formly been sanctioned by the civil and common law, although retrospective in their character. § 381. The learned and now lamented Chancellor Kent, who has shed so much light upon American jurisprudence, says: "A retrospective statute affecting and changing vested rights, is very generally conceded, in this country, as founded on unconstitutional principles, and consequently inoperative and void." He cites in support of this doctrine numerous authorities, some of which have already been considered by us,(a) and then adds: "But this doctrine is not understood to apply to remedial statutes, which may be of a retrospective nature, provided they do not impair contracts, or disturb absolute vested rights, and only go to confirm rights already existing, and in furtherance of the remedy by curing defects, and adding to the means of enforcing existing obligations.(b) Such statutes have been held valid, when clearly just and reasonable, and conducive to the general welfare, even though they might operate in a degree upon existing rights, as a statute to confirm former marriages defectively celebrated, or a sale of lands defectively made or acknowledged. The legal rights affected in those cases by the statute, were deemed to have been New Hampshire Bill of (a) See Tennessee Bill of Rights, art. 20. Rights, art. 23. Osborne v. Huger, 1 Bay, 179. Cranch, 272. Bedford v. Shilling, 4 Sergt. & in Eakin v. Raub, 12 ibid. 363-372. Society for Propagation of the Gospel ▼. Wheeler, 2 Gallison R. 105. Washington, J., in Society for Propagation of the Gospel v. New Haven, 8 Wheat. R. 493. Merrill v. Sherbrune, 1 N. H. R. 199. Ward v. Barnard, 1 Aik. R. 121. Brunswick v. Litchfield, 2 Greenl. R. 28. Proprietors Kennebeck Purchase v. Laboree, 2 ibid. 275. Story, J., in Wilkeson v. Leland, 2 Pet. R. 657, 658. Lewis v. Brackenbridge, 1 Blackf. Ind. R. 220. Tate (b) Duncan, J., in Underwood v. Lilly, 10 Sergt. & Rawle, 101. v. Stooltzfoos, 16 ibid. 35. Bleakney v. F. & M. Bank, 17 ibid. 64. Foster v. Essex Bank, 16 Mass. R. 245. Lock v. Dane, 9 id. 360. Townsend, 1 Peck. Tenn. R. 16; 17 ibid. 266. Townsend v. vested subject to the equity existing against them, and which the statute recognized and enforced. But the cases cannot be extended beyond the circumstances on which they repose, without putting in jeopardy the energy and safety of the general principle."(a) § 382. It is true, however, that all such acts lie close upon the line which divides legitimate from illegitimate acts of legislation. To draw that line with nice precision, and run it with technical accuracy, is a matter of much intrinsic difficulty, and requires great discriminative powers and intellectual discernment. It has, indeed, taxed the intellect of many of the ablest minds which have adorned and illuminated by their genius and legal acumen, the jurisprudence of a nation illustrious in all that pertains to the science of legislation, under a written and well defined fundamental law, as the basis of the civil compact of an independent and free people. It ever has been, and probably ever will be, a difficult and vexed question, presenting itself in many varied aspects; and as hitherto, it probably ever will be the subject of much conflict and contrariety of opinion among the ablest, the purest, as well as the most discriminating minds which shall hereafter sit in places of judgment, clothed with the judicial power of the confederated American States, or with that of each distinct and separate member of our augmented and constantly augmenting confederacy. §383. The next restriction upon legislative power which we shall consider, is that affecting the right of trial by jury. The seventh amendment of the constitution of the United States declares, that "In suits at common law where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be pre (a) 1 Kent's Com. 455. served." We have already seen that this restriction does not apply to the state governments, but restricts only the government of the United States, and the proceeding of the federal courts.(a) The same rule also obtains in reference to the sixth amendment of the federal constitution, which in criminal cases secures to the accused a trial by jury.(b) § 384. 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. 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 to the constitution proposed by congress; and which received an assent of the people so general as to establish its importance as a fundamental guaranty of the rights and liberties of the people. 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. § 385. A question has frequently arisen as to the meaning of the phrase "common law," used in this clause. In Parsons v. Bedford, (c) it was held, the phrase "common law," found in this clause, is used in contradistinction to equity, and admiralty, and maritime juris (a) Livingston v. Mayor, &c., of New York, 8 Wend. R. 100. Eves, 12 Conn. R. 243. Colt v. (b) Murphy v. The People, 2 Cow. R. 815. Jackson v. Wood, 2 Cow. R. 819. (c) 3 Peters' R. 433. prudence. The constitution had declared in the third article, "that the judicial power shall extend to all cases in law and equity arising under this 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 should be preserved in suits at common law, the natural conclusion was, 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 regarded, 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 gencral 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 might be well construed to embrace all suits which are not of equity and admiralty jurisdiction, whatever might be the peculiar form which they might assume to settle legal rights. And congress seems to have acted with reference to this ex position 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 cases, 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 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." If a suit be instituted in the federal court, in an action at common law, those courts in their proceedings will conform to the mode of proceeding and trial prescribed by the constitution of the United States, though a different mode may be prescribed by the laws of the state in which the cause of action arises.(a) In accordance with this principle, if in an action at common law in a federal court, a state law provides for a different mode of trial, such provision will by the federal courts be deemed repugnant to the clause in the federal constitution, now under consideration. Thus in the case of Bank of Hamilton v. Dudley, (b) it was held, that the occupant claimant law of Ohio, which declared that an occupying claimant should not be evicted or turned out of possession until he should be paid for his improvements, and directed the court, in a suit at law, to appoint commissioners to value the same, was repugnant to this clause in the federal constitution. That the compensation for improvements in such suit must, whenever the action was pending in the federal court, be submitted to a jury. (a) Bank of Hamilton v. Dudley, 2 Peters' R. 492. 3 Peters' R. 433. (b) 2 Peters' R. 492. Parsons v. Bedford, |