which are a part of the United States, with reference to the constitution of the United States.

"(2) That the constitution was not extended here by the terms of the treaty of Paris, under which the Philippine Islands were acquired from Spain. By the treaty the status of the ceded territory was to be determined by congress.

(3) That the mere act of cession of the Philippines to the United States did not extend the constitution here, except such parts as fall within the general principles of fundamental limitations in favor of personal rights, formulated in the constitution and its amendments, and which exist rather by inference and the general spirit of the constitution, and except those express provisions of the constitution which prohibit congress from passing laws in their contravention under any circumstances; that the provisions contained in the constitution relating to jury trials do not fall within either of these exceptions, and consequently the right to trial by jury has not been extended here by the mere act of the cession of the territory.

"(4) That congress has passed no law extending here the provisions of the constitution relating to jury trials, nor were any laws in existence in the Philippine Islands at the date of their cession for trials by jury, and consequently there is no law in the Philippine Islands entitling the defendants in this case to such trial; that the court of first instance committed no error in overruling their application for a trial by jury." 85

§ 168. Same-Not applicable to court of claims.-The act of congress which invests the court of claims with power to render judgment in favor of the United States against a claimant, upon any set-off, counter-claim, claim for damages, or other demand, is not in contravention of the constitutional guaranty of trial by jury; for the reason that suits against the government in the court of claims whether reference be had to the claimant's demand, or to the defense, or to any set-off, or counter-claim which the government may assert, are not suits at common law within the true meaning of the constitution. The government cannot be sued except with its own consent. It can declare in what court it may be sued, and prescribe the

85 United States v. Dorr, supra. And see also Downes v. Bedwell, 182 U. S. 244, 391 (45:1088).

forms of pleading and the rules of practice to be observed in such suits. It may restrict the jurisdiction of the court to a consideration of only certain classes of claims against the United States. The act of congress informs the claimant that if he avails himself of the privilege of suing the government in the special court organized for that purpose, he may be met with a set-off, counter-claim, or other demand of the government, upon which judgment may go against him, without the intervention of a jury, if the court, upon the whole case, is of opinion that the government is entitled to such judgment. If the claimant avails himself of the privilege thus granted to him, he must do so subject to the conditions annexed by the government to the exercise of the privilege.80

§ 169. Fact tried by jury not re-examined otherwise than according to the rules of the common law. The seventh amendment to the constitution declares: "And 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 only modes known to the common law for the re-examination of facts tried by a jury 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 award of a venire facias de novo, by an appellate court, for some error of law which intervened in the proceeding. The rule applies to facts tried by a jury in both the federal courts and the state courts, and the record must be removed by writ of error, and not by appeal.87 Story, Justice, in a case in the circuit court, after quoting the words of the seventh amendment, said: "Beyond all question, the common law here alluded to is not the common law of any individual state (for it probably differs in all), but it is the common law of England, the grand reservoir of all our jurisprudence. Now, according to the rules of the common

86 McElrath V. United States, 102 U. S. 426, 441 (26:189).

87 Parsons v. Bedford, 3 Pet. 433 (7:732); Barreda v. Silsbee, 21 How. 146, 166 (16:86); Justice v. Murray, 9 Wall. 274, 277 (19:658); Miller v. Life Ins. Co., 12 Wall. 285, 300 (20:398); Ins. Co. v. Comstock, 16 Wall. 258, 269 (21:493);

Ins. Co. v. Folsom, 18 Wall. 237, 249 (21:827); Railroad Co. v. Fraloff, 100 U. S. 24, 31 (25:531); Lincoln v. Power, 151 U. S. 436, 438 (38:224); Railroad Co. v. Chicago, 166 U. S. 226, 246 (41:979); Capital Traction Co. v. Hof, 174 U. S. 1, 46 (43:373).

law, the facts once tried by a jury are never re-examined, unless a new trial is granted in the discretion of the court, before which the suit is depending, for good cause shown; or unless the judgment of such court is reversed by a superior tribunal, on a writ of error, and a venire facias de novo is awarded. This is the invariable usage, settled by the decisions of ages. 1988

§ 170. Same-Doctrine stated by Justice Gray.-The doctrine on this subject has been stated by Gray, Justice, of the United States supreme court, as follows:

"It must therefore be taken as established, by virtue of the seventh amendment to the constitution, that either party to an action at law (as distinguished from suits in equity or in admiralty) in a court of the United States, where the value in controversy exceeds twenty dollars, has the right to a trial by jury; that, when a trial by a jury has been had in an action at law, in a court either of the United States or of a state, the facts there tried and decided cannot be re-examined in any court of the United States, otherwise than according to the rules of the common law of England; that by the rules of that law, no other mode of re-examination is allowed than upon a new trial, either granted by the court in which the first trial was had or to which the record was returnable, or ordered by an appellate court for error in law; and therefore that, unless a new trial was had in one of those two ways, facts once tried by a jury cannot be tried anew, by a jury or otherwise, in any court of the United States.

