, 14; N. C. C. 1, 13; Wash. 767; Dak. C. Cr. P. 14; Ida. Cr. Pr. 13; Mon. Cr. Pr. 8; Uta. Cr. Pr. 10; N. M. 50, 8; Ariz. 429.

66

(Except upon confession, demurrer, etc.: Wash., Dak., Ida., Uta., Mon., Ariz.)

"Exceptions.

In two, the legislature may provide other means of trial (1) for offences not infamous. See above, B. So, in two others, - Del. C. 6, 15; N. C. So, in two others, all offences less than felony, and in which the penalty does not exceed $100 or thirty

for petty offences,

886

JURY TRIAL FOR NEW OFFENCES.

days' imprisonment, shall be tried summarily before a justice of the peace, - Iowa C. 1, 11; S. C. C. 1, 19. So, in Tennessee, no fine of more than $50 shall be imposed except by a jury, Tenn. C. 6, 14. But in all such cases of trial without a jury there must be a right of appeal, — Iowa, N. C., S. C.

"Laws may be made, in two States, for the government of the army and navy, without providing for trial by jury, - N. H., Mass.

"Waiver. The Constitution of California provides that a jury may be waived by consent of both parties in all criminal cases not amounting to felony, Cal. C. 1, 7.

"So, in New Mexico, the accused may in all cases waive jury trial, · 1851, July 12, § 8."

For the corresponding provisions in the Constitution of the United States, see ante, p. 510.

In Wynehamer v. The People, 13 N. Y. 378, 457, the judges took a view better calculated than that adopted in Van Swartow v. Commonwealth (see ante, p. 860) to promote the object, which is not that the legislature may introduce new exceptions, but that there shall be none save those which existed when the organic law was passed. The intent was to preserve the right as it stood when the Constitution was adopted; and as the privilege is equally important whether the offence existed previously, or is a new creation, a distinction should not be made arbitrarily where there is none in principle. The inquiry should not be, Is the instance specifically new, but does it belong to a class in which the accused was entitled to the verdict of his peers?

LECTURE XL.

An Action may be maintained against an Officer or Agent of a State or of the General Government for Property taken or held under Cover of an Illegal Law or Order. Such a Suit is not against the State or within the Terms of the Eleventh Amendment, nor does it transgress the Rule that a Right of Property cannot be judicially enforced against a Foreign Sovereign or Country. The Maxim that the King can do no Wrong applies to the States and the United States, and Acts which transcend the Organic Law are to be imputed to the Persons by whom they are performed, though done at the Command of the Governor or of the President, or in Pursuance of an Unconstitutional Statute.

HAVING now considered the clauses which protect life, liberty, and property from deprivation by a State or the General Government, the question naturally occurs, What is the remedy if they are violated? and we may be surprised to find it seriously contended, as recently as the year 1882, that as regards property which has been wrongfully taken and detained by officers or agents of a State or of the General Government, there is none which can be effectually used as a means of redress. "No State shall deprive any person of life, liberty, or property without due process of law," is the language of the Fourteenth Amendment; but if a man takes another's land. or goods, and does not rely on a State law or command, or an authority from the General Government, as a justification, it is simply a private wrong, for which, unless the question arises between citizens of different States, the federal tribunals cannot afford a remedy.1 If, on the other hand, the wrongdoer alleges a command of the legislature or governor as a defence, and that he took and holds the property on behalf of the State, the plaintiff is confronted with the argument that

1 United States v. Cruikshank, 92 U. S. 542; Virginia v. Rives, 100 Id. 373; United States v. Harris, 106 Id. 629. Ante, p. 534.

888

INTERVENTION OF THE ATTORNEY-GENERAL

the State is a party in interest, and may throw her mantle as a sovereign around the person whom she employs or sanctions. By the terms of the Eleventh Amendment a State is beyond the reach of process, and as she necessarily acts through agents, the exemption would be illusory if an action could be maintained for property taken and detained at her command. So the Fifth Amendment is, agreeably to this view, equally inoperative as a protection against Congress, the President, or a Cabinet officer, or, as it would seem, officials of a lower grade, because the United States may not be sued, and the privilege would be unavailing if they could be prosecuted through their officers and agents.2 The Monstrans de Droit and Petition de Droit of the English law do not exist here, and there is nothing to take their place. Peremptory as is the prohibition against deprivation without due process of law, as thus interpreted, it reads as follows: The government shall not arbitrarily deprive the citizen; but if it violates the rule and does not choose to provide the means of redress, the jurisdiction of the courts will fail. During the ninety years which had elapsed since the Constitution was adopted, Congress had not seen fit to give a remedy, and might never consent to surrender a prerogative which rendered them despotic. An illegal claim by the United States to private property could not be enforced ; but if they took and held the land or chattels under color of an invalid law or judgment, and the owner came into court for restitution, the suit would be dismissed, though brought against the persons in possession, because the government was the party in interest, though not of record. The prohibition was therefore virtually a dead letter and might so remain indefinitely. The source of the doctrine lay in the royal preroga tive, which forbade a suit against the Crown. The States and the government of the United States were not less sovereign than a king, and if a citizen was dispossessed without due process of law, and sought redress, and it appeared that the 1 Poindexter v. Greenhow, 114 U. S. 270, 285; Marye v. Parsons, Id. 325, 330.

2 See United States v. Lee, 106 U. S. 196, 244.