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 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 section, 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,

under this provision is, as here supposed, the subject of a suit, it will be a suit at common law within the intendment of the 7th Amendment, though resting entirely upon this provision regarded as a statute or treaty having the force of private law.'

§ 942. The Amendment declares that in suits at common law the trial by jury "shall be preserved." If the word "preserved" is taken to indicate that a suit at common law is one involving a subject matter which had formerly been triable by jury,' it would seem that the argument from anterior usage requires the preservation of jury trial in these cases.

The person claimed is, under the provision, as has been shown, a legal person owing service or labor, and in that respect precisely like a person claimed as a villein under the ancient English common law, who, if he denied the claimant's right to his service, might have the issue tried by a jury. It is indisputable that the issue of liber or non liber,

1 The latter clause of this Amendment is: "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." The rules here spoken of must undoubtedly be those obtaining in the ancient customary law of remedy, known as common law in English and American jurisprudence. To suppose that any rule would be a rule of common law, if only not applied by a court of equity, admiralty, or maritime jurisdiction, would be to nullify the whole force of the Amendment. Any new mode of re-examining facts tried by a jury might, by statute, be made a. part of that law of remedy which is called legal, as contrasted with equitable. See Story in Parsons v. Bedford, 3 Peters, 446, after the passage last cited.

2

Rawle, on the Const., p. 137, speaking of the effect of this Amendment:"The trial by jury is forever secured on its ancient basis, and cannot be multiplied beyond it."

It appears that the lord might seize his fugitive villein; but the person seized might, in that case, maintain his right to freedom before a jury by the writ de homine replegiando. Fitzh. Nat. Br. 66; Mr. Hargrave's note, 20 Howell's State Tr., 38. Only when the person claimed confessed himself to be the villein could the sheriff, under the writ nativo habendo, seize and deliver him up to the lord. If he denied the villenage, the lord was in any case obliged to remove the cause from the sheriff's court to the common pleas, or before the king's justices in eyre; after which, it would appear he might arrest the supposed fugitive, though before the issue had been heard. The same effect was produced if the person claimed sued out the writ de libertate probanda; except that then, by common law, the person who had sued it could not be arrested, as he became the nominal plaintiff; but, in either case, the lord was required, as the actual plaintiff, to count upon the nativo habendo, the burden of proof being, in any case, upon him, and the issue on the plea of frank condition was heard, as directed in the writ de libertate probanda, at the assizes, which indicates trial by jury. The 25 Edw., 3, Stat. 5, c. 18, altering the common law, gave the lord power to seize the supposed fugitive, notwithstanding this writ; after which it fell into disuse; the pleading, trial, and burden of proof being the same where it had not issued. See Comyns' Dig. Villenage, c. 1, 2, 3. 1 Fitzherbert Natura Brevium, 77, where the forms of these writs are given, and the proceedings described. Also, Mr. Hargrave's note of the law on the subject from these sources, 20 Howell St. Tr., 38.

free or slave, has almost universally been triable by jury in the States wherein slavery has existed under the internal law.

These were instances in which the condition of the person claimed was to be determined by the internal law of the forum of jurisdiction—the law applying to the respective parties as domiciled subjects. It may be urged that an alien claims and receives another person as his bondman, in virtue of a right which, if it exists at all, is given by the international law of the forum, and that, for this reason, there is no parallel between the methods used in determining his claim and the methods of determining legal relations in the above instances. The same argument is implied in giving the name extradition to the delivery upon such a claim. It is equivalent to saying that the law determining such delivery is public international law, in distinction from private international law.

It has already been shown that, whether the delivery of a fugitive from service to his alien claimant was made under private international law derived from precedent or custom, or under international compacts for the rendition of fugitive serv ants or slaves, it was considered matter of legal controversy, a case at law, as much so as any other matter of judicial cognizance. Being thus regarded, it was determined in a suit arising under common law, as contrasted with matters determined by courts of equity jurisdiction and of admiralty and maritime cognizance.

1

But the true character of the provision itself, as well as of the Act of Congress, as being private law, has already been exhibited.

If, in one of the States or colonies allowing slavery under its local (internal) law, an alien master had claimed a negro as his slave, or a white person as his indented servant, it seems probable that, if the alleged bondman had denied his slavery or apprenticeship, the issue was decided by the same judicial methods which were employed when a question of the same character arose under the internal law of the forum of jurisdiction, that is, when it arose between persons domiciled in that

1 Ante, §§ 322, 798.

forum, and when there was no immediate prospect that the person claimed would be taken out of the forum of jurisdiction.

A negro claimed as a slave or bondman in England, before Somerset's case, was as fully entitled to a writ of homine replegiando' as any one claimed as a villein under the ancient law; and equally so, whether the claimant proposed to detain him in servitude in England, or to carry him back to the Plantations.

It has never been shown that, where the claim of the alien master was supported by some written intercolonial or interState compact, or was supported under private international law, the proceedings were summary, without jury trial, when the person claimed denied being the bondman of the claimant. The only colonial compacts relating to such claims were those in the eighth article of the New England Confederacy of 1643, in the seventh of that of 1672, and in the treaty between the New Netherlands and the New England Colonies of 1650. Although the nature of the proof to be required is, by these compacts, limited to specified documentary evidence, it does not appear but that the issue was to be decided by the same judicial methods in which it would have been determined if it had arisen between domiciled persons. There is no evidence that the question of fact was to be decided otherwise than by jury.'

943. The guarantee of a jury trial is further limited in the Amendment by the amount of value in controversy. The matter in controversy being that of the liberty of a natural person, it will be in accordance with all analogies of the law to regard it as a matter of greater value than the sum named in the Amendment, since it is treated as beyond all valuation to that person; and it may be safely assumed that, whatever may be the value of the right of liberty to the alleged slave,

14 Comyns' Dig., 481.

There may be a strong presumption, from the general history of the times, that these questions were generally decided by the magistrates with very little ceremony. But at that time these were all slaveholding jurisdictions. Besides, the observations in the note, ante, p. 682, apply here against deriving any argument on this question from these compacts.

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