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

In the Massachusetts Convention, ~ was salo
without doubt being expressed from any quar-
ter, that the word court does not, either by pop
ular or technics, construction, exclude the use 0
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 e1
pressly or not. Our State legislators have CON
strued the word court in the same way .n-2 Eth
OTIS DebafsS, 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 PennsY lvania by
{ -sNfor ISasNsn,sII, s-enIIss.soii. anu
Mr.. Madison, in Virginia by Judge iredell, in
North Carolina, and many other distinguished
names
In the Virginia Convention, objection was
made TO the Constitution, because il did not FL
pressy to the accused the privilege Of chal
longing OF excepting 10 jurors in criminal cases.
But Mr.. Pendletou, the President of the Conyen-
ton, and for so many years the highest Judicial
officer in the State, replied: {" When the Consti-
stituton says that the trial shall be by jury, does
il not say that every incident will go along with
il Pa EHio,is Debates, 4e7.
So when the Constitution provided for courts y
and defined their Jurisdiction, il clearly contem-
plated the trial by jury, in regard TO all such
rights Of the citizen rs 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.
IL is perfectly well 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 was the difficulty
of running the dividing line between the many
cases that should be so tried, and the few that
1a'SNt& not, All were agreed that ninety-nine
per cent Of all civil cases should be tried by jury
but they could not agree upon the classes Of cases
from which the remaining one per cent. should
be taken.
In this connection II is worth while to notice
the heading or preamble Of the Joint Resolutions
for submitting certain proposed amendments Of
the Constitution to the States, among which was
the seventh. 1t 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 misconstrueon or abuse Of its
powers that further decantory or restrictive clauses
should be added and 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 further declare.
struclion or abuse of its powers" This heading
or title of course, does not enlarge or limit the
meaning of the amendments but il shows the
view Of their scope and iptendment which their
authors held. But what is the seventh amend.
ment but declaratory and restrictive clause
securing the trial by jury, in cases at common
law, "where the value in controversy shall ex-
coed twenty dollars and abandoning il where
the value is less2
The phraseology Of the amendment is full of
significance: "The right Of trial by jury shall be
preserved" Not created but preserved. Not
instituted de moro, but. continued. How can n
right be preserved, which does not already era?
In speaking Of the trial by jury, in criminal
cases, Judge Story uses the same word. He says
IL was "preseryedn In neither class of cases.
civil or criminal, was II ever abandoned or lost;
through the fault of the Constitution. If not al
ways enjoyed by the citizen, II 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, as then subsistng constitu-
-,icnsl right. They passed law, to put the prac-
tcal enjoyment of this right into the hands of the
Ksa1 which we hold under the C5 ifssseaHiti
which we can benefcaly possess or use with
out the intervention Of some law, rs its chan
mel or medium. -.---.-
Suppose this seventh amendment had never
been adopted, on what ground would the irial
by jury, in civil cases, have rested mp TO the pres
ent day.
In asserting, therefore, that, besides tho refer
ences he has made, there Is not another clause
or sentence In the Constitution, hqunig fhe least
bearing on the subject Of jury trials, Mr.. Webster
Is contradicted 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
ii. Where IS The duty Of Congress 10 prorids for
trial by jury.
But another of MIR. Webster's assertions is
still more extraordinary. He says "notbing is
more false than that such jury trial ia trial by
jury for an alleged slave or for freeman claimed
rs a slave, is demanded by the Constitution
either in its letter or In It's spiritp
| make preliminary remark upon the amaz.
ing untruth embodied In the form of this propo-
sition.
Nothing is more false - that is, IL !, or any
one, had affirmed that our Constitution forblds
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; it would
not be more faisen TO the "spvnn Of the Cen
titution than to say that II demands the trial by
nry, when man who Is seized as o slave, but
who asserts that he Is free invokca its protection
But this pertains to the form only Of his asser-
ion proceed to inquire whether Its substance
be not as indefensible az it's form.
In another part Of Mr.. Webster's letter, he
,ays, that he sees no objection TO the provisions
Of the iawh OF 1893. OF course, he sees no objec-
lion TO Mr. Buffers bill, and Its amendments; but
be prefers them 10 Mr.. Stewards And he now
says, there Is nothing In the letter or In the
' spiritD Of the Constitution which demands the
Jury trial for an alleged slave, or for n freeman
captured and about TO be carried away AZ a slave.
Feeble and humble AZ am great and formula
BILE as he Is, join issue with him, on this momen-
tous question, and put myself upon the country.
Our Consultation, 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, or liberty, is essen
tial TO these rights. The two, therefore, have
such close affinity for each other as to render Il
highly probable, II not morally certain, that the
trainers Of the former would make provision for
the latter; that they would lay hold Of IT, as by
law Of instinot, 20 carry out their benefcent pur
poses The trial by jury was necessary to the
vitality Of the Constitution and u would hardly
be too strong an expression 10 say that the Con
stitution as Il came from the hands Of It's founders
necessitased the trial by jury.
The object for which the Constitution was
framed, ss set forth In It's ble,-nsmely, to
&" estsblish justice" promote the general well
fare,p 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 IL touches, ~ by tho
finger the objects which II contaminated; II su0-
gesis the means by which It's benehcent purposes
were to be fulfilled, and II ipdicAtas the rules of
by which all its pyoslslons sre to
be expounded.
And not only the objects for which the Cousti-
luton Processes to exist but historical facts from
The time Of Magma Chsrta, and before that time
The practice Of the English and Of our Colonial
and Provincial Csurts before the Revolution and
turing the Confederacy lin fine, all analogies