CAPITAL TRACTION CO. v. HOF. 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 $20, 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 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 questions, the judicial decisions and the settled practice in the several states are entitled to great weight, inasmuch as the constitutions of all of them had secured the right of trial by jury in civil actions, by the words "shall be preserved," or "shall be as heretofore," or "shall remain inviolate," or "shall be held sacred," or by some equivalent expres sion. A long line of judicial decisions in the sev eral states, beginning early in this century, maintains the position that the constitutional right of trial by jury in civil actions is not infringed by a statute which sets the pecuniary limit of the jurisdiction of justices of the peace in actions at law higher than it was when the particular constitution was adopted, allows a trial by jury for the first time upon appeal from the judgment of the justice of the peace, and requires of the appellant a bond, with surety, to prosecute the appeal, and to pay the judgment of the appellate court. The full extent and weight of those precedents cannot be justly appreciated without referring to the texts of the statutes which they upheld, and which have not always been fully set forth in the reports. ing to the 589 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 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 £10, and, for the avowed purpose of conformthe 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 Philadelphia 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 exceeding £20, with a right of appeal, after judgment, if the amount exceeded £5, to the court of common pleas, "in the same manner, 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 £11. 6s. rendered in the alderman's court of Philadelphia upon default of the defendant, it was argued "that the constitution, by directing that trial by jury should be as heretofore, and the right thereof remain inviolate, had interdicted the legislature from abolishing or abridging this right in any case in which it had existed before the constitution; that a prohibition to do this directly was a prohibition to do it indirectly, either by deferring the decision of a jury until 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 before." But the supreme court of Pennsylvania held that the statute of 1794 was a constitutional regulation of judicial proceedings by legislative authority. 424, 428. 1 Bin. See, also, McDonald v. Schell (1820) 6 Serg. & R. 240; Biddle v. Com. (1825) 13 Serg. & R. 405, 410; Haines v. Levin (1866) 51 Pa. St. 412. Soon after the decision in Emerick v. Harris, a similar decision was made by the supreme court of North Carolina. The leading case is Emerick v. Harris (1808) 1 Bin. 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 40 shillings and up- that "in all controversies at law, respecting wards, and not exceeding £5, and authorized any person aggrieved by his judgment to appeal to the court of common pleas, "first en In the constitution of that state of 1776, it was declared 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 in 2 586 'jury,' without addition body of twelve men in as well settled as any be." "We agree with v. Hamilton, 7 Ohio, jury, properly speaki court, a tribunal au tion of justice in a tribunal is implied of the two is the p of the jury trial, that a mere com twelve men, can a jury. Upon amination of t opinion that article 1, as stitution w twelve me hearing t ments of Ohio St. The of Ne the h "The for gu a 1 constitu invio be by jury as heretofore"; and the tion of 1790, in section 6 of the bill of rights, Sed declared that "trial by jury shall be as hereroundtofore, and the right thereof remain ate the late." 2 Charters and Constitutions, 1542, of the 1546, 1554. The statutes of Pennsylvania, from 1782, required all accounts 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 thes 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 supreme court shall award, and also pay any sum of money which shall appear by the judgment of the said court to be due from him" to the state, and might have the whole matter tried by a jury upon the appeal. This statute also provided that the settlement of any account by the comptroller general, and confirmation thereof by the executive council, whereby any sum of money should be found due from any person to the state, should be a lien on all his real estate throughout the state. 2 Dall. Laws Pa. 44, 247, 248, 251. right unavailing for his That this view of Had the terms been that 'the trial by are sail be preserved,' it might have been cended that they were imperative, and Sud not be dispensed with. But the words ses hat the right of trial by jury shall be preserved, which places it on the foot of a ex 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 written 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 une trial by jury is open to him, either to arrest the progress of the law in the In Livingston v. Moore (1833) 7 Pet. 469, which came to this court from the circuit court of the United States for the Eastern district of Pennsylvania, the validity of a lien so acquired by the state was attacked on the ground, among others, that the statutes creating it were contrary to section 6 of the Pennsylvania bill of rights of 1790. But this court upheld the validity of the lien, and in an opinion delivered by Mr. Justice Johnson, after elaborately discussing the other questions in the case, briefly disposed of this one CAPITAL TRACTION CO. v. HOF. ing that the second clause of the seventh amendment could not be invoked in a state court to prohibit it from re-examining, on a writ of error, facts that had been tried by a jury in a lower court, went on to say: "It is admitted that the clause applies to the appellate powers of the supreme court of the United States in all common-law cases coming up from an inferior federal court, and also to the circuit court, in like cases, in the exercise of its appellate powers. And why not, as it respects the exercise of