higher authority which sits enthroned above the constitution and
above the law.” I take no exception to this counsel, because of its
officiousness, but would thank him for it. My ideas of duty require me
to seek anxiously for the true interpretation of the constitution, and
then to abide by it, unswayed by hopes or fears. If the constitution
requires me to do any thing which my sense of duty forbids, I shall
save my conscience by resigning my office. I am free, however, to say,
that if, in the discharge of my political duties, I should transfer my
allegiance to any other power, I should adopt Mr. Webster’s ironical
advice, and go to the power “which sits enthroned above,” rather
than descend to that opposite realm, whence the bill he so cordially
promised to support must have emerged.
I wish, however, to remark, that though I acknowledge the constitution
to be my guide while under oath to support it, yet I do not relish this
fling either at the powers above us, or at those who reverence them. I
hold it to be not only proper, but proof of sound moral and religious
feeling, to look 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
and of action from the highest standard.
Noy, that Solomon of the law, thought it not improper to say, “The
inferior law must give place to the superior; man’s laws to God’s
laws.”--_Maxims_, pp. 6, 7.
“The law of Nature,” says Blackstone, “being coeval with mankind, and
dictated by God himself, is, of course, superior in obligation to any
other. It is binding all over the globe; in all countries, at all
times. No human laws have any validity, if contrary to this; and such
of them as are valid, derive all their force and all their authority,
mediately or immediately, from this original.”--1 _Com._ 41.
Fortescue, the Chancellor of Henry VI., in his _De Laudibus Legum
Angliæ_, cap. 42, has the following passage, the consideration of
which, in requital for Mr. Webster’s advice to me, I respectfully
commend to him:--
“That must necessarily be adjudged a cruel law, which augments
slavery, and diminishes liberty. For human nature implores, without
ceasing, for liberty. Slavery is introduced by man, and through his
vice. But liberty is the gift of God to man. Wherefore, when torn from
a man, it ever yearns to return; and it is the same with every thing
when deprived of its natural liberty. On this account, that man is to
be adjudged cruel, who does not favor liberty. By these considerations
the laws of England, in every case, give favor to liberty.”
Having defended my own propositions, I shall now take the liberty to
examine some of Mr. Webster’s; and, in so doing, I shall examine the
constitutional provisions for trial by jury, and fortify my opinion by
historical references. I shall consider,
I. _Where Congress has power to provide for such trial._
II. _Where it is the duty of Congress to do so._
Mr. Webster says “the constitution declares, that in all criminal
prosecutions, there shall be a trial by jury;” and that “in suits at
common law the trial by jury shall be preserved.” He then adds, “There
is no other clause or sentence in the constitution having the least
bearing upon the subject.” Mark his words: “There is no other clause
or sentence in the constitution, _having the least bearing on the
subject_.” This I 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_. Of course, in the absence of
these provisions, Congress would have been under no obligation, nor
would it, indeed, have had any power, to provide by law for such trials.
Were I to say that this assertion borders on the incredible, one might
well ask, Which side of the line does it lie?
The provision for a 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 at common law_, is in
the seventh article of amendment; and neither this provision, nor any
semblance of it, is to be found, in express words, in any part of the
constitution as it came from the hands of its framers, and was adopted
by the states.
According to Mr. Webster, then, Congress was under no obligation, and
had no power, to make a law providing for trial by jury, _except 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 obligation, it must be by virtue of some clause or sentence in the
constitution, _having a “bearing upon the subject.”_
Now, the first session of Congress commenced March 4th, 1789, but this
seventh article of amendment was not ratified, and did not become a
part of the constitution, according to Hickey, (Hickey’s Const. p. 36,)
until December 15, 1791.
Until this time, therefore, according to Mr. Webster, the constitution
had secured no right to a 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 any but criminal cases.
Yet, on the 24th of September, 1789, _and more than two years previous
to the adoption of the seventh amendment_, (by which alone, according
to Mr. Webster, they had any power to act in the premises,) Congress
did pass the judiciary act; by the ninth, twelfth, and thirteenth
sections of which it 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 exceptions, be by jury.
The act also empowers the courts to grant new trials “for reasons for
which new trials have usually been granted in the courts of law.” In
what courts of law? Did it not mean the courts in Westminster Hall,
and those in this country formed after that ancestral model? And does
not this show beyond question or cavil, that the principle of the jury
trial, _in civil cases_, was incorporated into the constitution of the
United States, originally; and that it was universally understood to
be so by its framers, and by their contemporaries, the members of the
first Congress?
