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


dangerous authority which IL gives II furnishe
endless temptations aud facilities for committin
wrong; IL imposes no restraints il warns by n
| threats of retribution
Mr.. Webster calls me 10 account for some un
specified erroneous "Opinion expressed in rela
ton TO this bill. Can any opinion he 40 false {
the Constitution, ~ this bill to humanity
deprecate error Of all sorts but hold It TO b
more yenal to err in judgment than In heart
said that in promising to support Mr. But
lers bill, "with all its provisions to the fulles
extent" Mr.. Webster abandoned" the right &
trial by jury. ] spoke Of him as Senator, n
one who, with his co-legslators, has full RICH
and power under the Constitution, to secure thi
freeman seized as a slave. Mr. Stewards bill
providing for the trial by jury, in such cases wa
before him. He took no notice Of IT, He passe.
by ION the other side,n while he bestowed hi
best encomium on Mr.. Buffers bill, by promisin,
TO support IT, Was not this an abandonment
und,r all the synOnymes given in the dictionary
HIGHER POWERS, AND LOWER.
MIR. Webster advises me, in certain contin
gency, ito appeal to that higher authority which
sits ,nthroned above the Constitution and allow
the law" | take no exception to this counsel
because Of it's ofliciousness, but would thank hin
for it, My ideas Of duty require me to seek any
iously for the true Interpretation of the Consti
tution; and then to abide by II, unswayed by
hopes or fears. III the Constitution requires m,
to do anything which my sense of duty forbids,
shall save my conscience by resigning my office
! am free however to say, that IL in the discharge
of my political duties, should transfer my allie.
glance to any other power, ! should adopt Mr.
Webster's advice, and 60 20 the power which sits
enthroned above,D rather than TO descend to that
opposite realm, whence the bill he 30 cordially
promised to support, must have emerged.
wish, however, to remark, that though | ac-
knowledge the Constitution TO be my guide while
.duSr oasn supPvt4 &c, yoU aof feffsh sisy
fling either at the powers above us, or at those
who reverence them. hold il be not only pro-
per, but proof Of ssand lnor.ssS reiigieas fe,s-
ing, TO ook to the perfect law of God for light TO
enable us more justly to interpret the imperfect
laws Of man. Especially, when we are proposing
to make or amend a law, ought we TO take our
gauge Of purpose aud of action from the highest
standard.
Noy, that Solomon of the law, thought il not
improper TO say; 1.-THE inferior law must give
place TO the superior; mans laws to Gods
laws."-Marims, PIP. 60.
"The law Of Nsturen Gays Blackstons being coevs
with mankind and dictated by God himself H. Of course
superior In obligation 10 any other IL Is binding oil over
the globe; In all countries, at all times No human laws
have any validity contrary TO this and such Of them
distry or Immediately from this orginal"- Com, al.
Fortescue, the Chancellor of Henry vi, in his de
LaHdbus Leeum Angha, cap. AZ has the following
passage, the consideration Of which, in requtal
for Mr.. Webster's advice to me, | respectfully
commend to him
That must necessarily be adjndged a cruel law which
augments slavery, and dimnishss Liberty. For Human
Nature impores without ceasnR for Liberty Slavery Is
ntr duced by and through vice But Liberty the
gift Of God TO Wherefore when torn from man Il
yearns TO return and Is the with everything
when deprived OF its natural Liberty On this account
that TO be adudged cruel who does favor Liner
ty BY these considerations the Laws Of England every
case, give favor to Libertyn- Cap.4'.
CONSTITUTIONAL PROVISIONS FOR TRIAL BY
JURY, WITH HISTORICAL REFERENCES.
|. Where Congress has power 10 prOvide for such
H. Whers 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 u and that, I" in suits ut common law the
trial by jury shall be preserved He then adds
"there is no other clause or sentence In the Con.
s.i.e ton having the lessl hearing unsa the s~n
clause or sentence in the Constitution, haping m,
least BEARING on The pbjee.n 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 10 say that this assertion borders on
the incredible, one might well ask, which side of
the line does It LIEF
The provision for trial by jury, IN 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 al
common Ian, is in the seventh article of amend
ment; and neither this provision, nor any sem
bance Of 1t, Is to be found, In express words in
any part Of the Constitution as 1t 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, exeept IN criminal
prosecutions until after the seventh article of
amendment had been ratified for IL they had
any such power, or were under any such obliga-
ton, II must be by virtue Of some clause or SEN
tence Ia the Constitution, haping a bearing upon
tM abjedp
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,
(fiickey's Con, p. 36,) until December 3, 1901.
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 It, having the least
bearing on the subject of jury trials in civil
cases
Yet on the oath of September, 1889, and more
than tho years previous 10 The adoption OF The sepenh
amendment lby which alone, according to Mr..
Webster, they had any power 10 act In tho prem
ises) Congress did pass the judiciary act by the
ninth, twelfth, and thirteenth sections Of which
II 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 excsp-
tions, be by jury.
The act also empowers the Courts 10 grant new
trials "for reasons for which new trials have
usually been granted In the courts Of lawp
In what courts Of law7 Did II not mean the
Courts In Westminster Hall, 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. ia eiul easeS, was ncor
porated into the Constitution OF the United
States, originally; and that II was universally
understood to be so by its trainers, and by their
contemporaries, the members of the first Con-
gress7
From the Constitution alone, then, and not
from any power above IL, or outside Of II, did
Congress derive its power, on the oath of Sep
TENDER, 1889, and more than two years before
the seventh amendment was adopted, TO pass the
Judiciary Act, and TO All II full Of the fact and
the doctrine Of jury trials In civil osses And II
Congress- at that time, had legislsted on the sub.
jet 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, as II 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-
Constitution, providing for courts, carried jury
trials In civil cases with IT, Mr.. Marshall, after
wards Chief Justice Marshall, said In the Vir-