the trial by jury is in most cases out of use. The taxes are usually
levied by the more summary proceeding of distress and sale, as in cases
of rent. And it is acknowledged on all hands, that this is essential to
the efficacy of the revenue laws. The dilatory course of a trial at law
to recover the taxes imposed on individuals, would neither suit the
exigencies of the public nor promote the convenience of the citizens.
It would often occasion an accumulation of costs, more burdensome than
the original sum of the tax to be levied.
And as to the conduct of the officers of the revenue, the provision in
favor of trial by jury in criminal cases, will afford the security
aimed at. Wilful abuses of a public authority, to the oppression of the
subject, and every species of official extortion, are offenses against
the government, for which the persons who commit them may be indicted
and punished according to the circumstances of the case.
The excellence of the trial by jury in civil cases appears to depend on
circumstances foreign to the preservation of liberty. The strongest
argument in its favor is, that it is a security against corruption. As
there is always more time and better opportunity to tamper with a
standing body of magistrates than with a jury summoned for the
occasion, there is room to suppose that a corrupt influence would more
easily find its way to the former than to the latter. The force of this
consideration is, however, diminished by others. The sheriff, who is
the summoner of ordinary juries, and the clerks of courts, who have the
nomination of special juries, are themselves standing officers, and,
acting individually, may be supposed more accessible to the touch of
corruption than the judges, who are a collective body. It is not
difficult to see, that it would be in the power of those officers to
select jurors who would serve the purpose of the party as well as a
corrupted bench. In the next place, it may fairly be supposed, that
there would be less difficulty in gaining some of the jurors
promiscuously taken from the public mass, than in gaining men who had
been chosen by the government for their probity and good character. But
making every deduction for these considerations, the trial by jury must
still be a valuable check upon corruption. It greatly multiplies the
impediments to its success. As matters now stand, it would be necessary
to corrupt both court and jury; for where the jury have gone evidently
wrong, the court will generally grant a new trial, and it would be in
most cases of little use to practice upon the jury, unless the court
could be likewise gained. Here then is a double security; and it will
readily be perceived that this complicated agency tends to preserve the
purity of both institutions. By increasing the obstacles to success, it
discourages attempts to seduce the integrity of either. The temptations
to prostitution which the judges might have to surmount, must certainly
be much fewer, while the co-operation of a jury is necessary, than they
might be, if they had themselves the exclusive determination of all
causes.
Notwithstanding, therefore, the doubts I have expressed, as to the
essentiality of trial by jury in civil cases to liberty, I admit that
it is in most cases, under proper regulations, an excellent method of
determining questions of property; and that on this account alone it
would be entitled to a constitutional provision in its favor if it were
possible to fix the limits within which it ought to be comprehended.
There is, however, in all cases, great difficulty in this; and men not
blinded by enthusiasm must be sensible that in a federal government,
which is a composition of societies whose ideas and institutions in
relation to the matter materially vary from each other, that difficulty
must be not a little augmented. For my own part, at every new view I
take of the subject, I become more convinced of the reality of the
obstacles which, we are authoritatively informed, prevented the
insertion of a provision on this head in the plan of the convention.
The great difference between the limits of the jury trial in different
States is not generally understood; and as it must have considerable
influence on the sentence we ought to pass upon the omission complained
of in regard to this point, an explanation of it is necessary. In this
State, our judicial establishments resemble, more nearly than in any
other, those of Great Britain. We have courts of common law, courts of
probates (analogous in certain matters to the spiritual courts in
England), a court of admiralty and a court of chancery. In the courts
of common law only, the trial by jury prevails, and this with some
exceptions. In all the others a single judge presides, and proceeds in
general either according to the course of the canon or civil law,
without the aid of a jury.[1] In New Jersey, there is a court of
chancery which proceeds like ours, but neither courts of admiralty nor
of probates, in the sense in which these last are established with us.
