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istraeit would not an injustice be done 10 him. If the judgement were to go against him without plea, would he not be liable de 6Onis pT0puis By the section under which the suit is brought, the Court has already been shown, may grant continuance until the next term, if the Defendant makes oath, &c. It is thence inferred, that the Defendant could make other defence than that which arises from miscalculaiion of duties, &c Is this he inevitable inference from that Eart of the clause? A more sonabe one seems 10 be, that no continuance should be granted, except for that This part of the clause relates only to the delay of tenn, and if strictly construed, would forbid such delay, except on the ground there statec-but can 1t be made to uphold the opinion, that no defence should be allow ed at the return term, after the continuance has expred2 Are compelled by the terms of the law to believe that the miscalculaon of the duties, which is mere matter of evidence, was intended by the act to be decided by the Judge without Ju ry2 It might happen, and it is very unreasonable supposition that 1t would happen, that Judge might be totally incompetent to examine and detect m er TOT in the liquidation of the duties When the law, therefore, requires the Court 10 grant judgement, &c. it may perhaps, without any great violence to the legal phraseology, mean the jury as well us the Judge.

 Fortunately for the Court, it is not without an au- thority, which has very important bearing on this case Its strong analogy to the present case, will be readily perceived in the of the observations which I shall make upon it. The ex-parte WooD reported in WHEATON, presented questions

 

 were first tried before the District Judge for Inc Southern District of New York, and carried up 10 the Supreme Court under rule to show cause why d mandamus should not issue to the said District Court. The circumstances were these-the 10th Section of the Patent Act, of 2lst February, l793, declares that upon oath affirmation being made, before the Judge of the District Court, where the Patentee, his Executors &c. reside, thai any Patent which shall be issued in pursuance of this Act was noA nr and motion made to the said Court within three years after issuing said Patent, but not afterwards shall and may be lawful for the Judge of the said District Court, if the matter alleged shall appear to him to he sufficient to grant rule that tie Paentee or his Executor, &c show cause why process should not issue against him to repeal such patent; and if sufficient shall not be shown to the contrary, the rule shall be made absolute. And, thereupon, the Judge shall order process to be issued against such Patentee or hIs Executors, &c. with costs cf sut And in case no sufficient cause be shewn to the contrary, if it shall appear that the Patentee was not the true inventor or discoverer, judgement shall be rendered by such Court for the repeal of the said Patent. And if the party at whose complaint the process issued shall have judgement given against him. he shall pay all such costs as the De- | fendant shall be put to Tn defending tine sult, to be taxed by the Court, and recovered in due course of law. Here it will be perceived, that upon oath or affirmation being made before the Judge of the Dis trict Court, &c. it became lawful for him to grant rule that the Patentee his Executors, &c. should show cause why process should not issue, &c. and if sufficient were not shewn, that judgement shall be rendered by such court for the repeal of the said Patent. Under this clause of the Patent act, rule did issue to the Paentee, requiring him 10 shew cause, &c. Upon the return ofthe rule, motion was made on the part of the Patentee to have an issue made up to try the validity ofthe Patent The Court l. the District Judge, denied the motion upon the ground that the proceedings were summary, &c. and were not to be submitted to Jury. From this decision appeal was made to the Supreme Court why mandamus should not issue, &c. How do these cases resemble each other, and how does the Gos s' fe os B e af esDTs s the the terms used in both acts-District Judge and Court. In the present case the 65th section of the Revenue Law, makes it the duty of the Court to grant judge ment at the return term. In the case arising under the Patent Law the Judge of the District Court the return of the rule, if not satisfied with the shewn, is authorized to make the rule absolute, and order process to issue against the Patentee, with costs, &c.

 | In the same clause the word Court is also used- l There was the same ambiguity in both acts The District Judge in New-YOrk, believing that the remedy provided by the Patent Act was intended to be summary, refused to have an issue made up- Upon the return of the rule and cause shewn, and after full hearing before the Supreme Court that tribunal ordered mandamus to issue to the District Judge, requiring him to issue to be made up, and the trial to be had before Jury.

 will not say that the altogether parallel. but it must be evident to all who have followed me in the comparison that the question was in that us in this case, whether suit involving the rights of the citizen, should under the ambiguous terms of the Law be subject to the final decision of Judge with ont jury. MT Justice Story in delivering the opin- ion of the Court, adverted to the articles of the Constitution which to the citizen the trial by jury, in suits at common Law, &c. The Supreme Court do not appear by the report of that case, to have founded their decision the article amending the Constitution-they seem to have relied more upon liberal construction of the Law, and to have been much influenced by the consideration that such construction should be given to it as would be most congenial to our Institutions, and most convenient in the administration of justice.

 Having considered this case, arising under the Patent Law of 1793, and shewn by comparison of it with the before the Court, that there was i very strong similitude, muchso perhaps aswOuld II have justified me in coming to similar conclusion, will proceed to consider the question upon other grounds.

 We will now inquire if the Law (the Revenue Law) did not admit of such an interpretation, it would not be in violation of the Constitution of the United States, and in direct repugnancy to the 9th section of the Judiciary Act passed in 17S9 in pur- suance of that Constitution.

 The Eth article of the Amendments to the COnsti- tuition of the United States to which have already adverted is in the following words :-" In suits at Common Law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved; and fact tried by Jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the Common 1 Law"

 It is worthy ofremark in this place. that so jealous were the people of the United States the subject of the trial by jury, that they not satisfied with the Constitution of the United States passed by the Convention, because there not found in that instrument specific provision recognising the trial 1 by jury in suits at Common Law in civil cases It