Morrison Waite

“ The Seventh Amendment to the Constitution provides that '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 Judiciary Act of 1789, c. 20, sect. 12 (1 Stat. 80) , provided that the trial of issues of fact in the circuit courts should in all suits, except those of equity and of admiralty and maritime jurisdiction, be by jury; but it has always been held that if the parties waived a jury a judgment after trial by the court would not be erroneous. ”

“ In this way it was provided that issues of fact in civil cases in the Circuit Court might be tried and determined by the court, without the intervention of a jury, 'whenever the parties, or their attorneys of record, file with the clerk a stipulation in writing waiving a jury. ”

“ Boyreau (21 How. 223) , 'if, by agreement of parties, the questions of fact in dispute are submitted for decision to the judge upon the evidence, he does not exercise judicial authority in deciding, but acts rather in the character of an arbitrator. ”