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.