Page:Joseph Story, Commentaries on the Constitution of the United States (1st ed, 1833, vol III).djvu/652

 644  in the affairs of society, may render a different mode of determining questions of property preferable in many cases, in which that mode of trial now prevails. For my own part, I acknowledge myself to be convinced, that even in this state it might be advantageously extended to some cases, to which it does not at present apply, and might as advantageously be abridged in others. It is conceded by all reasonable men, that it ought not to obtain in all cases. The examples of innovations, which contract its ancient limits, as well in these states, as in Great Britain, afford a strong presumption, that its former extent has been found inconvenient; and give room to suppose, that future experience may discover the propriety and utility of other exceptions. I suspect it to be impossible in the nature of the thing to fix the salutary point, at which the operation of the institution ought to stop; and this is with me a strong argument for leaving the matter to the discretion of the legislature.

"This is now clearly understood to be the case in Great Britain, and it is equally so in the state of Connecticut. And yet it may be safely affirmed, that more numerous encroachments have been made upon the trial by jury in this state since the revolution, though provided for by a positive article of our constitution, than has happened in the same time either in Connecticut, or Great Britain. It may be added, that these encroachments have generally originated with the men, who endeavour to persuade the people, they are the warmest defenders of popular liberty, but who have rarely suffered constitutional obstacles to arrest them in a favourite career. The truth is, that the general genius of a government is all, that can be substantially relied upon for permanent effects. Particular provisions, though not altogether useless, have far less virtue and efficacy, than are commonly ascribed to them; and the want of them will never be with men of sound discernment a decisive objection to any plan, which exhibits the leading characters of a good government.

"It certainly sounds not a little harsh and extraordinary to affirm, that there is no security for liberty in a constitution, which expressly establishes a trial by jury in criminal cases, because it does not do it in civil also; while it is a notorious fact, that Connecticut, which has been always regarded, as the most popular state in the Union, can boast of no constitutional provision for either." The Federalist, No. 83.

See also 2 Elliot's Debates, 346, 380 to 410; id. 413 to 427; 3 Elliot's Debates, 131, 132, 137, 141, 153; id. 283, 284, 301, 302. , that "in suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved; and no fact, once tried by a jury, shall be otherwise re-examined in any court of the United States, than according to the