Federalist Papers Nos. 78–83 turn from the executive to the third branch of the new government – the federal judiciary.
Written entirely by Alexander Hamilton, these six essays systematically defend the structure, tenure, powers, and independence of the courts created by the Constitution.
Hamilton’s central purpose is to show that a truly independent judiciary is essential to a limited Constitution, that it is the “least dangerous” branch because it possesses neither force nor will but only judgment, and that the Convention’s design carefully balances energy with restraint while protecting individual rights and the supremacy of the written Constitution.
● Federalist 78 opens the series with an overview of the judiciary. Hamilton explains why judges must hold office during good behavior (life tenure subject to removal only for misconduct), why this permanence is the best guarantee of independence, and why the courts must have the power to declare legislative acts void when they conflict with the Constitution – the principle later known as judicial review. Thus Hamilton presages Chief Justice Marshall’s opinion in Marbury v. Madison, 5 U.S. (1 Cranch) 137.
● Federalist 79 addresses the practical supports for that independence: judicial salaries that cannot be diminished during a judge’s tenure, and the limited grounds for removal.
● Federalist 80 enumerates the categories of cases that properly fall under federal jurisdiction—cases arising under the Constitution, treaties, and federal laws; cases affecting ambassadors; controversies between states or citizens of different states; and maritime cases—showing why a national court system is necessary for uniformity and justice.
● Federalist 81 examines the structure of the federal court system: one Supreme Court and such inferior courts as Congress may establish. Hamilton defends the Supreme Court’s appellate jurisdiction and answers fears that it would swallow up the state courts.
● Federalist 82 clarifies the relationship between federal and state courts. State courts retain concurrent jurisdiction in most cases unless Congress expressly excludes them; federal appellate review remains available to ensure uniform interpretation of national law.
● Federalist 83 responds to the most frequent Anti-Federalist objection in New York—the supposed abolition of trial by jury in civil cases. Hamilton demonstrates that the Constitution does not abolish jury trial, that it is fully protected in criminal cases, and that Congress retains full authority to provide for civil juries wherever they are appropriate.
Taken together, these papers present the judiciary as the guardian of the Constitution and of individual rights—weak in its own power, yet indispensable for keeping the other branches within their assigned limits.
They complete the examination of the three departments of the new government and prepare the ground for the final miscellaneous objections and concluding remarks in Papers 84 and 85.
Federalist 78: Overview of the Judiciary
WE NOW EXAMINE THE JUDICIAL DEPARTMENT of the United States.
The manner of constituting embraces three main objects:
1st. The mode of appointing judges.
2d. The tenure by which they are to hold their places.
3d. The partition of the judicial authority between different courts, and their relations to each other.
Judges Are Appointed in the Same Manner as Officers of the United States
As to the mode of appointing judges, it is the same as that of appointing officers of the United States in general, and has been fully discussed in Federalist 76 and Federalist 77.
Judges Are to Hold Office During Good Behavior
Second, the tenure by which the judges are to hold their places chiefly concerns their duration in office, the provisions for their support, and the precautions for their responsibility.
According to the plan of the Convention, all judges who may be appointed by the United States are to hold their offices during good behavior.
This standard conforms to the method used in the state constitutions held in the highest repute, and is one of the most valuable modern improvements in the practice of government.
In a monarchy, it is an excellent barrier to despotism of the prince.
In a republic, it is a no less excellent barrier to encroachments and oppressions of the representative body.
It is the best expedient to secure a steady, upright, and impartial administration of the laws.
The Judiciary Is the Weakest of the Three Branches of Government
In a government where the different departments of power are separate from each other, the judiciary will always be the least able to annoy or injure the political rights of the constitution.
The executive not only dispenses the honors, but holds the sword of the community.
The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen to be are regulated.
The judiciary, on the contrary, can take no active resolution whatever.
It has no power over either the sword or the purse, nor can it direct the strength or wealth of the society.
The judiciary has neither force nor will, but merely judgment.
Ultimately it depends upon the aid of the executive arm to enforce those judgments.
The judiciary is beyond comparison the weakest of the three departments of power.
When comparing it to the executive and legislative power, Montesquieu declared “the judiciary is next to nothing.”
Since it can never successfully attack either the executive or legislative branch, all possible care is required to enable the judiciary to defend itself against their attacks.
In a government where the different departments of power are separate from each other, the judiciary will always be the least able to annoy or injure the political rights of the constitution. The executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen to be are regulated.
Individual oppression may now and then proceed from the courts of justice, but the general liberty of the People can never be endangered from that quarter, so long as the judiciary remains truly distinct from both the legislature and executive.
On the other hand, if the power of judging is not separated from the legislative and executive powers, reasons Montesquieu, “there is no liberty.”
Therefore, we would have everything to fear from the union of the judiciary with either of the other departments, but liberty can have nothing to fear from the judiciary alone.
A union between the judiciary and one of the other two branches could only ensue from the dependence of the judiciary on either of these other branches, notwithstanding a nominal and apparent separation.
Due to the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed or influenced by its coordinate branches.
Nothing can contribute more to its independence and firmness as permanency in office.
This quality is justly regarded as indispensable to its constitution as the citadel of public justice and security.
The complete independence of the judiciary is particularly essential because the Constitution limits legislative authority, such as prohibiting the passage bills of attainder, ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.
The Judiciary Has the Power to Declare Legislative Acts Void if Unconstitutional
The complete independence of the judiciary is particularly essential because the Constitution limits legislative authority, such as prohibiting the passage of bills of attainder, ex post facto laws, and the like.
Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the constitution void.
Without this, all the reservations of particular rights or privileges would amount to nothing.
Some have imagined the right of the courts to pronounce legislative acts void as contrary to the Constitution implies a superiority of the judiciary to the legislature, since the authority to declare the acts of another department void appears superior to the authority of the department whose acts may be declared void.
