stated that, in criminal cases, the trial shall be by jury. But how? In the state. What, then, becomes of the jury of the vicinage, or at least from the county, in the first instance—the states being from fifty to seven hundred miles in extent? This mode of trial, even in criminal cases, may be greatly impaired; and, in civil cases, the inference is strong that it may be altogether omitted; as the Constitution positively assumes it in criminal, and is silent about it in civil causes. Nay, it is more strongly discountenanced in civil cases, by giving the Supreme Courts, in appeals, jurisdiction both as to law and fact.
Judge Blackstone, in his learned Commentaries, art. Jury Trial, says, "It is the most transcendent privilege, which any subject can enjoy or wish for, that he cannot be affected either in his property, his liberty, or his person, but by the unanimous consent of twelve of his neighbors and equals—a constitution that, I may venture to affirm, has, under Providence, secured the just liberties of this nation for a long succession of ages. The impartial administration of justice, which secures both our persons and our properties, is the great end of civil society. But if that be entirely intrusted to the magistracy,—a select body of men, and those generally selected, by the prince, of such as enjoy the highest offices of the state,—these decisions, in spite of their own natural integrity, will have frequently an involuntary bias towards those of their own rank and dignity. It is not to be expected from human nature, that the few should always be attentive to the good of the many." The learned judge further says, that "every tribunal, selected for the decision of facts, is a step towards establishing aristocracy—the most oppressive of all governments."
The answer to these objections is, that the new legislature may provide remedies! But as they may, so they may not; and if they did, a succeeding assembly may repeal the provisions. The evil is found resting upon constitutional bottom; and the remedy, upon the mutable ground of legislation, revocable at any annual meeting. It is the more unfortunate that this great security of human rights—the trial by jury—should be weakened by this system, as power is unnecessarily given in the second section of the third article, to call people from their own country, in all cases of controversy about property between citizens of different states, to be tried in a distant court, where the Congress may sit; for although inferior congressional courts may, for the above purposes, be instituted in the different states, yet this is a matter altogether in the pleasure of the new legislature; so that, if they please not to institute them, or if they do not regulate the right of appeal reasonably, the people will be exposed to endless oppression, and the necessity of submitting, in multitudes of cases, to pay unjust demands, rather than follow suitors, through great expense, to far-distant tribunals, and to be determined upon there, as it may be, without a jury.
In this congressional legislature, a bare majority of votes can enact commercial laws; so that the representatives of the seven Northern States, as they will have a majority, can, by law, create the most oppressive monopoly upon the five Southern States, whose circumstances and productions are essentially different from those of theirs, although not a single man of these voters are the representatives of, or amenable to, the people of the Southern States. Can such a set of men be, with the least color of truth, called a representative of those they make laws for? It is supposed that the policy of the Northern States will prevent such abuses. But how feeble, sir, is policy, when opposed to interest, among trading people! and what is the restraint arising from policy? Why, that we may
