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The Judiciary Continued in Relation to Trial by Jury
To the People of the State of New York:
With regard to civil causes, subtleties almost too contemptible
for refutation have been employed to countenance the surmise that a
thing which is only not provided for, is entirely abolished. Every
man of discernment must at once perceive the wide difference between
silence and abolition. But as the inventors of this fallacy have
attempted to support it by certain legal maxims of interpretation,
which they have perverted from their true meaning, it may not be
wholly useless to explore the ground they have taken.
The maxims on which they rely are of this nature: ``A
specification of particulars is an exclusion of generals''; or,
``The expression of one thing is the exclusion of another.'' Hence,
say they, as the Constitution has established the trial by jury in
criminal cases, and is silent in respect to civil, this silence is
an implied prohibition of trial by jury in regard to the latter.
The rules of legal interpretation are rules of commonsense,
adopted by the courts in the construction of the laws. The true
test, therefore, of a just application of them is its conformity to
the source from which they are derived. This being the case, let me
ask if it is consistent with common-sense to suppose that a
provision obliging the legislative power to commit the trial of
criminal causes to juries, is a privation of its right to authorize
or permit that mode of trial in other cases? Is it natural to
suppose, that a command to do one thing is a prohibition to the
doing of another, which there was a previous power to do, and which
is not incompatible with the thing commanded to be done? If such a
supposition would be unnatural and unreasonable, it cannot be
rational to maintain that an injunction of the trial by jury in
certain cases is an interdiction of it in others.
A power to constitute courts is a power to prescribe the mode of
trial; and consequently, if nothing was said in the Constitution on
the subject of juries, the legislature would be at liberty either to
adopt that institution or to let it alone. This discretion, in
regard to criminal causes, is abridged by the express injunction of
trial by jury in all such cases; but it is, of course, left at
large in relation to civil causes, there being a total silence on
this head. The specification of an obligation to try all criminal
causes in a particular mode, excludes indeed the obligation or
necessity of employing the same mode in civil causes, but does not
abridge the power of the legislature to exercise that mode if it
should be thought proper. The pretense, therefore, that the
national legislature would not be at full liberty to submit all the
civil causes of federal cognizance to the determination of juries,
is a pretense destitute of all just foundation.
>From these observations this conclusion results: that the trial
by jury in civil cases would not be abolished; and that the use
attempted to be made of the maxims which have been quoted, is
contrary to reason and common-sense, and therefore not admissible.
Even if these maxims had a precise technical sense, corresponding
with the idea of those who employ them upon the present occasion,
which, however, is not the case, they would still be inapplicable to
a constitution of government. In relation to such a subject, the
natural and obvious sense of its provisions, apart from any
technical rules, is the true criterion of construction.
Having now seen that the maxims relied upon will not bear the
use made of them, let us endeavor to ascertain their proper use and
true meaning. This will be best done by examples. The plan of the
convention declares that the power of Congress, or, in other words,
of the national legislature, shall extend to certain enumerated
cases. This specification of particulars evidently excludes all
pretension to a general legislative authority, because an
affirmative grant of special powers would be absurd, as well as
useless, if a general authority was intended.
In like manner the judicial authority of the federal judicatures
is declared by the Constitution to comprehend certain cases
particularly specified. The expression of those cases marks the
precise limits, beyond which the federal courts cannot extend their
jurisdiction, because the objects of their cognizance being
enumerated, the specification would be nugatory if it did not
exclude all ideas of more extensive authority.
These examples are sufficient to elucidate the maxims which have
been mentioned, and to designate the manner in which they should be
used. But that there may be no misapprehensions upon this subject,
I shall add one case more, to demonstrate the proper use of these
maxims, and the abuse which has been made of them.
