The seventh amendment of the Constitution declares, that in suits at law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved.
This right may be waived by the party. The act of March 3d, 1865, provides a mode by which the parties to a suit may submit the matter proper for a jury to the court; and the case of Norris v. Jackson, decided a few days ago, gives the mode of proceeding under that statute, and explains what may be received in such cases, and how the matter proper for review may be brought before this court.
If, then, the parties in the present case had been willing to waive a jury and permit the court to find both the law and the facts, there was no difficulty in doing this, and in presenting the law to this court for review. For it is never to be forgotten that, in common law cases, it is the ruling of the inferior court on the law alone which this court is authorized to review. The common law admitted of no re-examination of the facts found by a jury, except by granting a new trial in the same court in which the verdict was rendered, and the constitutional amendment just referred to, forbids any other mode of re-examination than that which accords with the rules of common law.
As the defendant in this case did not waive his right to have the facts tried by a jury, it was the duty of the court to submit such facts to the jury that was sworn to try them.
It is needless to say that this was not done. The statement is clear that the case was decided upon the testimony taken on a former trial, and not read before this jury, because the court had heard it in the first case, and did not deem it necessary to be heard by the jury in this case.
It is possible to have a jury trial in which the plaintiff, having failed to offer any evidence at all, or any competent evidence, the jury finds for the defendant for that very reason. And in such case it is strictly correct, if the plaintiff does not take a non-suit, for the court to instruct the jury to find for the defendant. But we have never before heard of a case in which the jury were permitted, much less instructed, to find a verdict for the plaintiff on evidence of which they knew nothing except what is detailed to them in the charge of the court. It is obvious that if such a verdict can be supported here, when the very act of the court in doing this is excepted to and relied on as error, the trial by jury may be preserved in name, but will be destroyed in its essential value, and become nothing but the machinery through which the court exercises the functions of a jury without its responsibility.