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.