In that State the courts of common law have the cognizance of those
causes which with us are determinable in the courts of admiralty and of
probates, and of course the jury trial is more extensive in New Jersey
than in New York. In Pennsylvania, this is perhaps still more the case,
for there is no court of chancery in that State, and its common-law
courts have equity jurisdiction. It has a court of admiralty, but none
of probates, at least on the plan of ours. Delaware has in these
respects imitated Pennsylvania. Maryland approaches more nearly to New
York, as does also Virginia, except that the latter has a plurality of
chancellors. North Carolina bears most affinity to Pennsylvania; South
Carolina to Virginia. I believe, however, that in some of those States
which have distinct courts of admiralty, the causes depending in them
are triable by juries. In Georgia there are none but common-law courts,
and an appeal of course lies from the verdict of one jury to another,
which is called a special jury, and for which a particular mode of
appointment is marked out. In Connecticut, they have no distinct courts
either of chancery or of admiralty, and their courts of probates have
no jurisdiction of causes. Their common-law courts have admiralty and,
to a certain extent, equity jurisdiction. In cases of importance, their
General Assembly is the only court of chancery. In Connecticut,
therefore, the trial by jury extends in PRACTICE further than in any
other State yet mentioned. Rhode Island is, I believe, in this
particular, pretty much in the situation of Connecticut. Massachusetts
and New Hampshire, in regard to the blending of law, equity, and
admiralty jurisdictions, are in a similar predicament. 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. The United States, in
their united or collective capacity, are the OBJECT to which all
general provisions in the Constitution must necessarily be construed to
refer. Now it is evident that though trial by jury, with various
limitations, is known in each State individually, yet in the United
States, AS SUCH, it is at this time altogether unknown, because the
present federal government has no judiciary power whatever; and
consequently there is no proper antecedent or previous establishment to
which the term HERETOFORE could relate. It would therefore be destitute
of a precise meaning, and inoperative from its uncertainty.
As, on the one hand, the form of the provision would not fulfil the
intent of its proposers, so, on the other, if I apprehend that intent
rightly, it would be in itself inexpedient. I presume it to be, that
causes in the federal courts should be tried by jury, if, in the State
where the courts sat, that mode of trial would obtain in a similar case
in the State courts; that is to say, admiralty causes should be tried
in Connecticut by a jury, in New York without one. The capricious
operation of so dissimilar a method of trial in the same cases, under
the same government, is of itself sufficient to indispose every
wellregulated judgment towards it. Whether the cause should be tried
with or without a jury, would depend, in a great number of cases, on
the accidental situation of the court and parties.
But this is not, in my estimation, the greatest objection. I feel a
deep and deliberate conviction that there are many cases in which the
trial by jury is an ineligible one. I think it so particularly in cases
which concern the public peace with foreign nations that is, in most
cases where the question turns wholly on the laws of nations. Of this
nature, among others, are all prize causes. Juries cannot be supposed
competent to investigations that require a thorough knowledge of the
laws and usages of nations; and they will sometimes be under the
influence of impressions which will not suffer them to pay sufficient
regard to those considerations of public policy which ought to guide
their inquiries. There would of course be always danger that the rights
of other nations might be infringed by their decisions, so as to afford
occasions of reprisal and war. Though the proper province of juries be
to determine matters of fact, yet in most cases legal consequences are
complicated with fact in such a manner as to render a separation
impracticable.
It will add great weight to this remark, in relation to prize causes,
to mention that the method of determining them has been thought worthy
of particular regulation in various treaties between different powers
of Europe, and that, pursuant to such treaties, they are determinable
in Great Britain, in the last resort, before the king himself, in his
privy council, where the fact, as well as the law, undergoes a
re-examination. This alone demonstrates the impolicy of inserting a
fundamental provision in the Constitution which would make the State
systems a standard for the national government in the article under
consideration, and the danger of encumbering the government with any
constitutional provisions the propriety of which is not indisputable.
My convictions are equally strong that great advantages result from the
separation of the equity from the law jurisdiction, and that the causes
which belong to the former would be improperly committed to juries. The
great and primary use of a court of equity is to give relief IN
EXTRAORDINARY CASES, which are EXCEPTIONS[2] to general rules. To unite
the jurisdiction of such cases with the ordinary jurisdiction, must
have a tendency to unsettle the general rules, and to subject every
case that arises to a SPECIAL determination; while a separation of the
one from the other has the contrary effect of rendering one a sentinel
over the other, and of keeping each within the expedient limits.
Besides this, the circumstances that constitute cases proper for courts
of equity are in many instances so nice and intricate, that they are
incompatible with the genius of trials by jury. They require often such
long, deliberate, and critical investigation as would be impracticable
to men called from their occupations, and obliged to decide before they
were permitted to return to them. The simplicity and expedition which
form the distinguishing characters of this mode of trial require that
the matter to be decided should be reduced to some single and obvious
point; while the litigations usual in chancery frequently comprehend a
long train of minute and independent particulars.
