1787 Federalist 83 · Founding Made Plain

11787 Federalist No. 83

2The Judiciary Continued

3in Relation to Trial by Jury

4From MCLEAN's Edition, New York.

5HAMILTON

6To the People of the State of New York:

7THE objection to the plan of the convention,

8 which has met with most success in this State,

9 and perhaps in several of the other States,

10 is THAT RELATIVE TO THE WANT

11 OF A CONSTITUTIONAL PROVISION

12 for the trial by jury in civil cases.

13The disingenuous form

14 in which this objection is usually stated

15 has been repeatedly adverted to and exposed,

16 but continues to be pursued

17 in all the conversations and writings

18 of the opponents of the plan.

19The mere silence of the Constitution

20 in regard to CIVIL CAUSES,

21 is represented as an abolition of the trial by jury,

22 and the declamations to which it has afforded a pretext

23 are artfully calculated to induce a persuasion

24 that this pretended abolition

25 is complete and universal,

26 extending not only to every species of civil,

27 but even to CRIMINAL CAUSES.

28To argue with respect to the latter would, however,

29 be as vain and fruitless

30 as to attempt the serious proof

31 of the EXISTENCE of MATTER,

32 or to demonstrate any of those propositions

33 which, by their own internal evidence,

34 force conviction,

35 when expressed in language

36 adapted to convey their meaning.

37With regard to civil causes,

38 subtleties almost too contemptible for refutation

39 have been employed to countenance the surmise

40 that a thing which is only NOT PROVIDED FOR,

41 is entirely ABOLISHED.

42Every man of discernment must at once perceive

43 the wide difference between SILENCE and ABOLITION.

44But as the inventors of this fallacy

45 have attempted to support it

46 by certain LEGAL MAXIMS of interpretation,

47 which they have perverted from their true meaning,

48 it may not be wholly useless

49 to explore the ground they have taken.

50The maxims on which they rely are of this nature:

51 "A specification of particulars

52 is an exclusion of generals";

53 or, "The expression of one thing

54 is the exclusion of another."

55Hence, say they,

56 as the Constitution has established the trial by jury

57 in criminal cases,

58 and is silent in respect to civil,

59 this silence is an implied prohibition

60 of trial by jury in regard to the latter.

61The rules of legal interpretation

62 are rules of COMMONSENSE,

63 adopted by the courts in the construction of the laws.

64The true test, therefore,

65 of a just application of them

66 is its conformity to the source

67 from which they are derived.

68This being the case, let me ask

69 if it is consistent with common-sense to suppose

70 that a provision obliging the legislative power

71 to commit the trial of criminal causes to juries,

72 is a privation of its right

73 to authorize or permit that mode of trial

74 in other cases?

75Is it natural to suppose,

76 that a command to do one thing

77 is a prohibition to the doing of another,

78 which there was a previous power to do,

79 and which is not incompatible

80 with the thing commanded to be done?

81If such a supposition would be unnatural

82 and unreasonable,

83 it cannot be rational to maintain

84 that an injunction of the trial by jury

85 in certain cases

86 is an interdiction of it in others.

87A power to constitute courts

88 is a power to prescribe the mode of trial;

89 and consequently,

90 if nothing was said in the Constitution

91 on the subject of juries,

92 the legislature would be at liberty

93 either to adopt that institution

94 or to let it alone.

95This discretion, in regard to criminal causes,

96 is abridged by the express injunction

97 of trial by jury in all such cases;

98 but it is, of course, left at large

99 in relation to civil causes,

100 there being a total silence on this head.

101The specification of an obligation

102 to try all criminal causes in a particular mode,

103 excludes indeed the obligation or necessity

104 of employing the same mode in civil causes,

105 but does not abridge THE POWER of the legislature

106 to exercise that mode

107 if it should be thought proper.

108The pretense, therefore,

109 that the national legislature would not be

110 at full liberty

111 to submit all the civil causes

112 of federal cognizance

113 to the determination of juries,

114 is a pretense destitute of all just foundation.

