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 juJors 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 judgnent, 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 compari-| son, in the margin.†

"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 sald 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 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. Metropolitan Railroad 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. Co. (1898) 169 U. S. 295, 307, 308 [42: 752, 758]. [37] *VII. The questions of the validity and the effect of the act of Congress of 1823 then present themselves in this aspect:

upon the appellate court, or as substituting | circuit court in several early cases. David-
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.

son v. Burr (1824) 2 Cranch, C. C. 515; Maddox 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. Č. 90.

But a trial by a jury before a justice of the peace, pursuant to sections 15 and 16 of the act, was of quite a different character. Congress, in regulating this matter, might doubtless allow cases within the original jurisdiction of a justice of the peace to be tried and decided in the first instance by any specified number of persons in his presence. But such persons, even if required to be twelve in number, and called a jury, were rather in the nature of special commission ers or referees. A justice of the peace, having no other powers than those conferred by Congress on such an officer in the District of Columbia, was not, properly speaking, a judge, or his tribunal a court; least of all, a court of record. The proceedings before him were not according to the course of the common law; his authority was created and [39] defined by, and *rested upon, the acts of Congress only. The act of 1823, in permitting cases before him to be tried by a jury, did not require him to superintend the course of the trial or to instruct the jury in matter of law; nor did it authorize him, upon the re-jury within the meaning of the Seventh turn of their verdict, to arrest judgment upon it, or to set it aside, for any cause whatever; but made it his duty to enter judgment upon it forthwith, as a thing of course. A body of men, so free from judicial control, was not a common-law jury; nor was a trial ty them a trial by jury, within the meaning of the Seventh Amendment to the Constitution. It was no more a jury, in the constitutional 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

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 justice of the peace, by a jury impaneled pursuant to the act of 1823, was a trial by jury within the meaning of the Seventh Amendment to the Constitution, and therefore the facts could not be tried anew upon appeal. In Smith v. Chase, however, that learned judge (declaring that he spoke for himself only) delivered an elaborate opinion, in which he maintained the position that, upon the demand of a trial by jury, the cause was taken entirely out of the hands of the justice of the peace; that he was obliged to summon and swear the jury, and to render judgment according to their verdict; that ro authority was given him to instruct the jury upon matter of law or of fact, or to set aside their verdict and grant a new trial; and that the jury were not bound by his opinion upon matter of law, but were to decide the law as well as the fact. 3 Cranch, C. C. 351, 352. From these premises he inferred (by what train of reasoning does not clearly appear) that such a trial by a jury before the justice of the peace was a trial by

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

Amendment to the Constitution; that the facts so tried, therefore, could not be tried anew in an appellate court; and that no apreal lay in such a case. Curiously enough, that opinion, purporting to have been delivered at December term, 1828, refers to the cpinion of this court in Parsons v. Bedford, 3 Pet. 446-448 [7: 736, 737], which was not delivered until January term, 1830.

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 present case. Capital Traction Co. v. Hof, 24 Wash. L. Rep. 646. But each of these two [41] 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 Columbia, it is quite clear that the decisions

of those courts, especially when they involve questions of the interpretation of the Constitution of the United States, and of the constitutionality and effect of acts of Congress, cannot be considered as establishing the law, or as relieving this court from the responsibility of exercising its own judgment. Ex parte Wilson (1885) 114 U. S. 417, 425 [29: 89, 92]; Andrews v. Hovey (1888) 124 U. S. 694, 717 [31: 557,563]; The J. E. Rumbell (1893) 148 U. S. 1, 17 [37: 345, 349].

IX. The legislation of Congress since the act of 1823 has not changed the character of the office, or the nature of the powers, of the justices of the peace in the District of Columbia, or of the juries summoned to try cases before those justices. The principal changes have been by enlarging the limits of the civil jurisdiction of the justices of the peace, and by expressly requiring security on appeals from their judgments.

