December 11, 1787. (afternoon).
We have been told, Sir, by the honorable member from Fayette (Mr. Smilie,) "that the trial by jury was intended to be given up, and the civil law was intended to be introduced into its place, in civil cases."
Before a sentiment of this kind was hazarded, I think, Sir, the gentleman ought to be prepared with better proofs in its support, than any he has yet attempted to produce. It is a charge, Sir, not only unwarrantable, but cruel; the idea of such a thing, I believe, never entered into the mind of a single member of that convention; and I believe further, that they never suspected there would be found within the United States, a single person that was capable of making such a charge. . . .
Let us apply these observations to the objects of the judicial department, under this constitution. I think it has been shewn already, that they all extend beyond the bounds of any particular State; but further, a great number of the civil causes there enumerated, depend either upon the law of nations, or the marine law, that is, the general law of mercantile countries. Now, Sir, in such cases, I presume it will not be pretended that this mode of decision ought to be adopted; for the law with regard to them is the same here as in every other country, and ought to be administered in the same manner. There are instances in which I think it highly probable, that the trial by jury will be found proper; and if it is highly probable that it will be found proper, is it not equally probable that it will be adopted? There may be causes depending between citizens of different States, and as trial by jury is known and regarded in all the States, they will certainly prefer that mode of trial before any other. The Congress will have the power of making proper regulations on this subject, but it was impossible for the convention to have gone minutely into it; but if they could, it must have been very improper, because alterations, as I observed before, might have been necessary; and whatever the convention might have done would have continued unaltered, unless by an alteration of the Constitution. Besides, there was another difficulty with regard to this subject. In some of the States they have courts of chancery and other appellate jurisdictions, and those States are as attached to that mode of distributing justice, as those that have none are to theirs.