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in all the organized territories, and any other a jury in all cases where the right then exterritory hereinafter organized, as elsewhere isted, and suitors cannot constitutionally be in the United States."
deprived of this right, except where, in civil Let us first inquire what is meant by the cases, they waive it by failing to demand it words, "suits at common law," as used in the in some mode which the legislature shall preseventh amendment." The supreme court of scribe.” The same eminent jurist, in Van the United States aver, substantially, in the Sickle v. Kellogg, 19 Mich. 49, says: “The cases of Parsons v. Bedford, 3 Pet. 413, and constitutional principle which underlies the Waring v. Clark, 5 How. 451, that the inten- right is one to which the people governed by tion was to confine this application of this the common law have clung with perhaps amendment to common-law suits of a civil more tenacity than any other, and they have nature, in which a jury, by the rules of the justly regarded it as not preserving simply common law, constitute an element of the one form of investigating the facts in prefertrial. It embraces all suits which are not of ence to another, where both would have at. equity and admiralty jurisdiction, whatever tained the same results, but as securing the may be the particular form which they may mode of trial which was best calculated to assume to settle legal rights. The clause is insure a correct result, and to secure the citiused in contradistinction to equity and admir- zen against usurpation of authority, and alty and maritime jurisdiction. The consti- | against arbitrary and prejudiced action on tution, as it came from the hands of the the part of single individuals who chanced framers, failed to contain this provision, to be possessed of judicial power." Mr. Juswhich has been so earnestly contended for tice Campbell, in the case of Paul v. Detroit, wherever the Anglo-Saxon race has gone; 32 Mich. 108, speaking of the constitution of and not until those amendments were incor- Michigan, which provided for jury trial, porated within it, which are the shield to per- states, in effect, that the term “ “jury' includes sonal rights, was opposition to the constitu- all the safeguards of unanimity, and a vertion silenced. As stated by Judge Story in dict of twelve," and no action by law, or by Parsons v. Bedford, supra: "One of the proceedings under them, can be maintained, strongest objections originally taken against if any of these securities are impaired or disthe constitution of the United States was the regarded. “ 'Trial by jury,' as the words are want of an express provision securing the used in the constitution, had at the time of right of trial by jury in civil actions." It is the adoption a fixed legal signification, and not important to enter upon any investiga- from time immemorial has meant a trial by tion of the history of the right of trial by
a tribunal of twelve men, acting only upon a jury. Just where it had its origin is involved unanimous determination. The origin of this in mystery. But, whatever was its origin, mode of trial is lost in the dimness of the past, the right of trial by jury of 12 men became but from the earliest period down to the adopfixed centuries ago in the common law, and tion of the constitution, unanimity of twelve unanimity of verdict became requisite, until, jurors alone has constituted a verdict. If the wherever the Anglo-Saxon tongue was legislative assembly could dispense with one spoken, and in many other countries, this attribute or essential of a verdict, it could right came to be regarded as the great bul- as well destroy the other, or repeal the right wark of the liberty of the citizen, and, wheth- altogether. It can do neither.” Kleinschmidt er charged with an offense against the com- v. Dunphy, 1 Mont. 118; Reese v. Knott, 3 monwealth or in a controversy with another, Utah, 454, 24 Pac. 757. Whenever a jury is the right could always be invoked. When mentioned in our organic laws, the term is separated from the mother country, we re- understood to have reference to it as consti. garded it as a birthright, and have been jeal- tuted at common law, unless the contrary ous of any attempted innovation upon the sys- plainly appears. Such is the construction tem. In adopting a constitution for our gov- uniformly put upon the provisions common ernment and guidance, our fathers had in in the constitutions of the several states, that mind the great charters of English liberty; the right of trial by jury shall remain invioand the right of trial by jury, as it was un- late; and a common-law jury imports a jury derstood at common law, was not the least of of 12 men, whose verdict must be unanimous these rights. It may be proper at this point to be legal. Such must be its acceptation to to inquire what is meant by a jury at com- every one acquainted with the history of the mon law. Sir Matthew Hale says (2 Hale, common law, and aware of the high estima. P. C. 161): “But in case of a trial by a petit tion in which that institution so constituted jury, it can be no more nor less than twelve." has for so long a period been held. Cancemi And at page 296 he says: “If only eleven be v. People, 18 N. Y. 128; May