citizen thereof. Second. That he had not voluntarily given aid, counsel, countenance, or encouragement to persons engaged in armed hostility thereto. Third. That he has never sought, accepted, or attempted to exercise the functions of any office whatsoever under the authority, or pretended authority, in hostility to the United States. Fourth. That he has not yielded a voluntary support to any pretended government, authority, power or constitution within the United States, hostile, or inimical thereto;" was held to be in violation of the provisions of the constitution; not only as being ex post facto law, but also as against the inhibition against the passage of bills of attainder. a It was said, that this act operated as a legislative decree, judicial in its character, of perpetual exclusion against a class of citizens for past transactions; that an exclusion from any of the professions, or any of the ordinary avocations of life for past conduct, could be regarded in no other light than as a punishment for such conduct.

The trial by jury, especially in all criminal cases, is justly dear to the American people. It has always been an object of deep interest and solicitude, and every encroachment upon it has been watched with great jealousy. The right to such a trial, as is seen, is secured by being incorporated into the federal constitution, into the constitution of this state, and it is believed into the constitution of every state in the Union. It is said to have been one of the strong objections originally taken against the constitution of the United States, that there was the omission to provide for the right of trial by a jury in all civil cases. So strongly was this objection pressed, that its advocates, after the adoption of the original, were able to secure this right in a somewhat qualified sense Ꭹ the seventh amendment made thereto, as proposed by congress, which afterwards received the assent of the people, and so established its importance, as a fundamental guaranty to what was regarded as the rights and liberties of the people. b The qualification however, was first, to cases where the value of the controversy exceeded twenty dollars, and second, the implication arising from the language "shall be preserved," as qualifying it to such cases of trial by jury as existed at common law at the time and prior to a Matter of Garland, reported in 32 How. Pr. R. 241 b Parsons v. Bedford, 3 Peters, 445.

the adoption of the constitution that is, the existing law was "preserved." The same provision in effect is secured by our state constitution. "The trial by jury in all cases in which it has heretofore been used, shall remain inviolate forever." a

Beyond the reasons which might be advanced by jurists of the greatest experience as to the most judicious modes of trial in cases not criminal, there has ever existed in the minds of the mass of citizens, a tenacity of opinion in favor of the system of trial by jury; they insist upon it as one of the great bulwarks of civil and political liberty, and they are ever watching it with unceasing jealousy and solicitude. It is claimed, that the same reasons which secured a trial by jury in criminal cases; which was to protect against oppression and tyranny on the part of rulers; and from violence and vindictiveness on the part of the people, under circumstances of excitement and passion; demands a corresponding protection where their personal liberty, property, or character are involved; that at common law these rights came down to them as a fundamental right secured by Magna Charta, and is secured by the provision in our own fundamental law, that no man shall be arrested or imprisoned, or deprived of life, liberty or property except by the judgment of his peers, or by the law of the land. And this claim as to a class of actions, has been especially endorsed by our highest state court in a recent case, in which it was said, b The wisdom of the time-honored rule of the common law which refers questions of fact to the jurors, and questions of law to the judge, is not more conspicuous in any class of civil cases, than in those which involve questions of negligence. Cases of that nature frequently come before the courts, in which men of equal intelligence and judgment differ in their conclusions, simply because they differ in experience and habits, in temperament or mental organization. That average judgment which is the result of the deliberations of twelve men of ordinary sense and experience is recognized by our jury system as a juster standard than the judgment of one man, of equal experience and sense, in the determination of questions of fact, and it is especially valuable in the de

a Murphy v. The People, 2 Cow. 816; Jackson v. The People, id. 819; Livingston v. Mayor, 8 Wend. 99; Colt v. Eves, 12 Conn. 251.

cision of the question of negligence. On the trial of an issue of that nature, if there is any doubt, however slight, either as to what facts are established by the testimony, or as to the conclusion with respect to the fact of negligence that may be drawn legitimately from the circumstances proved by the average of men of common sense, ordinary experience, and fair intentions, the case should not be taken from the jury. It is only where the case is entirely clear upon the testimony; where there is no rational doubt, either as to the circumstances proved, or as to the conclusions of fact which may be properly drawn from them, that a judge is justified in deciding a question of negligence as matter of law. But this view is perhaps more a question of practice, than of construction, though it partakes of the spirit of the constitutional protection.