Having perplexed some, this argument merits consideration.
With respect to the judiciary’s power to declare acts of another department void, it is clear that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void.
To deny this would be to affirm that the deputy is greater than his principal, that the servant is above his master, that the representatives of the People are superior to the People themselves, and that those representatives may do not only what their powers do not authorize, but what they forbid.
From these premises, it is apparent that no legislative act contrary to the Constitution can be valid.
With respect to the judiciary’s power to declare acts of another department void, it is clear that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. To deny this would be to affirm that the deputy is greater than his principal, that the servant is above his master, that the representatives of the People are superior to the People themselves, and that those representatives may do not only what their powers do not authorize, but what they forbid.
Congress Does Not Have the Final Say on the Constitutionality of Its Measures
To those who say the legislature is itself the constitutional judge of its own power – and that its judgments are conclusive upon the other departments – I answer that no constitutional provision supports the presumption of legislative superiority to the judiciary in assessing compliance with the Constitution.
The argument is akin to suggesting the Constitution enables the representatives of the People to substitute their will to that of their constituents, even though the Constitution is silent on the point.
Is it not far more rational to suppose that the courts were designed to be an intermediate body between the People and the legislature, in order to keep the legislature within the limits assigned to their authority?
The interpretation of the laws is the proper and peculiar province of the courts.
A constitution is a fundamental law and must be so regarded by judges.
It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body.
If there should happen to be an irreconcilable variance between a law and the Constitution, the Constitution ought to be preferred to the statute, for the intention of the People is superior to the intention of their agents.
Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power.
It only supposes that the power of the People is superior to both.
Where the will of Congress – declared in its statutes – stands in opposition to the will of the People – as declared in the Constitution – the Constitution ought to govern the statute.
In turn, judges ought to regulate their decisions by fundamental laws rather than by those which are not fundamental.
If there should happen to be an irreconcilable variance between a law and the Constitution, the Constitution ought to be preferred to the statute, for the intention of the People is superior to the intention of their agents.
This exercise of judicial discretion is exemplified in cases where two statutes clash in whole or in part with each other, and neither contains any repealing clause or expression.
It is the province of the courts in such a case to liquidate and fix their meaning and operation.
So far as they can be reconciled to each other by any fair construction, reason and law conspire to dictate this should be done.
Where this is impracticable, it becomes a matter of necessity to give effect to one to the exclusion of the other.
In determining their relative validity, the courts usually apply the rule that the statute last in order of time shall be preferred to the first.
This rule is not derived from any positive law enjoined upon the courts by legislative provision.
It is a mere rule of construction adopted by the judges themselves as being consonant to truth and propriety, based on the nature and reason of the thing, for the direction of their conduct as interpreters of the law.
In reviewing the conflicting acts of an equal authority, they have thought it reasonable to give preference to the latest indication of legislative will.
The opposite of that rule should apply in cases where the acts of a superior and subordinate authority conflict.
The prior act of a superior authority ought to be preferred to the subsequent act of an inferior and subordinate authority.
Accordingly, whenever a particular statute contravenes the Constitution, it will be the duty of the judicial tribunals to adhere to the Constitution and to disregard the statute.
Some might argue this rule permits courts to substitute their own pleasure to the constitutional intentions of the legislative branch.
But the same argument could be made in every case where a court decides between two contradictory statutes, and even where it decides the meaning of a single statute.
Courts must declare the sense of the law in every case, so if a judge should be disposed to exercise will instead of judgment in deciding the intent of a law, said exercise of judicial will effectively substitutes itself for the legislative will, whether the law was founded on the Constitution or a statute.
If the objection proves anything, it would be that there ought to be no judges distinct from the legislature.
A Lifetime Appointment Will Help Secure Judicial Independence
For the courts of justice to stand as the bulwarks of a limited Constitution against the encroachments of Congress, nothing less than permanent tenure of judicial offices is required.
This alone can foster that independent spirit in the judges which is essential to the faithful performance of so difficult a duty.
This independence of judges is equally required to guard the Constitution and the rights of individuals from the effects of those ill humors which the arts of designing individuals (or the influence of particular conjunctures) sometimes disseminate among the People themselves.
Although such ill humors speedily give place to better information and more deliberate reflection, in the meantime they have a tendency to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community.
Although it a fundamental principle of republican government that the People have the right to alter or abolish the established Constitution whenever they find it inconsistent with their happiness, it is not to be inferred from this principle that the representatives of the People would be justified in violating the existing Constitution whenever a momentary inclination incompatible with its provisions happens to lay hold of a majority of their constituents.
Similarly, the courts would be under no greater obligation to connive at infractions in this shape, than had they proceeded wholly from the cabals of the representative body.
Until the People have annulled or changed the Constitution by a solemn and authoritative act, it is binding upon themselves collectively, as well as individually.
No presumption – or even knowledge – of their sentiments, can warrant their representatives in a departure from it.
Nonetheless, it would require an uncommon portion of fortitude in the judges to do their duty as faithful guardians of the Constitution, where legislative invasions had been instigated by the major voice of the community.
This independence of judges is equally required to guard the Constitution and the rights of individuals from the effects of those ill humors which the arts of designing individuals (or the influence of particular conjunctures) sometimes disseminate among the People themselves.
An Independent Judiciary Discourages Legislative Excesses
The independence of judges may also be an essential safeguard against the effects of occasional ill humors in society which do not amount to infractions of the Constitution.
These sometimes extend no farther than to the injury to the private rights of particular classes of citizens caused by unjust and partial laws.
Here also the firmness of the judicial magistracy is of vast importance in mitigating the severity and confining the operation of such laws.
It not only serves to moderate the immediate mischiefs of those laws which may have been passed, but it operates as a check upon the legislative body in passing them.
