Page:Debates in the Several State Conventions, v4.djvu/187

designedly plotting against it. But I fully believe that the real difficulty of the thing was the cause of the omission. I trust sufficient reasons have been offered, to show that it is in no danger. As to criminal cases, I must observe that the great instrument of arbitrary power is criminal prosecutions. By the privileges of the habeas corpus, no man can be confined without inquiry; and if it should appear that he has been committed contrary to law, he must be discharged. That diversity which is to be found in civil controversies, does not exist in criminal cases. That diversity which contributes to the security of property in civil cases, would have pernicious effects in criminal ones. There is no other safe mode to try these but by a jury. If any man had the means of trying another his own way, or were it left to the control of arbitrary judges, no man would have that security for life and liberty which every freeman ought to have. I presume that in no state on the continent is a man tried on a criminal accusation but by a jury. It was necessary, therefore, that it should be fixed, in the Constitution, that the trial should be by jury in criminal cases; and such difficulties did not occur in this as in the other case. The worthy gentleman says, that by not being provided for in civil cases, it is expressly provided against, and that what is not expressed is given up. Were it so, no man would be more against this Constitution than myself. I should detest and oppose it as much as any man. But, sir, this cannot be the case. I beg leave to say that that construction appears to me absurd and unnatural. As it could not be fixed either on the principles of uniformity or diversity, it must be left to Congress to modify it. If they establish it in any manner by law, and find it inconvenient, they can alter it. But I am convinced that a majority of the representatives of the people will never attempt to establish a mode oppressive to their constituents, as it will be their own interest to take care of this right But it is observed that there ought to be a fence provided against future encroachments of power. If there be not such a fence, it is a cause of objection. I readily agree that there ought to be such a fence. The instrument ought to contain such a definition of authority as would leave no doubt; and if there be any ambiguity, it ought not to be admitted. He says this construction is not agreeable to the people, though he acknowledges it is a right one