I make a preliminary remark upon the grossness of the error embodied in the form of this proposition.
“Nothing is more false;” that is, if I, or any one, had affirmed that our constitution forbids trial by jury, in all cases, under penalty of death; or that it creates an hereditary despotism; or that it establishes the Catholic religion, with the accompaniment of an inquisition for each state; or that it does all these things together; it would not be more “false” to the “spirit” of the constitution, than to say that it demands the trial by jury, when a man who is seized as a slave, but who asserts that he is free, invokes its protection.
But this pertains to the form only of his assertion, and is immaterial to the argument. I proceed to inquire whether its substance be not as indefensible as its form.
In another part of Mr. Webster’s letter, he says, that he sees “no objection to the provisions of the law” of 1793. Of course; for he sees no objection to Mr. Butler’s bill, and its amendments; but prefers them to Mr. Seward’s. And he now says, there is nothing in the letter or in the “spirit” of the constitution, which demands the jury trial for an alleged slave, or for a freeman captured and about to be carried away as a slave.
Feeble and humble as I am, great and formidable as he is, I join issue with him on this momentous question, and put myself upon the country.
Our constitution, as the present generation has always been taught, yearns towards liberty and the rights of man. The trial by jury, in the important cases of life, liberty, and property, is essential to these rights. The two, therefore, have such close affinity for each other, as to render it highly probable, if not morally certain, that the framers of the former would make provision for the latter; that they would lay hold of it, as by a law of instinct, to carry out their beneficent purposes. The trial by jury was necessary to the vitality of the constitution; and, I think, it would not be too strong an expression to say that the constitution, as it came from the hands of its founders, necessitated the trial by jury.
The object for which the constitution was framed, as set forth in its preamble,—namely, to “establish justice,” “promote the general welfare,” and “secure the blessings of liberty,” to the people,—could never be accomplished without the trial by jury. The preamble is not appealed to as a source of power; but it touches, as by the finger, the objects which it contemplated; it suggests the means by which its beneficent purposes were to be fulfilled, and it indicates the rules of interpretation by which all its provisions are to be expounded.
And not only the objects for which the constitution professes to exist, but historical facts from the time of Magna Charta, and before that time; the practice of the English and of our Colonial and Provincial courts before the revolution and during the confederacy;—in fine, all analogies and tendencies of constitutional law, and whatever belongs to ideas of freedom, conspire to force the expectation upon us, that, in a matter of such vast concernment as the life-long liberty or bondage of a man and his offspring, it has not left us without the right of trial by jury.
The very first law “for the general good of the colony of New Plymouth,” (1623,) was, “that all criminal acts, and also all matters of trespasses and DEBTS, between man and man, should be tried by the verdict of twelve honest men.”