Virginia Argus. [volume] (Richmond, Va.) 1796-1816, 1804-09-15
lAss TuE NATIoNAL INrELLIoENcEK.
TO Ste LegislatnreS IF The RESPECTIVE STATES.
LETTER FOURTH.-C onry,,,yed. 80

LETTER FOURT H.-Concklded. ,e
'lhe question OF. constitutionality lies
within small compass.r: Some of the
state constitutions, and particularly tina,
OF Penn .yivania provides that "the trial by
jury shall be, as heretofore, Il is con-
tended, that it is the intention of this pro-
vlsion,io render absolutely necessary ju,
ry trial in all cases of u civil as well as a
crimlna. nature, in which the laws existing
at The time OF the formation of the Con-
stitution required it, unless dispensed with
by both the parties. To this it may be
replied that the provision was meant 10 be
ENTHUSIASTICALLY to criminal cases. This
idea is strongly supported by the nume-
rous expositions of this provision by seve-
raj state legislatures, which have, potwiih-
standing the al!edged prohibition, extend
ed the powers OF justices of the peace
10 the cOgnlsauce OF controversies lii which
much larger sum was involved than
hat submitted to their jurisdiction a, the
formation ct the respective constitutions.
independently oEthe weight Of precedent,
there are cogent, reasons tor considering
the provision as confined 10 criminal cases.
Eitherthe proviSionistobe construed strict
~ according 10 its literal import, or il is not.
II It be construed according 10 lis literal
import, it VIII necessarily follow from the
terms OF" the jury triai being as HERETOFORE"
that every change ofapy existing law in re-
iat'on loa jury trial is absolutely inhibited.
The express,Onis not that every man en-
titled To jury trial at the time the con-
autuhon was formed shall remain en-
titled to it for the future but il is that
g the jury trial shall remain as here.
tofore :" that is, all the circumstances
necessary to constitute a Jury trial shall
r main unaltered. Now, ira literal mean.
ing of these words be rigidly adhered TO,
we are bound to consider every existing
practice as forming an essential feature Of
the jury trial. If so 1t would be an u.ur
patton of power in the legislature 10 make
a new provision for the selection Of Jurors,
ior summoning or compensatihg lhctn !;
tor imposing penalties for non. attendance,
for Furnishing them for misconduct,
and for various other acls. No one has
been bold enough to say that the legisla.
ture is Invested of these movers. If then
II be agreed that the legislature do possess
them, 1t follows that the expression is not
TO be rigidIy taken in its literal sense. If
not taken in literal sense we must give
1t that meaning which is calculated to Sc
cure the great object for which iuries
were instituted. Their great object was
to protect the weak from the cppressi-
on of the powerful they were { shield
which the people raised against the Violence
of power. This, reason so far az relates
TO criminal cases, still remains. But so
far as ii respects civil causes it has
altogether ceased. For such is the state
OF s. ciety that the powerful do not possess
the means OF violating the right, Of pro
per,y ofthose in inferior circumstances to
themselves. From these considerations
it must be obvious that the constitutional
objection has no yalidity.
Is there more weight in that derived
from considerations of expedlency? The
jury trial is undoubtedly an inval, able pro
vision IN criminal cases; but does it fol
low that 1t is equally 50 in civil ones E.
very sound mind assents 10 the Justice Of
erecting the strongest barriers around the
character of the innocent, and shielding il
from elimination but on the Unanimous
verdict OF twelve impartial men; but can
sound mind perceive the same Justice
~ applying the same provisions to The or
binary cases Of property IL IS right that
should neither lose my life or chr ac} er
without proof Of the commission Of Il
crime which is satisfactory o every mind /;
but is it right that ] should not recover q
debt without the same universal satislac.
ton In the latter case tlie man who sues
should stand on the same footing with the
man that is sued. The legal rights of
each should be the same. The iu,y trial,
requiring the agreement of twelve men,
is destructive to this equality. For al no.
the creditor have the sufIrages Of eleven
Of the lurymen IN bis favor. that Of one
Juror given in favor Of the debtor is per.
mitted To- outweigh those Of the eleven.
Laws are established TO guard against
fraud. Is there no danger Of fraud, when
IL IS IN the power Of the defendant, by cor
rupting one jsror to Illustrate the operati-
on Of justice T! And supposing moderate
degree Of corruption to exist among us,
what's more likely than that one man vuI-
nerable TO seduction, can be selected from
twelve! This argument of itself would
seem to be decisive against Jury trial i'm