From the constitution alone, then, and not from any power above it, or
outside of it, did Congress derive its power, on the 24th of September,
1789, and more than two years before the seventh amendment was adopted,
to pass the judiciary act, and to fill it full of the fact and the
doctrine of jury trials in civil cases. And if Congress, at that time,
had legislated on the subject of fugitive slaves, would it not have had
the same power to provide the trial by jury, to determine the question,
slave or free, as it had to provide 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,--contrary to Mr. Webster,--that the third article in the
constitution, providing for courts, carried jury trials in civil cases
with it. Mr. Marshall, afterwards Chief Justice Marshall, said in the
Virginia convention, “Does the word _court_, [in the constitution,]
only mean the judges? Does not the determination of a jury necessarily
lead to the judgment of the court? Is there any thing which gives the
judges exclusive jurisdiction of matters of fact? What is the object
of a jury trial? To inform the court of the facts. When a court has
cognizance of facts, does it not follow that they can make inquiry by a
jury? It is impossible to be otherwise.”--3 _Elliott’s Debates_, 506.
The third article in the Virginia bill of rights was as follows:--
“In controversies respecting property, and in suits between man and
man, the ancient trial by jury is preferable to any other, and ought
to be held sacred.”
This article being read in the convention, Judge Marshall said _the
trial by jury was as well secured by the United States constitution, as
by the Virginia bill of rights_.--Ib. 524. He said this in reference to
civil cases.
In the Massachusetts convention, it was said, without a doubt’s being
expressed from any quarter, that “the word _court_ does not, either by
popular or technical construction, exclude the use of a jury to try
facts. When people in common language 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 expressly or
not. Our state legislators have construed the word court in the same
way.”--2 _Elliott’s Debates_, 127.
Such was the doctrine maintained by the leading minds of the state
conventions; by Christopher Gore, in Massachusetts; by Judge Wilson,
and Chief Justice McKean, in Pennsylvania; by Chief Justice Marshall,
Judge Pendleton, and 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 it did not _expressly_ secure to the accused the privilege
of challenging or excepting to jurors in criminal cases. But Mr.
Pendleton, the President of the convention, and for so many years
afterwards the highest judicial officer in the state, replied: “When
the constitution says that the trial shall be by jury, does it not say
that every incident will go along with it?”--3 _Elliott’s Debates_, 497.
So when the constitution provided for “courts,” and defined their
jurisdiction, it clearly contemplated the trial by jury, in regard
to all such rights of the citizen as had been usually, theretofore,
tried by a 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.
It 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 should 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, it 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. It is as
follows:--
“The conventions of a number of the states having at the time of their
adopting the constitution expressed a desire, in order to prevent
misconstruction or abuse of its powers, that further declaratory or
restrictive clauses should be added; and as the extending the ground
of public confidence in the government will best insure the beneficent
ends of its institution, RESOLVED,” &c.
From this it appears that the first Congress only proposed to submit
certain “_further declaratory and restrictive clauses_,” which were “to
prevent misconstruction 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 which their authors had of their scope and
intendment. And what is the seventh amendment but a “declaratory and
restrictive clause,” securing the trial by jury, in cases at common
law, “where the value in controversy shall exceed twenty dollars,” and
abandoning it where the value is less?
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 novo_, but continued. Will Mr. Webster tell me, how a
right can be _preserved_, which does not already _exist_?
In speaking of the trial by jury, in criminal cases, Judge Story uses
the same word. He says it was “preserved.” In neither class of cases,
civil or criminal, was it ever abandoned or lost, through the fault of
the constitution. If not always enjoyed by the citizen, it 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 a then subsisting
constitutional right. They passed a law to put the practical enjoyment
of this right into the hands of the people, well knowing that there
is scarcely a right which we hold under the constitution which we can
beneficially possess or use, without the intervention of some law, as
its channel 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 present
day? Could it have been taken from us all, in all cases except criminal
ones, by any corrupt Congress?
In asserting, therefore, that, besides the references he has made,
there is not another “clause or sentence in the constitution, _having
the 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 it, and by all the
judges who administered that act until the seventh amendment was
adopted.
