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tyrannically. Where is the independency of your judges ? if a law be executed tyrannically in Virginia, to what can you trust?-To your judiciary. What security have you for justice ?—Their independence. Will it not be so in the federal court?
Gentlemen ask what is meant by law cases, and if they be not distinct from facts. Is there no law arising on cases in equity and admiralty? Look at the acts of assembly; have you not many cases, where law and fact are blended? Does not the jurisdiction in point of law as well as fact, find itself completely satisfied in law and fact? The honorable gentleman says, that no law of Congress can make any exception to the federal, appellate jurisdiction of fact as well as law. He has frequently spoken of technical terms, and the meaning of them. What is the meaning of the term exception? Does it not mean an alteration and diminution? Congress is empowered to make exceptions to the appellate jurisdiction, as to law and fact, of the supreme court. These exceptions certainly go as far as the legislature may think proper, for the interest and liberty of the people. Who can understand this word, exception, to extend to one case as well as the other? I am persuaded, that a reconsideration of this case will convince the gentleman, that he was mistaken. This may go to the cure of the mischief apprehended. Gentlemen must be satisfied, that this power will not be so much abused as they have said.
The honorable member says, that he derives no consolation from the wisdom and integrity of the legislature, because we call them to rectify defects which it is our duty to remove. We ought well to weigh the good and evil before we determine. We ought to be well convinced, that the evil will be really produced before we decide against it. If we be convinced that the good greatly preponderates, though there be small defects in it, shall we give up that which
is really good, when we can remove the little mischief it may contain, in the plain, easy method pointed out in the system itself?
I was astonished when I heard the honorable gentleman say, that he wished the trial by jury to be struck out entirely. Is there no justice to be expected by a jury of our fellow-citizens? Will any man prefer to be tried by a court, when the jury is to be of his countrymen, and probably of his vicinage? We have reason to believe the regulations with respect to juries will be such as shall be satisfactory. Because it does not contain all, does it contain nothing? But I conceive that this committee will see there is safety in the case, and that there is no mischief to be apprehended.
He states a case, that a man may be carried from a federal to an anti-federal corner, (and vice versa) where men are ready to destroy him. Is this probable? Is it presumable that they will make a law to punish men who are of different opinions in politics from themselves ? Is it presumable, that they will do it in one single case, unless it be such a case as must satisfy the people at large ? The good opinion of the people at large must be consulted by their
representatives; otherwise mischiefs would be produced, which would shake the government to its foundation. As it is late, I shall not mention all the gentleman's argument; but some parts of it are so glaring, that I cannot pass them over in silence. He says that the establishment of these tribunals, and more particularly in their jurisdiction of controversies between citizens of these states and foreign citizens and subjects, is like a retrospective law. Is there no difference between a tribunal which shall give justice and effect to an existing right, and creating a right that did not exist before? The debt or claim is created by the individual; he has bound himself to comply with it; does the creation of a new court amount to a retrospective law ?
We are satisfied with the provision made in this country on the subject of trial by jury. Does our con
stitution direct trials to be by jury? It is required in our bill of rights, which is not a part of the constitution. Does any security arise from hence? Have you a jury when a judgment is obtained on a replevin bond, or by default ? Have you a jury when a motion is made for the commonwealth against an individual ; or when a motion is made by one joint obligor against another, to recover sums paid as security ? Our courts decide in all these cases, without the intervention of a jury; yet they are all civil cases. The bill of rights is merely recommendatory. Were it otherwise, the consequence would be, that many laws which are found convenient, would be unconstitutional. What does the government before you say? Does it exclude the legislature from giving a trial by jury in civil cases? If it does not forbid its exclusion, it is on the same footing on which your state government stands now. The legislature of Virginia does not give a trial by jury where it is not necessary. But gives it wherever it is thought expedi
The federal legislature will do so too, as it is formed on the same principles.
The honorable gentleman says, that unjust claims will be made, and the defendant had better pay them than go to the supreme court. Can you suppose such a disposition in one of your citizens, as that to oppress another man, he will incur great expenses? What will he gain by an unjust demand? Does a claim establish a right ? He must bring his witnesses to prove his claim. If he does not bring his witnesses, the expenses must fall upon him. Will he go on a cal
culation that the defendant will not defend it, or can" not produce a witness ? Will he incur a great deal of
expense, from a dependence on such a chance? Those who know human nature, black as it is, must know that mankind are too well attached to their interest to run such a risk. I conceive that this power is absolutely necessary, and not dangerous; that should it be attended by little inconveniences, they will be altered, and that they can have no interest in not altering them.
Is there any real danger ? When I compare it to the exercise of the same power in the government of Virginia, I am persuaded there is not. The federal government has no other motive, and has
every reason of doing right, which the members of our state legislature have. Will a man on the Eastern Shore, be sent to be tried in Kentucky; or a man from Kentucky be brought to the Eastern Shore to have his trial ? Å government by doing this would destroy itself. I am convinced, the trial by jury will be regulated in the manner most advantageous to the community.
SPEECH OF PATRICK HENRY,
ON THE EXPEDIENCY OF ADOPTING
DELIVERED IN THE CONVENTION OF VIRGINIA, JUNE 24th, 1789.
The resolution of Mr. Wythe being under consideration, which
proposed, " That the committee should ratify the constitution, and that whatsoever amendments might be deemed necessary should be recommended to the consideration of the Congress, which should first assemble under the constitution, to be acted upon according to the mode prescribed therein ;” Mr. Henry thus addressed the convention.
MR. CHAIRMAN, The proposal of ratification is premature. The importance of the subject requires the most mature deliberation. The honorable member must forgive me for declaring my dissent from it, because, if I understand it rightly, it admits that the new system is defective and most capitally: for immediately after the proposed ratification, there comes a declaration, that the paper before
you is not intended to violate any of these three great rights—the liberty of religion, liberty of the press, and the trial by jury. What is the inference, when you enumerate the rights which you are to enjoy? That those not enumerated are relinquished. There are only three things to be retained: religion, freedom of the press, and jury trial. Will not the ratification carry every thing, without excepting these three things? Will not all the world pronounce, that we