948. Alfred III
Massachusetts Spy, 23 October 17881

On the NEW CONSTITUTION.

Mr. THOMAS, There is not one amendment proposed by the Convention of Massachusetts, but what is quite compatible with the idea of a consolidated government.

As government is composed of three states, which the nature of man seems to point out, as checks for each other, in it, to wit, the Legislative, the Executive and the Judicial; so in the latter, it is necessary, that there should be a democratical balance to the prerogative, which is so strongly represented in the judicial power.

As we know of no other nation besides that of Greatbritain, where those balances in government, are preserved, or indeed thought of; or any, where the people have a hand in the government, or any considerable share of political freedom, we may be allowed to produce some ideas from that kingdom. The whole freedom of that country depends ultimately upon a trial by jury. The House of Commons are not more valuable for any other purpose, than for their tendency when uncorrupted, to preserve this right to the people; yet nevertheless, had it been a mere statute, and not a constitutional right, the House of Commons in their rage, corruption and folly, would have sacrificed it long ago.

“The impartial administration of justice, says Judge Blackstone, which secures, both our persons and property, is the great end of civil society”—and, says a noble Lord in parliament, “for what are seventy regiments, and eighty ships of the line supported, for what does the parliament meet, or royalty fill a throne, but for the administration of civil justice?” And yet says Judge Blackstone, “if that were entirely entrusted to the magistracy, a select body of men, and those generally selected by the prince, or such as enjoy the highest offices in the state, their decisions, in spite of their own integrity, would have frequently an involuntary bias towards those of their own rank; it is not to be expected from human nature, that the few should be always attentive to the interest of the many. Here therefore, a competent number of sensible and upright jurymen, chosen by lot from among those of the middle rank, will be found the best interpreters of truth AND THE SUREST GUARDIANS OF THE PUBLICK JUSTICE.”

A transcript of all the eulogiums bestowed on this part of the British constitution, would fill a large volume. An attempt to overturn it, has brought majesty itself to the block; while the guardians of this privilege have sacrificed their lives and fortunes to its preservation; without it, in this country, each attempt to give the people information of their danger, would be punished in civil actions, as a libel against some one officer of the government, when and where the judges would give their own construction by fanciful innuendoes, to the publication, and crush the first bloomings of patriotism, by examplary and destructive damage.

Tyranny, in a government where this mode of trial is not adopted, can have no check, but from the rising of the people, who are generally patient, because they dread the horrid consequences of a civil war. Thus the people in England suffered the enormities of Charles the first, until by advice of all the judges but two, he taxed the people in ship money without the consent of parliament; then Hampden, immortalized in the annals of freedom, dared to oppose the tyranny. The consequences are well known.

Should we have no trial by jury secured to us in civil actions under the new government, who will dare arraign the rulers before the great tribunal of the publick? Or where shall the press, that only vehicle of publick intelligence find security? In England, when a measure is doubtful as to its legality, and yet to be adopted, the judges are always closseted, and a combination formed with the supreme executive, or with all the other branches of the government, to support each other against the people, or what they call the faction, opposition, &c.

If in our new world, the judges should combine with the senate, and President, to violate the peoples’ rights, who should punish them? If they are impeached, that very senate, who are advisory in the executive department, is to try them.

And here I beg leave to propose, as a very important amendment, that there should be devised a tribunal to be taken from the several states, to try all impeachments against president, vicepresident, and judges of the supreme court.

The privilege of trial by jury, in civil cases, is so solemnly thought of in the declaration of independence, in all the previous addresses to the throne, and recognized so carefully in all the constitutions of the states, that one might have expected to have found it, in the new frame of government—But it is not there.

Had nothing at all been said about a trial by jury, we should have supposed, that it was passed over as a principle so interwoven with the nature of the government, and so well fixed and settled, as not to need a preservative provision. But when no notice is taken of a grand jury, and thereby the door left open to informations, those grand engines of ministerial despotism; and provision made for trial by jury in criminal cases only, we are led to believe, that it is more owing to design, than “the want of an apt mode of expression” that it is neglected. I do not contend for it in questions of seizures for breach of revenue laws, or the laws of trade, but many expressions might be hit upon to secure it in other instances.

The supreme judicial power is lodged in a court. I will not affront the understanding of the people by exposing the weakness of an observation made in the convention by a law character, “that the word Court does not by popular, or technical construction exclude the trial of fact by a jury;” it is enough for the present purpose, that it does not certainly, and necessarily, include it, because it is a point too important to be left constitutionally doubtful. To say it may be provided for by laws as well as by the constitution, is to arraign the wisdom of the people of the whole union; for they have all solemnly adopted it as a fundamental and principal right in their forms of government.

Should Congress make laws for the purpose of fulfilling the expectations of the people at present, they can repeal those laws, in whole, or in part, by subsequent militating ordinances, and do this so imperceptibly, that the privilege may be nearly annihilated before the people shall take the alarm.

I am not such a novice, as to believe that justice between a man and his neighbour, cannot be done without a jury, where the court interest is out of the question: A Jeffrey and a Mansfield were upright judges where the crown had no particular interest.

The power of raising taxes, implies, if Congress shall choose to do it, the power of individual assessment, which will multiply officers, and serve only to vex the people. Should Congress possess those powers over each state in this point, which the governments possess over towns and corporations, it will be sufficient.

The privilege of trial by jury in criminal cases, upon information, and without indictment by grand jury, will subject every friend of the people to be brought to the bar on the information of an Attorneygeneral, and though he may be acquitted, yet the punishment of imprisonment, trial, and jeopardy, will discourage many, and rob the people of the aid of faithful leaders.

By having power to grant exclusive right to companies in matters of commerce, the Congress may obtain great riches to themselves, and favourites, and destroy the fair and honest merchant by rendering of him tributary.

The amendment proposed by Massachusetts, with regard to trial by jury, is inaccurate, and insufficient; it provides for such trial on cases of common law, which in technical expression, does not extend to trials on acts of Congress.

I shall enlarge no farther on amendments. The convention of Massachusetts in their mode of adopting the constitution, “in the name and behalf of the people, enjoined it upon their representatives in Congress, at all times to use their influence to obtain amendments”—and yet some of the very men who held up their hands to give the solemn charge, openly laugh at the idea, and declare every man who proposed amendments not fit to be trusted. But surely if such unmanly chicane and double dealing, can abuse the candour of the people, so far as not to prevent their having a place, it will not prevent the people from voting for such men as are open and manly in their politicks and true to their own sentiments.

1. Reprinted: Massachusetts Gazette, 28 October; Independent Chronicle, 30 October; Cumberland Gazette, 28 November; Philadelphia Independent Gazetteer, 6 December.