QUARTERING OF SOLDIERS.

218. The third amendment to the federal constitution provides that "no soldier shall, in time of peace, be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law." And similar provisions are found in the constitutions of many of the states.

This provision was probably suggested by a clause of the Petition of Rights presented to Charles I., wherein it was stated that "great companies of soldiers and mariners have been dispersed into diverse counties of the realm, and the inhabitants against their wills have been compelled to receive them into their houses and there to suffer them to sojourn, against the laws and customs of this realm, and to the great grievance and vexation of the people." Also, one of the grievances set forth in the Declaration of Independence was the "quartering of large bodies of armed troops among us." There has never been any necessity for the courts to extend to individuals the protection guarantied by this provision, and the clause is of historical interest only. It is an additional guaranty of the security and privacy of a man's dwelling house. "Its plain object," says Story, "is to secure the perfect enjoyment of that great right of the common law, that a man's house shall be his own castle, privileged against all civil and military intrusion." 178

RIGHT TO OBTAIN JUSTICE FREELY.

219. In many of the states, the constitutions provide that every person ought to obtain justice freely, without being obliged to purchase it, completely and without denial, promptly and without delay.

This provision is founded on the forty-seventh article of Magna Charta, wherein the king declares: "We will sell to no man, we will deny to no man, nor defer, right or justice." The guaranty of free,

173 2 Story, Const. § 1900.

prompt, and effectual justice, although it is but seldom violated by the legislature or the courts, is one of the most important and valuable principles of freedom. Of course this constitutional provision does not mean that the laws shall be perfect, or their administration unerring. It means that the courts shall always be open to every suitor, be he high or low, rich or poor; that justice shall not be bought or sold, nor made a luxury available only to the wealthy; that for every infraction of the rights of the individual the law should provide a practical and adequate remedy; and that justice should not be deferred by vexatious and unnecessary delays, nor withheld during a longer time than is required for the regular and orderly course of judicial proceedings. But this provision does not have the effect to prohibit the taxation of fees and costs in legal proceedings. Neither does it debar the legislature from authorizing the courts to require suitors to furnish security for the costs, in proper cases.175 To the same category belong statutes requiring a person who seeks to have a tax sale of land set aside to deposit in court the amount of the purchase money, together with all taxes and costs accruing since the sale. Such laws are not in conflict with this provision of the constitution, at least when the ground of attack consists in irregularities or omissions in the tax proceedings, though it is probably otherwise when objection is taken to the legality of the tax itself.176

174

174 Perce v. Hallett, 13 R. I. 363; Walker v. Whitehead, 43 Ga. 538.

175 Conley v. Woonsocket Inst., 11 R. I. 147. But in Pennsylvania it is held that a rule of court requiring security for costs to be given by the plaintiff in actions of tort is unconstitutional, since its enforcement would be a denial of justice to any one too poor to comply with it. Schade v. Luppert, 17 Pa. Co. Ct. R. 460. A law providing for the use of "struck juries" when claimed by either party, and requiring the applicant therefor to pay the fees for striking the same and also the fees of the jury, is not in conflict with this constitutional provision. Lommen v. Gaslight Co. (Minn.) 68 N. W. 53.

176 Black, Tax Titles, § 438; Craig v. Flanagin, 21 Ark. 319; Pope v. Macon, 23 Ark. 644; Coonradt v. Myers, 31 Kan. 30, 2 Pac. 858.

TRIAL BY JURY.

220. Provisions in the constitutions of the several states, as well as in the constitution of the United States, secure to suitors a right of trial by jury in civil issues.

221. An essential element of this right is the independence of the jury, and the constitutional provisions imply that the jury shall not be controlled or coerced by the

court.

222. Trial by jury can be claimed as a matter of right only in cases suitable for that mode of trial, and where the right existed at the time of the adoption of the particular constitution. It cannot be claimed as of right in—

(a) Equity cases.

(b) Admiralty cases.

(c) Summary proceedings.

223. It is not competent for the legislature to impose upon the right of trial by jury such onerous or oppressive restrictions or conditions as would make it practically unavailing to a party for his benefit or protection.

The Seventh Amendment.

The seventh amendment to the federal constitution provides that "in suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and 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."

