738
Opinion of Souter, J.
jury trial, rather, is that the Seventh Amendment "preserve[s]" the common law right where it existed at the time of the framing, but does not create a right where none existed then. See U. S. Const., Amdt. 7 ("In Suits at common law . . . the right of trial by jury shall be preserved"). See also 5 J. Moore, J. Lucas, & J. Wicker, Moore's Federal Practice ¶ 38.32[1], p. 38-268 (2d ed. 1996) ("[T]he Seventh Amendment does not guarantee a jury trial in all common law actions in the federal courts; [instead] it preserves the right of jury trial as at common law"). There is no jury right, then, because condemnation proceedings carried "no uniform and established right to a common law jury trial in England or the colonies at the time . . . the Seventh Amendment was adopted." Ibid. See, e. g., Atlas Roofing Co. v. Occupational Safety and Health Review Comm'n, 430 U. S. 442, 458 (1977) ("Condemnation was a suit at common law but constitutionally could be tried without a jury"). The statement in Reynolds indeed expressly rested on these considerations, as shown in the Court's quotation of Professor Moore's statement that "[t]he practice in England and in the colonies prior to the adoption in 1791 of the Seventh Amendment, the position taken by Congress contemporaneously with, and subsequent to, the adoption of the Amendment, and the position taken by the Supreme Court and nearly all of the lower federal courts lead to the conclusion that there is no constitutional right to jury trial in the federal courts in an action for the condemnation of property under the power of eminent domain." Reynolds, supra, at 18 (quoting 5 J. Moore, Federal Practice ¶ 38.32[1], p. 239 (2d ed. 1969) (internal quotation marks omitted)).
The Court in Reynolds was on solid footing. In England, while the general practice of Parliament was to provide for the payment of compensation, parliamentary supremacy enabled it to take private property for public use without compensation. See, e. g., Randolph, The Eminent Domain, 3 L. Q. Rev. 314, 323 (1887) ("That there is no eminent domain
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