In the four
Eastern States, the trial by jury not only stands upon a broader
foundation than in the other States, but it is attended with a
peculiarity unknown, in its full extent, to any of them. There is an
appeal of course from one jury to another, till there have been two
verdicts out of three on one side.
From this sketch it appears that there is a material diversity, as well
in the modification as in the extent of the institution of trial by jury
in civil cases, in the several States; and from this fact these obvious
reflections flow: first, that no general rule could have been fixed upon
by the convention which would have corresponded with the circumstances
of all the States; and secondly, that more or at least as much might
have been hazarded by taking the system of any one State for a standard,
as by omitting a provision altogether and leaving the matter, as has
been done, to legislative regulation.
The propositions which have been made for supplying the omission have
rather served to illustrate than to obviate the difficulty of the thing.
The minority of Pennsylvania have proposed this mode of expression for
the purpose -- "Trial by jury shall be as heretofore" -- and this I
maintain would be senseless and nugatory.
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