115From these observations this conclusion results:

116 that the trial by jury in civil cases

117 would not be abolished;

118 and that the use attempted to be made

119 of the maxims which have been quoted,

120 is contrary to reason and common-sense,

121 and therefore not admissible.

122Even if these maxims had a precise technical sense,

123 corresponding with the idea of those

124 who employ them upon the present occasion,

125 which, however, is not the case,

126 they would still be inapplicable

127 to a constitution of government.

128In relation to such a subject,

129 the natural and obvious sense of its provisions,

130 apart from any technical rules,

131 is the true criterion of construction.

132Having now seen that the maxims relied upon

133 will not bear the use made of them,

134 let us endeavor to ascertain

135 their proper use and true meaning.

136This will be best done by examples.

137The plan of the convention declares

138 that the power of Congress,

139 or, in other words, of the NATIONAL LEGISLATURE,

140 shall extend to certain enumerated cases.

141This specification of particulars

142 evidently excludes all pretension

143 to a general legislative authority,

144 because an affirmative grant of special powers

145 would be absurd, as well as useless,

146 if a general authority was intended.

147In like manner

148 the judicial authority of the federal judicatures

149 is declared by the Constitution

150 to comprehend certain cases particularly specified.

151The expression of those cases marks the precise limits,

152 beyond which the federal courts

153 cannot extend their jurisdiction,

154 because the objects of their cognizance

155 being enumerated,

156 the specification would be nugatory

157 if it did not exclude all ideas

158 of more extensive authority.

159These examples are sufficient

160 to elucidate the maxims which have been mentioned,

161 and to designate the manner

162 in which they should be used.

163But that there may be no misapprehensions

164 upon this subject,

165 I shall add one case more,

166 to demonstrate the proper use of these maxims,

167 and the abuse which has been made of them.

168Let us suppose that by the laws of this State

169 a married woman was incapable of conveying her estate,

170 and that the legislature, considering this as an evil,

171 should enact that she might dispose of her property

172 by deed executed in the presence of a magistrate.

173In such a case there can be no doubt

174 but the specification would amount

175 to an exclusion of any other mode of conveyance,

176 because the woman having no previous power

177 to alienate her property,

178 the specification determines the particular mode

179 which she is, for that purpose,

180 to avail herself of.

181But let us further suppose

182 that in a subsequent part of the same act

183 it should be declared

184 that no woman should dispose of any estate

185 of a determinate value

186 without the consent of three

187 of her nearest relations,

188 signified by their signing the deed;

189 could it be inferred from this regulation

190 that a married woman might not procure

191 the approbation of her relations

192 to a deed for conveying property of inferior value?

193The position is too absurd to merit a refutation,

194 and yet this is precisely the position

195 which those must establish

196 who contend that the trial by juries in civil cases

197 is abolished,

198 because it is expressly provided for

199 in cases of a criminal nature.

200From these observations it must appear

201 unquestionably true,

202 that trial by jury is in no case abolished

203 by the proposed Constitution,

204 and it is equally true,

205 that in those controversies between individuals

206 in which the great body of the people

207 are likely to be interested,

208 that institution will remain precisely

209 in the same situation

210 in which it is placed by the State constitutions,

211 and will be in no degree altered or influenced

212 by the adoption of the plan under consideration.

213The foundation of this assertion is,

214 that the national judiciary

215 will have no cognizance of them,

216 and of course they will remain determinable

217 as heretofore by the State courts only,

218 and in the manner which the State constitutions

219 and laws prescribe.

220All land causes,

221 except where claims under the grants

222 of different States come into question,

223 and all other controversies

224 between the citizens of the same State,

225 unless where they depend upon positive violations

226 of the articles of union,

227 by acts of the State legislatures,

228 will belong exclusively

229 to the jurisdiction of the State tribunals.