these powers, in cases of federal cognizance coming up from a state court? The terms of the amendment are general, and contain no qualification in respect to the restriction upon the appellate jurisdiction of the courts, except as to the class of cases, namely, suits at common law, where the trial has been by jury. The natural inference is that no other was intended. Its language, upon any reasonable, if not necessary, interpretation, we think, applies to this entire class, no matter from what court the case comes, of which cognizance can be taken by the appellate court." The ratio decidendi, the line of thought pervading and controlling whole opinion, was that the seventh amendment undoubtedly prohibited any court of the United States from re-examining facts once tried by a jury in a lower court of the United States, and that there was no reason why the prohibition should not equally apply to a case brought into a court of the United States from a state court. "In both instances,' ," it was said, "the cases are to be disposed of by the same system of laws, and by the same judicial tribunal.' 9 Wall. 277-279. the In Chicago, B. & Q. R. Co. v. City of Chicago, 166 U. S. 226, 242-244, 17 Sup. Ct. 581, the same course of reasoning was followed, and was applied to a case brought by writ of error from the highest court of a state to this court. It must therefore be taken as established, by virtue of the seventh amendment of the constitution, that either party to an action at law (as distinguished from suits in equity or in admiralty) in a court of the United States, where the value in controversy exceeds $20, has the right to a trial by jury; that when a trial by jury has been had in an action at law, in a court either of the United States or of a state, the facts there tried and decided cannot be re-examined in any court of the United States, otherwise than according to the rules of the common law of England; that by the rules of that law no other mode of re-examination is allowed than upon a new trial, either granted by the court in which the first trial was had or to which the record was returnable, or ordered by an appellate court for error in law; and therefore that, unless a new trial has been granted in one of those two ways, facts once tried by a jury cannot be tried anew, by a jury or otherwise, in any court of the United States. United tried by States, a statute of a state giving one new trial, as of right, in an action of ejectment, is quite exceptional, and such a statute does not enlarge, but restricts, the rules of the common law as to re-examining facts once a jury; for by the common law a party was not concluded by a single verdict and judgment in ejectment, but might bring as many successive ejectments as he pleased, unless restrained by a court of equity after repeated verdicts against him. Bac. Abr. "Ejectment," I; Smelting Co. v. Hall (1882) 106 U. S. 86, 1 Sup. Ct. 128; Smale v. Mitchell (1892) 143 U. S. 99, 12 Sup. Ct. 353. 3. "Trial by jury," in the primary and usual sense of the term at the common law and in the American constitutions, is not merely a trial by a jury of 12 men before an officer vested with authority to cause them to be summoned and impaneled, to administer oaths to them and to the constable in charge, and to enter judgment and issue execution on their verdict; but it is a trial by a jury of 12 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 (chapter 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 assist 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, 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, § 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 12 men under the supervision of a court, and, speaking by 584 19 SUPREME COURT REPORTER. The judiciary act of September 24, 1789, c. 20, drawn by Senator (afterwards Chief Justice) Ellsworth, and passed-within six This last statement has been often reaf- time afterwards, each of which provided that firmed by this court. Barreda v. Silsbee certain actions brought in a state court (1858) 21 How. 146, 166; Justices v. Murray against officers or persons acting under the (1869) 9 Wall. 274, 277; Miller v. Life Insur- authority of the United States might, after ance Co. (1870) 12 Wall. 285, 300; Insur- final judgment, be removed by appeal or writ ance Co. v. Comstock (1872) 16 Wall. 258, of error to the circuit court of the United? 269; Insurance Co. v. Folsom (1873) 18 Wall. States, and that court should "thereupon pro237, 249; Railroad Co. v. Fraloff (1879) 100 ceed to try and determine the facts and the U. S. 24, 31; Lincoln v. Power (1894) 151 law in such action in the same manner as if U. S. 436, 438, 14 Sup. Ct. 387; Chicago, B. the same had been there originally com& Q. R. Co. v. City of Chicago (1897) 166 U. menced, the judgment in such case notwithS. 226, 246, 17 Sup. Ct. 581. standing." Acts Feb. 4, 1815, c. 31, §§ 8, 13, and March 3, 1815, c. 94, §§ 6, 8 (3 Stat. 199, 200, 234, 235); Act March 3, 1863, c. 81, § 5 (12 Stat. 757); Act May 11, 1866, c. 80, § 3 (14 Stat. 46). But such a provision, so far as it authorized the facts to be tried and determined in the circuit court of the United States in a case in which a verdict had been returned in the state court, was held to be inconsistent with the seventh amendment of the constitution of the United States by the supreme judicial court of Massachusetts in a case arising under the acts of 1815, and by the supreme court of New York and by this court in cases arising under the acts of 1863 and 1866. Wetherbee v. Johnson (1817) 14 Mass. 412; Patrie v. Murray (1864) 43 Barb. 323; s. c. nom. Justices v. Murray (1869) 9 Wall. 274; McKee v. Rains (1869) 10 Wall. 22. months after the organization of the government under the constitution, and on the day before the first ten* amendments were proposed to the legislatures of the states-by the first congress, in which were many eminent men who had been members of the convention which formed the constitution, has always been considered as a contemporaneous exposition of the highest authority. Cohens v. Virginia (1821) 6 Wheat. 