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posed to confer on the Supreme Court, in the exercise of its appellate jurisdiction, the power to review the decision of a jury in mere matters of fact; and thus, in effect, to destroy the validity of their verdict, and to reduce to a mere form, the right of a trial by jury in civil cases. The objection was at once seized hold of by the enemies of the Constitution; and it was pressed with an urgency and zeal, which were well nigh preventing its ratification. There is certainly some foundation, in the ambiguity of the language, to justify an interpretation, that such a review might constitutionally be within the reach of the appellate power, if Congress should choose to carry it to that extreme latitude. But, practically speaking, there was not the slightest danger, that Congress would ever adopt such a course, even if it were within their constitutional authority ; since it would be at variance with all the habits, feelings, and institutions, of the whole country. At least, it might be affirmed, that Congress would scarcely take such a step, until the people were prepared to surrender all the great securities of their civil, as well as of their political rights and liberties; and in such an event, the retaining of the trial by jury would be a mere mockery. The real object of the provision was, to retain the power of reviewing the fact, as well as the law, in cases of equity, and of admiralty, and maritime jurisdiction. And the manner, in which it is expressed, was probably occasioned by the desire to avoid the introduction of the subject of a trial by jury, in civil cases, upon which the Convention were greatly divided in opinion.

§ 381. These views, however reasonable they may seem to considerate minds, did not wholly satisfy the popular opinion ; and as the objection had a vast influence upon public opinion, and amendments were proposed by various State conventions on this subject, Congress, at its first session, under the guidance of the friends of the Constitution, proposed an amendment, which was ratified by the people, and is now incorporated into the Constitution. It is in these words : " In suits at common law, where the value in controversy shall exceed twenty dollars, the right of a trial by jury shall be preserved. And no fact, tried by a jury, shall be otherwise re-examined in any court of the United States, than according to the rules of the common law.” This amendment completely struck down the objection ; and has secured the right of a trial by jury, in civil cases, in the fullest latitude of the common law. It is a most important and valuable amendment; and places upon the high ground of constitutional right, the inestimable privilege of a trial by jury in civil cases, a privilege scarcely inferior to that in criminal cases, which is conceded by all persons to be essential to political and civil liberty.

§ 382. The appellate jurisdiction is to be, “with such exceptions, and under such regulations, as the Congress shall prescribe.” But, here, a question is presented upon the construction of the Constitution, whether the appellate jurisdiction attaches to the Supreme Court, subject to be withdrawn and modified by Congress ; or, whether an act of Congress is necessary to confer the jurisdiction upon the court. If the former be the true construction, then the entire appellate jurisdiction, if Congress should make no exceptions or regulations, would attach, by force of the terms, to the Supreme Court. If the latter, then, notwithstanding the imperative language of the Constitution, the Supreme Court is lifeless, until Congress have conferred power on it. And if Congress may confer power, they may repeal it. So that the whole efficiency of the judicial power is left by the Constitution wholly unprotected and inert, if Congress shall refrain to act. There is certainly very strong ground to maintain, that the language of the Constitution meant to confer the appellate jurisdiction absolutely on the Supreme Court, independent of any action by Congress; and to require this action to divest or regulate it. The language, as to the original jurisdiction of the Supreme Court, admits of no doubt. It confers it without any action of Congress. Why should not the same language, as to the appellate jurisdiction, have the same interpretation ? It leaves the power of Congress complete, to make exceptions and regulations ; but it leaves nothing to their inaction. This construction was asserted in argument at an early period

of the Constitution, and it has since been deliberately confirmed by the Supreme Court.

$ 383. The functions of the judges of the courts of the United States are strictly and exclusively judicial. They cannot, therefore, be called upon to advise the President in any Executive measures; or to give extrajudicial interpretations of law; or to act as commissioners in cases of pensions, or other like proceedings.

CHAPTER XXXII.

Trial by Jury, and its Incidents.Definition of Trea

son.

$ 384. The next clause of the second section of the third article is, “ The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the State, where the said crimes shall have been committed. But when not committed within any State, the trial shall be at such place or places, as the Congress may by law have directed.” It seems hardly necessary, in this place, to expatiate upon the antiquity, or importance, of the trial by jury in criminal cases. It was, from very early times, insisted on by our ancestors in the parent country, as the great bulwark of their civil and political liberties, and watched with an unceasing jealousy and solicitude. The right constitutes a fundamental article of Magna Charta, in which it is declared, “ that no man shall be arrested, nor imprisoned, nor banished, nor deprived of life, &c., but by the judgement of his peers, or by the law of the land.” The judgement of his peers here alluded to, and commonly called, in the quaint language of former times, a trial per pais, or trial by the country, is the trial by a jury, who are called the peers of the party accused, being of the like condition and equality in the state. 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 recognised and confirmed it, in the most solemn terms.

§ 385. The great object of a trial by jury, in criminal cases, is to guard against a spirit of oppression and tyranny, on the part of rulers, and against a spirit of violence and vindictiveness, on the part of the people. Indeed, it is often more important to guard against the latter, than the former. The sympathies of all mankind are enlisted against the revenge and fury of a single despot; and every attempt will be made to screen his victims from punishment. But it is difficult to escape from the vengeance of an indignant people, roused into hatred by unfounded calumnies, or stimulated to cruelty by political enmity, and party jealousy. The appeal for safety, under such circumstances, can scarcely be made by the innocent, in any other manner, than by the strict control of a court of justice, and the firm and impartial verdict of a jury, sworn to do right, and guided solely by legal evidence, and a sense of duty.

$ 386. It is observable, that the trial of all crimes is not only to be by jury, but to be held in the State, where they are committed. The object of this clause is, to secure the party accused from being dragged to a trial in some distant State, far away from his friends, and witnesses, and neighborhood ; and thus subjected to the verdict of mere strangers, who may feel no common sympathy, or who may even cherish animosities, or prejudices, against him. Besides this, a trial in a distant State or Territory might subject the party to the most oppressive expenses, or perhaps even to the inability of procuring the proper witnesses to establish his innocence. There is little danger, indeed, that Cugress would ever exert their power in so oppressive and unjustifiable a manner. But upon a subject, so vital to the security of the citizen, it was fit to leave as little as possible to mere dis

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cretion. By the common law, the trial of all crimes is required to be in the county, where they are committed. Nay, it originally carried its jealousy still farther, and required, that the jury itself should come from the vicinage of the place, where the crime was alleged to be committed. This was certainly a precaution, which, however justifiable in an early and barbarous state of society, is little commendable in its more advanced stages. It has been justly remarked, that in such cases, to summon a jury, laboring under local prejudices, is laying a snare for their consciences; and, though they should have virtue and vigor of mind sufficient to keep them upright, the parties will grow suspicious, and indulge many doubts of the impartiality of the trial. It was doubtless by analogy to this rule of the common law, that all criminal trials are required to be in the State, where the crimes are committed. But, as crimes may be committed on the high seas, and elsewhere, out of the territorial jurisdiction of a State, it was indispensable, that, in such cases, Congress should be enabled to provide the place of trial. But even here we may perceive, from the language used, that the trial is to be in the place, which Congress may have directed; not in one, which they shall direct after the commission of the offence.

§ 387. In order to secure this great palladium of liberty, the trial by jury, in criminal cases, from all possibility of abuse, certain amendments have since been made to the Constitution, which add greatly to the original constitutional barriers against persecution and oppression. They are as follows : “ No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service, in time of war, or public danger. Nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled, in any criminal case, to be a witness against himself ; nor be deprived of life, liberty, or property, without due process of law ; nor shall private property be taken for public use, without just compensation.

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