II. _Where it is the duty of Congress to provide for trial by jury._
But another of Mr. Webster’s assertions is still more extraordinary. He
says “nothing is more false than that such jury trial, [a trial by jury
for an alleged slave, or for a freeman claimed as a slave,] is demanded
by the constitution, either in its letter or in its spirit.”
I make a preliminary remark upon the grossness of the error embodied in
the form of this proposition.
“_Nothing is more false_;” that is, if I, or any one, had affirmed
that our constitution forbids trial by jury, in all cases, under
penalty of death; or that it creates an hereditary despotism; or that
it establishes the Catholic religion, with the accompaniment of an
inquisition for each state; or that it does all these things together;
it would not be more “_false_” to the “_spirit_” of the constitution,
than to say that it demands the trial by jury, when a man who is seized
as a slave, but who asserts that he is free, invokes its protection.
But this pertains to the _form_ only of his assertion, and is
immaterial to the argument. I proceed to inquire whether its substance
be not as indefensible as its form.
In another part of Mr. Webster’s letter, he says, that he sees “no
objection to the provisions of the law” of 1793. Of course; for he sees
no objection to Mr. Butler’s bill, and its amendments; but prefers them
to Mr. Seward’s. And he now says, there is nothing in the letter or in
the “spirit” of the constitution, which demands the jury trial for an
alleged slave, or for a freeman captured and about to be carried away
as a slave.
Feeble and humble as I am, great and formidable as he is, I join issue
with him on this momentous question, and put myself upon the country.
Our constitution, as the present generation has always been taught,
yearns towards liberty and the rights of man. The trial by jury, in the
important cases of life, liberty, and property, is essential to these
rights. The two, therefore, have such close affinity for each other, as
to render it highly probable, if not morally certain, that the framers
of the former would make provision for the latter; that they would lay
hold of it, as by a law of instinct, to carry out their beneficent
purposes. The trial by jury was necessary to the vitality of the
constitution; and, I think, it would not be too strong an expression to
say that the constitution, as it came 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,--namely, to “establish justice,” “promote the general
welfare,” and “secure the blessings of liberty,” to the people,--could
never be accomplished without the trial by jury. The preamble is not
appealed to as a source of power; but it touches, as by the finger,
the objects which it contemplated; it suggests the means by which its
beneficent purposes were to be fulfilled, and it indicates the rules of
interpretation by which all its provisions are to be expounded.
And not only the objects for which the constitution professes to exist,
but historical facts from the time of Magna Charta, and before that
time; the practice of the English and of our Colonial and Provincial
courts before the revolution and during the confederacy;--in fine, all
analogies and tendencies of constitutional law, and whatever belongs to
ideas of freedom, conspire to force the expectation upon us, that, in
a matter of such vast concernment as the life-long liberty or bondage
of a man and his offspring, it has _not_ left us without the right of
trial by jury.
The very first law “for the general good of the colony of New
Plymouth,” (1623,) was, “that all criminal acts, and also all matters
of _trespasses_ and DEBTS, between man and man, should be tried by the
verdict of twelve honest men.”
In that fearful array of crimes which the Declaration of Independence
charges home upon the king of Great Britain, that sublime instrument
enumerates the following as among the most flagitious: “For depriving
us, in many cases, of the benefits of trial by jury,” and “for
protecting his troops, _by a mock trial_, from punishment for any
murders which they should commit on the inhabitants of these states.”
According to Blackstone, the right to a trial by jury had been held,
“time out of mind,” to be the birthright of Englishmen. The 29th
chapter of the Great Charter guarantied this right, not only in cases
of liberty, life, and limb, but in cases of property, real and personal.
In England, it has become a traditional saying, and drops from the
common tongue, that the great object of king, lords, and commons, is to
get twelve men into the jury box.
Judge Story says, “When our more immediate ancestors removed to
America, they brought this great privilege with them, _as their
birthright and inheritance_, as a part of that admirable common law
which had fenced round, and interposed barriers on every side, against
the approaches of arbitrary power. It is now incorporated into all
our state constitutions, as a fundamental right; and the constitution
of the United States would have been justly obnoxious to the most
conclusive objection, if it had not recognized and confirmed it in the
most solemn terms.”--3 _Com._ 652, 3.