(This amendment, although it provides in general terms that the

right of trial by jury shall be preserved, was intended to apply, and does apply, only to proceedings in the courts of the United States, and it does not affect proceedings in the state courts, nor the power of the states to regulate the form and method of trials in their own tribunals.177 Neither this clause nor the provisions of the fourteenth amendment forbids the states to abolish or deny the right of

177 Edwards v. Elliott, 21 Wall. 532; Livingston v. Mayor of New York, 8 Wend. (N. Y.) 85.

trial by jury.) Such prohibition, if any, must be found in the constitution of the particular state.178 The language of the seventh amendment is to be taken broadly and liberally, as preserving an important right. Thus it is said that it may, in a just sense, be construed to embrace all suits which are not of equity or admiralty jurisdiction, whatever peculiar form they may assume to settle legal rights.17 But the provisions of the seventh amendment did not apply to a preliminary examination under the fugitive slave law, such a proceeding not being according to the course of the common law, but constitutional and statutory.180

Provisions in the State Constitutions.

The provisions in the various state constitutions relative to trial by jury generally declare that this right "shall remain inviolate," or "shall be preserved," or "shall be as heretofore." But in some, the right is expressly limited to civil cases or civil issues, or even to civil cases wherein an issue of fact proper for a jury is joined in a court of law. In several states, also, cases of minor cognizance or where only a small amount is involved are, for reasons of obvious propriety, excepted from the right of trial by jury. And in several, this right is denied "in cases heretofore used and practiced," which means that cases which were tried without a jury according to the established practice at the time of the adoption of the constitution are not to be included in the general guaranty of that right.181

Meaning of Trial by Jury.

"The terms 'jury' and 'trial by jury' are, and for ages have been, well known in the language of the law. They were used at the adop tion of the constitution, and always, it is believed, before that time, and almost always since, in a single sense. A jury for the trial of a cause was a body of twelve men, described as upright, well-qualified, and lawful men, disinterested and impartial, not of kin nor personal dependents of either of the parties, having their homes within the jurisdictional limits of the court, drawn and selected by officers free from all bias in favor of or against either party, duly impannelled un

178 Walker v. Sauvinet, 92 U. S. 90.

179 Parsons v. Bedford, 3 Pet. 433, 447.

180 Miller v. McQuerry, 5 McLean, 469, Fed. Cas. No. 9,583. 181 Stim. Am. St. Law, §§ 72, 73.

der the direction of a competent court, sworn to render a true verdict according to the law and the evidence given them, who, after hearing the parties and their evidence, and receiving the instructions of the court relative to the law involved in the trial, and deliberating, when necessary, apart from all extraneous influences, must return their unanimous verdict upon the issue submitted to them." 182

Number and Composition of the Jury.

Wherever the right of trial by jury is preserved and guarantied by the constitutions, a common law jury is meant; and at common law a jury was always composed of twelve men, no more and no less. Therefore it is not lawful for the legislature (unless specially empowered by the constitution) to provide that a jury for the trial of civil issues in cases which required a jury at common law may be composed of a less or greater number than twelve.183 But wherever facts are to be found in any proceeding in which a jury was not required by the common law, a jury of any number may be authorized in the discretion of the legislature; and as juries. did not belong to courts held by justices of the peace, the legislature, if it authorizes juries in such courts at all, may provide that they shall consist of a different number of men. 184 It was also a part of the trial by jury at common law that the jurors should render a unanimous verdict. Consequently, to provide by law that a majority of a petit jury, or less than the whole number, may render a verdict in any case where the constitution accords the party the right to a jury trial, would be unconstitutional.185 It is said, however, that the constitutional provision that the right of trial by jury shall remain inviolate does not necessarily mean trial by a jury of the vicinage. Juries were originally selected from the vicinage because, being so selected, they were more likely to have some independent knowledge of the matter to be tried. But this reason no longer exists, and at present the only reason for drawing a jury from the vicinage is found in the

182 State v. McClear, 11 Nev. 39, 60.

183 Dowling v. State, 5 Smedes & M. (Miss.) 664; People v. Kennedy, 2 Parker, Cr. R. (N. Y.) 312; Vaughn v. Scade, 30 Mo. 600; Lamb v. Lane, 4 Ohio St. 167; People v. Justices, 74 N. Y. 406.

184 Work v. State, 2 Ohio St. 296.

185 Opinion of Justices, 41 N. H. 550; Kleinschmidt v. Dunphy, 1 Mont. 118.