Page:Debates in the Several State Conventions, v3.djvu/584

568 But a gentleman (Mr. Marshall) says, we ought certainly to give this power to Congress, because our state courts have more business than they can possibly do. A gentleman was once asked to give up his estate because he had too much; but he did not comply. Have we not established district courts, which have for their object the full administration of justice? Our courts of chancery might, by our legislature, be put in a good situation; so that there is nothing in this observation.

But the same honorable gentleman says, that trial by jury is preserved by implication. I think this was the idea. I beg leave to consider that, as well as other observations of the honorable gentleman. After enumerating the subjects of its jurisdiction, and confining its original cognizance to cases affecting ambassadors and other public ministers, and those in which a state shall be a party, it expressly says, that, "in all other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact." I would beg the honorable gentleman to turn his attention to the word appeal, which I think comprehends chancery, admiralty, common law, and every thing. But this is with such exceptions, and under such regulations, as Congress shall make. This, we are told, will be an ample security. Congress may please to make these exceptions and regulations, but they may not, also. I lay it down as a principle, that trial by jury is given up to the discretion of Congress. If they take it away, will it be a breach of this Constitution? I apprehend not; for, as they have an absolute appellate jurisdiction of facts, they may alter them as they may think proper. It is possible that Congress may regulate it properly; but still it is at their discretion to do it or not. There has been so much said of the excellency of the trial by jury, that I need not enlarge upon it. The want of trial by jury in the Roman republic obliged them to establish the regulation of patron and client. I think this must be the case in every country where this trial does not exist. The poor people were obliged to be defended by their patrons.

It may be laid down as a rule that, where the governing power possesses an unlimited control over the venue, no man's life is in safety. How is it in this system? "The trial of all crimes shall be by jury, except in cases of