So when the constitution provided for “courts,” and defined their jurisdiction, it clearly contemplated the trial by jury, in regard to all such rights of the citizen as had been usually, theretofore, tried by a jury. Congress, indeed, might fail to perform its duty; but in such case, no provisions of the constitution, however express and peremptory, would secure the rights of the people. It is perfectly well known to every student of the constitution, that the only reason why that instrument did not make _express_ provision for the trial by jury, in civil cases, was the difficulty of running the dividing line between the many cases that should be so tried, and the few that should not. All were agreed that ninety-nine per cent. of all civil cases should be tried by jury; but they could not agree upon the classes of cases from which the remaining one per cent. should be taken. In this connection, it is worth while to notice the heading or preamble of the joint resolutions for submitting certain proposed amendments of the constitution to the states, among which was the seventh. It is as follows:-- “The conventions of a number of the states having at the time of their adopting the constitution expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory or restrictive clauses should be added; and as the extending the ground of public confidence in the government will best insure the beneficent ends of its institution, RESOLVED,” &c. From this it appears that the first Congress only proposed to submit certain “_further declaratory and restrictive clauses_,” which were “to prevent misconstruction or abuse of its powers.” This heading or title, of course, does not enlarge or limit the meaning of the amendments; but it shows the view which their authors had of their scope and intendment. And what is the seventh amendment but a “declaratory and restrictive clause,” securing the trial by jury, in cases at common law, “where the value in controversy shall exceed twenty dollars,” and abandoning it where the value is less? The phraseology of the amendment is full of significance: “The right of trial by jury shall be preserved.” Not created, but preserved. Not instituted _de novo_, but continued. Will Mr. Webster tell me, how a right can be _preserved_, which does not already _exist_? In speaking of the trial by jury, in criminal cases, Judge Story uses the same word. He says it was “preserved.” In neither class of cases, civil or criminal, was it ever abandoned or lost, through the fault of the constitution. If not always enjoyed by the citizen, it has been through the dereliction of Congress in not passing the requisite laws.