Page:Debates in the Several State Conventions, v2.djvu/534

518 that the legislature should establish the trial by jury by proper regulations.

Mr. WILSON. The legislature shall establish it by proper regulations! So, after all, the gentleman has landed us at the very point from which we set out. He wishes them to do the very thing they have done—to leave it to the discretion of Congress. The fact, sir, is, nothing more could be done.

It is well known that there are some cases that should not come before juries; there are others, that, in some of the states, never come before juries, and in those states where they do come before them, appeals are found necessary, the facts reexamined, and the verdict of the jury sometimes is set aside; but I think, in all cases where the cause has come originally before a jury, that the last examination ought to be before a jury likewise.

The power of having appellate jurisdiction, as to facts, has been insisted upon as a proof, "that the Convention intended to give up the trial by jury in civil cases, and to introduce the civil law." I have already declared my own opinion on this point, and have shown not merely that it is founded on reason and authority;—the express declaration of Congress (Journals of Congress, March 6, 1779) is to the same purpose. They insist upon this power, as requisite to preserve the peace of the Union; certainly, therefore, it ought always to be possessed by the head of the confederacy. We are told, as an additional proof, that the trial by jury was intended to be given up; "that appeals are unknown to the common law; that the term is a civil-law term, and with it the civil law is intended to be introduced." I confess I was a good deal surprised at this observation being made; for Blackstone, in the very volume which the honorable member (Mr. Smilie) had in his hand, and read us several extracts from, has a chapter entitled "Of Proceeding in the Nature of Appeals,"—and in that chapter says, that the principal method of redress for erroneous judgments, in the king's courts of record, is by writ of error to some superior "court of appeal." (3 Blackstone, 406.) Now, it is well known that his book is a commentary upon the common law. Here, then, is a strong refutation of the assertion, "that appeals are unknown to the common law."

I think these were all the circumstances adduced to show