230Add to this, that admiralty causes,

231 and almost all those which are of equity jurisdiction,

232 are determinable under our own government

233 without the intervention of a jury,

234 and the inference from the whole will be,

235 that this institution,

236 as it exists with us at present,

237 cannot possibly be affected to any great extent

238 by the proposed alteration

239 in our system of government.

240The friends and adversaries

241 of the plan of the convention,

242 if they agree in nothing else,

243 concur at least in the value they set

244 upon the trial by jury;

245 or if there is any difference between them

246 it consists in this:

247 the former regard it as a valuable safeguard

248 to liberty;

249 the latter represent it

250 as the very palladium of free government.

251For my own part,

252 the more the operation of the institution

253 has fallen under my observation,

254 the more reason I have discovered

255 for holding it in high estimation;

256 and it would be altogether superfluous

257 to examine to what extent it deserves

258 to be esteemed useful or essential

259 in a representative republic,

260 or how much more merit it may be entitled to,

261 as a defense against the oppressions

262 of an hereditary monarch,

263 than as a barrier to the tyranny

264 of popular magistrates in a popular government.

265Discussions of this kind

266 would be more curious than beneficial,

267 as all are satisfied of the utility of the institution,

268 and of its friendly aspect to liberty.

269But I must acknowledge

270 that I cannot readily discern

271 the inseparable connection

272 between the existence of liberty,

273 and the trial by jury in civil cases.

274Arbitrary impeachments,

275 arbitrary methods of prosecuting pretended offenses,

276 and arbitrary punishments upon arbitrary convictions,

277 have ever appeared to me

278 to be the great engines of judicial despotism;

279 and these have all relation to criminal proceedings.

280The trial by jury in criminal cases,

281 aided by the habeas-corpus act,

282 seems therefore to be alone concerned in the question.

283And both of these are provided for,

284 in the most ample manner,

285 in the plan of the convention.

286It has been observed,

287 that trial by jury is a safeguard

288 against an oppressive exercise

289 of the power of taxation.

290This observation deserves to be canvassed.

291It is evident that it can have no influence

292 upon the legislature,

293 in regard to the AMOUNT of taxes to be laid,

294 to the OBJECTS upon which they are to be imposed,

295 or to the RULE by which they are to be apportioned.

296If it can have any influence, therefore,

297 it must be upon the mode of collection,

298 and the conduct of the officers

299 intrusted with the execution of the revenue laws.

300As to the mode of collection in this State,

301 under our own Constitution,

302 the trial by jury is in most cases out of use.

303The taxes are usually levied

304 by the more summary proceeding of distress and sale,

305 as in cases of rent.

306And it is acknowledged on all hands,

307 that this is essential to the efficacy

308 of the revenue laws.

309The dilatory course of a trial at law

310 to recover the taxes imposed on individuals,

311 would neither suit the exigencies of the public

312 nor promote the convenience of the citizens.

313It would often occasion an accumulation of costs,

314 more burdensome than the original sum

315 of the tax to be levied.

316And as to the conduct of the officers of the revenue,

317 the provision in favor of trial by jury

318 in criminal cases,

319 will afford the security aimed at.

320Wilful abuses of a public authority,

321 to the oppression of the subject,

322 and every species of official extortion,

323 are offenses against the government,

324 for which the persons who commit them

325 may be indicted and punished

326 according to the circumstances of the case.

327The excellence of the trial by jury in civil cases

328 appears to depend on circumstances

329 foreign to the preservation of liberty.

330The strongest argument in its favor is,

331 that it is a security against corruption.

332As there is always more time and better opportunity

333 to tamper with a standing body of magistrates

334 than with a jury summoned for the occasion,

335 there is room to suppose

336 that a corrupt influence would more easily

337 find its way to the former than to the latter.

338The force of this consideration is, however,

339 diminished by others.

340The sheriff, who is the summoner of ordinary juries,

341 and the clerks of courts,

342 who have the nomination of special juries,

343 are themselves standing officers,

344 and, acting individually,

345 may be supposed more accessible

346 to the touch of corruption than the judges,

347 who are a collective body.

