
    McELRATH’S MOTION.
    Thomas L. McElrath v. The United States.
    
      On the claimant’s Motion.
    
    
      The claimant brings Ids action in this court. The defendants set up a counterclaim. The decision goes against the claimant on his demand, and in favor of the defendants on theirs, and judgment is entered for $7,000 against him. (Ante, p. 201.) He now moves to vacate this judgment.
    
    I. The provision of the Constitution, “In suits at common law, tuhere the value in controversy shall exceed twenty dollars, the right of trial by jury shall he preserved,” is confined to suits at common law, and does not extend to suits against the Government.
    II. Suits in this court against the Government are not suits at common law. By the theory of the common law the sovereign is uot liable to suit. The right of suit against the Government is a grant, aud one of the conditions of the grant is that the Government may set up and recover on counterclaims against the suitor.
    Jir. F. W. Hackett for the motiou:
    So much of section 3, Act March 3,1863, as purports to give this court power to render judgment in favor of the United States against a claimant, is in violation of the seventh amendment of the Constitution, which provides that in suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved.
    “ Suit at law” refers to the cause of action, the remedy, and the mode of enforcing it, not to the forum to which the plaintiff may choose to resort. (Per Baldwin, J., Bains v. The James and Catherine, 1 Baldw., 544.) This amendment embraces all suits which are not of equity and admiralty jurisdiction, whatever may be the peculiar form in which they may assume to settle legal rights. (Per Story, J., Parsons v. Bedford, 3 Pet., 446.)
    
      The counter-claim apon which this judgment has been rendered was a suit at common law for money had and received. A counter-claim which seeks not merely to destroy the cause of action, but to obtain a distinct and independent judgment against the claimant, is not a mere incident to the original claim. It is a new suit. “A set-off or reconvention is often to be treated as 'a new suit by the defendant, and the pleadings and judgment are to be made to correspond.” (Beeside v. Walker, 11 How., 272$ approved, The United States v. Kchford, 6 Wall., 490.) Sec. 4 of Act 25th June, 1868, does not prevent a claimant from testifying in his own defence in this new suit. The right of action set up in this counter-claim should have been asserted in the circuit court, where the trial by jury is preserved. If this judgment is sustained, execution may issue out of a circuit court, and the judgment-debtor’s property be taken without the intervention of a jury, i. e., without due process of law.
    This claimant, by bringing his petition against the United States, did not waive his right to a trial by jury upon the facts of the counter-claim, so far as they were material in founding a judgment against him. As a general principle, Congress has a right to prescribe the terms upon which the Government shall be sued. But they cannot authorize the Government to sue an individual in a common-law suit, and deny him therein a trial by jury. Nor can they do this indirectly by attaching as a condition to the right of the citizen to sue the Government that he surrender a privilege guaranteed to him by the Constitution. The citizen may waive the right of trial by jury; but it is the duty of Congress to preserve the right in all suits at common law. The Court of Claims has no jury, consequently a petitioner cannot be said sua sponie to have waived his right to one. In analogy to the principle that a condition in a deed contrary to the policy of law is void, is the proposition that the right to sue the United States cannot be coupled with a requirement in violation of the Constitution. For though the right of trial by jury is a personal one, to compel a' citizen to forego it is, in effect, to violate the Constitution. Nor is it entirely accurate to treat the right of bringing suit in the Court of Claims as a favor. (The United States v. Klein, 13 Wall., 144.)
    
