The seventh amendment to the United States Constitution requires that "[i]n Suits at common law . . . the right of trial by jury shall be preserved." What exactly is a suit at common law? When the amendment was enacted in 1791, there was no law that was common to all the states. In 1812 Supreme Court Justice Story, in a Circuit Court ruling, held that the common law alluded to was the common law of England, "the grand reservoir of all of our jurisprudence." This means that when today an American judge has to decide whether in any set of proceedings trial by jury is constitutionally required, he has to ask himself whether in England in 1791 the case would have been tried at common law. That is the test: it has come to be called the historical test.
Equity, Due Process and the Seventh Amendment: A Commentary on the Zenith Case,
Mich. L. Rev.
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