348It is not difficult to see,

349 that it would be in the power of those officers

350 to select jurors who would serve the purpose

351 of the party as well as a corrupted bench.

352In the next place, it may fairly be supposed,

353 that there would be less difficulty

354 in gaining some of the jurors

355 promiscuously taken from the public mass,

356 than in gaining men who had been chosen

357 by the government for their probity

358 and good character.

359But making every deduction for these considerations,

360 the trial by jury must still be a valuable check

361 upon corruption.

362It greatly multiplies the impediments to its success.

363As matters now stand,

364 it would be necessary to corrupt both court and jury;

365 for where the jury have gone evidently wrong,

366 the court will generally grant a new trial,

367 and it would be in most cases of little use

368 to practice upon the jury,

369 unless the court could be likewise gained.

370Here then is a double security;

371 and it will readily be perceived

372 that this complicated agency

373 tends to preserve the purity of both institutions.

374By increasing the obstacles to success,

375 it discourages attempts

376 to seduce the integrity of either.

377The temptations to prostitution

378 which the judges might have to surmount,

379 must certainly be much fewer,

380 while the co-operation of a jury is necessary,

381 than they might be,

382 if they had themselves the exclusive determination

383 of all causes.

384Notwithstanding, therefore, the doubts I have expressed,

385 as to the essentiality of trial by jury

386 in civil cases to liberty,

387 I admit that it is in most cases,

388 under proper regulations,

389 an excellent method of determining

390 questions of property;

391 and that on this account alone

392 it would be entitled to a constitutional provision

393 in its favor

394 if it were possible to fix the limits

395 within which it ought to be comprehended.

396There is, however, in all cases,

397 great difficulty in this;

398 and men not blinded by enthusiasm

399 must be sensible

400 that in a federal government,

401 which is a composition of societies

402 whose ideas and institutions

403 in relation to the matter

404 materially vary from each other,

405 that difficulty must be not a little augmented.

406For my own part,

407 at every new view I take of the subject,

408 I become more convinced of the reality

409 of the obstacles which,

410 we are authoritatively informed,

411 prevented the insertion of a provision

412 on this head in the plan of the convention.

413The great difference between the limits

414 of the jury trial in different States

415 is not generally understood;

416 and as it must have considerable influence

417 on the sentence we ought to pass

418 upon the omission complained of

419 in regard to this point,

420 an explanation of it is necessary.

421In this State, our judicial establishments resemble,

422 more nearly than in any other, those of Great Britain.

423We have courts of common law,

424 courts of probates

425 (analogous in certain matters

426 to the spiritual courts in England),

427 a court of admiralty and a court of chancery.

428In the courts of common law only,

429 the trial by jury prevails,

430 and this with some exceptions.

431In all the others a single judge presides,

432 and proceeds in general

433 either according to the course

434 of the canon or civil law,

435 without the aid of a jury. 1

436In New Jersey, there is a court of chancery

437 which proceeds like ours,

438 but neither courts of admiralty nor of probates,

439 in the sense in which these last

440 are established with us.

441In that State the courts of common law

442 have the cognizance of those causes

443 which with us are determinable

444 in the courtsof admiralty and of probates,

445 and of course the jury trial is more extensive

446 in New Jersey than in New York.

447In Pennsylvania, this is perhaps still more the case,

448 for there is no court of chancery in that State,

449 and its common-law courts have equity jurisdiction.

450It has a court of admiralty,

451 but none of probates, at least on the plan of ours.

452Delaware has in these respects imitated Pennsylvania.

453Maryland approaches more nearly to New York,

454 as does also Virginia,

455 except that the latter has a plurality

456 of chancellors.

457North Carolina bears most affinity to Pennsylvania;

458 South Carolina to Virginia.

459I believe, however,

460 that in some of those States

461 which have distinct courts of admiralty,

462 the causes depending in them are triable by juries.

463In Georgia there are none but common-law courts,

464 and an appeal of course lies

465 from the verdict of one jury to another,

466 which is called a special jury,

467 and for which a particular mode of appointment

468 is marked out.