264, 420; Parsons v. Bedford, above cited; Bors v. Preston (1884) 111 U. S. 252, 256, 4 Sup. Ct. 407; Ames v. Kansas (1884) 111 U. S. 449, 463, 464, 4 Sup. Ct. 437; Wisconsin v. Pelican Ins. Co. (1888) 127 U. S. 265, 297, 8 Sup. Ct. 1370. That act provided, in sections 9 and 12, that the trial of issues of fact in a district or circuit court, in all suits, except those of equity | by Patrie or admiralty jurisdiction, should be by jury; in section 13, that the trial of issues of fact in this court, in the exercise of its original jurisdiction, in all actions at law against citizens of the United States, should be by jury; in section 17, that "all the said courts of the United States" should "have power to grant new trials, in cases where there has been a trial by jury, for reasons for which new trials have usually been granted in the courts of law"; and in sections 22 and 24, that final judgments of the district court might be reviewed by the circuit court, and final judgments of the circuit court be reviewed by this court, upon writ of error, for errors in law, but not for any error in fact. 1 Stat. 77, 80, 81, 83, 84. Those provisions, so far as regards actions at law, have since remained in force, almost uninterruptedly, and they have been re-enacted in the Revised Statutes, allowing the parties, however, to waive a jury, and have their case tried by the court. Rev. St. §§ 566, 633, 648, 689, 691, 726, 1011. The only instances that have come to our notice in which congress has undertaken to authorize a second trial by jury to be had in a court of the United States, while the verdict of a jury upon a former trial in a court of record has not been set aside, are to be found in two temporary acts passed during the last war with Great Britain, and in an act passed during the war of the Re In Justices v. Murray, an action was brought against Murray, a United States marshal, and his deputy, in the supreme court of the state of New York, and a verdict and judgment for the plaintiff were rendered in that court. The defendant sued out a writ of error from the circuit court of the United States, under the act of congress of March 3, 1863, c. S1, § 5, and moved the state court to stay proceedings. The state court denied the motion, and refused to make a return to the writ of error, upon the ground that the act of congress, so far as it provided that a case, after verdict and judgment in a state court, might be removed to the circuit court of the United States for trial and determination upon both the facts and the law, in the same manner as if the case had been originally commenced in that court, was in violation of the seventh amendment of the constitution of the United States, and for that reason null and void. Patrie v. Murray, 43 Barb. 323. Thereupon the circuit court of the United States, without expressing any opinion upon this point, granted a writ of mandamus to the clerk of the state court." Murray v. Patrie, 1⚫ Blatchf. 343, Fed. Cas. No. 9,967; Id., 9 Wall. 276, note. The judgment of the circuit court ordering a mandamus was then brought to this court by writ of error, and reversed. Mr. Justice Nelson, in delivering judgment, after remarking that the case (which had been twice argued by very able counsel) had received the most deliberate consideration of the court, quoting the statements of Mr. Justice Story in tried by a jury before a justice of the peace; in providing for a jury of 6, instead of a jury of 12, 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. 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 $50, and (in the section copied in the margin) provided for a trial by a jury of 12 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 $25, whereas the act of congress allowed it whenever the sum demanded exceeded $20. 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; McNeil v. Scoffield (1808) 3 Johns. 436; Hess v. Beekman (1814) 11 Johns. 457; Cow. Just. (1st Ed. 1821) 541, 544. By a familiar canon of interpretation, heretofore applied by this court whenever congress, in legislating for the District of Columbia, has borrowed from the statutes of a state provisions which had received in that state a known and settled construction before their enactment by congress, that construction must be deemed to have been adopted by congress together with the text which it expounded, and the provisions must be construed as they were understood at the time in the state. Railroad Co. v. Moore (1887) 121 U. S. 558, 572, 7 Sup. Ct. 1334; Willis v. Banking Co. (1898) 169 U. S. 295, 307, 308, 18 Sup. Ct. 317. *7. 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 $20, 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 upon the facts in any court of the United States. Congress, when enlarging, by the act of 1823, the exclusive original jurisdiction of justices of the peace in the District of Columbia from $20 to $50, manifestly intended that the dictates of the constitution should be fully carried out, in letter and spirit. With this object in view, congress first enacted that "in all cases" before a justice of the peace, in which the demand exceeded $5, either the plaintiff 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, further enacted that every case, in which the sum demanded exceeded $20, should, if either party so requested, "be tried by a jury" of 12 men before the justice of the peace. In all acts of congress regulating judicial proceedings, the very word “appeal," unless restricted by the context, indicates that the facts, as well as the law, involved in the judgment below, may be reviewed in the appellate court. Wiscart v. Dauchy (1796) 3 Dall. 321, 327; In re Neagle (1890) 135 U. S. 1, 42, 10 Sup. Ct. 658; Dower v. Richards (1894) 151 U. S. 658, 663, 664, 14 Sup. Ct. 452. 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. Neither the direction of section 1, that the justice of the peace should give judgment "according to the laws existing in the District of Columbia, and the equity and right 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 upon the appellate court, or as substituting 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, in |