I advert to this work with the more readiness, because it is the acknowledged production of three eminent statesmen, of whom one was afterwards elevated to the highest judicial office in the country, and to him the comments on the judicial department have been generally attributed."

With this view of the defects of the constitution as to the trial by jury, and of the apprehensions entertained of new trials by the appellate courts, we shall be able to comprehend the scope and object of the amendment, which was proposed, and almost immediately and unanimously adopted, as part of the constitution. It is in these words: “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 otherwise re-examined in any court of the United States, than according to the rules of the common law."

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. It cannot be necessary for me to expound the grounds of this opinion, because they must be obvious to every person acquainted with the history of the law. Now, according to the rules of the common 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 shewn; 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. Upon a writ of error, the appellate court can examine in general errors of law only, and never can re-try the issues already settled by a jury, where the judgment of the inferior court is affirmed.

19 2 Federalist, No. 81, No. 83.

According to the obvious intention of the amendment, the Legislature then could have no authority to give an appellate jurisdiction, the power to re-examine by a jury the former decision of another jury, while the judgment below stood unreversed. As little reason could there be to imagine the Legislature would voluntarily transcend its constitutional authority. The language must be very clear and precise, which would impose on the court the duty of declaring the solemn act of the Legislature to be void. The court could never incline so to construe doubtful expressions, much less to seek astutely for hidden interpretations, which might darkly lead to such a result. The word "appeal" has no acknowledged general sense necessarily involving such a conclusion even in this commonwealth; and certainly in the common and civil law it can find no foundation, on which it may rest. It is not a little remarkable, that the most strenuous objection against the constitution originally contemplated a reverse sense of the word, viz. that the court, and not the jury, might review the facts.

If this be true, then the present attempt, to claim of right a new trial in the appellate court, is a novelty, to which we are bound to answer "Nolumus leges communes mutari.”

On the whole, on this last point I am clearly of opinion, that an appeal in a common law suit from the District Court removes errors of law only for the consideration of this court; and that we are bound to deny a new trial of the facts by a new jury. As it is admitted there are no such errors of law on record, the judgment of the court below ought to be affirmed.

The view, which I have taken of this point, seems in my judgment to add strength to the opinion expressed on the former point. I will only remark in confirmation of my opinion on both points, that on a careful inquiry, I find that the invariable practice in every other circuit is, in like

cases, to bring the suit by writ of error, and not by appeal before this court; and that no instance has ever occurred, in which a new trial by the jury has been allowed in the appellate court.

See also Ross, &c. vs. Rittenhouse, 2 Dall. 160.

G. Blake for United States.

William Prescott for defendant.

Memorandum.

There were a great number of causes on the docket standing on the same ground, and as the District Attorney ultimately expressed himself satisfied with the opinion of the court, and declined to have a reexamination at the Supreme Court, the Circuit Court ordered this cause, as well as all the others, to be dismissed for want of jurisdiction.

ANONYMOUS.

The Circuit Court has authority to allow amendments in revenue causes or pro ceedings in rem, brought by appeal from the District Court.

STORY, J. delivered the opinion of the court: The question as to the right of this court to grant amendments, in cases of libels, or informations, in rem, for violations of municipal laws, brought by appeal from the District Court to this Court, has been argued several times, as a question of general importance, and the court will now deliver its opinion.

By the judiciary act of 1789, ch. 20, s. 32, it is enacted, that all the courts of the United States, may, at any time, permit either of the parties "to amend any defect in the process or pleadings, upon such conditions, as the said courts respectively shall, in their discretion, and by their rules, prescribe."

The language of this section is sufficiently comprehensive to sustain the application for amendments in any cases before the court; but it has been attempted to be restricted to causes of original, and not to be extended to causes of appellate jurisdiction. But we find no such distinction in the statute: and even in appellate courts, proceeding according to the course of the common law, defects apparent upon the record may be amended, when they come within the general purview of statutes. Indeed in Rex vs. Ponsonby, 1 Wils. 303, the rule is laid down rather more broadly: "that the Superior Court, where error is brought, may make such amendments, as the court below may; but that can only be done, when the Superior Court has the same matter to amend by, as the inferior has." There is then in the nature of an appellate jurisdiction, nothing which forbids the granting of amendments.

2. It is said in the next place, that these proceedings in rem are of a criminal nature, and therefore not amendable.

2

If they are of a criminal nature, the argument is by no means satisfactory; because, at common law, criminal proceedings are amendable in matters of form at all times, and in matter of substance also, while they are in paper. For as to amendments, at common law, there is no difference between civil and criminal proceedings. The statutes of jeofails were not originally extended to the latter; but this was grounded upon the peculiar wording in some of these statutes, and in others upon express exceptions. Amendments of informations, in personam, are now considered so much as a matter of course, that they are even made on application to the judges at chambers. 3 Yet, in these

1 See also Pease vs. Morgan, 7 Johns. Rep. 468.

2 The Queen vs. Tutchin, 1 Salk. 51, Lord Ray. 1068.-The King vs. Hill Darley. 4 East. 175.

3 Rer vs. Wilkes, 4 Burr. 2527.-Rem vs. Holland, 4 T. R. 457. 4 Hank. dh 25. Indict, s. 97, p. 60.

causes, the amendments are generally, if not universally, founded on the common law authority of the courts.

But it is not true, that informations in rem are criminal proceedings. On the contrary, it has been solemnly adjudged that they are civil proceedings. *

5

As to the practice of amendments in proceedings in rem, we find a great variety of authorities. And in the Attorney General vs. Henderson, 3 Anst. 714, the court, upon inquiry, held, that the practice in revenue informations, was, that the Attorney General might, at any time, amend as of course. Now it will be found, that excepting under the statute 16 and 17 Car. 2. ch. 8, s. 2, (which extends the benefit of that statute to all informations concerning customs and subsidies of tonnage and poundage, and purely applies to the curing of defects after verdict) these amendments are granted solely upon the footing of the common law. This objection therefore cannot prevail.

8. It is said in the next place, that these causes are in the nature of proceedings, in rem, in the exchequer, and ought not to be varied by amendments, after they have become records of the court below, and can no longer be considered as proceedings in paper.

6

Admitting that these proceedings are in the nature of exchequer informations, it may well be doubted, if the inference assumed be incontrovertible. By the appeal, the judgment and decree of the court below are suspended. The whole cause is to be heard anew, both as to law and fact; and in these particulars is, it seems a cause de novo in this court. One ground of allowing amendments in any court, is, that the parties are often surprised by new evidence, at the

4 Ketland vs. The Cassius, 2 Dall. 365.—United States vs. La Vengeance, 8 Dall. 297.-United States vs. The Sally, 2 Cranch, 406.—United States vs. The Belsey and Charlotte, 4 Cranch, 443.-See also The Fabius, 2 Rob. 245.

5 Baldwin vs.

Bunb. 49.-Lock vs. Williford, Bunb. 72.-Kennet vi Lloyd, Bunb. 58.-Edgell vs. Duker, Bunb. 252.—Brook vs. Day, Bunb. 334.

6 3 Dall. 88, 118.-Yeaton vs. United States, 5 Cranch, 281.