Those who perceive that obstacles to the success of iniquitous intention are to be expected from the scruples of the courts, are in a manner compelled to qualify their attempts by the very motives of the injustice they meditate.
The benefits of the integrity of the judiciary is a circumstance calculated to have more influence upon the character of our governments, and its moderating influence already has been felt in more States than one.
Though displeasing to those whose sinister expectations were disappointed, their decisions must have commanded the esteem and applause of all the virtuous and disinterested.
Individual citizens of every description ought to prize whatever will tend to beget or fortify integrity in the courts, for no one can be sure to escape a spirit of injustice which can make a gainer today a victim tomorrow.
And every individual must now feel that the inevitable tendency of such a spirit is to sap the foundations of public and private confidence, and to introduce in its stead universal distrust and distress.
Individual citizens of every description ought to prize whatever will tend to beget or fortify integrity in the courts, for no one can be sure to escape a spirit of injustice which can make a gainer today a victim tomorrow. And every individual must now feel that the inevitable tendency of such a spirit is to sap the foundations of public and private confidence, and to introduce in its stead universal distrust and distress.
Temporary Judicial Appointments Can Undermine Judicial Integrity
Judges who hold their offices by a temporary commission cannot be expected to maintain that inflexible and uniform adherence to the rights of the Constitution – and of individuals – which we perceive to be indispensable in the courts of justice.
Periodical appointments – however regulated or by whomsoever made – would in some way or other be fatal to their necessary independence.
If the power of making temporary appointments were committed either to the executive or legislative branch, there would be danger of an improper complaisance to the branch which possessed it.
If the power were assigned to both branches, there would be an unwillingness to hazard the displeasure of either.
If the power were committed to the People – or to persons chosen by them for the special purpose – there would be too great a disposition to consult popularity, to justify a reliance that nothing would be consulted but the Constitution and the laws.
A Lifetime Tenure Is Essential to Attracting Qualified Judicial Candidates
There is yet a further and a weightier reason for the permanency of the judicial offices, which is deducible from the nature of the qualifications they require.
It has been frequently been remarked, with great propriety, that a voluminous code of laws is one of the inconveniences necessarily connected with the advantages of a free government.
To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and to point out their duty in every particular case that comes before them.
Considering the variety of controversies which grow out of the folly and wickedness of mankind, the records of those precedents must unavoidably swell to a very considerable bulk, which in turn must demand long and laborious study to acquire a competent knowledge of them.
Hence it is, that there can be but few individuals in the society who will have sufficient skill in the laws to qualify them for the stations of judges.
And making the proper deductions for the ordinary depravity of human nature, the number must be still smaller of those who unite the requisite integrity with the requisite knowledge.
These considerations apprise us that the government can have no great option between fit characters.
A temporary duration in office would naturally discourage such characters from quitting a lucrative line of practice to accept a seat on the bench.
It would have a tendency to throw the administration of justice into hands less able, and less well qualified to conduct it with utility and dignity.
In the present circumstances of this country, and in those in which it is likely to be for a long time to come, the disadvantages on this score would be greater than they may at first sight appear.
The experience of Great Britain also affords an illustrious comment on the excellence of the institution of tenure during good behavior.
Hence it is, that there can be but few individuals in the society who will have sufficient skill in the laws to qualify them for the stations of judges. And making the proper deductions for the ordinary depravity of human nature, the number must be still smaller of those who unite the requisite integrity with the requisite knowledge.
Upon the whole, there can be no room to doubt that the Convention acted wisely in copying from the models of those constitutions which have established good behavior as the tenure of their judicial offices.
So far from being blamable on this account, their plan would have been inexcusably defective if it had wanted this important feature of good government.
Hamilton
Federalist 79: The Salaries of Judges Cannot Be Diminished
A Provision against Diminution of Judicial Salaries Is Necessary
NEXT TO PERMANENCY IN OFFICE, nothing can contribute more to the independence of the judges than a fixed provision for their support.
In the general course of human nature, a power over an individual’s subsistence amounts to a power over the individual’s will.
We can never hope to see the reality of a complete separation of the judicial power from the legislative power in any system which leaves the judiciary dependent on the legislature for occasional grants pecuniary resources.
The enlightened friends to good government in every State lament the want of precise and explicit precautions on this point, and some have even declared that permanent salaries should be established for the judges.
But experience has shown that such legislative expressions were insufficiently definite to preclude legislative evasions in some instances.
In the general course of human nature, a power over an individual’s subsistence amounts to a power over the individual’s will.
Something still more positive and unequivocal has been evinced to be requisite. The Convention accordingly provided that the judges of the United States “shall at stated times receive for their services a compensation which shall not be diminished during their continuance in office.” Art. III, § 1, cl. 2, emphasis added.
This provision for the support of the judges bears every mark of prudence and efficacy.
Together with the permanent tenure of their offices, it affords a better prospect of their independence than is discoverable in the constitutions of any of the States in regard to their own judges.
Considering all the circumstances, it is the most eligible provision that could have been devised.
A Fixed Judicial Salary Would Be Subject to the Vicissitudes of the Value of Money
Fluctuations in the value of money and the state of society rendered a fixed rate of compensation untenable.
What might seem extravagant today could become penurious and inadequate in half a century.
Thus it was left to the discretion of the Congress to vary its provisions in conformity to the variations in circumstances, yet under such restrictions as to put it out of the power of that body to change the condition of the individual for the worse.
A judge may then be sure of a financial grounding upon which the judge stands, and can never be deterred from duty by the apprehension of being placed in a less eligible situation.
The salaries of judicial officers may from time to time be altered, as occasion shall require, yet so as never to lessen the allowance with which any particular judge comes into office.
Unlike the Salary of the President, Judicial Salaries May Be Increased
The compensation of judges and the President differ under the convention’s plan. The compensation of the President cannot be diminished or increased.
The compensation of judges cannot be diminished, but it may be increased.