      
      Mr. John S. Blair (with whom was the Assistant Attorney-General) opposed:
    McElrath, on April 5,1875, instituted the present action, and the United States filed a counter-claim, having previously denied its liability to plaintiff for the matters stated in his petition, and asked that judgment might be entered against the claimant for $6,106.53.
    But it is contended by the claimant that section 3 of the act of March 3, 1863, is in violation of the Constitution, which provides, in the seventh article of the amendments, 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 tried by a jury shall be otherwise reexamined in any court of the United States than according to the rules of the common law.”
    This position is denied by the United States. And first it is to be noticed that section 3 does not authorize the United States to commence an adverse proceeding against any of its debtors which would compel by process their appearance in court; it simply provides that when any person has asked the judgment of the court upon a demand which he asserts against the Government, the Government can take advantage of his voluntary presence in court, and have adjudicated in the same’suit any demands which it may make against the claimant. All debtors to the Government are safe from the judgment ’of the court until they invite its jurisdiction, but when they do accept the benefits of the different acts allowing them to file their petitions in the court, they do so uuder the various restrictions and conditions which the law has imposed.
    These conditions are, among others, that the claimant subject himself to the jurisdiction of the court in the matter of any cross-demand which the United States may there urge against him, , *
    If the statute allowing the cross-demaud had been passed after his petition was filed, the-case might present a different aspect, but we contend that the filing of bis petition was a waiver of his right to have auy cross-demands that might be urged against him tried by a jury. A fortiori, by submitting his claim to the court he waives any right of trial by jury of our claim. The court is directed by the statute to hear the whole case, and the claimant cannot refuse to have our claim condsi-ered while asking consideration of his.
    We think that all the statutes conferring jurisdiction on the Court of Claims are to be construed together, and that Con-’ gress, in creating the court, and especially in giving to its decrees the effect of judgments, had a right to impose any restrictions it saw fit, leaving claimants at liberty to avail themselves of its benefits or not.
    The right of trial by jury in'G-reat Britain was the same, whether the king, by action or extent, sought to recover a debt from the subject, or whether the subject, by petition, urged his right against the sovereign.
    If, therefore, the seventh amendment renders null the provision in favor of the demand of the United States, it has the same effect upon the institution of the court itself. But it would not be doubted for a moment that, Congress having established ex gratia (or, in other words, placed its fiat in advance upon all petitions filed in a certain way, before a certain time, and subject to certain conditions) a court for the trial of all claims of the subject against the Government, which court would sit without a jury, the filing of a petition in said court would ipso facto be a waiver of the constitutional right of trial by jury of the matters therein contained. And we think such filing is none the less a waiver of a jury in any cross-demands which the United States, by authority of Congress, may choose to prosecute against the petitioner.
    Following .out the same line of argument, to wit, that the cross-demand can be determined in the same method that the claimant consents or seeks to have his claim tried, it is to be noticed that a cross-demand is not a suit at common law. It is a mere incident to a suit; it cannot be filed until a suit is commenced ; it cannot bring the plaintiff into court, but acts on him only when he has voluntarily come within its pale. AÍd we contend that the plaintiff caunot discriminate between the two, the suit and its incident; he cannot say that the principal suit may be tried without a jury, and then, as to the incident, fall back upon his constitutional right. Nor can he make two suits of it, in one of which he is plaintiff and the other defendant; the act of Congress makes but one suit of it, and calls upon the court to enter judgment for what it finds upon the whole case to be due to the Government. The following authorities were referred to in the preparation of this brief: Parsons v. Armor, 3 Peters, 413; Murray's Lessee v. Kobohen Land Oo., 18 How., 272; Tidd’s Practice, (tit. Extent in chief,) 1046; Manning’s Exchequer Practice, (tit. Petition of right,) 85.
   LorinGt, J.,

delivered the opinion of the court:

The facts in this, case are, that in June, 1866, Thomas L. McElrath was a first lieutenant of marines, and attached to the United States steamer Monongahela, then in the port of Boston. On the 19th of June, 1866, he was dismissed from the service on the allegation of being absent from his vessel without leave; and on the 27th of Jane, 1866, Thomas B. Haycock was appointed first lieutenant of marines, thus filling the complement of officers of that grade limited by law. In 1873, in an application to the Department, Mr. McElrath alleged that the order for his dismissal had resulted from a mistake of facts, and prayed that it might be revoked, and on the 10th of July he sent in his resignation. And on the same day an order was issued for the revocation of his dismissal, as made under a mistake of facts, and for his restoration to the position which he held at the date of the order of dismissal. And his resignation was accepted to take effect on the 10th day of July, 1873.

On the 31st January, 1874, on a settlement of his accounts at the Treasury, Mr. McElrath was allowed and paid $6,106.53 as half-pay and allowances from June 21, 1866, to July 10, 1873, and he received this sum under protest, and in April, 1875, filed his petition in this court claiming to have been entitled to full /pay and allowances and a balance of $7,000. The United States I pleaded the general issue, and filed a counter-claim for the 1 $6,106.53 paid to the petitioner.

Upon the hearing, the court adjudged that the order for the petitioner’s restoration to the service was inefficient in law; that the money paid him had been paid under a mistake in law, and that the United States were entitled to recover it; and judgment was rendered for them for the amount.

On March 10,1877, the petitioner filed the following motion :

' “And now comes the claimant, this 10th March, 1877, and moves the court that the judgment rendered February 26,1877, against him in the sum of $6,106.53 be vacated, for the following reason; and he says that so much of section 1081 of the Bevised Statutes of the United States as purported to give this court jurisdiction to render judgment against this claimant is in contact with the seventh amendment to the Constitution of the United States, and null and void; and that the court has no jurisdiction to render said judgment.”

