Waiver. In criminal cases - at least in cases of felony -the accused cannot waive this privilege, the jury being a necessary part of the tribunal that tries him;1 nor can it be made to depend on any condition, as, for example, upon an appeal from a court that sits without a jury to a court which allows one.2 But civil rights in general may be waived, and a provision for civil cases that trial by jury should be deemed waived unless demanded would seem unobjectionable. It has been held, also, that it sufficiently preserves the privilege to make provision by law for jury trial in an appellate court.

Or,

Incidents. The peculiar characteristic of jury trial is this that the jury sit with the judge to try the facts of the controversy, receiving from him the law, and applying it, according as they find the facts to be, in a verdict which embodies both fact and law in a general conclusion. at their option, the jury may find the facts specially, and report them to the court, who will then determine what judgment the facts require. The court is thus the trier of the law, and the jury are the triers of the facts; but the judge may nevertheless rightfully express his opinion upon the facts to the jury, who will be at liberty to accept his conclusions, or to disregard them, as their judgment shall dictate. The jury have also the legal power to disregard the instructions in matter of law, and to render a verdict which the instructions would not warrant; but their doing so would be misconduct, which the judge should correct by granting a new trial. But the judge will not grant a new trial merely because his opinion upon disputed or uncertain

4

5

1 Cancemi v. People, 18 N. Y. 128.

2 Matter of Dana, 7 Benedict, 1.

3 Many cases are collected in Cooley, Const. Lim., 4th ed., 513, note. Compare Greene v. Briggs, 1 Curt. C. C. 311.

4 Consequa v. Willings, Pet. C. C. 225.

5 Wilkinson v. Greely, 1 Curt. C. C. 63.

facts differs from that of the jury;1 though, if there were no evidence fairly tending to support their verdict, it will be erroneous not in point of fact merely, but in law, and it will be the duty of the judge to set it aside, and, if he shall refuse to do so, then for a court of error to reverse it on that ground.2

Rehearings. The rule that the facts shall not be otherwise re-examined than according to the rules of the common law, is essential to a preservation of the right. It could be of no importance that one should have a jury trial in the first instance, if his adversary might then remove the case to another court to be tried by the judge himself. The finding of the jury upon the facts when no error has intervened to influence it, and no fraud or surprise, must be taken as conclusive. When it becomes necessary to re-examine the facts tried by a jury, it must be done by another jury on a new trial. An appellate court examines the facts only so far as may be necessary to ascertain whether any error of law has been committed to the prejudice of the party complaining of the verdict; but the trial court may, in its discretion, grant a new trial where for any reason it is believed justice was not done by the first verdict.

3

The seventh amendment applies not only to cases tried by jury in the federal courts, but also to such as are tried by jury in the state courts and afterwards removed to the federal Supreme Court for review under its appellate jurisdiction.1

1 Stanley v. Whipple, 2 McLean, 35; Carr v. Gale, 3 Wood. & M. 38. 2 Insurance Co. v. Rodel, 95 U. S. Rep. 232.

8 Hickman v. Jones, 9 Wall. 197.

4 The Justices v. Murray, 9 Wall. 274.

CHAPTER XIV.

POLITICAL PRIVILEGES AND THEIR PROTECTIONS.

Political Privileges in General. - In the main, political privileges arise under state constitutions and laws, and are left to their protection. The few exceptions will be specified in the pages which follow.

The Fourteenth Amendment. The fourteenth article of the amendments declares that "all persons born and naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." The importance of this provision connects itself with the earnest and violent controversy which for more than ten years previous to its adoption had agitated the country respecting the status of colored persons. Such persons, when not enslaved, had been considered citizens in one section of the Union; and whether they were or were not citizens in the other States had been the subject of very little discussion or consideration previous to the disturbing and exciting events of which the repeal of the restriction upon the extension of slavery, imposed by the legislation known as the Missouri Compromise, was most important. In the case in which the federal Supreme Court expressed the opinion that that restriction was unconstitutional, it was decided that a colored person of the African race, whose ancestors were imported into this country and sold as slaves, could

not become a member of the political community brought into existence by the Constitution of the United States, and as such entitled to the rights, privileges, and immunities guaranteed by that instrument to citizens, and that he could not therefore, as a citizen, bring suits in the courts of the United States.1 To this extent the opinion of the court was authoritative, and was entitled to respect and observance as such so long as it stood unreversed. A very large party in the country, however, was not satisfied with the reasoning of the court, but protested against it; and when the government of the country, by the election of 1860, passed into the hands of this party, the decision was wholly ignored by the political departments of the government. It may perhaps be said that it was ignored by the judicial department also, since persons of African descent were admitted to practice in the federal courts on the same terms with others. But a mere tacit recognition of rights which are still disputed cannot be the most satisfactory settlement of a question so important. A ruling of the executive department under one administration may be set aside under the next. Even an act of Congress might be repealed when another party succeeded to power; or it might be adjudged unconstitutional by the courts, as had been done with the Missouri Compromise. But as the solemn adjudication already had was still standing unreversed, it obviously constituted a most serious and dangerous impediment to the peaceful and full enjoyment of rights which it denied. Under these circumstances the propriety and importance of having the controversy settled in the most authoritative and conclusive mode are apparent.

2

How Citizenship is acquired. The fourteenth amendment indicates the two methods in which one may become

1 Scott v. Sandford, 19 How. 393.

2 This was without objection or discussion.

1

a citizen: first, by birth in the United States; 1 and, second, by naturalization therein. But a citizen by birth must not only be born within the United States, but he must also be subject to the jurisdiction thereof; and by this is meant that full and complete jurisdiction to which citizens generally are subject, and not any qualified and partial jurisdiction, such as may consist with allegiance to some other government. The aboriginal inhabitants of the country may be said to be in this anomalous condition, so long as they preserve their tribal relations and recognize the headship of their chiefs, even when they reside within a State or an organized Territory, and owe a qualified allegiance to the government of the United States. It would obviously be inconsistent with the semi-independent character of such a tribe, and with the obedience yielded by them to their tribal head, that they should be vested with the complete rights, or, on the other hand, charged with the full responsibilities of citizens. But when the tribal relations are dissolved, or when any individual withdraws and makes himself a member of the civilized community, adopting the habits of its people and subjecting himself fully to the jurisdiction, his right to protection in person, property, and privilege becomes as complete as that of any other native-born inhabitant."

Naturalization. Naturalization

may be effected, first, by special laws which confer the privilege upon individuals named; second, by proceedings under general laws, whereby individuals severally renounce any foreign allegiance, and take upon themselves the obligations of citizenship;

1 This would include, also, birth abroad of children of American citizens temporarily residing or travelling in other countries. Rev. Stat. U. S. (1878), § 1993.

2 Goodell v. Jackson, 20 Johns. (N. Y.) 693, 710; McKay v. Campbell, 2 Sawyer, 118; Ex parte Reynolds, 18 Alb. Law Jour. 18. 8 Story on Const., 4th ed., § 1933.