The difference is based on the tenure of each office.
The President is to be elected for no more than four years.
An adequate salary fixed at the beginning of that period rarely would fail to be such to its end.
But judges will be secure in their offices for life if they behave properly.
A stipend that was sufficient at their first appointment would become too small in the progress of their service.
But judges will be secure in their offices for life if they behave properly. A stipend that was sufficient at their first appointment would become too small in the progress of their service.
Impeachment Will Deter Judicial Misbehavior
The best precaution against the irresponsible behavior of judges is impeachment.
Judges may be impeached for misbehavior by the House of Representatives, tried by the Senate, dismissed from office if convicted, and disqualified for holding any other office.
Since this is only precaution consistent with the necessary independence of the judicial character, it is only one we find in the proposed Constitution.
To those who question the absence of a provision allowing removal of judges on account of inability, due consideration will reveal such a provision is more liable to abuse than to answer any good purpose.
The measurement of the mind’s faculties has as yet found no place in the catalogue of known arts.
Any attempt to fix the boundary between the regions of ability and inability would more often give scope to personal and party attachments and enmities than to advance the interests of justice or the public good.
The result would for the most part be arbitrary, except in the case of insanity, which may be safely pronounced to be a virtual disqualification even without any formal or express provision.
To those who question the absence of a provision allowing removal of judges on account of inability, due consideration will reveal such a provision is more liable to abuse than to answer any good purpose.
In order to avoid such vague and dangerous investigations, the constitution of New York takes a particular age as the criterion of inability: no one can be a judge beyond sixty.
Few approve of this provision, since there is no station to which it is less proper than that of a judge.
The deliberating and comparing faculties generally preserve their strength much beyond that period in those who survive it.
Considering how few outlive their season of intellectual vigor – and how improbable any considerable portion of the bench would be in such a situation at the same time – we can readily conclude limitations of this sort have little to recommend them.
In a republic – where neither salaries are affluent nor pensions expedient – the dismissal of judges from stations in which they have served their country long and usefully, on which they depend for subsistence, and from which it will be too late to resort to any other occupation for a livelihood – ought to have some better apology to humanity than one founded in the imaginary danger of a superannuated bench.
Hamilton
Federalist 80: Legal Disputes Subject to Federal Jurisdiction
Federal Judicial Authority
THE CONSTITUTION DESCRIBES THE ENTIRE MASS of the judicial authority of the United States as follows:
“The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; – to all Cases affecting Ambassadors, other public Ministers and Consuls; – to all Cases of admiralty and maritime Jurisdiction; – to Controversies to which the United States shall be a Party; – to Controversies between two or more States; – between a State and Citizens of another State; – between Citizens of different States, – between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.” Art. III, § 2, cl 1.
The Six Principal Objects of Federal Judicial Authority
These Federal powers are roughly divisible into six principal objects, for which Federal judicial superintendence is necessary:
1. All cases concerning express provisions of the Constitution;
2. All cases arising from the laws of Congress passed pursuant to its just and constitutional powers of legislation;
3. All cases in which the United States is a party;
4. All cases involving the peace of the United States, whether related to dealings between the United States and foreign nations, or dealings between the States themselves;
5. All cases originating on the high seas which are of admiralty or maritime jurisdiction; and
6. All those cases where State tribunals cannot be supposed to be impartial and unbiased.
Cases concerning Express Constitutional Provisions
As to the first class – all cases concerning the execution of express provisions of the Constitution – there must always be a constitutional method of enforcing valid Federal provisions.
Under the Constitution, the States are prohibited from doing a variety of things which are incompatible with the interests of the union or the principles of good government, such as the imposition of duties on imported articles and the emission of paper money.
No one with good sense believes such prohibitions would be rigorously enforced without Federal power.
This power must be either a direct negative on the State laws or an authority in the Federal courts to overrule such laws as might clearly contravene the Constitution.
There is no third course.
The Constitution authorizes federal courts to overrule unconstitutional State laws, a remedy more preferable to the States than a direct negative of their laws.
The Constitution authorizes federal courts to overrule unconstitutional State laws, a remedy more preferable to the States than a direct negative of their laws.
Cases Arising Out of the Laws of the United States
As to the second class – all cases arising out of the laws of the United States – clearly the judicial power of a government must be coextensive with its legislative power.
The necessity of uniformity in the interpretation of the national laws decides the question.
If any number of State courts of final jurisdiction could differently decide the same causes arising upon the same laws, the resulting procession of contradiction and confusion would be a hydra, not a government.
As for the difference between “cases arising under the Constitution,” and those “arising under the laws of the United States,” the clearest examples are those restrictions on the authority of State legislatures.
For instance, if States were to emit paper money in violation of the constitutional interdiction, the responsive Federal action would arise under the Constitution, not the laws of the United States.
This may serve as a sample of the whole.
Federal Judicial Power Extends to Cases Arising in Equity
The judicial power properly includes cases arising in equity as well as those arising under law.
Some may question whether equitable causes can grow out of the Constitution and laws of the United States, but rarely does any subject of litigation between individuals fail to involve the equitable ingredients of fraud, accident, trust, or hardship.
For instance, it is the peculiar province of a court of equity to give relief against what are called hard bargains: contracts with no direct fraud or deceit sufficient to invalidate them in a court of law, yet involving some undue and unconscionable advantage taken of the necessities or misfortunes of one of the parties, which a court of equity would not tolerate.
In such cases – especially where foreigners are concerned on either side – it would be impossible for the Federal courts to do justice without an equitable as well as a legal jurisdiction.
The need for an equitable jurisdiction in the Federal courts would also arise in disputes over agreements to convey lands claimed under the grants of different States.
The judicial power properly includes cases arising in equity as well as those arising under law. Some may question whether equitable causes can grow out of the Constitution and laws of the United States, but rarely does any subject of litigation between individuals fail to involve the equitable ingredients of fraud, accident, trust, or hardship.