Is it conceivable, then, that the heroes and sages of the revolution,
who rose in resistance to the most formidable power on earth; so many
of whom rose against their own kindred in the mother country, because
they loved liberty better than father or mother, or brother or sister,
and who endured the privations and horrors of a seven years’ war;--is
it conceivable, I say, that, when they had achieved their independence,
and there was no longer any earthly power to control them, they should
have framed a fundamental law, and should not have imbued that law
with the “_spirit_” of the trial by jury, as its breath of life? As
British subjects, they were entitled to this trial. As Americans, did
they renounce it? Did they wage war for seven years in order to place
themselves in a worse condition than they had been placed in by their
“tyrant”? Mr. Webster says they did. He charges this infinite folly and
blindness upon them, singly and collectively, one and all.
I will now fortify this historical view, by a reference to some
decisions of the supreme court which explain and define the meaning of
the seventh amendment.[10]
What is the true meaning of those descriptive words, “suits at common
law”? Has not Mr. Webster, relying on his high reputation, disposed
of this matter a little too summarily? He says, “The constitution
declares that in suits at common law, the trial by jury shall be
preserved;” but he adds, “The reclaiming of a fugitive slave is not a
suit at common law.”
But the supreme court of the United States has furnished us with an
authoritative interpretation of the words of the constitution bearing
on this subject. In the case of _Cohens_ VS. _Virginia_, 6 Wheaton, R.
407, they define what is meant by a “suit.” These are their words:--
“What is a _suit_? We understand it to be the prosecution, or pursuit,
of some _claim_, demand, or request. In law language, it is the
prosecution of some demand in a court of justice. ‘The remedy for
every species of wrong is,’ says Judge Blackstone, ‘the being put in
possession of that right whereof the party injured is deprived,’ The
instruments whereby this remedy is obtained are a diversity of _suits_
and actions, which are defined by the Mirror to be ‘the lawful demand
of one’s right;’ or, as Bracton and Fleta express it in the words of
Justinian, ‘_jus prosequendi in judicio quod alicui debetur_,’--(the
form of prosecuting in trial, or judgment, which is due to any one.)
Blackstone then proceeds to describe every species of remedy by
suit; and they are all cases where the party suing claims to obtain
something to which he has a right.
“To commence a suit is to demand something by the institution of
process in a court of justice; and to prosecute the suit is, according
to the common acceptation of language, to continue that demand.”
According to the supreme court, then, a _suit_ is the prosecution of
some _claim_, demand, or request. Now, the proceedings for a fugitive
slave, according to the very letter of the constitution, are instituted
to prosecute a _claim_. The person held to service or labor is to be
delivered up, “on _claim_ of the party to whom such service or labor
may be due.”
Still further, in a decision bearing directly on the right to a trial
by jury, the supreme court have defined the term “common law” in
special reference to its meaning in the amendment to the constitution,
which secures this right “in suits at common law.” These are their
words:--
“It is well known that in civil causes, in courts of equity and
admiralty, juries do not intervene; and that courts of equity use the
trial by jury only in extraordinary cases, to inform the conscience of
the court. When, therefore, we find that the [7th] amendment requires
that the right of trial by jury shall be preserved, in suits at common
law, the natural conclusion is, that this distinction was present
to the minds of the framers of the amendment. By _common law_ they
meant what the constitution denominated in the third article ‘law;’
not merely suits which the _common_ law recognized among its old and
settled proceedings; but suits in which _legal_ rights were to be
ascertained and determined, in contradistinction to those in which
equitable rights alone were recognized, and equitable remedies were
administered, or in which, as in the admiralty, a mixture of public
law, and of maritime law and equity, was often found in the same suit.
Probably there were few, if any, states in the Union, in which some
new legal remedies, differing from the old common law forms, were not
in use; but in which, however, the trial by jury intervened, and the
general regulations in other respects were according to the course
of the common law. Proceedings in cases of partition, and of foreign
and domestic attachment, might be cited as examples variously adopted
and modified. _In a just sense, the amendment, then, may well be
construed to embrace all suits, which are not of equity or admiralty
jurisdiction_, WHATEVER MAY BE THE PECULIAR FORM WHICH THEY MAY ASSUME
TO SETTLE LEGAL RIGHTS.”--_Parsons_ VS. _Bedford_, 3 _Peters’s Rep._
456, 7.