convenience of parties and witnesses.188 But an act which prohibits those who are not taxpayers from serving on juries is understood to conflict with the provisions of the seventh amendment to the federal constitution.187 And it is clearly a part of the right of trial by jury, as the same existed at common law, that the parties should have the right to inquire into the qualifications and impartiality of the jurors, and be permitted to challenge such as are unfit to serve or are biased against them.188 An act providing for "struck juries," on the demand of either party, is not in conflict with the constitutional provision that the right of trial by jury shall remain inviolate.189 Province of Court and Jury.

In a trial by jury the judge and jury have different, though related, duties and provinces. The facts are for the jury; the law for the court. And the jury, within their own province, are independent of the court; that is, they cannot be dictated to or controlled in respect to their verdict, if the case involves disputed questions of fact and conflicting testimony. It is the duty of the judge to decide questions of law arising in the course of the trial, and to instruct the jury as to the law which should govern the controversy. He should see that every case so goes to the jury that they have clear and intelligent notions of the points they are to decide, and to this end he should give necessary instructions, whether so requested by counsel or not.190 It is not error for the court to direct the jury to return a particular verdict, when the evidence is so conclusive that it would be the duty of the court to set aside a different verdict as against the evidence, although there may be some slight conflict of testimony.191 "Decided cases may be found where it is held that if there is a scintilla of evidence in support of a case the judge is bound to leave it to the jury; but the modern decisions have established a more reasonable rule, to wit, that be

186 Taylor v. Gardiner, 11 R. I. 182. But compare Swart v. Kimball, 43 Mich. 443, 5 N. W. 635.

187 Reece v. Knott, 3 Utah, 451, 24 Pac. 757.

188 Palmore v. State, 29 Ark. 248; Paul v. Detroit, 32 Mich. 108.

189 Lommen v. Gaslight Co. (Minn.) 68 N. W. 53.

190 Owen v. Owen, 22 Iowa, 270.

191 Corning v. Nail Factory, 44 N. Y. 577; National Exch. Bank of Boston ▼. White, 30 Fed. 412. But see Curry v. Curry, 114 Pa. St. 367, 7 Atl. 61.

BL.CONST.L.-33

fore the evidence is left to the jury, there is or may be in every case a preliminary question for the judge, not whether there is literally no evidence, but whether there is any upon which a jury can properly proceed to find a verdict for the party producing it, upon whom the burden of proof is imposed." 192 The refusal of jurors to obey a peremptory instruction to find a verdict for one of the parties is reprehensible in the highest degree, and may subject them to punishment for contempt. In such a case, it is thought, the court would have authority to direct the entry of the proper verdict without the assent of the jury.198 In some of the states the judges are expressly forbidden to express to the jury any opinion on the facts. But, where there is no such specific prohibition, it is not improper for the court to express to the jury its opinion upon the weight and character of the evidence, if in the end the question is left to the jury.194 But it should be observed that such expressions of opinion as to the evidence are very different in character from the instructions of law. The latter are imperatively binding on the jury; not so the former. In the courts of the United States, the judges have the right to express their opinion on the evidence, and their authority in this particular is not controlled by state statutes forbidding such a practice to the state judges. "Trial by jury in the courts of the United States is a trial presided over by a judge with authority not only to rule upon objections to evidence and to instruct the jury upon the law, but also, when in his judgment the due administration of justice requires it, to aid the jury by explaining and commenting upon the testimony, and even giving them his opinion upon questions of fact, provided only he submits those ques tions to their determination." 195

In What Proceedings Trial by Jury May be Claimed.

In view of the way in which the guaranty of trial by jury is expressed in the seventh amendment and in the state constitutions, as adverted to above, it is settled by the courts that the guaranty merely preserves this right and does not extend it. Consequently, a trial

192 Commissioners of Marion Co. v. Clark, 94 U. S. 278. 193 Cahill v. Railroad Co., 20 C. C. A. 184, 74 Fed. 285. 194 Rowell v. Fuller's Estate, 59 Vt. 688, 10 Atl. 853.

195 U. S. v. Philadelphia & R. R. Co., 123 U. S. 113, 8 Sup. Ct. 77; Vicksburg & M. R. Co. v. Putnam, 118 U. S. 545, 7 Sup. Ct. 1.

after this method may be claimed as a matter of constitutional right only in those cases where it could have been demanded, as of right, under the common or statutory law which was in force at the time the constitution was adopted.196 The right of trial by jury, it is said, is secured by the guaranties of the various state constitutions in and for the various proceedings of legal cognizance in which that mode of trial was employed when the several constitutions were adopted, having regard always to the nature and character of the controversy, and not to the mere form of the action or proceeding. But it is not imposed upon substantially new rights and proceedings arising after the constitution.197 And not every case which is not a criminal case is a civil one, wherein, by the constitution, the right of trial by jury shall remain inviolate; but that term embraces such as were treated as civil cases when the constitution went into effect.1 At the same time, it is important to remember that it is not the form of the proceeding which governs here, but the question whether the case is of that general description to which trial by jury was anciently considered applicable. Consequently it may be said with propriety that the constitutional provisions apply to all controversies fit to be tried by a jury according to the rules of the common law, notwithstanding the particular right for the violation of which the action is brought did not exist at common law, but was created by a statute passed after the adoption of the constitution.199 In the courts of the United States it is held, with regard to suits for penalties for smuggling, that if the action is against the master, it is triable by jury, but if against the vessel, it need not be so tried.200

198

Proceedings in Which the Privilege is not Claimable.

