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The Federalist Papers

Alexander Hamilton, John Jay, and James Madison

Section 66 of 69 - Table of Contents
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.
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