By the act of February 22, 1867, chap. 63, § 1 (14 Stat. at L. 401), Congress enlarged the jurisdiction of justices of the peace in the District of Columbia to "all cases where the amount claimed to be due for debt or damages arising out of contracts, express or implied, or damages for wrongs or injuries to persons or property, does not exceed one hundred dollars, except in cases involving the title to real estate, actions to recover damages for assault, or assault and battery, or for malicious prosecution, or actions against justices of the peace or other officers for misconduct in office, or in actions for slander, verbal or written." [Rev. Stat. D. C. § 997.] And on the same day, Congress, by the act of 1867, chap. 64 (14 Stat. at L. 403), provided that "no appeal shall be allowed from a judgment of a justice of the peace, unless the appellant, with suflicient surety or sureties, approved by the justice, enter into an undertaking to satisfy and pay all intervening damages and costs arising [42] on the appeal;" and that, "when such*undertaking has been entered into, the justice shall immediately file the original papers, including a copy of his docket entries, in the oflice of the clerk of the supreme court of the District of Columbia; and thereupon, as soon as the appellant shall have made the deposit for costs required by law, or obtained leave from one of the justices, or from the court, to prosecute his appeal without a deposit, the clerk shall docket the cause," and it should be proceeded with substantially in the manner prescribed by the act of Congress of 1823. [Rev. Stat. D. C. 88 774, 1027-1029.]

In 1874, the provisions, above quoted, of the acts of 1823 and 1867, were re-enacted (with hardly any change except by subdividing and transposing sections) in the Revised Statutes of the District of Columbia, at the places above referred to in brackets.

By the act of February 19, 1895, chap. 100, §§ 1, 2, justices of the peace of the District of Columbia have been granted (with the same exceptions as in the act of February 22, 1867, chap. 63, also excepting, however, actions for damages for breaches of promise to marry, and not excepting actions for assault

or for assault and battery) exclusive original jurisdiction of "all civil pleas and actions, including attachment and replevin, where the amount claimed to be due or the value of the property sought to be recovered does not exceed" one hundred dollars, and concurrent original jurisdiction with the supreme court of the District of Columbia, where it is more than one hundred and not more than three hundred dollars; "and where the sum claimed exceeds twenty dollars, either party shall be entitled to a trial by jury." And by § 3, "no appeal shall be allowed from the judgment of a justice of the peace in any common-law action, unless the matter in demand in such action, or pleaded in set-off thereto, shall exceed the sum of five dollars; nor unless appellant, with sufficient surety approved by the justice, enters into an undertaking to pay and satisfy whatever final judgment may be recovered in the appellate court." 28 Stat. at L. 668.

Under the act of 1895, as under the previous acts of Congress, where the matter in controversy exceeds five dollars in value, an appeal lies to a court of record from any judgment *of a justice of the peace, whether [43] rendered upon a verdict or not, and either party may have a trial by a common-law jury in the appellate court; and the trial by jury in that court is. and the trial before a justice of the peace is not, a trial by jury within the meaning of the Seventh Amendment to the Constitution.

The only question remaining to be considered is of the constitutionality of the provisions of the act of 1895, by which the civil jurisdiction of justices of the peace is extended to three hundred dollars, and either party, on appealing from the judgment of the justice of the peace to the supreme court of the District of Columbia, is required to enter into an undertaking to pay and satisfy whatever judgment may be rendered in that court.

For half a century and more, as has been seen, after the adoption of the earliest Constitutions of the several states, their courts uniformly maintained the constitutionality of statutes more than doubling the pecuniary limit of the civil jurisdiction of justices of the peace as it stood before the adoption of Constitutions declaring that trial by jury should be preserved inviolate, although those statutes made no provision for a trial by jury, except upon appeal from the judgment of the justice of the peace, and upon giving bond with surety to pay the judgment of the appellate court. And such appears to have been understood to be the law of Maryland and of the District of Columbia before and at the time of the passage of the act of Congress of 1823.

Legislation increasing the civil jurisdiction of justices of the peace to two or three hundred dollars, and requiring each appellant from the judgment of a justice of the peace to a court of record, in which a trial by jury may be had for the first time, to give security for the payment of the judgment of the court appealed to, has not generally been