fbpx

Which “Common Law” Does the Seventh Amendment Protect?

In my last post, I cited to Renee Lettow Lerner’s paper describing how the Seventh Amendment Jury Trial Right had been given a narrow meaning.  Here I want to address one of the issues concerning the original meaning of the Seventh Amendment.  The Amendment provides: “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 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.”

One of the most important Seventh Amendment issues is the meaning of “common law.”  When the Seventh Amendment was being debated, some people opposed it on the ground that the common law right to a jury trial differed in the states and therefore it was not clear which version of the right should be protected and which version would be protected by the Seventh Amendment.

Lerner points out that Justice Story held that “the common law” meant the common law of England based in part on the argument that the term was in the singular and that English common law was the source of all American common law.  This is a plausible argument, but was certainly not the only possibility.

A second possibility is that the common law should have been understood as the general law.  The general law was a conception of the common law that looked to the decisions of the various common law jurisdictions.  If there was disagreement between the jurisdictions, the court would have to decide which was the better view, considering the prevalence of the view as well as whether it was desirable.  This gave the court discretion to decide on the meaning of the common law, but if that is how the common law functioned, it is not for us to reject it for that reason.  Under this view, then, the court would decide which view of the common law was the correct one and that view would be constitutionally protected.

A third possibility is that the common law referred to the core of the decisions of the various states.  A judge would look to whether a right was protected in all of the states (or at least in a predominant number of them).  The common law would be understood as a reference to the core of the right protected in different jurisdictions.

Determining which of these possible interpretations is the strongest would require additional work.  But we should not automatically assume that the first possibility – the English common law – was the correct one.

Reader Discussion

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

on May 14, 2015 at 14:42:50 pm

Mike--

It may be difficult to determine what the commonsense understanding of the term "common law" was in the US of the 1780s and 1790s. There are a handful of commentaries--Iredell, Wilson, Tucker, for example. There is nothing surviving for Edmund Randolph, Edmund Pendleton, or George Wythe--or any of the other leading figures for Virginia jurisprudence that I know of. That's a serious problem right there, given the political and legal importance of the Old Dominion in the 1790s. You have some surviving grand jury instructions, which in the 18th century were more wide ranging than in later decades.

But if we are after what the average learned person might have understood the term to mean in 1791, or even what the average practicing lawyer might have meant by it, I suspect the relevant sources are fairly scant. As an historical, epistemological problem, it strikes me that you might well face a shortage of sources from which to construct an answer. Its absolutely worth investigationg, but I would worry that a definitive answer may prove elusive. Sadly, the sources only take us so far. There are many interesting questions for which we will never have fully compelling answers, because the sources from which to induce answers are no longer extant.

Its an interesting problem. You will have better sources by the 1820s or 1830s, but of course that's too far away in time to count as the original understanding. How would you propose proceeding?

All best,
Kevin

read full comment
Image of Kevin R. Hardwick
Kevin R. Hardwick
on May 14, 2015 at 15:39:58 pm

Kevin:

These are good points that you raise and the paucity of contemporary materials is certainly a hindrance to any definitive resolution of the definition.

Yet, in the case of jury trial, can we not look to the actual practices of the states. My readings (limited as they are) indicate that while not all states provided for civil jury trials at first instance, did not even those states which did not so provide this right still provide that appeal or recourse from the local magistrate or Justice of the Peace's decision was to be had to a jury trial. Admittedly, many may not have availed themselves of this opportunity as the traveling circuits did not visit every town or with much regularity. Still, it was on offer. And while this may not provide a definitive answer as to the meaning of common law, it does provide insight and perhaps a means of ascertaining a fair definition of it regarding matters other than jury trial.

read full comment
Image of gabe
gabe
on May 14, 2015 at 20:08:02 pm

I think a good place to start would be by looking at notorious cases of abuse of the trial system which preceded the amendment, and assume the amendment is meant to remedy that.

read full comment
Image of Scott Amorian
Scott Amorian
on May 14, 2015 at 20:20:17 pm

Scott:

Yep, I agree. BTW: Do you remember sometime back here at LLB a fellow by the name of Smith posted an essay that in essence argued for a method of judicial interpretation called "decisonism"? In it he asserted that much can be gained by trying to determine what the final decision was of the political actors - while not perfect, I think it goes a good way to shedding light on what the Founders and others intended. As you say, look at the problems, what did the actors think about it, and how did they *remedy* it.

And now for something completely different:

Do you watch Person of Interest on TV - a show about AI gone wild. Just curious. I luv it!

read full comment
Image of gabe
gabe
on May 15, 2015 at 09:45:30 am

Scott, Gabe--

The larger issue Mike has raised is not about juries per se, but rather about the meaning of the clause in the Seventh Amendment that references the Common Law. Mike has suggested three possible meanings for the term "common law." All of them are plausible, and I would bet that you can find evidence that all three were used in the 1790s. Which of them is the original meaning, as understood in 1791, when the Bill of Rights amendments were added to the Constitution? I am suggesting that a) its a good question, b) there may not be adequate evidence to determine a compelling answer, and c) sources from the 19th century are of limited value, if we want to know what people meant in the late 18th century.