469In Connecticut, they have no distinct courts

470 either of chancery or of admiralty,

471 and their courts of probates have no jurisdiction

472 of causes.

473Their common-law courts have admiralty and,

474 to a certain extent, equity jurisdiction.

475In cases of importance,

476 their General Assembly is the only court of chancery.

477In Connecticut, therefore,

478 the trial by jury extends in PRACTICE

479 further than in any other State yet mentioned.

480Rhode Island is, I believe, in this particular,

481 pretty much in the situation of Connecticut.

482Massachusetts and New Hampshire,

483 in regard to the blending of law, equity,

484 and admiralty jurisdictions,

485 are in a similar predicament.

486In the four Eastern States,

487 the trial by jury not only stands

488 upon a broader foundation than in the other States,

489 but it is attended with a peculiarity unknown,

490 in its full extent, to any of them.

491There is an appeal OF COURSE from one jury to another,

492 till there have been two verdicts

493 out of three on one side.

494From this sketch it appears

495 that there is a material diversity,

496 as well in the modification as in the extent

497 of the institution of trial by jury

498 in civil cases, in the several States;

499 and from this fact these obvious reflections flow:

500 first, that no general rule could have been fixed upon

501 by the convention

502 which would have corresponded

503 with the circumstances of all the States;

504 and secondly, that more or at least as much

505 might have been hazarded

506 by taking the system of any one State

507 for a standard,

508 as by omitting a provision altogether

509 and leaving the matter, as has been done,

510 to legislative regulation.

511The propositions which have been made

512 for supplying the omission

513 have rather served to illustrate

514 than to obviate the difficulty of the thing.

515The minority of Pennsylvania

516 have proposed this mode of expression for the purpose

517 "Trial by jury shall be as heretofore"

518 and this I maintain would be senseless and nugatory.

519The United States,

520 in their united or collective capacity,

521 are the OBJECT to which all general provisions

522 in the Constitution must necessarily be construed

523 to refer.

524Now it is evident

525 that though trial by jury, with various limitations,

526 is known in each State individually,

527 yet in the United States, AS SUCH,

528 it is at this time altogether unknown,

529 because the present federal government

530 has no judiciary power whatever;

531 and consequently there is no proper antecedent

532 or previous establishment

533 to which the term HERETOFORE could relate.

534It would therefore be destitute of a precise meaning,

535 and inoperative from its uncertainty.

536As, on the one hand,

537 the form of the provision would not fulfil

538 the intent of its proposers,

539 so, on the other, if I apprehend that intent rightly,

540 it would be in itself inexpedient.

541I presume it to be,

542 that causes in the federal courts

543 should be tried by jury,

544 if, in the State where the courts sat,

545 that mode of trial would obtain

546 in a similar case in the State courts;

547 that is to say,

548 admiralty causes should be tried in Connecticut

549 by a jury, in New York without one.

550The capricious operation

551 of so dissimilar a method of trial in the same cases,

552 under the same government,

553 is of itself sufficient

554 to indispose every wellregulated judgment

555 towards it.

556Whether the cause should be tried with or without a jury,

557 would depend, in a great number of cases,

558 on the accidental situation

559 of the court and parties.

560But this is not, in my estimation, the greatest objection.

561I feel a deep and deliberate conviction

562 that there are many cases

563 in which the trial by jury is an ineligible one.

564I think it so particularly in cases

565 which concern the public peace with foreign nations

566 that is, in most cases

567 where the question turns wholly

568 on the laws of nations.

569Of this nature, among others, are all prize causes.

570Juries cannot be supposed competent to investigations

571 that require a thorough knowledge

572 of the laws and usages of nations;

573 and they will sometimes be under the influence

574 of impressions which will not suffer them

575 to pay sufficient regard

576 to those considerations of public policy

577 which ought to guide their inquiries.

578There would of course be always danger

579 that the rights of other nations

580 might be infringed by their decisions,

581 so as to afford occasions of reprisal and war.

