delivered the opinion of the court.
The seventh amendment of the Constitution declares, that in suits at law, where the value in controversy shall exceed twenty dollars, the right оf trial by jury shall be preserved.
This right may be waived by the party. The act of March 8d, 1865, * provides a mode by which the parties to a suit may submit thе matter proper for a jury to the court; and the case of Norris v. Jackson, decided a few days ago, † gives the mode of proceeding under that statute, and exрlains what may be received in such cases, and how the matter proper for review may be brought before this court.
If, then, the рarties in the present case had been willing to waive a jury and permit the court to find both the law and the facts, there was no difficulty in doing this, and in presenting the law to this court for review. For it is never to be forgotten that, in common law cases, it is the ruling of the inferior сourt on the law alone which this court is authorized to review. The common law admitted of no re-examination of the facts found by a jury, except by grаnting a new trial in the .same coui’t in which the verdict was rendered, and the constitutional amendment just referred to, forbids any other modе of re-examination than that which accords with the rules of common law.
As the defendant in this case did not waive his right to have the fаcts tried by a jury, it was the duty of the court to submit such facts to the jury that was sworn to try them.
It is needless to say that this was not done. The statement is сlear that the ease was decided upon the testimony taken on a former trial, and not read before this jury, because the court had heard it in the first case, and did not deem it necessary to be heard by the jury in this case.
It is possible to have a jury trial in which the plaintiff, having failed to offer.any evidence at all, or any competent evidence, the jury finds for the defendant for that vеry reason. And in such case it is strictly correct, if the plaintiff does not take a non-suit, for the court to instruct the jury to *252 find for the defendant. But we have never before heard oi a case in which the jury were permitted, much less instructed, to find a verdict for the plaintiff оn evidence of which they knew nothing except what is detailed to them in the charge of the court. It is obvious that if such a verdict can be supported here, when the very act of the court in doing this is excepted to and relied on as error, the trial by jury may bе preserved in name, but will be destroyed in its essential value, and become nothing but the machinery through which the court exercises thе functions of a jury without its responsibility.
It is insisted with much ingenuity that in this case there was no disputed fact for the jury to pass upon, and that the only issue in the case being one of law, it was proper for the court to dispose of it. If this were so, the instruction of the court might be sustаined, provided the undisputed facts necessary to sustain the verdict had been submitted to the jury. But let us see if this assumption is supported by the record. The form of the pleadings shows nothing and admits nothing. The plaintiff then must make a case by evidence to the jury. Looking into the cáse stated and as though it had been read to.the jury, we find that plaintiff’s claim is for duties on certain goods unlawfully collected of him by dеfendant as collector of the port of New York. The act under which the goods were rated for duties provides that on аll delaines, cashmere delaines, muslin delaines, barege delaines, comprised wholly or in part of worsted, wool, mohair, or goat’s hair, and on all goods of similar description, not exceeding fifty cents in value per square yard, two cents per square yard shall be paid. And the point in dispute was whether the goods of plaintiffs, on which the two cents per yard had been assessed, were goods of a similar description to those above mentioned, within the meaning of the act. Now it is clear that this question alone is one of mixed law and fact, because until we are informed by testimony as to the nature and character of plaintiff’s goods, no construction or view of the law can be applied to them. The court can only know by evidence what kind of goods *253 were assessed by tbe collector, and this at once dispels tbe idea that the case could in any sense present an abstract question of law. But beforе the court or the jury could get to these questions there were several others, purely matters of fact, to be decided. Thе rate at which the goods were actually assessed, the payment of the duties as thus assessed, the protest at the time of payment, and the appeal to the Secretary of the Treasury, were all essential to the plaintiff’s recovery and necessary to be found to the satisfaction of the jury. The judge also tells us that “ there is very little discrepancy in the testimony.” But where thеre is any discrepancy, however slight, the court must submit the matter to ■which it relates to the jury, because it is their province to weigh and balance the testimony and not the court’s. The proposition is not, therefore, sustained, that nothing but a question of law was to bе decided.
There is another error, however, which, althoúgh unimportant in this case, may arise very often in the numerous suits to recоver back taxes paid under protest in the customs and in the intei’nal revenue departments.
The plaintiffs having given the defendant duе notice to produce at the trial the original appeals made by them to the Secretary of the Treasury, were permitted to use copies proved by witnesses who mailed the originals, because defendant did not produce the originals. This was excepted to and was error, and it would be equally error if the United States had been the nominal, as it was the real, defendant in the suit. The papers showing this appeal, when filed with the secretary, became part of the records and archives of his office, and the law is well settled that in such case the originals need not be produced in any trial, but that copies of them, certified by the officer in whose charge they properly are, may be used with the same effect as the originals. If the governmеnt needs these copies she produces them when she proposes to use them. If any one else wants to use them the law provides the means by which such copies can be produced. They are the best attainable evidence, and must be produced, unless some sufficient reason is shown for not doing *254 bo. The government is not bound to furnish either the originals or certified copies to suitors with whom it is contending, unless upon demand at the proper office, and tender of the lawful fees.
For this and for the other errors mentioned the judgment must be
Reversed, and a venire nacías de novo is ordered.
18 Stat. at Large, 601.