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.
FEDERALIST No. 84
Certain General and Miscellaneous Objections to the Constitution
Considered and Answered.
From McLEAN's Edition, New York. Wednesday, May 28, 1788
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.
The most considerable of the remaining objections is that the plan of
the convention contains no bill of rights. Among other answers given
to this, it has been upon different occasions remarked that the
constitutions of several of the States are in a similar predicament.
I add that New York is of the number. And yet the opposers of the new
system, in this State, who profess an unlimited admiration for its
constitution, are among the most intemperate partisans of a bill of
rights. To justify their zeal in this matter, they allege two things:
one is that, though the constitution of New York has no bill of rights
prefixed to it, yet it contains, in the body of it, various provisions
in favor of particular privileges and rights, which, in substance amount
to the same thing; the other is, that the Constitution adopts, in their
full extent, the common and statute law of Great Britain, by which many
other rights, not expressed in it, are equally secured.
To the first I answer, that the Constitution proposed by the convention
contains, as well as the constitution of this State, a number of such
provisions.