, The seventh amendment to the Constitution, on which this motion is rested, provides as follows: “ In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved.”

The provision is in terms confined to “suits at common law,” and neither the original petition in the case nor any of the proceedings in it are, or belong to, “ suits at common law.”

Set offs, &c., filed by a defendant, were unknown to the common law, for at that a defendant who had any claim against the plaintiff could proceed on it only by a cross-action against him. Set-offs, &c., belonged originally to the civil law, and after the conquest the learned Norman ecclesiastics brought them into English equity law, which they founded; for as, “ keepers of the king’s conscience” and his chancellors, they presided in his court of chancery, and, as its officers, shaped its practice and formed its bar.

Afterward, and as late as the reign of George II, set-offs were by statute brought into the courts of the common law. But this did not make set-offs suits at the common law by the defendant; for they were created by statute only, and by that were made incidents to the plaintiff’s suit at common law; and as such they retained the effect they had at the civil law and in equity, and which was inherent in their nature, viz, that of making the plaintiff’s suit at common law an accounting between him and the defendant, in which the balance might be found and adjudged for either party.

And the statutes relating to this court authorize the defend-] ants here to file “set-offs, counter-claims, claims for damages, whether liquidated or unliquidated, or other demands whatso- \ ■ ever.” These provisions are certainly unknown to the common law, and are incidents annexed by the statute organizing this court to a petition here, which in itself is not a “suit at common lato?

By the theory of the common law the sovereign was not subject to suits or actions in his own courts, and the only mode of procedure as to the sovereign was by a petition; and this in the English law was called a petition of right, because, as was declared by Parliament in the reign of Charles II, it was the common-law right of the subject to petition the sovereign. But such petition was, and always has been, addressed to his- “grace,” and, therefore, he always was, and is now, free to grant it, or to refuse it, or to refuse to consider it, on such* reasons as he may see fit, whether they be of the merits or considerations of state and public policy. The application by petition to the king was certainly to his sense of justice and official duty, and therefore the granting of it was said to be ex debito justitice. And in merely private matters, disconnected from public interests, it has happened that the sovereign has seldom, if ever, refused to consider the petition, and issue his flat that “justice be done;” and this has come to be generally a matter of official routine, by the proper officer, without any personal reference of it to the king. But still the. power to refuse has always remained in the king, actually as well as theoretically, and this still distinguishes the proceeding by petition to the sovereign from a suit at the common law, where the entry of his suit in court and its hearing and prosecution there to judgment is the legal and absolute right of the suitor.

In England the king may select for the procedure any of his courts which he pleases, and if he issues his flat and sends the case to be heard in a court of common law, that does not make the case.a suit at the common law, nor alter the nature of the proceeding, which still remains what it was originally, a petition of right addressed to the king’s “grace,” because as sovereign he was not subject to a suit at common law; and the court to which the “jfiai” is directed hold the case not by their common-law jurisdiction, which does not extend to it, but by the jurisdiction created for it specially by the “flat” of the king, and which is imperative on the court, whatever its general jurisdiction may be. And throughout the proceedings the relation of the parties is not that of litigants at common law, but that of sovereign and subject.

And the petition in this court is addressed to the sovereign, for the only defendant here is in all cases the United States in their sovereign capacity. And in that, from its nature, they are not and caunot be, any more than the king of England or any other sovereign, subject to a suit at law or to any application except to their “graceand that distinguished the process here against the sovereign from a suit at common law exactly as it does in England. And the statutes organizing this court and granting the petition here are but the flat of the sovereign, “let justice be done" here. And this court has its jurisdiction only by that “flat” and over the subjects it speci-fles, viz, private claims against the sovereign, who was not subject to suits at common law in his own courts. For when our Constitution was framed the sovereign here whs no more subject to suits at common law than the king was in England; and the Constitution subjected the sovereign here to none, and therefore it gave to the citizen no constitutional right to such, a suit. It empowered Congress as the officer of the sovereign to establish courts with such provisions as its wisdom should dictate, and thereby to provide for the hearing and determining of private claims against the sovereign; and'this Congress has done by the statutes organizing this court, and, as has often been held here and affirmed by the Supreme Court, he who would avail himself of the grant must use it as it has been given.

The. judgment of,the court is that the motion is denied.  