against the plaintiff. The jury are to try and determine the facts, but it is the court which must declare the law applicable to the facts. Consequently, when the judge, at the close of the plaintiff's evidence, orders a peremptory nonsuit, on the ground that, conceding all the facts which the jury could find from the evidence, those facts are not sufficient to establish a liability against the defendant, such action is no violation of the plaintiff's constitutional rights.218 Compulsory References. In some of the states, before the adoption of the constitutions, the practice of ordering references, especially in cases involving the examination of a long account, was in use and sanctioned by law. In those jurisdictions, therefore, such a practice is still permissible, and a compulsory reference, in suitable cases, is no infringement of the constitutional rights of suitors.219 But in the courts of some of the other states, as also in those of the United States, it is not lawful to deprive a party of his right to a trial by jury by compelling him, against his will, to submit his cause to the decision of arbitrators or referees.220 Restrictions on the Right. The constitutions were intended not merely to secure the right of trial by jury, but also to insure that it should be continued in existence as a substantial and valuable protective right to private suitors. Now it is evident that it would be entirely feasible for a state legislature, if so minded, to impose such onerous and oppressive restrictions or conditions upon this right as to make it practically unavailing to a party for his protection, yet without denying it in express terms. But this would be a palpable violation of the spirit and intent of the constitutional provision, and the courts would hold any such restrictions upon the right as not less unconstitutional than the total denial of it.221 But such a result could not be predi 218 Munn v. Mayor, etc., of Pittsburgh, 40 Pa. St. 364; Naugatuck R. Co. v. Waterbury Button Co., 24 Conn. 468. See Baylis v. Travelers' Ins. Co., 113 U. S. 316, 5 Sup. Ct. 494. 219 Lee v. Tillotson, 24 Wend. (N. Y.) 337; Mead v. Walker, 17 Wis. 189. 220 U. S. v. Rathbone, 2 Paine, 578, Fed. Cas. No. 16,121; Rhines v. Clark, 51 Pa. St. 96; Bernheim v. Waring, 79 N. C. 56. 221 Flint River Steamboat Co. v. Foster, 5 Ga. 194. cated of any provisions which imposed conditions to the exercise of the right which were merely reasonable and not prohibitive limitations, and did not clog it unduly. For instance, there is no valid objection to a law requiring that a party who demands a trial by jury shall pay a reasonable jury fee.222 And so a statute authorizing a judgment by default to be entered in case the defendant does not within a reasonable limited time file a sufficient affidavit of defense, is not an unreasonable restriction upon the right of trial by jury.223 But on the other hand, it is held that an act making an auditor's report prima facie evidence of the facts found by him on the trial before the jury impairs the constitutional right of trial by jury. "If the jury can be compelled to give their verdict, not upon the issue between the parties, but upon the question whether an auxiliary decision of that issue is right, giving to that auxiliary decision as evidence of its own correctness such weight as the legislature chooses to prescribe, the constitutional guaranty of trial by jury is a delusion; and if that guaranty can be repealed by legislative circumlocution, every other constitutional guaranty is a constitutional farce.": Jury Trial Allowed on Appeal. 1224 It is generally considered that there is no impairment of the right of trial by jury, although the statute authorizes a justice of the peace or other inferior court or magistrate to decide causes without a jury, provided that the party who is compelled to submit his cause to the judgment of such a court is allowed an unrestricted right of appeal to a court which proceeds with the aid of a jury.225 But the better opinion, in regard to criminal cases, is that the right of trial by jury means the right to such a trial in the first instance, and not a right to appeal from a conviction by a magistrate.226 And it is not easy to discover the difference in principle between civil and criminal cases, in respect to the exercise of this right. 222 Adams v. Corriston, 7 Minn. 456 (Gil. 365). 223 Lawrance v. Borm, 86 Pa. St. 225; Dortic v. Lockwood, 61 Ga. 293. 224 King v. Hopkins, 57 N. H. 334; Plimpton v. Somerset, 33 Vt. 283. 225 Gaston v. Babcock, 6 Wis. 503; Haines v. Levin, 51 Pa. St. 412; Norristown Turnpike Co. v. Burket, 26 Ind. 53. 