An unlimited power in a constitution creating a judicial department, and to constitute courts, includes in it, the power to prescribe a mode of trial; consequently, if nothing was said in the constitution on the subject of juries, the legislature would be at liberty either to adopt the system of trial by jury, or to let it alone. So far as criminal cases are concerned, in both the national and state constitutions, the question is settled by express injunction, but so far as regards civil cases, the national constitution was originally silent, and by the constitution of this state, the right of the legislature to direct, is qualified by limitation to cases in which it therefore had been used. It had been claimed that the specification in the national constitution of an obligation to try all criminal cases by jury, by the rules of construction, excluded the obligation to try civil causes in the same way, a though it did not abridge the power of the legislature to appoint that mode. This was amended afterwards, as has been stated, by the seventh amendment, with a qualification. The pretence therefore, either that it is the constitutional right of the citizen to have every case tried by a jury, or, that the right of trial in civil cases is denied by implication of the constitution, is without foundation.

It may therefore be stated, that jury trials are nowhere abolished, in national or state constitutions, and with equal certainty it may be stated, that in most of the civil controversies that arise between individuals, in which the great body of the people are

a Federalist, by Hamilton, No. 83.

likely to be interested, the trial by jury as an institution, will re main as heretofore, and in the situation in which it is placed by the state constitutions.

At the time of the adoption of these provisions in the national and state constitutions, throughout the Union, and in the several states, the common law was the basis of our jurisprudence, and was probably that of the new states since received into the Union. But it may as well be remarked here, that the provision in the United States constitution is only intended for proceedings under acts of congress, and does not apply to actions in state courts. a The phrase "common law," found in this clause of the constitution of the United States, is used in contradistinction to "equity" and "admiralty" and "maritime" jurisprudence. The constitution had declared, in the third article, "that the judicial power shall extend to all cases in law and equity arising under that constitution, the laws of the United States, and treaties made or which shall be made under their authority, &c.," and to all cases of admiralty and maritime jurisdiction. It is well known that in civil cases, in courts of equity, and admiralty, juries do not intervene, and that courts of equity use the trial by jury only in extraordinary cases, to inform the conscience of the court. When therefore we find that this amendment requires that the right of trial by jury shall be preserved in suits at "common law" the natural conclusion is, that this distinction was present to the minds of the framers of the amendment. By common law, they meant what the constitution denominated in the third article, "law," not merely suits which the common law recognized among its old settled proceedings, but suits in which legal rights were to be ascertained and determined, in contradistinction to those, where equitable rights alone were recognized, and equitable remedies were administered; or where, as in the admiralty, a mixture of public law, and of maritime law, and equity, was often found in the same suit. Probably there were few, of any, states in the union, in which some new legal remedies differing from the old common law forms were not in use; but in which, however, the trial by jury intervened, and the general regulations in other respects, were according to the course of the common law. Pro

a Colt v. Eves, supra; Livingston v. Moore, 7 Peters R. 551.

ceedings in case of partition, and of foreign and domestic attachments, might be cited as examples, variously adopted and modified.

In a just sense, then, the amendment may be well construed to embrace all suits, which are not of equity and admiralty jurisdiction, whatever may be the peculiar form which they may assume to settle legal rights. And congress seems to have acted with reference to this exposition in the judiciary act of 1789, ch. 20, (which was contemporaneous with the proposed amendment;) for in the ninth section, it is provided, that, "the trial of issues of fact in the district court in all causes, except civil causes of admiralty and maritime jurisdiction, shall be by jury;" and in the twelfth section it is provided, that "the trial of issues in fact in the circuit courts, shall in all suits, except those of equity and admiralty and maritime jurisdiction, be by jury; and again in the thirteenth section, it is provided, that "the trial of issues in fact in the supreme court in all actions at law against citizens of the United States, shall be by jury."

The

The same construction in effect was given to a similar constitutional provision in the state of Pennsylvania, in the following words: "Trials by jury shall be as heretofore, and shall remain inviolate." At the time of the adoption of that constitution, justices had jurisdiction in actions not exceeding ten pounds. The legislature of that state, by an act increased this jurisdiction to twenty pounds, and imposed certain liabilities to courts, and to parties in certain circumstances, who demanded trials by jury in that class of cases. This latter act was claimed to be unconstitutional. court held, a that though the legislature could not constitutionally impose any provisions substantially restrictive of the right of trial by jury, they might give existence to new forums; and they might modify the powers and jurisdiction of former courts, in such instances as are not interdicted by the constitution from which their legitimate powers are derived; still, the sacred, inherent right of every citizen, a trial by jury, must be preserved. "It shall remain inviolate as heretofore."

This provision, securing to the citizen his right and privileges, unless deprived of them "by due process of law," was designed, says Denio, J.,b "To protect the citizen against all mere acts of power,

a Emeriek v. Harris, 1 Binney, 424. b Westervelt v. Gregg, 12 N. Y. 212.