In my former papers, I have shewn, that the freedom of the press is left at the mercy of the proposed government- that the sacred trial by jury, in civil cases, is at best doubtful; and in all cases of appeal expressly taken away. In equal insecurity, or rather equally at mercy, are we left as to- liberty of conscience. We find nothing that regards it, except the following;- "but no religious test shall ever be required as a qualification to any office or public trust under the United States." This exception implies, and necessarily implies, that in all other cases whatever liberty of conscience may be regulated. For, though no such power is expressly given, yet it is plainly meant to be included in the general powers, or else this exception would have been totally unnecessary- For why should it be said, that no religious test should be required as a qualification for office, if no power was given or intended to be given to impose a religious test of any kind?1
Upon the omission of the trial by jury in civil cases, you observe- "when this subject was in discussion, we were involved in difficulties which pressed on all sides, and no precedent could be discovered to direct our course. The cases open to trial by jury differed in the different states, it was therefore impracticable on that ground to have made a general rule."- So, because the extent of the trial by jury varied in the different states, therefore it was proper to abolish it in all. For what else can your words- "it was impracticable to have made a general rule" mean?- If ever the rule is made, it must be general. And if this is impracticable-it surely follows, that in the fœderal court we must go without it in civil cases. What sense is there in supposing, that what, for the reasons you alledge, was impracticable with the Convention, will be practicable with the Congress? What faculty can the one body have more than the other, reconciling contradictions? But the sophistry of this excuse consists in the word made-make you might not, but surely nothing hindered your proposing the general rule, which, approved by the several state Conventions, would make the rule. You have made nothing. You have only proposed. It rests with the several conventions, to make your propositions, rules. It is not possible to say, that the Convention could not have proposed, that there should be one similar general mode of trial by jury in the Fœderal court in all cases whatever. If the states would not have acceded to the proposition, we should only be where we are. And that this trial by jury is best, even in courts where the civil law process now prevails, I think no unbigoted man can doubt. Judge Blackstone is so explicit on this head, that I need only quote him to enforce conviction on every unprejudiced mind.- "This open examination of witnesses viva voce, in the presence of all mankind, is much more conducive to the clearing up of truth, than the private and secret examination taken down in writing before an officer, or his clerk, in the ecclesiastical courts, and all others that have borrowed their practice from the civil law; where a witness may frequently depose that in private which he will be ashamed to testify in a public and solemn tribunal. Where an artful or careless scribe may make a witness speak what he never meant, by dressing up his depositions in his own forms and language; but he is here at liberty to correct and explain his meaning, misunderstood, which he can never do after a written deposition is once taken. Besides the occasional questions of the judge, the jury, and the counsel, propounded to the witnesses on a sudden, will sift out the truth much better than a formal set of interrogatories previously penned and settled; and the confronting of adverse witnesses is also another opportunity of obtaining a clear discovery, which can never be had on any other method of trial. Nor is the presence of the judge, during the examination, a matter of small importance; for besides the respect, &c. with which his presence will naturally inspire the witness, he is able by use and experience to keep the evidence from wandering from the point in issue. In short, by this method examination, and this only, the persons who are to decide upon the evidence, have an opportunity of observing the quality, age, education, understanding, behaviour, and inclinations of the witness; in which points all persons must appear alike, when their depositions are reduced to writing and read to the judge, in the absence of those who made them; and yet as much may be frequently collected from the manner in which the evidence is delivered as from the matter of it. These are a few of the advantages attending this way of giving testimony oretenus; which was also, indeed, familiar among the ancient Romans."