582Though the proper province of juries

583 be to determine matters of fact,

584 yet in most cases legal consequences

585 are complicated with fact in such a manner

586 as to render a separation impracticable.

587It will add great weight to this remark,

588 in relation to prize causes,

589 to mention that the method of determining them

590 has been thought worthy of particular regulation

591 in various treaties between different

592 powers of Europe,

593 and that, pursuant to such treaties,

594 they are determinable in Great Britain,

595 in the last resort, before the king himself,

596 in his privy council,

597 where the fact, as well as the law,

598 undergoes a re-examination.

599This alone demonstrates the impolicy

600 of inserting a fundamental provision

601 in the Constitution

602 which would make the State systems a standard

603 for the national government

604 in the article under consideration,

605 and the danger of encumbering the government

606 with any constitutional provisions

607 the propriety of which is not indisputable.

608My convictions are equally strong

609 that great advantages result

610 from the separation of the equity

611 from the law jurisdiction,

612 and that the causes which belong to the former

613 would be improperly committed to juries.

614The great and primary use of a court of equity

615 is to give relief IN EXTRAORDINARY CASES,

616 which are EXCEPTIONS 2 to general rules.

617To unite the jurisdiction of such cases

618 with the ordinary jurisdiction,

619 must have a tendency to unsettle the general rules,

620 and to subject every case that arises

621 to a SPECIAL determination;

622 while a separation of the one from the other

623 has the contrary effect

624 of rendering one a sentinel over the other,

625 and of keeping each within the expedient limits.

626Besides this, the circumstances

627 that constitute cases proper for courts of equity

628 are in many instances so nice and intricate,

629 that they are incompatible

630 with the genius of trials by jury.

631They require often such long, deliberate,

632 and critical investigation

633 as would be impracticable to men

634 called from their occupations,

635 and obliged to decide

636 before they were permitted to return to them.

637The simplicity and expedition

638 which form the distinguishing characters

639 of this mode of trial

640 require that the matter to be decided

641 should be reduced to some single and obvious point;

642 while the litigations usual in chancery

643 frequently comprehend a long train

644 of minute and independent particulars.

645It is true that the separation of the equity

646 from the legal jurisdiction

647 is peculiar to the English system of jurisprudence:

648 which is the model that has been followed

649 in several of the States.

650But it is equally true

651 that the trial by jury has been unknown

652 in every case in which they have been united.

653And the separation is essential

654 to the preservation of that institution

655 in its pristine purity.

656The nature of a court of equity

657 will readily permit the extension of its jurisdiction

658 to matters of law;

659 but it is not a little to be suspected,

660 that the attempt to extend the jurisdiction

661 of the courts of law to matters of equity

662 will not only be unproductive of the advantages

663 which may be derived from courts of chancery,

664 on the plan upon which they are established

665 in this State,

666 but will tend gradually to change

667 the nature of the courts of law,

668 and to undermine the trial by jury,

669 by introducing questions too complicated

670 for a decision in that mode.

671These appeared to be conclusive reasons

672 against incorporating the systems of all the States,

673 in the formation of the national judiciary,

674 according to what may be conjectured

675 to have been the attempt

676 of the Pennsylvania minority.

677Let us now examine how far the proposition

678 of Massachusetts is calculated

679 to remedy the supposed defect.

680It is in this form:

681 "In civil actions between citizens of different States,

682 every issue of fact,

683 arising in ACTIONS AT COMMON LAW,

684 may be tried by a jury

685 if the parties, or either of them request it."

686This, at best, is a proposition

687 confined to one description of causes;

688 and the inference is fair,

689 either that the Massachusetts convention

690 considered that as the only class

691 of federal causes,

692 in which the trial by jury would be proper;

693 or that if desirous of a more extensive provision,

694 they found it impracticable to devise one

695 which would properly answer the end.

696If the first,

697 the omission of a regulation

698 respecting so partial an object

699 can never be considered

700 as a material imperfection in the system.