Cases between the United States and Foreign Nations, and between the States Themselves
The fourth aspect – Federal jurisdiction of all cases related to dealings between the United States and foreign nations and dealings between the States themselves – rests on the proposition that the peace of the whole union ought not to be left at the disposal of one or more of its parts.
The United States will undoubtedly be answerable to foreign powers for the conduct of its members; therefore it should to have the faculty of preventing those injuries in the first place.
Since the denial or corruption of justice by courts is with reason classed as a just cause of war, the Federal judiciary also ought to have cognizance of all causes where citizens of other countries are concerned.
This is essential to preserving the public faith and securing the public tranquility.
There also should be no distinction between those cases arising from treaties or the laws of nations and those cases which stand only on the footing of State or local law.
An unjust judgment against a foreigner – if unredressed – would be an aggression upon the foreigner’s sovereign.
To this one might add the immense difficulty of making a practical distinction between the cases of one complexion and those of the other.
As the majority of the cases in which foreigners are parties involve national questions, it is by far safest and most expedient to refer all such cases to the national tribunals.
The fourth aspect – Federal jurisdiction of all cases related to dealings between the United States and foreign nations and dealings between the States themselves – rests on the proposition that the peace of the whole union ought not to be left at the disposal of one or more of its parts.
Cases in which the United States Is a Party
Still less need be said about the third class of class of cases, in which the United States is a party.
Controversies between a nation and its members or citizens can be properly referred only to national tribunals.
Any other plan would be contrary to reason, precedent and decorum.
Cases between States, between a State and Citizens of Another State, and Diversity Jurisdiction
Equally essential to the peace of the union is a Federal power to determine causes between two States, between one State and the citizens of another, and between the citizens of different States.
The efficacy of courts invested with final authority to decide disputes between interests from different geographical areas was proven by the institution in Germany of the Imperial Chamber of Justice towards the close of the fifteenth century.
Dissensions and private wars distracted and desolated the country before this action, but these were appeased and tranquility was reestablished afterwards.
Territorial disputes and interfering claims of boundary are fertile sources of bickering and animosity between the States, and have led to enactment of fraudulent laws to substantiate claims.
The Constitution establishes particular guards against these, and anticipates the spirit which produced them will assume new shapes.
Practices having a tendency to disturb the harmony between the States are proper objects of Federal superintendence and control.
The Privileges and Immunities Clause of Article IV
Since every government ought to possess the means of executing its own provisions by its own authority, the Constitution declares, in the Privileges and Immunities Clause: “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” Art. IV, § 2, cl. 1.
To maintain inviolate this equality of the Privileges and Immunities Clause, the national judiciary must preside in all cases where one State or its citizens are opposed to another State or its citizens.
Having no local attachments, the national tribunals will likely be impartial between the different States and their citizens, and disinclined to engage in any evasion or subterfuge regarding the fundamental importance of that constitutional provision.
I also note that the national judiciary – owing its official existence to the United States – will never be likely to feel any bias against the principles on which it was founded.
Cases Originating on the High Seas of Admiralty or Maritime Jurisdiction
The fifth point – cases arising on the high seas which are of admiralty or maritime jurisdiction – is conceded even by most bigoted idolizers of State authority.
These cases so generally depend on the laws of nations – and so commonly affect the rights of foreigners – that jurisdiction is proper if only to keep the public peace.
The most important of these cases were already subject to Federal jurisdiction under the Articles of Confederation.
To maintain inviolate this equality of the Privileges and Immunities Clause, the national judiciary must preside in all cases where one State or its citizens are opposed to another State or its citizens. Having no local attachments, the national tribunals will likely be impartial between the different States and their citizens, and disinclined to engage in any evasion or subterfuge regarding the fundamental importance of that constitutional provision.
All Cases where State Tribunals Cannot Be Supposed to Be Impartial or Unbiased
The sixth point – the agency of the national courts in cases in which the State tribunals cannot be supposed to be impartial – speaks for itself.
No one can be a judge in his own cause, or in any in which he has the least interest or bias.
This principle supports designating the Federal courts as the proper tribunals for the determination of controversies between different States and their citizens.
In some cases, it should apply between citizens of the same State. For example, in cases involving conflicting land grants or boundaries of different States, the courts of neither granting State could be expected to be unbiased.
State laws may have even prejudged the question, and tied State courts down to decisions in favor of their grants.
And even where this had not been done, it would be natural that the judges – as humans – should feel a strong predilection to the claims of their own government.
All the particular powers of the Federal judiciary marked out in the Constitution conform to the principles necessary to govern the structure of that department and to perfect the system.
If minor difficulties appear, the Congress – as the national legislature – will have ample authority to make such exceptions and prescribe such regulations as will obviate or remove them.
To a well informed mind, the possibility of particular mischiefs can never be viewed as a solid objection to a general principle calculated to avoid general mischiefs and to obtain general advantages.
Hamilton
Federalist 81: The Structure of the Federal Court System
To assist comprehension, I have added numbered and lettered headings, in the form I might employ in a court of law or equity.
I. A National Supreme Court Is Required
I now turn to the partition of the judicial authority between different courts, and their relations to each other.
Article I, section 3, of the Constitution provides: “The judicial power of the United States is to be vested in one Supreme Court, and in such inferior courts as the Congress may, from time to time, ordain and establish.”
The word jurisdiction is composed of jus – the law – and dictio – to speak.
Jurisdiction simply means speaking or pronouncing the law.
No one contests the need for one court of supreme and final jurisdiction.
The reasons for it were discussed in Federalist 80, and are too obvious to need repetition.
The word jurisdiction is composed of jus – the law – and diction – to speak. Jurisdiction simply means speaking or pronouncing the law.