Madison proposed, and Congress amended, the Bill of rights amendments with the intent that a) they did not fundamentally change the structure of the government created by the Constitution, nor add any new powers to it but b.) might address some of the concerns expressed by anti-federalists during the ratification debates. The idea was to enhance the legitimacy of the Federal government, by acting where it was possible to do so without really changing much.

Most Federalists argued that the amendments were unnecessary, because they addressed powers that had not expressly been given to the government, and because the government was limited. So to my knowledge, the Seventh Amendment did not seek to address any prior abuses, although the British Courts of Admiralty created just prior to the Revolution certainly were in everyone's minds. Is that what you had in mind, Scott?

All best,
Kevin

read full comment
Image of Kevin R. Hardwick
Kevin R. Hardwick
on May 16, 2015 at 10:58:16 am

Kevin:

Fair enough - however, while Madison may have acted with an intent as you outline, (I think it is correct) clearly there were abuses that were forefront in the minds of both the Framers and the anti-
feds. Look at the protections of the 4th, for example. So while it may be true that the 7th does not protect against prior (contemporary) abuses, other amendmnets may.

Still, you are correct concerning the meaning of common law - what and which one. Let's remember that a Federal system was being created - would this not mean that the States had considerable latitude to "cover" the citizenry as each saw fit. And yet - I am not certain that there is not a clear and somewhat consistent strain of jurisprudence running through all of the three types of common law as outlined above with "the rights of Englishmen" as the base or predicate, amended (ameliorated?) by common law Justices / Magistrates and embodied / codified in various state codes. Looking to how this *thread* is present in all three types may be what we are looking for and may as Scott advances allow us to recognize the problem to be fixed and how it was fixed (in whole or in part - which may also tells us why it was not fully fixed).

read full comment
Image of gabe
gabe
on May 16, 2015 at 13:07:42 pm

Kevin,

I agree with all your comments. I have to question what motivated the effort to amend the Constitution for this specific item. When we understand the context, we understand the intent. I can't imagine that the concerns of the anti-federalists were light.

I'm not familiar with English common law much less that of the 18th century. If this were an important part of English common law, the origin of the concern may lie in earlier English incidents.

Also, what is the meaning of the last part of the sentence " ... , than according to the rules of the common law." It doesn't seem grammatically correct using today's grammar, so I don't understand it using my modern grammar.

read full comment
Image of Scott Amorian
Scott Amorian
on May 16, 2015 at 20:09:46 pm

On second thought:

Actually there were some problems with lack of jury trials during this period (and certainly after ratification). If my memory serves we well (doubtful, of course), problems arose due to (what else) corruption in the Customs Houses. Briefly, a competitor could make claim that the other fellow had undervalued goods; the complainant could a) obtain a share of the recoveries and b) also harm his competitor. The *guilty party" was assessed certain fines and penalties. This was adjudicated without the benefit of a jury trial (and in some case w/o benefit of a Judge - gee, sounds like current Admin Law procedures, doesn't it). This was found to be objectionable and post-ratification there were a number of cases AND Executive instructions either judicially ending this practice or administratively changing procedures. So, the accused was not provided a jury trial or had to appeal to have his "rights of an Englishman" upheld - in other words his common law rights - as had been the expectation of Americans prior to and after the Constitution. How extensive was the above practice is hard to tell but it along with other summary type judgments via local Magistrates and Justices of the Peace may have been sufficient to have this protection placed into the BOR.
And yes, Rappaport's post is not about the right to jury trial but rather about "common law" - but as Evan Bernank argues in a post by McGinnis, the rights and the procedural protections go hand in hand AND both the rights and the procedural protections are actually what make for the basis of common law.

While it may be difficult to "divine" intent" and all the permutations of common law, it is neither impossible nor beneficial to neglect such an attempt. I agree with Rappaport that there may be a thread running through the various types of common law: "The common law would be understood as a reference to the core of the right protected in different jurisdictions." To me, all this say is that a right may not be so absolute or its expression so perfectly codified in a statute or constitution that it is not open to some measure of interpretation / adjudication.
Different states may provide protections somewhat differently (and, in fact, did) - this should not lead us to conclude that there is no such right / procedural protection simply because some states employed juries of 7, 9, or 12 "shire-men" (I wonder, did the English also have such differences?). What was common to them all - some measure of protection at trial by assuring a jury of one's peers.

