The national era. [volume] (Washington [D.C.]) 1847-1860, 1850-07-25

endless temptations and facilities for cOmmittin
wrong; it imposes no restraints IL warns by n
threats of retribution.
Mr. Webster calls me to account for some un
specified erroneous "opinion expressed 10 rela
ton TO this bill. Can any opinion be so false I
the Constitution, rs this bill TO humanity
deprecate error Of all sorts but hold II TO b
more venial to err in judgment than 10 heart.
said that in promising to support Mr. But
er's bill, with all its provisions to the fulles
extent Mr.. Webster abandoned the right 4
a trial by jury. spoke of him as Senator, a
one who, with his co-legislators, has full RICH
and power under the Constitution, to secure thi
form OF trial TO the alleged slave ar 10 q know
, ueema. sc;-~1 - slave Mr. Sewar,i's bill
providing for the trial by jury, in such cases wa
before him. He took no notice Of it, He passet
by "on the other side,n while he bestowed hi
best encomium on Mr.. Buffers bill, by promisin.
to support il. Was not this an abandonment
undr all the synonymes given in the dictionary
HIGHER POWERS, AND LOWER.
Mr.. Webster advises me, in certain contin
gency, "to appeal TO that higher authority which
sits tnthroDed above the Constitution and aboy
the law | take no exception to this counsel
because Of it's offciousaess, but would thank hin
for il. My ideas or duty require me TO seal any
iously for the true Interpretation of the Consti
| ",
hopes or fears IL the Constitution requires m,
to do anything which my sense of duty forbids,
shall save my conscience 10y resigning my office
| am free, however, to say, that IT, in the discharge
of my political duties, should transfer my allie
glance to any other power, | should adopt Mr.
Webster's advice, and 60 TO the power which sits
enthroned above rather than 20 descend to that
opposite realm, whence the bill he 80 cordially
promised to support must have emerged.
wish, however, TO remark, that though | ac-
knowledge the Constitution TO be my guide while
: Md r NatNte support il, vet de No, rsNir.
fling either at the powers above us, or at those
who reverence them. hold il be not only pro-
per, but proof of sound moral and ,relsiOns 5a.l-
ing 10 isok toihe perfect law Of God for light 20
enable us more justly to interpret the imperfect
laws of man. Especially, when we are proposing
to make or amend law ought we to take our
gauge Of purpose and Of action from the highest
standard.
Noy that Solomon of the law thought it moi
improper TO say: 60 The inferior law must give
place TO the superior, mans laws to God.
laws."-MarimS, PIP. O..
"The law Of Nature gays Backston., "being coeva
with mankind and dictated by God himself s Of course
superior In obligation to other IL Is binding sill
the globe In all countries at all times No human laws
have any validity II contrary to this and such of them
valid derive all their force and all their authority
distrly or immediately from this orignsrl Com, al.
Fortescue, the Chancellor of Henry vi, in his de
Laudibus Legum Anglie, cap. az, has the following
passage, the consideration Of which, in requital
for Mr. Webster's advice to me, | respectfully
commend to him:
That must necessarily be adjndged cruel law which
augments slavery, and diminshss Liberty For Human
Nature mpOres without ceasing for Liberty Slavery IL
ntr duced by and through bis vice But Liberty
gift Of God to Wherefore, when torn from man Il
yearns to retorn and II is the with everything
han rUaA af tfa thaxt. H.. HE.
that is 10 be adudged cruel who does not favor Lber
ty BY these the Laws OF England every
case, give favor to Libsrty"- CGp.4a.
CONSTITUTIONAL PROVISIONS FOR TRIAL BY
JURY, WITH HlSTOkiCAL REFERENCES
l. Where Congress has power 10 provide for such
H. Where is the ddy Of Congress 10 do So
Having defended my own propositions, shall
now take the liberty to examine some Of Mr..
| Webster's
He says "the Constitution declares that in all
criminal prosecutions, there shall be trial by
! jury and that, ain suits at common law the
trial by jury shall be preserved" He then adds
"there is no other clause or sentence In the Con
stisetion having the lese. hearing apea the s.n
clause OF sentence in the Constitution, haping III
I isoa BEARING on the MbJedp This deny.
Here Mr.. Webster virtually declares that, but
for the above-named two provisions the right Of
the trial by jury would not have been secured
to us by the Constitution in any case or course
Congress would have been under no obligation
nor would it have had any power, to provide by
law for such trials
Were ] TO say that this assertion borders on
the incredible, one might we'll ask, which side OF
the line does il lie
The provision for trial by jury, ~ criminal
prosecutions, is in the third clause of the second
section of the third article and is repeated, and
somewhat enlarged, in the fifth and sixth articles
of amendment.
But the provision for trial by jury, in suits at
common Ian, is in the seventh article of amend
ment and neither this provision, nor any SEM
blanoe of IT, is to be found, in express words In
any part of the Constitution as IL came from the
hands Of its trainers, and was adopted by the
States.
According to Mr. Webster, then, Congress were
under no obligation, and had no power, to make
law providing for trial by jury, trcep in criminal
prosecutions, until after the seventh article of
amendment had been ratified for If they had
any such power, or were under any such obligs-
tion ID mus. be by virtue Of some clause or SEN
tence in the Constitution, having bearing upon
Me atieap
Now, the FIRST session of Congress commenced
March 4th, 1889, but this seventh article Of
amendment WAS not ratified, and did not become
a part of the Constitution, according 10 Hickey,
tHickey's Con, p. 38J until December Is, 1891.
Until this time, therefore, according to Mr..
Webster, the Constitution had secured no right
to trial by jury, except In the case Of criminal
prosecutions; because, until this time, there was
no clause or sentence in 10, having the least
bearing on the subjeop Of jury trials in civil
cases.
Yet, on the oath of September, 1889, and more
than f,go years previous 10 the adoption Of The seUeth
amendment, (by which alone, according to Mr..
Webster they had any power to act In the prem
ises,) Congress did pass the Judiciary act by the
ninth, twelfth and thirteenth sections OF which
IL is provided that the trial OF issues In fact In
the District Courts, In the Circuit Courts, and
in the Supreme Court, shall, with certain sxoep-
tions, be by jury
The act also empowers the Courts to grant new
trials 81 for reasons for which new trials have
usually been granted In the courts Of lawn
In what courts Of law7 Did Il not mean the
Courts In Westminster Hail. and those In this
country formed after that ancestral model And
does this show beyond question or cavil, that the
principle Of the jury trial il cipl cases. WAS moor
porated into the Constitution Of the United
States, originally and that II was universally
understood TO be 80 by its trainers, and by their
contemporaries, the members OF the first Con.
CREST
From the Constitution alone, then, and not
from any power above II, or outside OF II, did
Congress derive It's power, on the cath of Sep
TENDER, l7S9 and more than two years before
the seventh amendment was adopted, TO pass the
Judiciary Act, and TO Ill 1t full Of the fact and
the doctrine Of jury trials In civil cases. And II
Congress, at that time had legislated on the sub.
ject Of fugitive slaves would II not have had the
same power to provide The trial by jury, to deter
mine the question, slave or free AZ IL had to pro-
vide for this mode of trial In other cases
All the State Conventions for adopting the
Constitution, whose debates are preserved, and
all the leading men who figured in them, held, con-
trsry to Mr. Webster that the third article in the
Constitution, providing for courts, carried jury
trials In civil cases with 1t. MIR Marshall, after