The national era. [volume] (Washington [D.C.]) 1847-1860, 1850-07-25
WHOLE NO. 1876.

In the Massachusetts Convention, il was said
without doubt being expressed from any quar-
ter, that the word court does not either by pop
uar or technical construction, exclude the use Of
jury to try facts. When people in common Ian
guage talk of a trial at the Court of Common
Pleas, or the Supreme Judicial Court, do they
not include all the branches and members of such
courts, the jurors as well as the judges They
certainly do, whether they mention the jurors eX
pressly or not. Our State legislators have con
strued the word cOnH in the same way .p-2 Eth
otts Dsbaies, l27.
Such was the doctrine maintained by the lead
ing minds in the State Conventions; by Christie
pher Gore, in Massachusetts; by Judge Wilson,
and Chief Justice Mexican in Pennsylv wanna by
N'e' , $50 80 -
Mr.. Madison, in Virginia; by Judge iredeiI, in
North Carolina, and many other distinguished
names
In the Virginia Convention, objection was
made TO the Constitution, because it did not eI-
pressly secure 10 the accused the privilege Of chal
longing or excepting 70 jurors in criminal cases
But Mr.. Pendleton, the President of the Conven-
ton, and for so many years, the highest Judicial
officer in the State, replied When the Consti-
sttuton says that the trial shall be by jury does
il not say that every incident will 20 along with
it 7'-3 EHio,f's Debates, 497.
So when the Constitution provided for " courts,
plated the trial by jury, in regard 10 all such
rights of the citizen as had been usually thereto
fore, tried by jury. Congress, indeed, might
fail TO perform its duty but in such case, no
provisions Of the Constitution, however express
and peremptory, would secure the rights of the
people.
II is perfectly we'll known to every student Of
the Constitution, that the only reason why that
instrument did not make express provision for
the trial by jury in civil cases, the difficulty
Of running the dividing line between the many
cases that should be so tried, and the few that
should not. All were agreed that ninety y ne,
pvf- Ofc oraf civil cases should be trIeu oy Jury
but they could not agree upon the classes Of cases
Ss1HS.. ~ - : no
In this connection, IL is worth while TO notice
the heading or preamble Of the Joint Resolutions
for submitting certain proposed amendments Of
the Constitution 10 the States, among which was
the seventh. II is as follows
"The Conventions Of number Of the States having At
the time Of their adopting the Constitution expressed de-
sire, In order 10 prevent miscOnstructon abuse
powers, that further decatory restrictive clAnses
should he added and as the extending the ground Of public
confidence in the Government will hest insure the
ends Of Its institution, RESOLVED" &c.
From this il appears that the first Congress
only proposed to submit certain "farther dsci0ra-
tory and restrictive clauses" to prevent miscon-
struction or abuse Of its powers This heading
or title, of course, does not enlarge or limit the
meaning Of the amendments but it shows the
view Of their scope and iptendment which their
authors held. But what Is the seventh amend.
ment but declaratory and restrictive clause,n
securing the trial by jury, in cases at common
law, "where the value in controversy shall ex-
coed twenty dollars" and abandoning it where
the value is less2
H. II ~ = ELL -
significance: "Tbe right of trial by jury shall he
preserved" Not created but preserved Not
instituted de moro, but. continued. How can n
right be preserved, which does not already ernst?
In speaking Of the trial by jury, in criminal
cases, Judge Story uses the same word He says
il was preserved In neither class Of cases,
civil or criminal, was IL ever abandoned or lost,
through the fault of the Constitution. If not al
ways enjoyed by the citizen, 1t has been through
the dereliction Of Congress in not passing the
requisite laws
The great men who submitted this seventh
amendment to the States, treated the trial by
jury, In civil cases, ms then subssting consttu-
tional right. They passed law, to put the prac-
tcal enjoyment Of this right into the hands of the
RESafr which we hold under the CONSERVATION
which we can bene6cally possess or use, with
out the Intervention of some law, rs It's chan
mel or medium.
Suppose this seventh amendment had never
been adopted, on what ground would the trial
by jury, in civil cases, have rested up to the pros
ent day.
In asserting, therefore, that, besides the refer
ences he has made, there is not another clause
or sentence In the Constitution, hqpmg the least
bearing on HE subject of jury trials, Mr. Webster
is oontradicted by the members Of the General
Convention, by the State Conventions, by the
Senators and Representatives, who passed the
Judiciary act by President Washington who
signed II, and by all the judges who administered
that act until the seventh amendment was adopted
H.. Where as me dHty Of Congress 10 prOtids for
trial by jury.
But another of Mr. Webster's assertions is
still more extraordinary. He says nothing lie
more false than that such jury trial a trial by
jury for an alleged slave or for freeman claimed
M a slave, is demanded by the Constitution,
either in its letter or in It's spiritn
! make preliminary remark upon the amaz-
Ing untruth embodied in the form of this propo-
sition.
Nothing is more false - that Is, IL I, or any
one, had affirmed that our Constitution forbids
trial by jury, in all cases, under penalty Of death;
DR. that II creates a hereditary despotism; or that
Il establishes the Catholic religion with the ac-
of an inquisition for each State; OF
hat 1t does all these things together 1t would
not he more fdisep TO the "spirhn Of the Con-
titution than to say that It demands the trial by
nry, when man who Is seized "a o slave, but
who asserts that he Is free invokes its protection
But this pertains to the form only Of his ssser-
lion proceed to inquire whether its substance
be not as indefensble RS its form.
In another part of Mr.. Websteris letter, he
says, that he sees no objection TO the provisions
Of the lawn OF 1903. or course, he sees no objeo-
H.. a. H. n.sIx A -. - ..A
he prefers them 10 Mr.. Stewards. And he now
says, there Ii nothing In the letter or In the
" spiritn Of the Constitution, which demands the
jury trial for an alleged slave, or for q freeman
captured and about 10 be carried away az a slave.
Feeble and humble as ! am, great and formula
BILE AZ he Is, join issue with him. on this momen-
tous question, and put myself upon the country.
Our Constitution, rs the present generation
has always been taught, yearns towards liberty
and the rights of man. The trial by jury, in the
important cases Of limb life, liberty, Ii essen
tisl to these rights The two, therefore, have
such close affinity for each other, M to render II
highly probable, II not morally certain, that the
trainers Of the former would make provision for
the latter; that they would lay hold of II, us by
law of instinct, 10 carry out their benehcent pur
poses The trial by jury was necessary to the
vitality Of the Constitution and II would hardly
be too strong an expression 70 say that the Con-
stitution as II from the hands Of its founders
necessitated the trial by jury.
The object for which the Constitution was
framed, as set forth in Its preamble, -Damsly, to
4" establish JUSTICE promote the general wel-
faren and secure the blessings Of liberty TO
the people, could never be accomplished without
the trial by jury. The preamble ia not appealed
to as source Of power but II touches, a. by the
finger, the objects which II contemplated; IL sug-
gesis the means by which Its benehosnt purposes
were TO be fulfilled, and IL indieatAs the rules Of
by which all its prsvlsions are to
be eIpounded.
And not only the objects for which the Consti-
tuition processes 10 exist but historical facts from
the time Of Msgna Chsrta, and before that time
the practice Of the Eaglish and Of our Colonial
and Provincial Courts before the Revolution and