Page:Joseph Story, Commentaries on the Constitution of the United States (1st ed, 1833, vol III).djvu/654

 646 trial by jury intervened, and the general regulations in other respects were according to the course of the common law. Proceedings in cases of partition, and of foreign and domestic attachment, might be cited, as examples variously adopted, and modified. In a just sense, the amendment then may well be construed to embrace all suits, which are not of equity and admiralty jurisdiction, whatever may be the peculiar form, which they may assume to settle legal rights. And congress seem to have acted with reference to this exposition in the judiciary act of 1789, ch. 20, (which was contemporaneous with the proposal of this amendment;) for in the ninth section it is provided, that "the trial of issues in fact in the district courts in all causes, except civil causes of admiralty and maritime jurisdiction, shall be by jury;" and in the twelfth section it is provided, that "the trial of issues in fact in the circuit courts shall in all suits, except those of equity, and of admiralty and maritime jurisdiction, be by jury." And again, in the thirteenth section, it is provided, that "the trial of issues in fact in the supreme court, in all actions at law against citizens of the United States, shall be by jury."

§ 1764. But the other clause of the amendment is still more important; and we read it, as a substantial and independent clause. "No fact tried by a jury shall be otherwise re-examinable, in any court of the United States, than according to the rules of the common law." This is a prohibition to the courts of the United States to re-examine any facts tried by a jury in any other manner. The only modes, known to the common law, to re-examine such facts, are the granting of a new trial by the court, where the issue was tried, or to which the record was properly returnable; or the