If it is said that this view of the operation of the provision itself is not supported by the leading authorities, and that, under the received construction, there can be no case within the judicial power, and consequently no suit, until a mode of pursuing the claim has been established by legislation, yet it is obvious that the effect of the legislation of Congress has been to produce a law acting on private persons in the same manner as the provision itself under the fourth construction; that, under this legislation, a case does arise in which the claimant and the person claimed are the parties, and that neither the State nor the national Government appears as party owing the obligation, and the latter appears only as the administrator of the law, which cannot be enforced without suit.'

Supposing, then, that the claim of the owner, made either under the provision itself, operating as private law, or under some Act of Congress giving it like operation on private persons, may be called a suit, it is then farther necessary to determine whether, under the particular class of suits here desig nated suits at common law, this claim or suit may be comprehended.

§ 940. If common law be here taken to mean a rule derived from precedents and custom, from the judicial application of natural reason, in distinction from a rule resting on positive legislation, the only remedial forms which could be called suits at common law would be those which judicial tribunals might themselves adopt on the authority of precedent or custom; and, since there was not, before the formation of the

of suits and actions, which are defined by the Mirror to be the lawful demand of one's right.' Or, as Bracton and Fleta express it, in the words of Justinian, jus prosequendi in judicio quod alicui debetur." Blackstone then proceeds to describe every species of remedy by suit; and they are all cases where the party suing claims to obtain something to which he has a right. To commence a suit is to demand something by the institution of process in a court of justice; and to prosecute the suit is, according to the common acceptation of language, to continue that demand."

1 See the same reasoning applied in the parallel inquiry, ante, p. 690. From the words, "shall be delivered up on claim of the party to whom such labor or service is due," Mr. Wolcott, 9 Óh., 164, argues very forcibly that a common-law trial is contemplated. But application of the argument depends upon the construction which may be adopted. The same remark applies to Judge Smith's reasoning, 3 Wisc., 37-39, ante, p. 668. In these passages the judge and attorney general give the provision the fourth construction, while their denial of the power of Congress is based on the first construction.

Constitution of the United States, any customary or common law of the United States regarded as a single forum or jurisdiction, it might be questioned whether any forms of judicial proceeding which might be adopted by the tribunals holding the judicial power of the United States, either on their own authority or by the sanction of legislation, could be called common-law suits in this sense. Or, if any forms so used under the authority of the United States or in applying the judicial power of the United States may be denominated suits at common law, in this sense, it can only be such as may have formerly prevailed by force of precedent or custom in the particular State or several jurisdiction within which that judicial power is applied.' So that the judicial power of the United States, if applied in any of these forms, might be said to be employed in a suit at common law.

A common law, thus distinguished from positive legislation, must necessarily be recognized in every system of jurisprudence.' But, remembering the principle that the particular use of words by the authors or promulgators of the Constitution must be the key in interpretation, it is to be noticed that while, in English and American jurisprudence, common law was thus distinguished from statute law, or positive legislation, yet it had another and peculiar limitation, when employed in discriminating judicial methods of enforcing rights and obligations and remedying wrongs, in which it is contrasted, not with statute law, but with the Roman or civil law, or with the remedial forms employed in its administration. When remedial proceedings and judicial formalities are referred to as "suits at common law," the presumption is that they are contrasted with suits which, though also conducted according to precedent and customary law, yet have not, in England and America, ever been so called, i. e., suits following the course of the Roman or civil law courts as it had customarily been understood in English and American equity practice and in courts of admiralty and maritime jurisdiction.

Now, in suits at common law, when so distinguished, a trial of questions of fact by a jury is the principal circumstance dis

'Curtis' Comm., § 19.

Ante, § 35.

3

Ante, §§ 605, 606.

tinguishing them from suits following the civil-law forms of judicial proceeding. If, then, "suits at common law" are so designated with reference to the formal character of the proceeding, the Amendment is only equivalent to saying that the trial by jury shall continue to be used in those forms of proceeding which are characterized by a trial by jury. Under this construction, it would altogether depend upon the choice of the courts, or, at the farthest, upon the will of the national legislature, whether this Amendment should have any force in reference to the judicial determination of any particular right or obligation of private persons. In other words, it would depend upon the historical character of the form of proceeding which should be adopted for the judicial determination of any "case" or "controversy," whether it should be known as a "suit at common law " or not; and it would appear to be always within the power of Congress, under the power to invest and regulate the powers of the judicial department of the Government of the United States, to determine whether any particular right and obligation-any subject of remedy-should constitute the subject matter of a "suit at common law." By prescribing a method of proceeding unknown to the common law of England and of the several States, which thus distinguish between suits at common law and suits following the civil or Roman law, Congress might do away with the force of this Amendment in all cases, or in any particular class of cases or controversies falling within the judicial power of the United States.'

1 This would seem to be Mr. Justice McLean's understanding of this guarantee, from his language in Parsons v. Bedford, 3 Peters, 450, 454, where, dissenting from the majority of the court, he held that the case, coming from the District Court sitting in Louisiana, was not a suit at common law, such as is intended in this Amendment, because the judicial power had been applied according to the forms of the civil law, or, rather, according to that peculiar form of remedy anteriorly used in Louisiana, partly derived from statute and partly from the law of France. On page 456 of the same report, Judge McLean notices the objection that, by this construction, it would be in the power of Congress to do away with the jury trial in any case, and answers it by saying that it is not to be supposed that Congress will disregard any injunction of the Constitution. But, it is evident that here the question is what is it that Congress is bound not to disregard? what restraint does this Amendment impose upon the Government of the United States? But, adopting this interpretation of the guarantee, the answer would be, that the Constitution did not impose any such restraint; or, at least, not upon the legislative power of Congress. In Baker v. Biddle, Baldwin's C. C. R., p. 404, it is said:

Since, then, a jury trial in the determination of matters of fact is itself the essential characteristic of suits following the course of common law, as contrasted with other anteriorly known forms of remedy, it seems necessary, in order to give a substantial significance to this Amendment, to suppose that, though a suit is, strictly speaking, a form of legal controversy, yet here it must be construed to have a less technical sense, though one not unknown in popular use, and to signify a controversy which, irrespectively of the form of proceeding, may be designated a common-law controversy or case; or, in other words, that controversies are here intended respecting certain subject matters which have been heretofore determined, as common-law rights and obligations, by common-law courts, so called in contrast with those of equity and of admiralty and maritime jurisdiction, the term suit designating rather the subject of controversy than the formal method of deciding it.