v. Railroad Co., sworn by mistake, no verdict can be taken by 3 Wis. 219; Cruger v. Railroad Co., 12 N. Y. the eleven, and, if it be, it is error.” Judge 198; 10 Bac. Abr. pp. 306, 315; 3 Bl. Comm. Cooley, speaking for the court, in Tabor v. 352, 376; Cooley Const. Lim. 319; Reeve, Cook, 15 Mich. 324, construes the words, "the Eng. Law, 241; McRae v. Railroad Co. right of trial by jury shall remain," found in (Mich.) 53 N. W. 561; Thomp. & Mer. Jur. 6; the state constitution. He says: “The inten- Kent v. Perkins, 36 Ohio St. 639; Opinion of tion here is plain to preserve to the parties Justices, 41 N. H. 550; Copp v. Henniker, 20 the right to have their controversies tried by | Am. Rep. 194. Where words used in common law are contained in a statute or the consti- ted that the seventh amendment is extended tution without an explanation of the sense to the territory, the act of the legislature is in which they are employed, they should re- unconstitutional. Can it be consistently arceive the construction which has been affixed gued that the words extending the constituto them by the common law. Carpenter v. tion over the territory meant that only that State, 34 Am. Dec. 116. It is clear that the portion is extended which is applicable to the case at bar would come within the category states, and that territories are placed upon of "suits at common law," and it is equally the same footing as states? The language incontestable that the number of the jury at is: “The constitution and laws of the United common law could never be less than 12, and States are extended," etc.; not a portion of that all the jurors must concur in order to the constitution, not that part which is an inauthorize a verdict. Mr. Justice Miller, in his terdiction upon the states. This language can work upon the constitution of the United only mean that all the constitution, including States, in referring to the seventh amend- the amendments which are applicable, is exment, says: "The first thing to be observed tended over and is in force in the territory. of this article is that it prescribes the mode Surely, the trial by jury, which, as Judge of trial in suits at common law. It does not Story says in Parsons v. Bedford, supra, "is use the same words as, the clause extending justly dear to the American people, and has the judicial power to all cases in law and eq- always been an object of deep interest and uity. It is to be inferred; therefore, that trial solicitude, so that every encroachment has by jury, as imposed by the constitution, has been watched with great jealousy," is not onrelation to the common law as it was under- | ly applicable, but a part of our jurisprudence stood in England, and to the right to such and civilization. trial in the class of cases." Miller, Const. U. Many of the inhibitions upon the states preS. 492.
scribed in the constitution are not applicable From the foregoing it would seem that this to the territory. If this view be taken, that great right of trial by jury, as it was under- only restrictions upon the states are extended stood at common law, has been preserved to to the territories, it would give the territo all persons in the courts of the federal goveries almost unlimited power in respect to leg. ernment, and that there could be no question islation. The states, before being admitted regarding the essentials of a common-law ju-to the Union, have submitted to congress conry. If congress cannot deprive a person of stitutions, which have been scrutinized, and this right, the inquiry is pertinent whether it which are presumed to preserve the liberties can delegate to a legislative body of its crea- and rights of the people. If there are no tion authority to do that which it is prohib- restrictions upon the territories, except such ited from doing. And it is worthy of note as are imposed upon the states by the fed. in passing, that, while congress has recog- eral constitution, and such as are found in nized that courts of the territories are the organic act, which are of the most gen. "territorial courts," as distinguished from eral character, they possess, under this view, "constitutional courts," all legislation ema- almost limitless power. If this reasoning nating from it touching the question of jury be correct, the territory could abridge the trial seems to have been upon the theory that freedom of speech, destroy religious liberty, the jury as known to the common law was and abolish the right of trial by jury. It an indefeasible right, and ingrafted upon our must be conceded that, unless the section territorial system. No congressional legisla- of the organic act referred to makes the tion upon the question affecting the territo- seventh amendment in force within the terries has gone beyond constitutional limita- ritory, there is nothing in the organic act tions. It is strange, if the limitations upon which would in any manner restrain the leg. the federal government are not interdictions | islature from abolishing jury trial. If the upon the power of congress in its legislation legislature can pass an act providing that a for the territories, there has been no law jury of nine may return a verdict, unquespassed by congress abridging the common- tionably power exists in it to dispense entirelaw right of trial by jury.