9789

§ 171. Same-Facts tried by jury in bankruptcy proceedings reviewable on writ of error only.-A final judgment of a United States district court, sitting in bankruptcy, rendered upon a verdict of not guilty of a jury, under the provision of the Bankrupt Act now in force, can be reviewed on writ of error only. The proceedings in administration of bankrupt estates are equitable in their nature; but the bankruptcy courts act under specific statutory authority, and when on an issue of fact as to the existence of ground for adjudication a jury trial is demanded, it is demanded as of right, and the trial is a trial according to the course of the common law; and, this

88 United States v. Wonson, 1 Gall. 14, Fed. Cas. 16,750.

89 Capital Traction Co. v. Hof, 174 U. S. 1, 46 (43:873).

being so, judgments rendered in such cases are revisable only on writ of error.90

§ 172. Eminent domain.-The power to take private prop erty for public use, generally termed the right of eminent domain, belongs to every independent government; it is an incident of sovereignty, and requires no constitutional recognition, and the provision contained in the fifth amendment to the constitution, declaring that private property shall not be taken for public use without just compensation, is merely a limitation upon the use and exercise of the power. The right of eminent domain is vested in the federal government, and may be exercised within the states, and without their consent, so far as is necessary to execute the powers of government vested in it by the federal constitution;92 and whenever it becomes necessary for the accomplishment of any object within. the authority of congress, to exercise the right of eminent domain and take private lands, making just compensation to the owners, congress may exercise the right with or without a concurrent act of the state in which the land lies.93 While the courts have power to determine whether the use for which private property is authorized by the legislature to be taken, is in fact a public use, yet, if this question is decided in the affirmative, the judicial function is exhausted, and the extent to which such property shall be taken for such use rests wholly in the legislative discretion, subject only to the restraint that just compensation must be made.94

§ 173. Same-Public use.-When the legislature has declared the use or purpose to be a public one, its judgment will be respected by the courts, unless the use be palpably without reasonable foundation.95 While great latitude is given the legislature, the purpose must be, bona fide, a public one, and

90 Elliott & Co. v. Toeppner, 187 U. S. 327, 335 (47:200); Knicker bocker Ins. Co. v. Comstock, 16 Wall. 258 (21:493).

91 United States v. Jones, 109 U. S. 513, 521 (27:1015); Boom Co. v. Patterson, 98 U. S. 406 (25:208).

92 Kohl v. United States, 91 U. S. 367, 379 (23:449); United States

v. Gettysburg Electric R. Co., 160 U. S. 668 (40:576).

93 Luxton v. North River Bridge Co., 153 U. S. 525, 534 (38:808); Van Brocklin v. Anderson, 117 U. S. 151, 154 (29:845).

94 Shoemaker v. United States, 147 U. S. 282, 322 (37:170).

95 United States v. Gettysburg Electric R. Co., 160 U. S. 668, 686 (40:576).

not a mere colorable device for the purpose of taking the property of one citizen for the benefit of another.96

$174. Same-What is a taking.-Where the government, in improving the navigation of a navigable stream, by the construction of a dam or other public works so floods lands belonging to an individual as to substantially destroy their value, there is a taking within the meaning and scope of the fifth amendment to the constitution. While the government does not directly proceed to appropriate the title, yet, it takes away the use and value; when that is done, it is of little consequence in whom the fee may be invested. The proceeding must be regarded as an actual appropriation of the land, including the possession, the right of possession, and the fee; and when the amount awarded as compensation is paid, the title, the fee, with whatever rights may attach thereto, pass to the government and it becomes henceforth the full owner.97 There is a distinction between the taking of property for public use and a consequential injury to such property, by reason of some public work; and it has been held that the destruction of access to land abutting on a navigable river, by the construction, by congress, of a pier on the submerged lands in front of the upland, was not a taking of private property, but only an instance of consequential injury to the property of the riparian owner.98 Where, by the construction of a dyke, by the United States in the improvement of the Ohio river, the plaintiff, a riparian owner, was through the greater part of the gardening season deprived of the use of her landing for the shipment of farm products and supplies to her farm, whereby the value of her farm was greatly diminished, it was held that there was no taking of the property, but only a consequential injury. It was a rule of the common law, that persons appointed or authorized by law to make or improve a public highway are not responsible for consequential damages, if they act within their jurisdiction, and with care and skill. And acts done in the proper exercise of governmental powers, and not directly en

96 Kaukauna Water Power Co. v. Green Bay & Miss. Canal Co., 142 U. S. 254, 282 (35:1004).

97 United States v. Lynah, 188 U. S. 445, 485 (47:539).

98 Scranton v. Wheeler, 179 U. S. 141, 153 (45:126).

99 Gibson v. United States, 166 U. S. 269 (41:996).