This construction of the seventh Amendment seems to be that received by the majority of the Supreme Court of the United States in Parsons v. Bedford (1830), 3 Peters, 446.'

"By the adoption of this Amendment [the 7th] the people of the States and Congress have declared that the right of jury trial shall depend neither on legislative or judicial discretion. There were two modes in which this right might be impaired:-1. By an organization of courts in such a manner as not to secure it to suitors. 2. By authorizing courts to exercise, or their assumption of equity or admiralty jurisdiction over cases at law. This Amendment preserves the right of jury trial against any infringement by any department of the Government."

In Parsons v. Bedford, 3 Peters, 446, Mr. Justice Story, delivering the opinion of the court, said: "The trial by jury is justly dear to the American people. It has always been an object of deep interest and solicitude, and every encroachment upon it has been watched with great jealousy. The right to such a trial is, it is believed, incorporated into and secured in every State constitution in the Union; and it is found in the constitution of Louisiana. One of the strongest objections originally taken against the Constitution of the United States was the want of an express provision securing the right of trial by jury in civil cases. As soon as the Constitution was adopted, this right was secured by the seventh Amendment of the Constitution proposed by Congress, and which received an assent of the people so general as to establish its importance as a fundamental guarantee of the rights and liberties of the people." Then, reciting the Amendment-"At this time there were no States in the Union the basis of whose jurisprudence was not that of the common law in its widest meaning; and, probably, no States were contemplated in which it would not exist. The phrase, common law,' found in this clause, is used in contradistinction to equity and admiralty and maritime jurisprudence. The Constitution had declared, in the Third Article, 'that the judicial power shall extend to all cases in law and equity arising under the Constitution, the laws of the United States, and treaties made or which shall be made under their authority,' &c., and to cases of admiralty and maritime jurisdiction. It is well known that, in civil causes, in courts of equity and admiralty, juries do not

941. Under this acceptation of the term "suits at common law," common law would include both the unwritten law -law derived from judicial precedent (common law in the original sense) and that derived from positive legislation, statute, or treaty; in other words, a suit at common law might be one regarding rights and obligations derived from positive legislation, as truly as one regarding those derived from precedent, custom, or the judicial application of natural reason. And though the Constitution may be regarded as an act of positive legislation, so far as it is law for private persons, yet rights and obligations created by the Constitution would be the subjects of "suits at common law "-taking the term in this sense. If the claim of a master to the person of the slave intervene, and that courts of equity use the trial by jury only in extraordinary cases to inform the conscience of the court. When, therefore, we find that the Amendment requires that the right of trial by jury shall be preserved in suits at common law, the natural conclusion is, that this distinction was present to the minds of the framers of the Amendment. By common law, they meant what the Constitution denominated, in the Third Article, 'law;' not merely suits which the common law recognized among its old and settled proceedings, but suits in which legal rights were to be ascertained and determined, in contradistinction to those where equitable rights alone were recognized and equitable remedies were administered, or where, as in the admiralty, a mixture of public law and of maritime law and equity was often found in the same suit. Probably there were few, if any, States in the Union in which some new legal remedies, differing from the old common-law forms, were not in use, but in which, however, the trial by jury intervened, and the general regulations in other respects were according to the course of the common law. Proceedings in cases of partition, and of foreign and domestic attachment, might be cited as examples variously adopted and modified. In a just sense, the Amendment, then, may well be construed to embrace all suits which are not of equity and admiralty jurisdiction, whatever may be the peculiar form which they may assume to settle legal rights. And Congress seems to have acted with reference to this exposition in the Judiciary Act of 1789, ch. 20 (which was contemporaneous with the proposal of this Amendment), for, in the ninth seetion, it is provided that the trial of issues in fact in the district courts in all causes, except civil causes of admiralty and maritime jurisdiction, shall be by jury;' and in the twelfth section it is provided that 'the trial of issues in fact in the cir cuit courts shall in all suits, except those of equity and of admiralty and maritime jurisdiction, be by jury;' and again, in the thirteenth section, it is provided that the trial of issues in fact in the Supreme Court in all actions at law against citizens of the United States, shall be by jury."

In Baker v. Biddle, Baldwin R., pp. 394, 405, Judge Baldwin, repeating the language of the above-cited case, also decides that the term "suits at common law," in the 7th Amendment, means the same as "cases at law" in the 3d Article of the Constitution.

On Burr's trial, in U. S. C. C. for Virginia, Sept. 3, 1807, Chief Justice Marshall decided that the expression, "trials at common law," used in the 34th section of the Judiciary Act, was not applicable to prosecutions for crimes. It applied to civil suits, as contradistinguished from criminal prosecutions, and to suits at common law, as contradistinguished from those which came before the court, sitting as a court of equity or admiralty. 1 Kent Comm., p. 333. 2 Burr's Trial, reported by Robertson, 482.