ly with the system. If the territory stands What is meant by the seventeenth section in the same relation to the federal constituof the organic act of this territory, which tion as the states, and the limitations upon reads "that the constitution and laws of the the federal government are not extended to United States are hereby extended over and it, it can establish a state religion, infringe declared to be in force in said territory of the rights of the people to keep and bear Utab, so far as the same or other provisions arms, quarter in times of peace soldiers in prithereof may be applicable"? Can it be con- vate houses without consent, issue warrants tended that the seventh amendment of the without reasonable cause, subject a person to constitution inapplicable to the people of be twice put in jeopardy for the same offense, the territory of Utah? If it is an inestiina- | compel one to testify in a criminal case ble blessing to possess the right of trial by against himself, and deprive one of life, liber. jury, and was considered of so great impor- ty, and property without due process of law, tance by the fathers of our country, can it be take private property without just compensasaid that the passage or a century has rohbedtion, deprive a person of a speedy trial and ad It of its beneficent character? If it is admit- l impartial jury, and refuse to confront bird with witnesses against him, deny trial, and in- is the source of the authority for those enflict cruel and unusual punishments. Can it be actments is what is extended to the territory, possible, in organizing this territory, congress and none other. And section 1891, above re. designed to place within its hands such un- ferred to, reaffirms the legislative will, and restrained power? But it is contended that gives the constitution and laws of congress the sixth section of the organic act is such the same force in the territory as "elsewhere a check upon the legislature as to amount to in the United States." Federal enactments a prohibition upon wrongful legislation. It do not extend to subjects over which the reads: “That the legislative power of said states have full and unlimited power. So territory shall extend to all rightful subjects the meaning is clear that the laws "not local. of legislation, consistent with the constitu- ly inapplicable shall have the same force tion of the United States, and the provisions and effect as elsewhere in the United States" of this act." But, under the view above ex- are such as are originated under the authorpressed, the words, “consistent with the con- ity conferred upon congress. The laws stitution of the United States," have refer- which congress passes, the sections of the ence only to the inhibitions upon the states constitution which justify them, these are as found in article 10 of the amendments to extended to the territory by the words above the constitution; so that, if there is anything quoted. By some it is admitted that section to prohibit wrongful enactments and legis- 17 of the organic act does extend the seventh lation conflicting with the amendments to amendment to the territory, but they contend the constitution, it must be found in the that the words, “as elsewhere in the United words, "rightful subjects of legislation.” States," found in section 1891, indicate an "Right" and "wrong" are relative terms. An intention upon the part of congress to amend act or omission may be malum in se or malum section 17, and that they repeal the portion prohibitum. To many persons the jury sys- of the organic act extending the federal contem is obnoxious; they would abolish it. stitution over the territory, and bestow in With some the establishment of a state re- lieu thereof upon the territory those features ligion would be an exercise of legislative of the constitution only which are regarded power upon a "rightful subject.” Manifestly, as limitations upon the states. The language these words of congress are meaningless, un- is not susceptible of this construction. It is less anchored to some fundamental law. But juggling with words, ignoring grammatical such an interpretation of this section is er- rules of construction, and violating the canroneous. The natural reading of it har- ons of legal construction to place any other monizes with the other sections quoted from interpretation upon these sections than that the organic act, when the construction is which is contended for herein. It seems to placed upon it, that the constitution and the me to be beyond cavil that the seventh laws of congress are the criterion by which amendment is in force within the territory, to test local legislation, and determine and limits territorial legislation. If so, wbether it is "rightful.” It means that the any act abridging the right of trial by restrictions imposed by the constitution, and jury, dispensing with the common-law jury which determine whether or not a matter as above defined, is unconstitutional and is a “rightful subject of legislation,” are im- void. The same view has been taken by the posed upon the territory, and that such supreme court of Montana in the case of legislation by the latter, consistent with Kleinschmidt v. Dunphy, supra. It is there the constitution and the laws of congress, said: “The right of jury trial secured by the would be "rightful" and valid. Construe article of the constitution under considerathe sections together bearing upon the pow- tion (seventh amendment), referring not only ers of the territory, and there is not the to trial in the national courts established by slightest ambiguity. So construed, they the constitution, and the territorial district clearly state that the constitution, and espe- courts, at least while in the exercise merely cially those general and fundamental princi- of their local jurisdiction, not being embraced ples underlying personal liberty, and the laws under its provisions, it is urged that the of congress passed in pursuance of it are “ex- court below did not err in receiving the tended over and declared to be in force in findings. This position could only be mainthe territory," and all local legislation must tained by holding that, while the constitube consistent therewith, or it will be invalid, tional restriction applied to the federal judinot being a rightful subject of legislation. ciary, it did not extend to the legislative