There are many varieties of proceedings or controversies in which, for the reasons just stated, a trial by jury cannot be claimed as a matter of constitutional right. For example, in the trial of claims

196 Trigally v. Mayor, etc., 6 Cold. (Tenn.) 382; Copp v. Henniker, 55 N. H. 179; Harper v. Commissioners, 23 Ga. 566; People v. Phillips, 1 Edm. Sel. Cas. (N. Y.) 386; Ross v. Irving, 14 Ill. 171.

197 Commissioners of Mille Lacs Co. v. Morrison, 22 Minn. 178.

198 Lake Erie, W. & St. L. R. Co. v. Heath, 9 Ind. 558.

199 Plimpton v. Somerset, 33 Vt. 283.

200 U. S. v. The Queen, 4 Ben, 237, Fed. Cas. No. 16,107.

against the government, the claimant has no constitutional right to a trial by jury. The government cannot be sued without its own consent. If it permits the judicial ascertainment and enforcement of claims against it, the proceedings thereon are not suits at common law. It may establish tribunals for the hearing of such claims and regulate their procedure as it may see fit. And the party has no other mode of establishing his claim than that pointed out by the statute. The allowance of such actions is an act of grace, and the government is under no obligation to accord him a trial by jury.201 Again, the power to punish for contempts is incident to all courts of record. Cases of contempt of court were never triable by jury, but long before the adoption of the constitutions it was within the power of the court to proceed summarily in such cases. Moreover, the very object of such proceedings would be defeated in many instances if it were necessary to invoke the judgment of a jury. Consequently the summary punishment of contempts is no violation of the constitutional right of trial by jury.2 So also, in the assessment and collection of taxes, the constitutional provisions relating to trial by jury do not apply; and the tax payer cannot complain of the mode of proceeding if he is given an opportunity to defend against the legality of the tax or the liability of his property before some competent board or tribunal.203 In quo warranto proceedings, according to the opinion prevailing in some of the states, there is no constitutional right of trial by jury, although this is not everywhere admitted.20 Neither is this mode of trial claimable as of right in divorce proceedings, unless especially made applicable thereto by law.205 In proceedings for the appropriation of private property for public use, under the power of eminent domain, the owner has no constitutional right to a trial by jury, unless, as is the case in some of the states, the constitution expressly gives it. The proceeding is

201 McElrath v. U. S., 102 U. S. 426.

202

202 U. S. v. Hudson, 7 Cranch, 32; Ex parte Wall, 107 U. S. 265, 2 Sup. Ct. 569; Garrigus v. State, 93 Ind. 239; State v. Doty, 32 N. J. Law, 403.

203 Cocheco Manuf'g Co. v. Strafford, 51 N. H. 455; Commissioners of Mille Lacs Co. v. Morrison, 22 Minn. 178; Harper v. Commissioners, 23 Ga. 566. 204 See State v. Lupton, 64 Mo. 415; State v. Vail, 53 Mo. 97; People v. Albany & S. R. Co., 57 N. Y. 161; People v. Doesburg, 16 Mich. 133. Cassidy v. Sullivan, 64 Cal. 266, 28 Pac. 234.

205 Coffin v. Coffin, 55 Me. 361;

in the nature of an appraisement or arbitration, rather than a suit.200 So again, the appointment of a guardian or committee for an insane person, a spendthrift, or an habitual drunkard, is not regarded as one of the cases in which a jury trial is preserved by the constitution.207 And a statute authorizing the commitment of infants to the house of refuge, without a trial by jury, is constitutional.208 So also, in proceedings supplementary to execution, the debtor is not entitled, under the constitutional guaranty, to a trial by jury.209 Whether or not the trial by jury may be claimed as of right in proceedings to determine a contested election is still an unsettled question. In some of the states, the courts hold that such an issue may be determined without a jury; in others, a contrary opinion prevails.210 Equity Cases.

The distinction between actions at law and suits in equity was established in this country before the adoption of the constitutions, and in equity proceedings a jury was not employed. It results that those constitutional provisions which preserve the right of trial by jury, or declare that it shall remain "inviolate," do not extend the guaranty to equitable proceedings such as were used to be tried without a jury before the constitutions went into effect.211 For example, the practice of uniting the legal cause of action for the mortgage debt with the equitable remedy in foreclosure, rendering the whole an equitable proceeding, existed in many of the states before the adoption of the constitutions, and hence the parties in such a proceeding cannot now claim a jury trial of the issue upon the debt.21: But still, the legislature cannot convert a legal right into an equitable

206 Pennsylvania R. Co. v. First German Congregation, 53 Pa. St. 445; Livingston v. Mayor of New York, 8 Wend. (N. Y.) 85; Butler v. Worcester, 112 Mass. 541.

207 Gaston v. Babcock, 6 Wis. 503; Hagany v. Cohnen, 29 Ohio St. 83; Black Hawk Co. v. Springer, 58 Iowa, 417, 10 N. W. 791.

208 Ex parte Crouse, 4 Whart. (Pa.) 9.

209 Kennesaw Mills Co. v. Walker, 19 S. C. 104.

210 Compare Ewing v. Filley, 43 Pa. St. 384; State v. Lewis, 51 Conn. 113; State v. Gleason, 12 Fla. 190; People v. Cicotte, 16 Mich. 283.

211 Goodyear v. Providence Rubber Co., 2 Cliff. 351, Fed. Cas. No. 5,583; Wynkoop v. Cooch, 89 Pa. St. 450; Bellows v. Bellows, 58 N. H. 60.

212 Stillwell v. Kellogg, 14 Wis. 461; Middletown Sav. Bank v. Bacharach, 46 Conn. 513; Carmichael v. Adams, 91 Ind. 526.