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Argument for Plaintiff in Error.

visions of the Seventh Amendment, means a jury of twelve men who must, in finding facts, act unanimously. Am. Publishing Co. v. Fisher, 166 U. S. 464; Springville v. Thomas, 166 U. S. 707; Capital Traction Co. v. Hof, 174 U. S. 1. The "right," which is secured by the Seventh Amendment is not a matter of procedure but of substance, and one possessing such right cannot be deprived of it by any means short of an amendment to the Constitution. Cases, supra, and Walker v. New Mexico &c. R. R., 165 U. S. 593; Slocum v. N. Y. L. Ins. Co., 228 U. S. 364.

The Seventh Amendment is a limitation upon all of the powers delegated by the Constitution, to those agencies which comprise the government of the United States; therefore, not only the courts but the legislature of the United States is limited by this Amendment, and the right secured thereby enters into and controls all suits founded upon legislation enacted by Congress in whatever court the same may be brought, where such court sits and exercises power within the domain of the United States. Cases, supra, and Walker v. Southern P. R. Co., 165 U. S. 595; Bauman v. Ross, 167 U. S. 592; Thompson v. Utah, 170 U. S. 343, 350; Guthrie Bank v. Guthrie, 173 U. S. 528-537; Maxwell v. Dow, 176 U. S. 581, 596; Black v. Jackson, 177 U. S. 349; Downes v. Bidwell, 182 U. S. 244, 270; Rassmussen v. United States, 197 U. S. 516, 526; Second Employers' Liability Cases, 223 U. S. 1, 55; Cent. Vermont R. R. v. White, 238 U. S. 507; Atl. Coast Line v. Burnette, 239 U. S. 199.

A state court can derive no authority from the power which creates it to adjudicate controversies based upon the Federal act. Ableman v. Booth, 21 How. 506; Levin v. United States, 128 Fed. Rep. 826.

The principles of law comprised within the term comity, by which courts entertain controversies involving rights created by sovereign power, other than that which created such courts, do not afford the basis or ground upon which

Argument for Plaintiff in Error.

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state courts may exercise their powers in controversies founded upon the Federal act. Claflin v. Houseman, 93 U. S. 130; Second Employers' Liability Cases, 223 U. S. 1.

The dictum, to the effect that the principle of comity by analogy may be involved in this question, is inadmissible, and with due respect, seems to involve a contradiction. Zikos v. Oregon R. & N. Co., 179 Fed. Rep. 893.

When "comity" is the basis of judicial determination the court extending the comity out of favor and good will, extends to foreign laws an effect they would not otherwise have. Stowe v. Belfast Bank, 92 Fed. Rep. 90, 96. But its obligation is not imperative. Mast, Foos & Co. v. Stover Mfg., 177 U. S. 485. See also Hilton v. Guyot, 159 U. S. 113; People v. Martin, 175 N. Y. 315.

Congress in the legitimate exercise of the power conferred upon it may withhold jurisdiction to try causes founded upon laws passed by it, or can confer exclusive jurisdiction with respect to such matters upon the Federal courts. Claflin v. Houseman, 93 U. S. 130; The Moses Taylor, 4 Wall. 411.

Congress may not, however, withhold from people subject to the jurisdiction of the United States, and whose rights are controlled by the Federal Employers' Liability Act, the protection offered by the Seventh Amendment.

State courts in deciding controversies founded upon this act are applying the judicial power of the United States, and if it be held that the Seventh Amendment is a limitation only upon that power, state courts could not enforce such power apart from the limitation of the said amendment. McCulloch v. Maryland, 4 Wheat. 316; Cohens v. Virginia, 6 Wheat. 414.

The judicial power of the United States is co-extensive with its legislative power. Cohens v. Virginia, supra.

If a case is not within the judicial power of the United States an appeal would not lie to this court, for it is selfevident that one sovereign power cannot exercise super

vision over the judiciary of another. Martin v. Hunter, 1 Wheat. 304; Cohens v. Virginia, supra.

A substantive right or defense arising under the Federal law cannot be lessened or destroyed by a rule of procedure. Norfolk &c. R. R. v. Ferebee, 238 U. S. 269. Nor can a right protected by the Constitution of the United States be lessened or destroyed by a state court, under the guise of procedure.