Let us suppose that by the laws of this State a married woman
was incapable of conveying her estate, and that the legislature,
considering this as an evil, should enact that she might dispose of
her property by deed executed in the presence of a magistrate. In
such a case there can be no doubt but the specification would amount
to an exclusion of any other mode of conveyance, because the woman
having no previous power to alienate her property, the specification
determines the particular mode which she is, for that purpose, to
avail herself of. But let us further suppose that in a subsequent
part of the same act it should be declared that no woman should
dispose of any estate of a determinate value without the consent of
three of her nearest relations, signified by their signing the deed;
could it be inferred from this regulation that a married woman
might not procure the approbation of her relations to a deed for
conveying property of inferior value? The position is too absurd to
merit a refutation, and yet this is precisely the position which
those must establish who contend that the trial by juries in civil
cases is abolished, because it is expressly provided for in cases of
a criminal nature.
>From these observations it must appear unquestionably true, that
trial by jury is in no case abolished by the proposed Constitution,
and it is equally true, that in those controversies between
individuals in which the great body of the people are likely to be
interested, that institution will remain precisely in the same
situation in which it is placed by the State constitutions, and will
be in no degree altered or influenced by the adoption of the plan
under consideration. The foundation of this assertion is, that the
national judiciary will have no cognizance of them, and of course
they will remain determinable as heretofore by the State courts
only, and in the manner which the State constitutions and laws
prescribe. All land causes, except where claims under the grants of
different States come into question, and all other controversies
between the citizens of the same State, unless where they depend
upon positive violations of the articles of union, by acts of the
State legislatures, will belong exclusively to the jurisdiction of
the State tribunals. Add to this, that admiralty causes, and almost
all those which are of equity jurisdiction, are determinable under
our own government without the intervention of a jury, and the
inference from the whole will be, that this institution, as it
exists with us at present, cannot possibly be affected to any great
extent by the proposed alteration in our system of government.
The friends and adversaries of the plan of the convention, if
they agree in nothing else, concur at least in the value they set
upon the trial by jury; or if there is any difference between them
it consists in this: the former regard it as a valuable safeguard
to liberty; the latter represent it as the very palladium of free
government. For my own part, the more the operation of the
institution has fallen under my observation, the more reason I have
discovered for holding it in high estimation; and it would be
altogether superfluous to examine to what extent it deserves to be
esteemed useful or essential in a representative republic, or how
much more merit it may be entitled to, as a defense against the
oppressions of an hereditary monarch, than as a barrier to the
tyranny of popular magistrates in a popular government. Discussions
of this kind would be more curious than beneficial, as all are
satisfied of the utility of the institution, and of its friendly
aspect to liberty. But I must acknowledge that I cannot readily
discern the inseparable connection between the existence of liberty,
and the trial by jury in civil cases. Arbitrary impeachments,
arbitrary methods of prosecuting pretended offenses, and arbitrary
punishments upon arbitrary convictions, have ever appeared to me to
be the great engines of judicial despotism; and these have all
relation to criminal proceedings. The trial by jury in criminal
cases, aided by the habeas-corpus act, seems therefore to be
alone concerned in the question. And both of these are provided
for, in the most ample manner, in the plan of the convention.
It has been observed, that trial by jury is a safeguard against
an oppressive exercise of the power of taxation. This observation
deserves to be canvassed.
It is evident that it can have no influence upon the
legislature, in regard to the amount of taxes to be laid, to the
objects upon which they are to be imposed, or to the rule by which
they are to be apportioned. If it can have any influence,
therefore, it must be upon the mode of collection, and the conduct
of the officers intrusted with the execution of the revenue laws.
As to the mode of collection in this State, under our own
Constitution, 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
Hamilton From McLean's Edition, New York.
THE objection to the plan of the convention, which has met with
most success in this State, and perhaps in several of the other
States, is that relative to the want of a constitutional provision
for the trial by jury in civil cases. The disingenuous form in
which this objection is usually stated has been repeatedly adverted
to and exposed, but continues to be pursued in all the conversations
and writings of the opponents of the plan. The mere silence of the
Constitution in regard to civil causes, is represented as an
abolition of the trial by jury, and the declamations to which it has
afforded a pretext are artfully calculated to induce a persuasion
that this pretended abolition is complete and universal, extending
not only to every species of civil, but even to criminal causes. To
argue with respect to the latter would, however, be as vain and
fruitless as to attempt the serious proof of the existence of
matter, or to demonstrate any of those propositions which, by their
own internal evidence, force conviction, when expressed in language
adapted to convey their meaning.