The Anti-Federalist Library

June 23, 1788

Mr. Marshall rose to explain what he had before said on this subject: he informed the committee that the honorable gentleman (Mr. Henry) must have misunderstood him. He said that he conceived the trial by jury was as well secured, and not better secured, in the proposed new Constitution as in our bill of rights.

The clerk then read the 11th article of the bill of rights.

Mr. Chairman,

The gentleman’s candor, sir, as I informed you before, I have the highest opinion of, and am happy to find he has so far explained what he meant; but, sir, has he mended the matter? Is not the ancient trial by jury preserved in the Virginia bill of rights? and is that the case in the new plan? No, sir; they can do it if they please. Will gentlemen tell me the trial by a jury of the vicinage where the party resides is preserved? True, sir, there is to be a trial by the jury in the state where the fact was committed; but, sir, this state, for instance, is so large that your juries may be collected five hundred miles from where the party resides — no neighbors who are acquainted with their characters, their good or bad conduct in life, to judge of the unfortunate man Who may be thus exposed to the rigor of that government. Compare this security, then, sir, in our bill of rights with that in the new plan of government; and in the first you have it, and in the other, in my opinion, not at all. But, sir, in what situation will our citizens be, who have made large contracts under our present government? They will be called to a federal court, and tried under the retrospective laws; for it is evident, to me at least, that the federal court must look back, and give better remedies, to compel individuals to fulfil them.

The whole history of human nature cannot produce a government like that before you. The manner in which the judiciary and other branches of the government are formed, seems to me calculated to lay prostrate the states, and the liberties of the people. But, sir, another circumstance ought totally to reject that plan, in my opinion; which is, that it cannot be understood, in many parts, even by the supporters of it. A constitution, sir, ought to be, like a beacon, held up to the public eye, so as to be understood by every, man. Some gentlemen have observed that the word jury implies a jury of the vicinage. There are so many inconsistencies in this, that, for my part, I cannot understand it. By the bill of rights of England, a subject has a right to a trial by his peers. What is meant by his peers? Those who reside near him, his neighbors, and who are well acquainted with his character and situation in life. Is this secured in the proposed plan before you? No, sir. As I have observed before, what is to become of the purchases of the Indians? — those unhappy nations who have given up their lands to private purchasers; who, by being made drunk, have given a thousand, nay, I might say, ten thousand acres, for the trifling sum of sixpence! It is with true concern, with grief, I tell you that I have waited with pain to come to this part of the plan; because I observed gentlemen admitted its being defective, and, I had my hopes, would have proposed amendments But this part they have defended; and this convinces me of the necessity of obtaining amendments before it is adopted. They have defended it with ingenuity and perseverance, but by no means satisfactorily. If previous amendments are not obtained, the trial by jury is gone. British debtors will be ruined by being dragged to the federal court, and the liberty and happiness of our citizens gone, never again to be recovered.