A. The Supreme Court Must Be Independent of Congress
1. Fears of an Uncontrollable Supreme Court Are Unfounded
The only question raised is whether the Supreme Court ought to be a distinct body or merely a part of the legislature, from which individuals would be drawn to serve as members of the court.
Those who desire to vest judicial powers in a part of the legislature assert the authority of a separate and independent Supreme Court would be superior to that of the legislature.
They fear the Supreme Court would have the power to construe laws according to the spirit of the Constitution, enabling it to mold them into whatever shape it thinks proper, especially since its decisions will not be in any manner subject to revision or correction by Congress.
This is asserted to be unprecedented and dangerous because the errors and usurpations of the Supreme Court would be uncontrollable and remediless.
The votaries of this objection prefer the systems of Britain and several of the States, where the judicial power of last resort resides in their legislatures, which are assumed to have the power to rectify by law the unacceptable decisions of their respective high courts.
These objections to the Supreme Court of the United States are made up altogether of false reasonings upon misconceived facts.
a. The Constitution Is Silent on Constitutional Interpretation
The Constitution utters not a single syllable directly empowering the national courts to construe the laws according to the spirit of the Constitution, or of giving them any greater latitude in this respect than may be claimed by the courts of every State.
b. Congressional Acts Must Give Way When Evidently Opposed to the Constitution, and the Supreme Court Is the Final Arbiter as to the Act Before It
The Constitution must be the standard against which the laws of Congress are tested, and those laws must give way to the Constitution wherever there is an evident opposition.
Although this doctrine is not set forth in Constitution itself, it is central to the theory and nature of a limited constitution.
As far as it is true, it applies equally to most if not all State governments.
On this account, any objection that would lie against an independent Federal judicial branch would lie against State and local judicial branches as well, and would serve to condemn every constitution that has or ever will attempt to set bounds to legislative discretion.
2. The Separation of Powers Doctrine Requires the Supreme Court Be a Separate and Distinct Branch of Government, Not an Outgrowth of the Legislative Branch
The force of the objection to the existence of a separate Supreme Court is directed to its composition as a distinct body of magistrates – one of three separate branches of government.
The opponents of a separate and distinct high court would have the Supreme Court be an outgrowth of the legislative branch, instead of being its own branch connected to the tree comprising the activity of the People, who are the root of all power, as explained with more detail in Federalist 84.
These opponents prefer the system prevailing in the governments of Great Britain and New York.
a. Making the Supreme Court a Department of the Congress Would Improperly Intermix the Powers Delegated to Both
To argue the Supreme Court should be a department of the Congress is to renounce allegiance to the doctrine that the departments of power should be separate.
Yet the principal advocates of a scheme that would vest the ultimate decision of all judicial causes in a part of the legislative body object to having the Senate sit as a court of impeachments on the ground it would be an improper intermixture of separate powers.
They are mistaken as to both.
b. While the Scheme Would Not Necessarily Directly Violate the Separation of Powers Doctrine, It Would Result in Indirect Violations
I will concede the doctrine of separation of powers – as explained in Federalist 47 and Federalist 48 – would not be violated by vesting the ultimate power of judging in a part of the legislative body.
But though this be not an absolute violation of that excellent rule, it verges so nearly upon it to be on this account alone to be less eligible than the mode set forth in the Constitution.
(1) Constitutional Violations Would Be Unremedied
Rarely could we expect a body that had even a partial agency in passing bad laws to sit in temper or moderation in deciding whether they were authorized by powers granted to the national government through the Constitution.
The same spirit which had operated in making the laws would pervade their interpretation.
Still less should we expect individuals who had infringed the Constitution in the character of legislators to be disposed to repair the breach while sitting as judges.
Nor is this all.
(2) Individuals Elected to Limited Terms Should Not Review Decisions by Lower Court Judges Who Are Appointed for Life
Every reason in favor of a lifetime tenure for judges during good behavior opposes placing the judicial power of last resort in a body composed of individuals chosen for a limited period.
It would be absurd to refer the determination of causes in the first instance to judges of permanent standing, and in the last to those of a temporary and mutable duration.
(3) Judges Are Selected for Legal Acumen and Training, while Legislators Are Not
A still greater absurdity is subjecting the decisions of individuals selected for their knowledge of the laws, acquired by long and laborious study, to the revision and control of individuals who lack that knowledge for want of the same experience.
Rarely are members of the legislature chosen with a view to those qualifications which fit individuals for the station of judge.
(4) Party Factions Inevitably Would Diminish Impartiality
The natural propensity of legislative bodies is to party divisions, and when afflicted with the consequences of ill information, we may fear the pestilential breath of faction will poison the fountains of justice.
The legislative habit of continually marshaling forces on opposite sides will be too apt to stifle the voices of both law and of equity.
c. Over Two Thirds of State Supreme Courts Are Separate from Their Legislatures
All of these considerations lead us to applaud the wisdom of those States which have committed the judicial power of last resort to bodies of individuals distinct and independent from the legislature.
In this respect the Constitution is neither novel nor unprecedented, as it simply a copy of the constitutions of New Hampshire, Massachusetts, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina and Georgia, all of which are the preferred exemplars for an independent judiciary.
d. Even in Governments Where the Judicial Power of Last Resort Is Vested in a Part of the Legislature, the Rest of the Legislature Is Without Power to CorrectErroneous Judicial Decisions in Particular Cases
Neither the Parliament of Great Britain nor the similarly composed State legislatures can rectify objectionable decisions of their respective courts in any sense other than might be done by a future legislature of the United States. Nothing in the British or State constitutions authorizes revision of a judicial sentence by a legislative act.
The Constitution is to the same effect. Under all of these systems, a legislature cannot reverse a determination once made in a particular case without exceeding its province, although it may prescribe a new rule for future cases.
