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that which they have exercised as concurrent with courts of law; but should be understood as limited to the rights and remedies peculiarly legal in their nature, and such as it was proper to assert in courts of law, and by the appropriate modes and proceedings of courts of law."

A Jury trial is not a proceeding in Equity.-The right of trial by jury, considered as an absolute right, does not extend to cases of equity jurisdiction. If it be conceded or clearly shown that the case belongs to this class, the trial of questions involved in it belongs to the court itself, no matter what may be its importance or complexity.15

We have already traced to some extent the history of trial by jury in criminal cases, and as that differs but little from the history of jury trials in civil cases it will be unnecessary to repeat it here. The principal characteristics of a jury trial at common law were that the jury should consist of twelve men, and the verdict should be unanimous and this applied to juries in civil as well as in criminal cases.

A statute of the territory of Utah provided that in civil cases a verdict might be rendered on the concurrence of nine or more members of the jury, but it was held in American Publishing Company v. Fisher:18 "Uniformity was one of the peculiar and essential features of trial by jury at common law, and it is clear that a statute which destroys this substantial and essential feature abridges the right guaranteed by this amendment." This was affirmed in Springville v. Thomas,17 where it was held the Seventh Amendment secured unanimity in verdicts, and an act of Congress could not change it. The constitutional requirements are all satisfied if one opportunity is had for the trial of all parts of a case. Everything beyond that is matter of legislative discretion, not of constitutional right.

The language of Chief Justice Waite in the "Francis Wright" case was: "The Constitution prohibits a retrial of the facts in suits at common law where one trial has been had by a jury; but in suits in equity or in admiralty

15 Barton v. Barbour, 104 U. S., 126, 133.

16 166 U. S., 464.

17 166 U. S., 708.

Congress is left free to make such exceptions and regulations in respect to retrials as on the whole may seem best. ''18

Whether under the Seventh Amendment a court may inquire whether a judgment founded on a verdict was obtained by fraud, and if so founded may set the verdict aside was a question the Supreme Court of the United States declined to decide.19

Where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved.

There was no special significance in fixing the amount which should entitle a party to a jury trial at twenty dollars. Some amount had to be agreed upon, and the conclusion was most likely reached without debate or comment.

The trial by a jury of twelve men is of very ancient origin, and this may account for the fact that law writers and historians do not agree as to when, nor where, the system was established. A reliable account is that it originated in Scandinavia at a very early period, but that in course of time it was abandoned, and, about 820 A. D., was re-established in that country.20 Almost a century after this the system was established in Normandy, where it was in general use, especially in causes involving small amounts. After the Normans invaded England and overcame that country, which was in 1066, they established their jury system there-substituting it for a system already in force in that country which was called sectatores, and which had been established by the Saxons. There is no substantial authority for believing that the number of sectatores who sat in a given cause consisted of twelve persons, but that the number varied according to circumstances and the place they sat. They rendered their judgment both upon the law and the facts, and were not sworn to return a true verdict, but were left to their honor to do so.

18 105 U. S., 386.

19 Fidelity Mutual Life Ins. Co. v. Clark, 203 U. S., 65, 73.

20 Reeve's History of English Law, vol. 1, 331. Forsyth, Trial by Jury, 16.

The same historian tells us that the earliest mention of a jury in England was in the reign of William the Conquerer (1066-1087) and that it was a case involving land.

Odo, the Bishop, who presided at the case, being dissatisfied with the determination of the sectatores, told them that if they were still of the opinion that they had spoken truly and continued in that opinion, they should choose twelve from among themselves, who should confirm it upon their oaths.21 And this the historian cites as the first trial which occurred in England by a jury of twelve men. He also tells us that it was in the reign of Henry II (1154-1189), that jury trials became general in England. Hallam, in his Constitutional History,2 7,22 refers to the jury system as originating in the reign of Henry II.

Exceptions or challenges to the qualifications of a juror were allowed in those days very much as they are now. There were several causes which the law recognized as being valid challenges to the competency of a juror. Any person who had been convicted of perjury could be challenged, so could any one who held any great enmity against any party, or any special friendship towards either of the parties, so being a servant, or on great familiarity, or related by consanguinity or affinity, unless he was equally related to both parties; being a counsel or advocate. These and other reasons were all regarded as just causes of exceptions to jurors. When the jury was complete, the first one, having been selected, was given this oath: "Hear this, ye Justices, that I will speak the truth of this assise, and of the tenement of which I have had avow by the King's writ, and in nothing will omit to speak the truth, so help me God, and these Holy Gospels." After this oath had been administered the remaining jurors took the following oath. "That oath which the foreman here hath taken I will keep on my part, so help me God, and these Holy Gospels." In this situation, continues the historian, the justices were to say nothing towards instructing the jurors, but the jurors

21 Reeve's History of the English Law, vol. 1, 330, 332. 22 Vol. 1, page 21.

were to retire into some secret place, and there to converse with one another with what they had in charge; and no one was to have access to them, or talk with them, until they had given their verdict; nor were they, on the other hand, by signs or words, to give the least intimation what their verdict was to be.

And no fact tried by a jury shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law.

It is highly probable that this part of the amendment would not have been adopted or presented had it not been for that provision in the original Constitution which provides. "In all other cases before mentioned the Supreme Court shall have appellate jurisdiction both as to law and fact." This provision aroused opposition. Many of its opponents said that it gave the Supreme Court the right practically to retry facts which had been submitted to a jury, and it was the purpose of this part of the amendment to limit the power of the Supreme Court in this regard, though many eminent jurists have thought there was never any danger that the fears of the opponents of the original provision would be realized. The amendment had the effect it was intended to have. It allayed all fear of the Supreme Court on the subject; was influential in overcoming opposition to the Constitution, and assisted in reconciling those who were opposed to it.

How facts may be re-examined.-In Parsons v. Bedford, supra, Justice Story, in referring to this clause, said: "It was very important and was a prohibition to the courts of the United States to re-examine any facts tried by a jury in any other manner. The only modes known to the common law to re-examine such facts, are the granting of a new trial by the court where the issue was tried, or to which the record was properly returnable, or the award of a venire facias de novo, by an appellate court, for some error of law which intervened in the proceedings."

According to the rules of the common law.-In Capital

Traction Co. v. Hof,23 Gray, Justice, said: "A comparison of the language of the Seventh Amendment, as finally made part of the Constitution of the United States, with the Declaration of Rights of 1774, with the Ordinance of 1787, with the essays of Mr. Hamilton in 1788 and with the amendments introduced by Mr. Madison in Congress in 1789, strongly tends to the conclusion that the Seventh Amendment in declaring that 'no fact tried by a jury shall be otherwise re-examined, in any court of the United States, than according to the rules of the common law,' had in view the rules of the common law of England, and not the rules of that law as modified by local statute or usage in any of the States. This conclusion has been established, and the 'rule of the common law' in this respect clearly stated and defined by judicial decisions.

"It must therefore (p. 13) be taken as established, by virtue of the Seventh Amendment to 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 twenty dollars, 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."

Trial by jury defined.-"Trial by jury," in the primary and usual sense of the term at common law and of the American Constitutions, is not merely a trial by a jury of twelve men before an officer vested with authority to cause them to be summoned and impaneled, to administer

28 174 U. S., 7.

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