701If the last,

702 it affords a strong corroboration

703 of the extreme difficulty of the thing.

704But this is not all:

705 if we advert to the observations already made

706 respecting the courts that subsist

707 in the several States of the Union,

708 and the different powers exercised by them,

709 it will appear that there are no expressions

710 more vague and indeterminate

711 than those which have been employed

712 to characterize THAT species of causes

713 which it is intended shall be entitled

714 to a trial by jury.

715In this State,

716 the boundaries between actions at common law

717 and actions of equitable jurisdiction,

718 are ascertained in conformity to the rules

719 which prevail in England upon that subject.

720In many of the other States

721 the boundaries are less precise.

722In some of them every cause

723 is to be tried in a court of common law,

724 and upon that foundation every action

725 may be considered as an action at common law,

726 to be determined by a jury,

727 if the parties, or either of them, choose it.

728Hence the same irregularity and confusion

729 would be introduced by a compliance

730 with this proposition,

731 that I have already noticed

732 as resulting from the regulation proposed

733 by the Pennsylvania minority.

734In one State a cause would receive its determination

735 from a jury, if the parties, or either of them,

736 requested it;

737 but in another State,

738 a cause exactly similar to the other,

739 must be decided without the intervention of a jury,

740 because the State judicatories varied

741 as to common-law jurisdiction.

742It is obvious, therefore,

743 that the Massachusetts proposition, upon this subject

744 cannot operate as a general regulation,

745 until some uniform plan,

746 with respect to the limits

747 of common-law and equitable jurisdictions,

748 shall be adopted by the different States.

749To devise a plan of that kind

750 is a task arduous in itself,

751 and which it would require much time and reflection

752 to mature.

753It would be extremely difficult, if not impossible,

754 to suggest any general regulation

755 that would be acceptable to all the States

756 in the Union,

757 or that would perfectly quadrate

758 with the several State institutions.

759It may be asked,

760 Why could not a reference have been made

761 to the constitution of this State,

762 taking that, which is allowed by me

763 to be a good one,

764 as a standard for the United States?

765I answer that it is not very probable

766 the other States would entertain the same opinion

767 of our institutions as we do ourselves.

768It is natural to suppose

769 that they are hitherto more attached to their own,

770 and that each would struggle for the preference.

771If the plan of taking one State as a model for the whole

772 had been thought of in the convention,

773 it is to be presumed that the adoption of it

774 in that body would have been rendered difficult

775 by the predilection of each representation

776 in favor of its own government;

777 and it must be uncertain

778 which of the States would have been taken

779 as the model.

780It has been shown that many of them would be improper ones.

781And I leave it to conjecture,

782 whether, under all circumstances,

783 it is most likely that New York,

784 or some other State,

785 would have been preferred.

786But admit that a judicious selection

787 could have been effected in the convention,

788 still there would have been great danger

789 of jealousy and disgust in the other States,

790 at the partiality which had been shown

791 to the institutions of one.

792The enemies of the plan

793 would have been furnished with a fine pretext

794 for raising a host of local prejudices against it,

795 which perhaps might have hazarded,

796 in no inconsiderable degree,

797 its final establishment.

798To avoid the embarrassments of a definition

799 of the cases which the trial by jury ought to embrace,

800 it is sometimes suggested by men

801 of enthusiastic tempers,

802 that a provision might have been inserted

803 for establishing it in all cases whatsoever.

804For this I believe,

805 no precedent is to be found

806 in any member of the Union;

807 and the considerations which have been stated

808 in discussing the proposition

809 of the minority of Pennsylvania,

810 must satisfy every sober mind

811 that the establishment of the trial by jury

812 in ALL cases

813 would have been an unpardonable error in the plan.

814In short, the more it is considered

815 the more arduous will appear the task

816 of fashioning a provision in such a form

817 as not to express too little to answer the purpose,

818 or too much to be advisable;

819 or which might not have opened other sources

820 of opposition to the great and essential object

821 of introducing a firm national government.