It is true that the separation of the equity from the legal
jurisdiction is peculiar to the English system of jurisprudence: which
is the model that has been followed in several of the States. But it is
equally true that the trial by jury has been unknown in every case in
which they have been united. And the separation is essential to the
preservation of that institution in its pristine purity. The nature of
a court of equity will readily permit the extension of its jurisdiction
to matters of law; but it is not a little to be suspected, that the
attempt to extend the jurisdiction of the courts of law to matters of
equity will not only be unproductive of the advantages which may be
derived from courts of chancery, on the plan upon which they are
established in this State, but will tend gradually to change the nature
of the courts of law, and to undermine the trial by jury, by
introducing questions too complicated for a decision in that mode.
These appeared to be conclusive reasons against incorporating the
systems of all the States, in the formation of the national judiciary,
according to what may be conjectured to have been the attempt of the
Pennsylvania minority. Let us now examine how far the proposition of
Massachusetts is calculated to remedy the supposed defect.
It is in this form: “In civil actions between citizens of different
States, every issue of fact, arising in ACTIONS AT COMMON LAW, may be
tried by a jury if the parties, or either of them request it.”
This, at best, is a proposition confined to one description of causes;
and the inference is fair, either that the Massachusetts convention
considered that as the only class of federal causes, in which the trial
by jury would be proper; or that if desirous of a more extensive
provision, they found it impracticable to devise one which would
properly answer the end. If the first, the omission of a regulation
respecting so partial an object can never be considered as a material
imperfection in the system. If the last, it affords a strong
corroboration of the extreme difficulty of the thing.
But this is not all: if we advert to the observations already made
respecting the courts that subsist in the several States of the Union,
and the different powers exercised by them, it will appear that there
are no expressions more vague and indeterminate than those which have
been employed to characterize THAT species of causes which it is
intended shall be entitled to a trial by jury. In this State, the
boundaries between actions at common law and actions of equitable
jurisdiction, are ascertained in conformity to the rules which prevail
in England upon that subject. In many of the other States the
boundaries are less precise. In some of them every cause is to be tried
in a court of common law, and upon that foundation every action may be
considered as an action at common law, to be determined by a jury, if
the parties, or either of them, choose it. Hence the same irregularity
and confusion would be introduced by a compliance with this
proposition, that I have already noticed as resulting from the
regulation proposed by the Pennsylvania minority. In one State a cause
would receive its determination from a jury, if the parties, or either
of them, requested it; but in another State, a cause exactly similar to
the other, must be decided without the intervention of a jury, because
the State judicatories varied as to common-law jurisdiction.
It is obvious, therefore, that the Massachusetts proposition, upon this
subject cannot operate as a general regulation, until some uniform
plan, with respect to the limits of common-law and equitable
jurisdictions, shall be adopted by the different States. To devise a
plan of that kind is a task arduous in itself, and which it would
require much time and reflection to mature. It would be extremely
difficult, if not impossible, to suggest any general regulation that
would be acceptable to all the States in the Union, or that would
perfectly quadrate with the several State institutions.
It may be asked, Why could not a reference have been made to the
constitution of this State, taking that, which is allowed by me to be a
good one, as a standard for the United States? I answer that it is not
very probable the other States would entertain the same opinion of our
institutions as we do ourselves. It is natural to suppose that they are
hitherto more attached to their own, and that each would struggle for
the preference. If the plan of taking one State as a model for the
whole had been thought of in the convention, it is to be presumed that
the adoption of it in that body would have been rendered difficult by
the predilection of each representation in favor of its own government;
and it must be uncertain which of the States would have been taken as
the model. It has been shown that many of them would be improper ones.
And I leave it to conjecture, whether, under all circumstances, it is
most likely that New York, or some other State, would have been
preferred. But admit that a judicious selection could have been
effected in the convention, still there would have been great danger of
jealousy and disgust in the other States, at the partiality which had
been shown to the institutions of one. The enemies of the plan would
have been furnished with a fine pretext for raising a host of local
prejudices against it, which perhaps might have hazarded, in no
inconsiderable degree, its final establishment.