And again, clearly, there were some issues, and as Scott says, we should not take the anti-Feds concerns lightly; recall that the anti-Feds were fairly outspoken during the debates about jury trail. Thus, we do have a problem; one that was somehow resolved; what remains is to determine what that resolution meant - what was the decision. I think this approach helps in ascertaining the common law. Seek the thread common to all - that thread is made up of the particulars / decisions made by the actors.

BTW: Kevin, did not some of the Feds actually propose some BOR amendments as well. It was not all anti-Feds.

read full comment
Image of gabe
gabe
on May 17, 2015 at 05:08:40 am

Maybe the issue is simpler than the protection against past abuses from before the Constitution. Perhaps it is simply a logistics issue.

According to the preamble to The Bill of Rights, the clauses in the bill apply to the court of the federal government. The federal courts handle conflicts between states and citizens of different states. That means there are multiple jurisdictions. The plaintiff’s state, the defendant’s state, and the federal system.

Requiring the feds to allow a jury trial means that the feds can’t be lazy and not have a proper jury trial because of the inconvenience of organizing juries across state borders. There were not a lot of good, safe roads in the late 18th century, so putting together interstate juries would have been more difficult than it is today.

Requiring the feds to use only one set of evidence prevents trials in which evidence is examined according to a set of rules in one state, and then examined again according to slightly different set of rules in the other state.

If those two issues are the case here, the amendment would not need to go into a lot of detail about which common laws the amendment pertains to. The general rule would be to better ensure justice by not being lazy in organizing trials where a jury is proper and by not imposing excessive burdens in giving evidence.

read full comment
Image of Scott Amorian
Scott Amorian
on May 17, 2015 at 10:42:36 am

Gabe--

I think what you are describing here is the functioning of the Admiralty Courts created by Parliament for the colonies in the 1760s. If I recall correctly, they were located in Nova Scotia. The issue that lead to their creation was the behavior of certain American merchants during the Seven Years War. The French depended on imports of food to supply their soldiers in their American colonies during the Seven Years war, and the British understandably blockaded the French ports. But American merchants traded with the French anyway. In essence, British soldiers died in places like Quebec because of the traitorous activities of more than a few colonial merchants. During the war, the Pitt administration audited the finances of the Empire, and in the course of that audit discovered that it was costing more to pay for the Colonial custom service than the service was generating revenue. Here the issue had to do with bribery of customs agents. To correct these abuses, the British reformed the system, and one of the reforms was the introduction of Admiralty Courts.

What you are describing here sounds a lot like the way these courts worked. We are on the edges of materiel I can discuss from memory, so I may be completely wrong here--you may be describing procedures of other colonial courts, and not the Admiralty courts.

But if the procedures you describe were those of the Admiralty courts, it does not help us here, because these courts were civil law courts, grounded in maritime law, and not the common-law.

So I guess what we would need to determine is the jurisdiction of the particular court in question. The framers of the amendment in the 1790s were of course well familiar with the legal distinctions in play. I find all of this rather fascinating, albeit arcane. Part of the issue for me has been to trace the evolution of British courts after 1688, when the Royal Prerogative (and the courts that sustained it) were domesticated by Parliament. The English constitution evolved dramatically in the 18th century, with real implications for the regulation of the colonies. Surprisingly, as I have tried to sort this out, I have not discovered the rich historical commentary I would have expected.

read full comment
Image of Kevin R. Hardwick
Kevin R. Hardwick
on May 17, 2015 at 10:45:49 am

Scott--

It occurs to me that the great constitutional historian Leonard Levy has very likely written on this subject. I will try to look that up, as time permits.

All best,
Kevin

read full comment
Image of Kevin R. Hardwick
Kevin R. Hardwick
on May 17, 2015 at 13:26:10 pm

Kevin:

I, too, am hampered by faulty memory. I was not referring to the Admiralty courts but actually to post-Revolution practices. I must admit, however, that the "corruption" of which I wrote only became a significant problem after Ratification and with the advent of a *limited* American bureaucracy - so, like you, I am uncertain how much weight to give to this phenomenon.

Another comment / question: What do you think of the concept of a *thread* running through the various types of common law or as Rappaport suggests a *core* of procedural protections / decisions at common law. I am partial to this, if only because w/o such a construct we are, as you say, hopelessly adrift given the paucity of documentation.

BTW: I don't know if you are familiar with Phillip Hamburger's book on Administrative Law (Is Administrative Law Unlawful..') but it does a fairly nice job of dealing with British prerogative courts and their demise. It "touches slightly upon the *direct* effects upon colonial jurisprudence but does offer, I think, a good basis for understanding the thinking of American jurists and Framers regarding this issue. Further, it goes into a number of early American judicial renderings / problems concerning prerogative, etc. Luv'd it!!! and highly recommend it!

Take care
gabe

read full comment
Image of gabe
gabe
on May 17, 2015 at 13:27:55 pm

Scott:

Makes a lot of sense and has the advantage of being simple and straightforward as an explanation.

read full comment
Image of gabe
gabe

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.