Mr. George H. Lamar, with whom Mr. B. F. Proctor, Mr. C. U. McElroy and Mr. D. W. Wright were on the brief, for defendant in error.

MR. CHIEF JUSTICE WHITE delivered the opinion of the court.

Counting upon the Employers' Liability Act of 1908 (c. 149, 35 Stat. 65) as amended by the act of 1910 (c. 143, 36 Stat. 291), the defendant in error sued in a state court to recover for the loss resulting from the death of Nanos, his intestate, alleged to have been occasioned by the negligence of the plaintiff in error while he, Nanos, was in its employ and engaged in interstate commerce.

Whatever may have been the controversies in the trial court prior to the verdict of the jury in favor of the plaintiff and the contentions which were unsuccessfully urged in the court below to secure a reversal of the judgment entered thereon, on this writ of error they have all but one been abandoned and hence have all but one become negligible. As the one question here remaining was also involved in five other cases pending under the Employers' Liability Act on writs of error to the courts of last resort of Virginia, Kentucky and Oklahoma, those cases and this were argued together. As the other cases however involve additional questions, we dispose separately of this case in order to decide in this the one question which is common to them all and thus enable the other cases,

if we deem it is necessary to do so, to be treated in separate opinions.

By the constitution and laws of Minnesota in civil causes after a case has been under submission to a jury for a period of twelve hours without a unanimous verdict, five-sixths of the jury are authorized to reach a verdict which is entitled to the legal effect of a unanimous verdict at common law. When in the trial of this case the court instructed the jury as to their right to render a verdict under such circumstances, the defendant company objected on the ground that as the cause of action against it arose under the Federal Employers' Liability Act-in other words, was Federal in character-the defendant was by the Seventh Amendment to the Constitution of the United States entitled to have its liability determined by a jury constituted and reaching its conclusion according to the course of the common law, and hence to apply the state statute would be repugnant to the Seventh Amendment. This objection which was overruled and excepted to was assigned as error in the court below, was there adversely disposed of (128 Minnesota, 112), and the alleged resulting error concerning such action is the one question which we have said is now urged for reversal.

It has been so long and so conclusively settled that the Seventh Amendment exacts a trial by jury according to the course of the common law, that is, by a unanimous verdict (American Publishing Co. v. Fisher, 166 U. S. 464; Springville v. Thomas, 166 U. S. 707; Capital Traction Co. v. Hof, 174 U. S. 1), that it is not now open in the slightest to question that if the requirements of that Amendment applied to the action of the State of Minnesota in adopting the statute concerning a less than unanimous verdict or controlled the state court in enforcing that statute in the trial which is under review, both the statute and the action of the court were void because of repugnancy to the Constitution of the United States. The one

question to be decided is therefore reduced to this: Did the Seventh Amendment apply to the action of the state legislature and to the conduct of the state court in enforcing at the trial the law of the State as to what was necessary to constitute a verdict?

Two propositions as to the operation and effect of the Seventh Amendment are as conclusively determined as is that concerning the nature and character of the jury required by that Amendment where applicable. (a) That the first ten Amendments, including of course the Seventh, are not concerned with state action and deal only with Federal action. We select from a multitude of cases those which we deem to be leading. Barron v. Baltimore, 7 Pet. 243; Fox v. Ohio, 5 How. 410, 434; Twitchell v. Commonwealth, 7 Wall. 321; Brown v. New Jersey, 175 U. S. 172, 174; Twining v. New Jersey, 211 U. S. 78, 93. And, as a necessary corollary, (b) that the Seventh Amendment applies only to proceedings in courts of the United States and does not in any manner whatever govern or regulate trials by jury in state courts or the standards which must be applied concerning the same. Livingston v. Moore, 7 Pet. 469, 552; The Justices v. Murray, 9 Wall. 274; Edwards v. Elliott, 21 Wall. 532; Walker v. Sauvinet, 92 U. S. 90; Pearson v. Yewdall, 95 U. S. 294. So completely and conclusively have both of these principles been settled, so expressly have they been recognized without dissent or question almost from the beginning in the accepted interpretation of the Constitution, in the enactment of laws by Congress and proceedings in the Federal courts, and by state constitutions and state enactments and proceedings in the state courts, that it is true to say that to concede that they are open to contention would be to grant that nothing whatever had been settled as to the power of state and Federal governments or the authority of state and Federal courts and their mode of procedure from the beginning. Doubtless it was