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.