To avoid the embarrassments of a definition of the cases which the
trial by jury ought to embrace, it is sometimes suggested by men of
enthusiastic tempers, that a provision might have been inserted for
establishing it in all cases whatsoever. For this I believe, no
precedent is to be found in any member of the Union; and the
considerations which have been stated in discussing the proposition of
the minority of Pennsylvania, must satisfy every sober mind that the
establishment of the trial by jury in ALL cases would have been an
unpardonable error in the plan.
In short, the more it is considered the more arduous will appear the
task of fashioning a provision in such a form as not to express too
little to answer the purpose, or too much to be advisable; or which
might not have opened other sources of opposition to the great and
essential object of introducing a firm national government.
I cannot but persuade myself, on the other hand, that the different
lights in which the subject has been placed in the course of these
observations, will go far towards removing in candid minds the
apprehensions they may have entertained on the point. They have tended
to show that the security of liberty is materially concerned only in
the trial by jury in criminal cases, which is provided for in the most
ample manner in the plan of the convention; that even in far the
greatest proportion of civil cases, and those in which the great body
of the community is interested, that mode of trial will remain in its
full force, as established in the State constitutions, untouched and
unaffected by the plan of the convention; that it is in no case
abolished[3] by that plan; and that there are great if not
insurmountable difficulties in the way of making any precise and proper
provision for it in a Constitution for the United States.
The best judges of the matter will be the least anxious for a
constitutional establishment of the trial by jury in civil cases, and
will be the most ready to admit that the changes which are continually
happening in the affairs of society may render a different mode of
determining questions of property preferable in many cases in which
that mode of trial now prevails. For my part, I acknowledge myself to
be convinced that even in this State it might be advantageously
extended to some cases to which it does not at present apply, and might
as advantageously be abridged in others. It is conceded by all
reasonable men that it ought not to obtain in all cases. The examples
of innovations which contract its ancient limits, as well in these
States as in Great Britain, afford a strong presumption that its former
extent has been found inconvenient, and give room to suppose that
future experience may discover the propriety and utility of other
exceptions. I suspect it to be impossible in the nature of the thing to
fix the salutary point at which the operation of the institution ought
to stop, and this is with me a strong argument for leaving the matter
to the discretion of the legislature.
This is now clearly understood to be the case in Great Britain, and it
is equally so in the State of Connecticut; and yet it may be safely
affirmed that more numerous encroachments have been made upon the trial
by jury in this State since the Revolution, though provided for by a
positive article of our constitution, than has happened in the same
time either in Connecticut or Great Britain. It may be added that these
encroachments have generally originated with the men who endeavor to
persuade the people they are the warmest defenders of popular liberty,
but who have rarely suffered constitutional obstacles to arrest them in
a favorite career. The truth is that the general GENIUS of a government
is all that can be substantially relied upon for permanent effects.
Particular provisions, though not altogether useless, have far less
virtue and efficacy than are commonly ascribed to them; and the want of
them will never be, with men of sound discernment, a decisive objection
to any plan which exhibits the leading characters of a good government.
It certainly sounds not a little harsh and extraordinary to affirm that
there is no security for liberty in a Constitution which expressly
establishes the trial by jury in criminal cases, because it does not do
it in civil also; while it is a notorious fact that Connecticut, which
has been always regarded as the most popular State in the Union, can
boast of no constitutional provision for either.
PUBLIUS.
[1] It has been erroneously insinuated, with regard to the court of
chancery, that this court generally tries disputed facts by a jury.
The truth is, that references to a jury in that court rarely happen,
and are in no case necessary but where the validity of a devise of
land comes into question.
[2] It is true that the principles by which that relief is governed
are now reduced to a regular system; but it is not the less true that
they are in the main applicable to SPECIAL circumstances, which form
exceptions to general rules.
[3] _Vide_ No. 81, in which the supposition of its being abolished by
the appellate jurisdiction in matters of fact being vested in the
Supreme Court, is examined and refuted.
THE FEDERALIST.
No. LXXXIV.
Certain General and Miscellaneous Objections to the Constitution
Considered and Answered
From McLEAN’s Edition, New York.
HAMILTON
To the People of the State of New York:
In the course of the foregoing review of the Constitution, I have taken
notice of, and endeavored to answer most of the objections which have
appeared against it. There, however, remain a few which either did not
fall naturally under any particular head or were forgotten in their
proper places. These shall now be discussed; but as the subject has
been drawn into great length, I shall so far consult brevity as to
comprise all my observations on these miscellaneous points in a single
paper.