was adopted. One of these was the system known in English jurisprudence as equity, in which the rights of parties were litigated upon principles and by forms of proceeding distinguished from those of the common law; and the other was a system of remedies and principles adopted from the common law of England, as far as it was applicable to the situation of the Colonies at the time of their respective settlements. It is well known historically, that the framers of the Constitution designed to embrace within the judicial power all cases of a certain character, or in which the parties might bear a certain character, whether commenced and prosecuted under the one or the other of these systems. But the question arises, whether it was intended to include, under the head of "law," those proceedings only which might be instituted and conducted under the forms which the common law of England recognises, or whether this term "law" has a wider signification?

§ 16. With regard to this question, it is to be observed, that the common law of England was adopted by the founders of the American colonies to a limited extent only. The emigrants from England brought with them the general principles of the common law of that country, and adopted and put them in practice, as far as they were applicable to their situation; and as the people of each colony acted independently of the rest, in this respect, it has resulted that the common law of each of the states differs in some particulars from that of the others, and that in none of them is it wholly identical with the common law of England. Hence it follows, that when the people of these different states, speaking through the Constitution of the United States, granted to the judicial power of the Union cognizance of all cases in "law," wherever they might arise, which should arise under the Constitution, laws, or treaties of the United

1 The Federalist.

* Van Ness v. Packard, 2 Peters, 137, 144; Wheaton v. Peters, 8 Peters, 591; Terrett v. Taylor, 9 Cranch, 43; Town of Paulet v. Clarke, Id. 292.

States, &c., they must have had in view those suits in which a legal remedy should be pursued, according to the forms and principles of the local jurisprudence, as distinguished from those in which equitable remedies were to be administered.

§ 17. The term "common law" is not found to occur in the Constitution as originally adopted. The phrase made use of in the 3d article, is, as we have seen, cases in "law." The term "common law" is found in the 7th amendment, which declares that, "In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved; and no fact once tried by a jury shall be otherwise re-examinable in any court of the United States, than according to the rules of the common law." This difference of phraseology might seem to give rise to some question as to the meaning of the 3d article and the 7th amendment; but the Supreme Court have held that the expressions, "suits at common law," in the first clause of the amendment, and "cases in law," in the 3d article, both contemplate not merely suits which the common law recognised among its old and settled proceedings, but all suits in which legal rights were to be ascertained and determined in contradistinction to those of equity, or of admiralty jurisdiction. But they have also held, that the other clause of the amendment is a substantial and independent provision, prohibiting the courts of the United States from re-examining any fact once tried by a jury, excepting in the modes and upon the rules known to the common law.1

'Parsons v. Bedford, 3 Peters, 433, 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 of 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 Consti

§ 18. The proceedings, therefore, which are contemplated by the description of "cases in law," being all suits origi

tution 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. This amendment declares, that 'In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved; and no fact once tried by a jury shall be otherwise re-examinable in any court of the United States, than according to the rules of the common law.' At this time, there were no states in the Union, the basis of whose jurisprudence was not essentially 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 all cases of admiralty and maritime jurisdiction. It is well known, that in civil causes, in courts of equity and admiralty, juries do not 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 recognised 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 recognised, 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

nated for the purpose of ascertaining and determining legal rights in forms which are not proceedings in equity or ad

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 Circuit 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.'

"But the other clause of the amendment is still more important; and we read it as a substantial and independent clause. 'No fact tried by a jury shall be otherwise re examinable, in any court of the United States, than according to the rules of the common law.' This is a prohibition to the courts of the United States to re-examine any facts tried by a jury in any other manner. The only modes known to the common law to re-examine such facts, are the granting of a new trial by the court where the issue was tried, or to which the record was properly returnable, or the award of a venire facias de novo, by an appellate court, for some error of law which intervened in the proceedings. The Judiciary Act of 1789, ch. 20, sec. 17, has given to all the courts of the United States 'power to grant new trials in cases where there has been a trial by jury, for reasons for which new trials have usually been granted in the courts of law.' And the appellate jurisdiction has also been amply given by the same Act (sec. 22, 24) to this court, to redress errors of law; and for such errors to award a new trial, in suits at law which have been tried by a jury.

"Was it the intention of Congress, by the general language of the Act of 1824, to alter the appellate jurisdiction of this court, and to confer on it the power of granting a new trial by a re-examination of the facts tried by the jury? to enable it, after trial by jury, to do that in respect to the courts of the United States, sitting in Louisiana, which is denied to such courts sitting in all the other states in the Union? We think not. No general words, purporting only to regulate the practice of a particular court, to conform its modes of proceeding to those prescribed by the state to its own courts, ought, in our judgment, to receive an interpretation, which would create so important an alteration in the laws of the United States, securing the trial by jury. Especially ought it not to receive such an interpretation, when there is a power given to the inferior court itself to prevent any discrepancy between the state laws and the laws of the United States; so that it would be left to its sole discretion to supersede, or to give conclusive effect in the appellate court to the verdict of the jury.

"If, indeed, the construction contended for at the bar were to be given

miralty, the next question is, what system of jurisprudence is to be applied by the courts of the United States in the adjudication of such suits?

§ 19. The precise extent to which the common law, as a system of remedy and jurisprudence, has been adopted by the Constitution of the United States, is a subject not free from difficulty. On the one hand, it is obviously true, in a certain sense, that the United States can have no common law. The federal government is established by the people of sovereign and independent states, each of which has its own local common law. The law of the United States is to be found in the Constitution and the acts of Congress passed in pursuance thereof. But, inasmuch as the Constitution has given to the judicial power cognizance of various classes of suits in which legal rights are involved, when a question depending upon a common law right arises in the courts of the United States, they must look to the law of the states in which the controversy originates, or by the law of which the rights of the parties are to

to the Act of Congress, we entertain the most serious doubts, whether it would not be unconstitutional. No court ought, unless the terms of an act rendered it unavoidable, to give a construction to it which should involve a violation, however unintentional, of the Constitution. The terms of the present act may well be satisfied by limiting its operation to modes of practice and proceeding in the court below, without changing the effect or conclusiveness of the verdict of the jury upon the facts litigated at the trial. Nor is there any inconvenience from this construction for the party has still his remedy, by bill of exceptions, to bring the fact in review before the appellate court, so far as those facts bear upon any question of law arising at the trial; and if there be any mistake of the facts, the court below is competent to redress it by granting a new trial.

"Our opinion being that, if the evidence were now before us, it would not be competent for this court to reverse the judgment for any error in the verdict of the jury at the trial; the refusal to allow that evidence to be entered on the record is not matter of error, for which the judg ment can be reversed."

Wheaton v. Peters, 8 Peters, 591.