Page:Joseph Story, Commentaries on the Constitution of the United States (1st ed, 1833, vol III).djvu/651

 CH. XXXVIII.] as the model. It has been shown, that many of them would be improper ones. And I leave it to conjecture, whether, under all circumstances, it is most likely, that New York, or some other state, would have been preferred. But admit, that a judicious selection could have been effected in the convention, still there would have been great danger of jealousy and disgust in the other states, at the partiality, which had been shown to the institutions of one. The enemies of the plan would have been furnished with a fine pretext for raising a host of local prejudices against it, which perhaps might have hazarded, in no inconsiderable degree, its final establishment.

"To avoid the embarrassments of a definition of the cases, which the trial by jury ought to embrace, it is sometimes suggested by men of enthusiastic tempers, that a provision might have been inserted for establishing it in all cases whatsoever. For this, I believe, no precedent is to be found in any member of the Union; and the considerations, which have been stated in discussing the proposition of the minority of Pennsylvania, must satisfy every sober mind, that the establishment of the trial by jury in all cases would have been an unpardonable error in the plan.

"In short, the more it is considered, the more arduous will appear the task of fashioning a provision in such a form, as not to express too little to answer the purpose, or too much to be advisable; or which might not have opened other sources of opposition to the great and essential object of introducing a firm national government.

"I cannot but persuade myself, on the other hand, that the different lights, in which the subject has been placed in the course of these observations, will go far towards removing in candid minds the apprehensions they may have entertained on the point. They have tended to show, that the security of liberty is materially concerned only in the trial by jury in criminal cases, which is provided for in the most ample manner in the plan of the convention; that, even in far the greatest proportion of civil cases, those, in which the great body of the community is interested, that mode of trial will remain in full force, as established in the state constitutions, untouched and unaffected by the plan of the convention; that it is in no case abolished by that plan; and that there are great, if not insurmountable difficulties in the way of making any precise and proper provision for it, in the constitution for the United States.

"The best judges of the matter will be the least anxious for a constitutional establishment of the trial by jury in civil cases, and will be the most ready to admit, that the changes, which are continually  of the people so general, as to establish its importance, as a fundamental guarantee of the rights and liberties of the people. This amendment