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Jensen, Merrill; Kaminski, John P.; Saladino, Gaspare J. (ed.) / Ratification of the Constitution by the states: Pennsylvania
2 (1976)

A. Public and private commentaries on the Constitution, 17 September-6 October 1787,   pp. 130-172


Page 169

A. COMMENTARIES/6 OCT.
and it could not, with any propriety, be said that "the trial by jury
shall be as heretofore," since there has never existed any federal
system of jurisprudence to which the declaration could relate. Besides,
it is not in all cases that the trial by jury is adopted in civil questions,
for causes depending in courts of admiralty, such as relate to mari-
time captures, and such as are agitated in courts of equity, do not
require the intervention of that tribunal. How then, was the line of
discrimination to be drawn? The Convention found the task too
difficult for them, and they left the business as it stands, in the fullest
confidence that no danger could possibly ensue, since the proceedings
of the Supreme Court are to be regulated by the Congress, which is a
faithful representation of the people; and the oppression of govern-
ment is effectually barred, by declaring that in all criminal cases the
trial by jury shall be preserved.
This Constitution, it has been further urged, is of a pernicious
tendency, because it tolerates a standing army in the time of peace.
This has always been a topic of popular declamation; and yet, I
do not know a nation in the world, which has not found it necessary
and useful to maintain the appearance of strength in a season of the
most profound tranquillity. Nor is it a novelty with us; for under
the present Articles of Confederation, Congress certainly possesses
this reprobated power, and the exercise of that power is proved at
this moment by her cantonments along the banks of the Ohio. But
what would be our national situation were it otherwise? Every prin-
ciple of policy must be subverted, and the government must declare
war, before they are prepared to carry it on. Whatever may be the
provocation, however important the object in view, and however
necessary dispatch and secrecy may be, still the declaration must pre-
cede the preparation, and the enemy will be informed of your inten-
tion, not only before you are equipped for an attack, but even before
you are fortified for a defense. The consequence is too obvious to
require any further delineation, and no man, who regards the dignity
and safety of his country, can deny the necessity of a military force,
under the control and with the restrictions which the new Constitu-
tion provides.
Perhaps there never was a charge made with less reasons than that
which predicts the institution of a baneful aristocracy in the federal
Senate. This body branches into two characters, the one legislative,
and the other executive. In its legislative character it can effect no
purpose, without the cooperation of the House of Representatives;
and in its executive character, it can accomplish no object, without the
concurrence of the President. Thus fettered, I do not know any act
which the Senate can of itself perform, and such dependence neces-
169


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