In that fearful array of crimes which the Declaration of Independence charges home upon the king of Great Britain, that sublime instrument enumerates the following as among the most flagitious: “For depriving us, in many cases, of the benefits of trial by jury,” and “for protecting his troops, by a mock trial, from punishment for any murders which they should commit on the inhabitants of these states.”
According to Blackstone, the right to a trial by jury had been held, “time out of mind,” to be the birthright of Englishmen. The 29th chapter of the Great Charter guarantied this right, not only in cases of liberty, life, and limb, but in cases of property, real and personal.
In England, it has become a traditional saying, and drops from the common tongue, that the great object of king, lords, and commons, is to get twelve men into the jury box.
Judge Story says, “When our more immediate ancestors removed to America, they brought this great privilege with them, as their birthright and inheritance, as a part of that admirable common law which had fenced round, and interposed barriers on every side, against the approaches of arbitrary power. It is now incorporated into all our state constitutions, as a fundamental right; and the constitution of the United States would have been justly obnoxious to the most conclusive objection, if it had not recognized and confirmed it in the most solemn terms.”—3 Com. 652, 3.
Is it conceivable, then, that the heroes and sages of the revolution, who rose in resistance to the most formidable power on earth; so many of whom rose against their own kindred in the mother country, because they loved liberty better than father or mother, or brother or sister, and who endured the privations and horrors of a seven years’ war;—is it conceivable, I say, that, when they had achieved their independence, and there was no longer any earthly power to control them, they should have framed a fundamental law, and should not have imbued that law with the “spirit” of the trial by jury, as its breath of life? As British subjects, they were entitled to this trial. As Americans, did they renounce it? Did they wage war for seven years in order to place themselves in a worse condition than they had been placed in by their “tyrant”? Mr. Webster says they did. He charges this infinite folly and blindness upon them, singly and collectively, one and all.
I will now fortify this historical view, by a reference to some decisions of the supreme court which explain and define the meaning of the seventh amendment.[10]
What is the true meaning of those descriptive words, “suits at common law”? Has not Mr. Webster, relying on his high reputation, disposed of this matter a little too summarily? He says, “The constitution declares that in suits at common law, the trial by jury shall be preserved;” but he adds, “The reclaiming of a fugitive slave is not a suit at common law.”
But the supreme court of the United States has furnished us with an authoritative interpretation of the words of the constitution bearing on this subject. In the case of Cohens vs. Virginia, 6 Wheaton, R. 407, they define what is meant by a “suit.” These are their words:—
“What is a suit? We understand it to be the prosecution, or pursuit, of some claim, demand, or request. In law language, it is the prosecution of some demand in a court of justice. ‘The remedy for every species of wrong is,’ says Judge Blackstone, ‘the being put in possession of that right whereof the party injured is deprived,’ The instruments whereby this remedy is obtained are a diversity of suits and actions, which are defined by the Mirror to be ‘the lawful demand of one’s right;’ or, as Bracton and Fleta express it in the words of Justinian, ‘jus prosequendi in judicio quod alicui debetur,’—(the form of prosecuting in trial, or judgment, which is due to any one.) Blackstone then proceeds to describe every species of remedy by suit; and they are all cases where the party suing claims to obtain something to which he has a right.
“To commence a suit is to demand something by the institution of process in a court of justice; and to prosecute the suit is, according to the common acceptation of language, to continue that demand.”