226 Callan v. Wilson, 127 U. S. 540, 8 Sup. Ct. 1301; In re Dana, 7 Ben. 1, Fed. Cas. No. 3,554. Waiver of the Right. By the constitutions of several of the states it is provided that the right of trial by jury may be waived by the parties in all civil issues. But even without this clause it would be entirely competent for those interested to agree that the court should proceed to determine the cause without a jury.227 Accordingly, when the defendant has an opportunity to demand a trial by jury, and omits to do so, he cannot complain that his constitutional rights are denied him if the trial proceeds without a jury.228 And so, where a default is suffered in an action for damages, the court may proceed to assess the damages. The defendant has no constitutional right to have them assessed by a jury.229 227 Greason v. Keteltas, 17 N. Y. 491; Baird v. Mayor, etc., 74 N. Y. 382; Garrison v. Hollins, 2 Lea (Tenn.) 684. 228 Flint River Steamboat Co. v. Foster, 5 Ga. 194; Leahy v. Dunlap, 6 Colo. 552; Foster v. Morse, 132 Mass. 354. 229 Raymond v. Railroad Co., 43 Conn. 596; Hopkins v. Ladd, 35 Ill. 178. CHAPTER XIX. POLITICAL AND PUBLIC RIGHTS. 224-229. Citizenship. 230. Double Citizenship in the United States. 235. Freedom of Speech and of the Press. 237. Same-Censorship of the Press. CITIZENSHIP. 224. The fourteenth amendment to the federal constitution declares that "all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside." 225. With respect to the manner of acquiring citizenship, the citizens of the United States are divided into two classes: (a) Native born citizens. (b) Naturalized citizens. 226. Citizenship in the United States is not restricted to adults or males, but belongs equally to women and children. 227. Corporations cannot be citizens of the United States. 228. The native Indians, though born within the United States, can become citizens only by naturalization. 229. The right of expatriation is fully recognized in this country. Before the adoption of the fourteenth amendment, the rights and status of a citizen of the United States were very doubtful. It was even uncertain whether there was anything under the federal system corresponding to citizenship in the several states. Many publicists contended that if there was a citizenship of the United States, it was possessed by virtue of, and resulted from, citizenship in a state. This of course excluded from the definition of citizenship all the residents of the United States who were not citizens of some state, including the inhabitants of the territories and of the District of Columbia, Indians, and negroes. These persons, it was thought by some, were not citizens at all. In the Dred Scott Case, Chief Justice Taney stated that the question at issue was as follows: "Can a negro, whose ancestors were imported into this country and sold as slaves, become a member of the political community formed and brought into existence by the constitution of the United States, and as such become entitled to all the rights and privileges and immunities guarantied by that instrument to the citizen? One of which rights is the privilege of suing in a court of the United States in the cases specified in the constitution." And this question was answered in the negative.1 The purpose of the fourteenth amendment was to secure to the newly emancipated colored race the rights and privileges which belonged to them, since the abolition of slavery by the thirteenth amendment, in common with all others living under the protection of federal law. It conferred upon them citizenship in the United States, with all its privileges. It did not make them citizens of the states. But it gave them the right to acquire citizenship in a state, in addition to their federal citizenship, by residence therein. Though necessarily general in its terms, this amendment applies especially and peculiarly to these people. There have been very few cases in which its benefits have been invoked by any others. It is held that no white person born within the limits of the United States and subject to their jurisdiction, or born without those limits and subsequently naturalized, owes his status of citizenship to the amendment." The promotion of colored persons to citizenship, by this provision, is an admission of them to all the rights and privileges of white citizens in the same manner and to the same extent. They cannot be distinguished from other citizens, by legislation, for 1 Dred Scott v. Sandford, 19 How. 393, 403. • Van Valkenburg v. Brown, 43 Cal. 43. |