But, recurring to the seventeenth section of power intended to be restricted. We have the organic act and section 1891 of the Re- already stated that it was intended to revised Statutes, what laws are extended over strict all the departments of the federal gov. the territory? To this question there can be ernment, legislative as well as judicial. If, but one answer, viz. such as are the legit- then, it is restrictive upon congress, as well imate offspring of the constitutional power as upon the federal courts, can congress, in of congress. Then, if the laws of congress the exercise of its power to create a terri. enacted in virtue of the federal limitations tory, create a local legislature or local courts, in the constitution are the ones referred to, and delegate to either a power which it does It must follow as "the nignt the day'' that not itself possess to deny the right in questhat same portion of the constitution which tion? We think clearly it cannot.” “Even
without the provision of the organic act, that tion" within the sphere of federal cognizance,
:)f the courts of the several territories of the with either,” unerringly indicate that, if the United States to exercise separately the com- constitution had spoken upon this subject, inon law and chancery jurisdictions vested it would have concluded the territory. This In said courts; and that the several codes language can only mean that the federal conand rules of practice adopted in said terri-stitution is a limitation upon the territories tories respectively, in so far as they author to the same exent as upon congress. A proize a mingling of said jurisdictions on a uni- vision in the constitution, relating to the imform course of proceeding in all cases, paneling of juries, would, there can be no whether legal, or equitable, be confirmed; | doubt, have been a limitation upon congress, and that all proceedings heretofore had or and not upon the states; so the chief justice taken in said courts in conformity with said in effect says: Wherever provisions are respective codes and rules of practice so far found in the constitution applicable to the as relates to the form and mode of proceed federal government they are extended to the ing, be, and the same are nereby validated territory. and confirmed: provided, that no party has Various acts of the legislature of Utah rebeen or shall be deprived of the right of lating to procedure in the courts have been trial by jury in cases cognizable at common reviewed by the supreme court of the Unitlaw." This language is unequivocal. It is ed States, and because that court has upnot only a recognition by congress of the ex- held them, and insisted upon their being fol. istence of the common-law jury in the ter- | lowed by the territorial courts, it has been ritories, but it is a positive prohibition contended that it was an adjudication of the against any infringement or impairment of right of the territory to legislate in disre. the right to its enjoyment. It is tantamount gard of the constitution. As stated above, to saying that the mere matter of procedure the argument is fallacious; it is confounding in the territorial courts is relegated to the a question of practice with a legal right. territorial legislatures, but that, upon all The practice and course of procedure of the questions of a general and unusual character territorial court as a local tribunal may be pertaining to fundamental and constitutional regulated by the local laws, provided its rights, such as the right of jury trial, they. common-law and chancery jurisdiction be are circumscribed by the laws of congress not impaired; but such laws must not inand the federal constitution. If tested by fringe any principle of the constitution or this act alone, the legislative enactment of any act of congress applicable to it. Klein1892, above referred to, would be invalid, be- schmidt v. Dunphy, supra. And in Hopt v. cause it is in direct contravention of it. Utah, 110 U. S. 579, 4 Sup. Ct. 202, the prinThis "right" is not preserved by impaneling ciple is again recognized that the amenda jury of 12 and permitting a verdict by less ments to the constitution apply to the territhan 12. This question has been ably dis- tories. Hopt was prosecuted for violating cussed in the supreme court of Oklahoma. a territorial statute, was tried in a territoGoverned by the same provisions as those rial court, and, while the practice of the contained in the organic act of this territory court, prescribed by the legislature, was rerelating to the legislative power, etc., the leg- garded as paramount, the supreme court islature passed a jury law similar to that of held that it would be in violation of the 1892. The court declares it unconstitutional. constitutional amendment to deprive bim of The decision in the case of Hess v. White, "life and liberty without due process of supra, is criticised, and the error which this law." In Miles v. U. S., 103 U. S. 310, the court has fallen into in failing to distinguish constitution is appealed to by the court, and between mere forms of procedure and sub- it declares, in effect, there must be no inva stantive and definitive rights is clearly point- sion of the constitutional or other rights of ed out. Bradford v. Territory, 34 Pac. 66. the plaintiff in error. There would be no And the supreme court of Arizona has re- constitutional provision to shield him, there cently held the same way upon this question. could be “no invasion of his constitutional Carroll v. Byers, 36 Pac. 499. The case of rigbts," if Hess v. White is decided correct. Clinton v. Englebrecht, 13 Wall. 431, is re- ly. And in the case of People v. Dan. lied upon to vindicate the legislative act in iels, 6 Utah, 297, 22 Pac. 159, the court enunquestion. While it is there held that the ciated the correct doctrine; and, when the matter of selecting, impa neling, and sum- defendant invoked the constitutional amend. moning juries is left to the territorial legis. ment that “private property shall not be lature, there is nothing that could be con- taken for public use without just compensastrued as an indorsement or recognition of tion," it was declared that “this was a re the validity of the act of 1892 in respect to striction upon the power of congress, and juries, or of the power of the territorial leg. not upon the states,
and that, the islature to abolish or abridge this right, so territory being an agency of congress, the Interwoven with the history of our country. restriction applies to the legislature." If Upon the contrary, the words of the chief the doctrine of stare decisis had been rejustice, “as there is no provision relating to garded, the case just cited would have been the selection of juries in the constitution or decisive of Hess v. White, for it is directly the organic act, it cannot be said that any held that the limitations upon the states are legislation upon this subject is inconsistent not extended to the territory, but that con.