822I cannot but persuade myself, on the other hand,

823 that the different lights in which the subject

824 has been placed in the course

825 of these observations,

826 will go far towards removing in candid minds

827 the apprehensions they may have entertained

828 on the point.

829They have tended to show

830 that the security of liberty

831 is materially concerned only

832 in the trial by jury in criminal cases,

833 which is provided for in the most ample manner

834 in the plan of the convention;

835 that even in far the greatest proportion

836 of civil cases,

837 and those in which the great body of the community

838 is interested,

839 that mode of trial will remain in its full force,

840 as established in the State constitutions,

841 untouched and unaffected

842 by the plan of the convention;

843 that it is in no case abolished 3 by that plan;

844 and that there are great if not insurmountable

845 difficulties

846 in the way of making any precise

847 and proper provision

848 for it in a Constitution for the United States.

849The best judges of the matter

850 will be the least anxious

851 for a constitutional establishment

852 of the trial by jury in civil cases,

853 and will be the most ready to admit

854 that the changes which are continually happening

855 in the affairs of society

856 may render a different mode

857 of determining questions of property

858 preferable in many cases

859 in which that mode of trial now prevails.

860For my part, I acknowledge myself to be convinced

861 that even in this State

862 it might be advantageously extended

863 to some cases to which it does not

864 at present apply,

865 and might as advantageously be abridged in others.

866It is conceded by all reasonable men

867 that it ought not to obtain in all cases.

868The examples of innovations

869 which contract its ancient limits,

870 as well in these States as in Great Britain,

871 afford a strong presumption

872 that its former extent has been found inconvenient,

873 and give room to suppose

874 that future experience may discover

875 the propriety and utility of other exceptions.

876I suspect it to be impossible

877 in the nature of the thing

878 to fix the salutary point

879 at which the operation of the institution

880 ought to stop,

881 and this is with me a strong argument

882 for leaving the matter

883 to the discretion of the legislature.

884This is now clearly understood to be the case

885 in Great Britain,

886 and it is equally so in the State of Connecticut;

887 and yet it may be safely affirmed

888 that more numerous encroachments

889 have been made upon the trial by jury

890 in this State since the Revolution,

891 though provided for by a positive article

892 of our constitution,

893 than has happened in the same time

894 either in Connecticut or Great Britain.

895It may be added that these encroachments

896 have generally originated with the men

897 who endeavor to persuade the people

898 they are the warmest defenders of popular liberty,

899 but who have rarely suffered

900 constitutional obstacles

901 to arrest them in a favorite career.

902The truth is that the general GENIUS of a government

903 is all that can be substantially relied upon

904 for permanent effects.

905Particular provisions, though not altogether useless,

906 have far less virtue and efficacy

907 than are commonly ascribed to them;

908 and the want of them will never be,

909 with men of sound discernment,

910 a decisive objection to any plan

911 which exhibits the leading characters

912 of a good government.

913It certainly sounds not a little harsh and extraordinary

914 to affirm that there is no security for liberty

915 in a Constitution which expressly establishes

916 the trial by jury in criminal cases,

917 because it does not do it in civil also;

918 while it is a notorious fact that Connecticut,

919 which has been always regarded

920 as the most popular State in the Union,

921 can boast of no constitutional provision

922 for either.

923PUBLIUS.

9241 It has been erroneously insinuated.

925 with regard to the court of chancery,

926 that this court generally tries

927 disputed facts by a jury.

928The truth is,

929 that references to a jury in that court rarely happen,

930 and are in no case necessary

931 but where the validity of a devise of land

932 comes into question.

9332 It is true that the principles

934 by which that relief is governed

935 are now reduced to a regular system;

936 but it is not the less true

937 that they are in the main applicable

938 to SPECIAL circumstances,

939 which form exceptions to general rules.

9403 Vide No. 81,

941 in which the supposition of its being abolished

942 by the appellate jurisdiction in matters of fact

943 being vested in the Supreme Court,

944 is examined and refuted.