No express provision commands this: the sole obstacle is its impropriety under general principles of law and reason, and it applies to State governments in exactly the same manner and extent as it would to the national government.
There is not the least difference in any view of the subject.
e. The Threat of Judicial Usurpation of Legislative Power Is Minimal
In the last place, the supposed danger of the judiciary encroaching on legislative authority is in reality a phantom.
While judicial officers may now and then misconstrue or contravene the will of the legislature, their errors can never be so extensive or frequent as to affect the order of the political system to any noticeable degree.
This follows from the general nature of the judicial power, the objects to which it relates, the manner in which it is exercised, its comparative weakness, and its total incapacity to support its usurpations by force.
In addition, the power to institute impeachments in the House of Representatives and to determine them in the Senate is a complete security against judicial usurpations.
A series of deliberate judicial usurpations of legislative authority would hazard the united resentment of the legislative branch, which possesses the means of punishing their presumption by degrading them from their stations.
This not only removes all apprehensions on the subject, it affords a cogent argument for constituting the Senate a court for the trial of impeachments.
In the last place, the supposed danger of the judiciary encroaching on legislative authority is in reality a phantom. While judicial officers may now and then misconstrue or contravene the will of the legislature, their errors can never be so extensive or frequent as to affect the order of the political system to any noticeable degree.
B. The Original Jurisdiction of the Supreme Court Is Limited
The Supreme Court’s original jurisdiction is confined to two classes of causes of a nature rarely to occur: “Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party.” Art. III, § 2, cl. 2 (emphasis added).
Public ministers of every class are the immediate representatives of their sovereigns.
All questions in which they are concerned are so directly connected with preserving the public peace and maintaining respect for the sovereignties they represent that expediency and propriety dictate such questions be submitted in the first instance to the highest court of the nation.
Although consuls are not strictly diplomats, they are the public agents of the nations to which they belong, so the same observations are applicable to them.
C. The Supreme Court’s Appellate Jurisdiction Must Extend to Factual as Well As Legal Issues, Since Appellate Jurisdiction of Facts Will Not Interfere with the Right to Trial by Jury
Aside from those cases of original jurisdiction, “the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.” Art. III, § 2, cl. 3, emphasis added.
This would include all the classes of cases subject to Federal jurisdiction discussed in Federalist 80.
The propriety of appellate jurisdiction in regard to matters of law is unquestioned, but loud clamors of opposition are heard as to review of matters of fact.
The objection depends in part on a mistaken notion that derives from the language and forms which obtain in New York courts, but not all others.
In New York courts, the term “appellate” is commonly used in reference to appeals in the course of the civil law.
From this technical meaning, some have deduced that the grant of “appellate Jurisdiction, both as to Law and Fact,” supersedes the right to trial by jury, leaving only trials without a jury, as in cases of admiralty, probate, and chancery in this State.
As for cases in which a State happens to be a party, it would ill suit its dignity to be turned over to an inferior tribunal.
But the same meaning would not be given to “appellate” in any part of New England.
There an appeal from one jury to another is familiar both in language and practice. Such “appeals” even occur as a matter of course until there have been two verdicts on one side.
Thus the word “appellate” cannot be understood in the same sense in New England as in New York.
This observation also demonstrates the impropriety of deriving a technical interpretation of a term in the Constitution from the jurisprudence of any particular State.
Viewed in the abstract, the expression of “appellate Jurisdiction, both as to Law and Fact,” denotes nothing more than the power of one tribunal to review the proceedings of another, either as to the law or fact, or both.
The mode of doing it may depend on ancient custom. In a new government like ours, it must depend on legislative provision.
In either situation, the review may be with the aid of a jury, or without it, as the legislature deems advisable.
In New York, a claim of error brought from a lower court to a higher court confers jurisdiction to the higher court of the facts as well as the law.
The higher court cannot institute a new factual inquiry, but it does take cognizance of those facts as they appear on the record, and pronounces the law arising upon it.
This is jurisdiction of both fact and law; it is impossible to separate them.
Similarly, the common law courts of this State unquestionably have jurisdiction of both fact and law, since those courts may proceed to judgment without a jury trial when the facts are undisputed.
Where the facts are disputed a jury ascertains them.
Under the Constitution, the grant of “appellate jurisdiction, both as to Law and Fact” to the Supreme Court will not permit it to reexamine a fact once ascertained by a jury.
If the Constitution ever should permit the Supreme Court to reexamine a fact once determined by a jury, it could either remand the cause to the court below for a second trial of the fact by a jury, or by directing a factual issue out of the Supreme Court for determination.
With respect to jurisdiction as to facts, the Convention may have reasoned that the appellate jurisdiction of the Supreme Court would extend to causes determined under both the common law and the civil law.
In common law cases, the proper province of the Supreme Court would generally be limited to revising the law.
In civil law cases, reexamination of the fact might be agreeable to usage. In some cases – prize causes for instance – reexamination of the facts might be essential to the preservation of the public peace.
In those cases, appellate jurisdiction should extend in the broadest sense to matters of fact.
The Convention could have made an express exception to the grant of jurisdiction in those cases originally tried by a jury, but this was impractical because in some of the States all causes are tried to a jury, and such an exception would preclude any revision of fact, whether proper or not.
To avoid all these difficulties, the safest course was to declare generally Supreme Court appellate jurisdiction both as to law and fact, subject to such exceptions and regulations as the national legislature (i.e., Congress) may prescribe.
This enables the government to modify it in such a manner as will best answer the ends of public justice and security.
From this viewpoint, it is obvious the supposed abolition of the trial by jury through the grant of appellate jurisdiction to the Supreme Court is fallacious and untrue.
The Federal legislature certainly has full power to provide there should be no reexamination of facts in appeals from causes originally tried by juries.
This would certainly be an authorized exception.
If it should be thought too extensive an exception, it might be qualified with a limitation to causes determinable at common law by a jury.
