“  We  could  now  well  consider  whether  absolute  unanimity  may  not
safely  be  dispensed  with ;  whether  the  jury  is  not  less  a  necessity  in  a  per¬
fectly  free  community  of  equals  than  in  one  composed  of  the  three  orders;
whether  its  functions,  in  the  progress  of  our  political  growth,  have  not
been  in  great  part  or  entirely  performed,  so  that  in  the  future  it  is  to  be
simply  a  preservative  and  safeguard  instead  of  a  forming  and  guiding
influence— a  conservative  rather  than  a  progressive  force,  and  therefore
whether  we  may  not  well  limit  its  application  to  penal,  criminal,  and


I  Paschal’s  Annotated  Constitution,  page  211.
220


THE  CONSTITUTION


Amend.  6.
political  causes  and  actions  arising  in  tort  or  sounding  in  damages ;  leav¬
ing  all  matters  of  account,  contract,  title,  and  estates  entirely  to  the
court,  without  the  intervention  of  a  jury.  Such,  at  least,  seems  to  be  the
tendency  of  the  professional  judgment  of  the  country.”  '

We  may  consider  here  some  constitutional  amendments
which  relate  to  the  subject  of  the  judiciary.
Amendment  5. — No  person  shall  be  held  to  ansioer  for  a
capital  or  otheriuise  infamous  crime,  unless  on  a  presentment
or  indictment  of  a  grand  jury,  except  in  cases  arising  in  the
land  or  naval  forces,  or  in  the  militia  when  in  actual  service
in  time  of  tear  or  public  danger ;  nor  shall  any  person  be
subject  for  the  same  offense  to  be  twice  put  in  jeopardy  of
life  or  limb  ;  nor  shall  be  compelled  in  any  criminal  case  to  be
a  witness  agamst  himself;  nor  be  deprived  of  life,  liberty,  or
property,  ivithout  due  process  of  laio  ;  nor  shall  private  prop¬
erty  be  taken  for  public  use  without  just  compensation.
