The provisions of the United States con stitution relating to trial by jury are as fol lows: "The trial of all crimes except in cases of impeachment, shall be by jury ; and ,such trial shall be held in the state where the said crimes shall have been committed ; but when not committed within any state, the trial shall be at such place or places as the Congress may by law have directed." U. S. Const. drt. 3, sec. 2, par. 3.
"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed. . . ." Amdt. VI, U. S. Const.
"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 other wise re-examined in any court of the United States, than according to the rules of the common law." Amdt. VII, U. S. Const.
The first clause of the seventh amendment of the United States constitution in relation to trials by jury relates only to the federal courts ; the states are left to regulate them in their own courts ; Edwards v. Elliott, 21 Wall. (U. S.) 532, 22 L. Ed. 487. The second clause, prohibiting federal courts from re examining any fact tried by a jury otherwise than according to the common law, applies to the facts tried by jury in a cause in a state court; Justices v. • U. S., 9 Wall. (U. S.) 274, 19 L. Ed. 658. Article 3, sec. 2, cl. 3, providing for jury trials of all crimes except impeachment does not apply to state courts; Eilenbecker v. District Court, 134 U. S. 31, 10 Sup. Ct. 424, 33 L. Ed. 801; nor does the prohibition of the fourteenth amendment against abridging the right of trial by jury in suits at common law ; Walker v. Sauvinet, 92 U. S. 90, 23 L. Ed. 678 ; and the same is true of a provision in article 3 for the trial of all crimes in the state where committed ; Nashville, C. & St. L. Ry. v. Alabama, 128 U. S. 96, 9 Sap. Ct. 28, 32 L. Ed. 352.
The seventh amendment declaring that 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. The effect of this prohibits the United States courts from re-examining facts tried by a jury, except in the granting of a new trial by the court which tried the issue, or to which the record was properly returnable, or the award of a venire facias de novo by an appellate court for an error in law ; Lincoln v. Power, 151 U. S. 436, 14 Sup. Ct. 387, 38 L. Ed. 224 ; Slocum v. Ins. Co., 228 U. S. 364, 33 Sup. Ct. 523, 57 L. Ed. 879. But such action by an appellate state court was held to be constitutional and not to infringe the right to due process of law or trial by jury; Gunn v. R. Co., 27 R. I. 320, 62 Atl. 118, 2 L. R. A. (N. S.) 362 ; id., 27 R. I. 432, 63 Atl. 239, 2 L. R. A. (N. S.) 883.
The amendment secures unanimity in find ing a verdict as an essential feature of trial by jury in common law cases, and an act of congress cannot impart the power to change a constitutional rule, and cannot be treated as attempting to do so ; Springville v. Thom as. 166 U. S. 707, 17 Sup. Ct. 717, 41 L. Ed.
1172.
The provision securing the right to jury trials applies to the District of Columbia ; Callan v. Wilson, 127 U. S. 540, 8 Sup. Ct. 1301, 32 L. Ed. 223 ; and the provisions are applicable to it in both civil and criminal cases, but the right is not infringed by an act enlarging the jurisdiction of a justice of the peace in the District of Columbia to $300 and requiring every appellant from his judg ment to give bond for the payment of final judgment on appeal; Capital Traction Co. v. Hof, 174 U. S. 1, 19 Sup. Ct. 580, 43 L. Ed. 873. It has also been held to be secured in territories; Black v. Jackson, 177 U. S. 349, 20 Sup. Ct. 648, 44 L. Ed. 801; but was based upon the acts of congress relating to them ; Webster v. Reid, 11 How. (U. S.) 437, 13 L. Ed. 761; Thompson v. Utah, 170 U. S. 343, 18 Sup. Ct. 620, 42 L. Ed. 1061. But the right of trial by jury was not extended by the Constitution by its own force without legislation to the Philippines, since they are not incorporated into the United States by congressional action ; Dorr v. U. S., 195 U. S. 138, 24 Sup. Ct. 808, 49 L. Ed. 128, 1 *Ann. Cas. 697.
Under the fourteenth amendment a jury trial is guaranteed to municipal offenders sentenced to infamous punishment and a statute for the summary infliction of such Punishment is unconstitutional; .Jamison v. Wimbish, 130 Fed. 351; but the exercise of summary jurisdiction over such offences by magistrates has long been exercised; Green v. Superior Court, 78 Cal. 556, 21 Pac. 307, 541; Byers v. Corn., 42 Pa. 89; and was so in Georgia when the amendment was adopted ; Floyd v. Com'rs of Eatonton, 14 Ga. 354, 58 Am. Dec. 559. Accordingly, the decision of the federal court above cited has been very much criticized as not warranted by the su preme court cases and particularly the con struction of the amendment in the Slaughter House Cases ; 18 H. L. R. 136; as to the right to waive a trial by jury in criminal cases, it is thought by a writer in 21 H. L. R. 212, that the cases may be reconciled by careful analysis and the conclusions reached are that if the constitution prohibits a con viction except by verdict, the court alone cannot decide the case ; State v. Holt, 90 N. C. 749, 47 Am. Rep. 544; and a statute allow ing a waiver would be invalid ; State v. Cott rill, 31 W. Va. 162, 6 S. E. 428; contra, State v. Griggs, 34 W. Va. 78, 11 S. E. 740; and this applies even in cases of minor offences;, State v. Stewart, 89 N. C. 563. Under con stitutions which provide only that the right of trial by jury shall remain inviolate, the statutes allowing a waiver are generally up held ; Edwards v. State, 45 N. J. L. 419; contra, Brimingstool v. People, 1 Mich. N. P. 260; even in felonies ; Murphy v. State, 97 Ind. 579 ; State v. Worden, 46 Conn. 349, 33t Am. Rep. 27; if there be no statute, how ever, the waiver cannot be allowed ; Harris v. People, 128 Ill. 585, 21 N. E. 563, 15 Am. St. Rep. 153; contra, Wren v. State, 70 Ala. 1. A statute providing that the issues of facts shall be tried by jury was construed to prohibit a waiver ; In re McQuown, 19 Okl. 347, 91 Pac. 689, 11 L. R. A. (N. S.) 1136.