[Volume 5, Page 357]
James Iredell, Marcus, Answers to Mr. Mason's Objections to the New Constitution1788Pamphlets 361--62
In respect to the trial by jury in civil cases, it must be observed it is a mistake to suppose that such a trial takes place in all civil cases now. Even in the common law courts, such a trial is only had where facts are disputed between the parties, and there are even some facts triable by other methods. In the Chancery and Admiralty Courts, in many of the States, I am told they have no juries at all. The States in these particulars differ very much in their practice from each other. A general declaration therefore to preserve the trial by jury in all civil cases would only have produced confusion, so that the courts afterwards in a thousand instances would not have known how to have proceeded.--If they had added, "as heretofore accustomed," that would not have answered the purpose, because there has been no uniform custom about it.--If therefore the Convention had interfered, it must have been by entering into a detail highly unsuitable to a fundamental constitution of government; if they had pleased some States they must have displeased others by innovating upon the modes of administering justice perhaps endeared to them by habit, and agreeable to their settled conviction of propriety. As this was the case it appears to me it was infinitely better, rather than endanger everything by attempting too much, to leave this complicated business of detail to the regulation of the future Legislature, where it can be adjusted coolly and at ease, and upon full and exact information. There is no danger of the trial by jury being rejected, when so justly a favorite of the whole people. The representatives of the people surely can have no interest in making themselves odious, for the mere pleasure of being hated, and when a member of the House of Representatives is only sure of being so for two years, but must continue a citizen all his life, his interest as a citizen, if he is a man of common sense, to say nothing of his being a man of common honesty, must ever be uppermost in his mind. We know the great influence of the monarchy in the British government, and upon what a different tenure the Commons there have their seats in Parliament from that prescribed to our representatives. We know also they have a large standing army. It is in the power of the Parliament, if they dare to exercise it, to abolish the trial by jury altogether. But woe be to the man who should dare to attempt it. It would undoubtedly produce an insurrection, that would hurl every tyrant to the ground who attempted to destroy that great and just favorite of the English nation. We certainly shall be always sure of this guard at least upon any such act of folly or insanity in our representatives. They soon would be taught [Volume 5, Page 358] the consequence of sporting with the feelings of a free people. But when it is evident that such an attempt cannot be rationally apprehended, we have no reason to anticipate unpleasant emotions of that nature. There is indeed little probability that any degree of tyranny which can be figured to the most discolored imagination as likely to arise out of our government, could find an interest in attacking the trial by jury in civil cases;--and in criminal ones, where no such difficulties intervene as in the other, and where there might be supposed temptations to violate the personal security of a citizen, it is sacredly preserved.
Ford, Paul Leicester, ed. Pamphlets on the Constitution of the United States, Published during Its Discussion by the People, 1787--1788. Brooklyn, 1888. Reprint. New York: De Capo Press, 1968.
© 1987 by The University of Chicago