Page:The Records of the Federal Convention of 1787 Volume 3.djvu/225

 of commercial or other transactions, it is only in the courts of Congress that either can apply for redress. The case is the same should any claim subsist between citizens of this State and foreigners, merchants, mariners, and others, whether of a commercial or of any other nature; they must be prosecuted in the same courts; and though in the first instance they may be brought in the inferior, yet an appeal may be made to the supreme judiciary, even from the remotest State in the Union.

[] The inquiry concerning, and trial of, every offence against, and breach of, the laws of Congress, are also confined to its courts; the same courts also have the sole right to inquire concerning and try every offence, from the lowest to the highest, committed by the citizens of any other State, or of a foreign nation, against the laws of this State, within its territory; and in all these cases, the decision may be ultimately brought before the supreme tribunal, since the appellate jurisdiction extends to criminal as well as to civil cases: And in all those cases where the general government has jurisdiction in civil questions, the proposed constitution not only makes no provision for trial by jury in the first instance, but, by its appellate jurisdiction, absolutely takes away that inestimable privilege; since it expressly declares the Supreme Court shall have appellate jurisdiction both as to law and fact. Should, therefore, a jury be adopted in the inferior court, it would only be a needless expense, since, on an appeal, the determination of that jury, even on questions of fact, however honest and upright, is to be of no possible effect. The Supreme Court is to take up all questions of fact, to examine the evidence relative thereto, to decide upon them in the same manner as if they had never been tried by a jury; nor is trial by jury secured in criminal cases. It is true, that, in the first instance, in the inferior court, the trial is to be by jury. In this, and in this only, is the difference between criminal and civil cases. But, Sir, the appellate jurisdiction extends, as I have observed, to cases criminal as well as to civil; and, on the appeal, the court is to decide not only on the law, but on the fact. If, therefore, even in criminal cases, the general government is not satisfied with the verdict of the jury, its officer may remove the prosecution to the Supreme Court, and there the verdict of the jury is to be of no effect, but the judges of this court are to decide upon the fact as well as the law, the same as in civil cases.

[] Thus, Sir, jury trials, which have ever been the boast of the English constitution, which have been by our several State constitutions so cautiously secured to us,—jury trials, which have so long been considered the surest barrier against arbitrary power, and the palladium of liberty, with the loss of which the loss of our