II. Lower Courts and Their Relations with the Supreme Court
A. The Power to Create Inferior Courts Should Be Used to Create National Courts Across State Boundaries
Turning to how the judicial authority is to be distributed between the supreme and the inferior courts of the union, the Constitution authorizes Congress to create “tribunals inferior to the Supreme Court.” Art. I, § 8, cl. 9.
The evident design of the provision is to enable the institution of local Federal courts, subordinate to the Supreme Court, either in States or larger districts, and to obviate the necessity of having recourse to the Supreme Court in every case of Federal cognizance.
It is intended to enable the national government to institute or authorize – in each State or district of the United States – a tribunal competent to the determination of matters of national jurisdiction within its limits.
B. Federal District Courts Are Necessary, for the Agency of State Courts Is an Inadequate Alternative
It will be found highly expedient and useful to divide the United States into four to six districts and to institute a Federal court in each rather than one in every State.
The judges of these courts, with the aid of State judges, may hold circuits for the trial of causes in the several parts of the respective districts.
Justice may be administered through them with ease and dispatch, with appeals safely circumscribed within a narrow compass.
This plan appears the most eligible of any that could be adopted.
It requires the power of constituting inferior courts be exercised to the fullest permissible extent under the Constitution.
The want of such a power would have been a great defect in the plan.
It might be said the same purpose could be accomplished by the instrumentality of the State courts.
The power to create “tribunals inferior to the Supreme Court” is broad enough to permit it, and the utmost latitude must be allowed as the fitness and competency of those courts.
But ought not a more direct and explicit provision have been made in favor of the State courts?
The substance of the power in question must be regarded as a necessary part of the plan, if it only to empower the national legislature to commit to national courts the cognizance of causes arising out of the national Constitution.
There also are substantial reasons against such a provision in favor of State courts.
State judges – holding their offices during pleasure or from year to year – will be too little independent to be relied upon for an inflexible execution of the national laws.
The most discerning individuals cannot foresee how far a prevailing local spirit may disqualify the local tribunals from the jurisdiction of national causes.
State judges – holding their offices during pleasure or from year to year – will be too little independent to be relied upon for an inflexible execution of the national laws. The most discerning individuals cannot foresee how far a prevailing local spirit may disqualify the local tribunals from the jurisdiction of national causes.
C.Assuming State Courts Are Utilized to Resolve Causes Involving National Laws, the Availability of Appellate Review Should Depend on the Confidence of Congress in those State Courts
If there is need for confiding the original cognizance of causes arising under national laws to State courts, there would be a correspondent necessity for leaving the door of appeal open as widely as possible.
The facility or difficulty of appeals should be proportionate to the confidence in, or distrust of, the subordinate tribunals.
I am well satisfied with the propriety of the appellate jurisdiction in the several classes of causes to which it is extended by the Constitution.
However, everything calculated to give practice to an unrestrained course to appeals would be a source of public and private inconvenience.
D. Federal Jurisdiction Will Not Abrogate State Sovereign Immunity
In order to arouse State opposition to the Constitution, some have suggested citizens from one State should be able to utilize the Federal courts to prosecute claims against a State which had issued them securities.
Although this issue digresses from the immediate subject of this paper, it has excited some alarm and merits refutation.
It is inherent in the nature of sovereignty not to be amenable to the suit of an individual without his or her consent.
This is the general sense and practice of mankind, and exemption from such suits is now enjoyed by the government of every State in the union.
Unless this immunity is surrendered in the Constitution, it will remain with the States, and the danger will exist merely as an idea.
The circumstances necessary to produce an alienation of State sovereignty were discussed in connected with taxation in Federalist 31 and others, and need not be repeated here.
The principles there established satisfy us the Constitution will divest no State government of the privilege of paying their own debts in their own way, free from every constraint save those flowing from the obligations of good faith.
The contracts between a nation and individuals are only binding on the conscience of the sovereign, with no pretension to a compulsive force.
They confer no right of action, independent of the sovereign will. It advances no purpose to authorize suits against sovereign States for the debts they owe.
No recovery could be had without waging war against the contracting State.
The Constitution does not destroy the preexisting sovereign right of the State governments, and it is altogether forced and unwarranted to ascribe to the Federal courts a power with such a consequence.
The summary of the observations hitherto made on the authority of the judicial department is this:
the judicial authority has been carefully restricted to those causes which are manifestly proper for the cognizance of the national judicature;
that in the partition of this authority a very small portion of original jurisdiction has been preserved to the Supreme Court, and the rest consigned to the subordinate tribunals;
that the Supreme Court will possess an appellate jurisdiction, both as to law and fact, in all the cases referred to them, subject to any exceptions and regulations which may be thought advisable; that this appellate jurisdiction does, in no case, abolish the trial by jury;
and that an ordinary degree of prudence and integrity in the national councils will insure us solid advantages from the establishment of the new judiciary, without exposing us to any of the inconveniences which have been predicted from that source.
Hamilton
Federalist 82: Concurrent Federal and State Court Jurisdiction
WHATEVER CARE OR WISDOM may distinguish the erection of a new government, it cannot fail to originate questions of intricacy and nicety, particularly where its constitution is founded upon the total or partial incorporation of a number of distinct sovereignties.
Time alone can mature and perfect so compound a system, solidify the meaning of all the parts, and adjust them to each other in a harmonious and consistent whole.
State Courts Retain Concurrent Jurisdiction
Such questions have arisen concerning the judicial department.
The principal of these are position of State courts regarding those causes subject to Federal jurisdiction.
Is there to be an exclusive Federal jurisdiction, or do the State courts possess a concurrent jurisdiction, and if so, in what relation will they stand to the national tribunals?
The principles established in Federalist 31 teach us the States retain all preexisting authorities not exclusively delegated to the Federal government, and this exclusive delegation can exist only in one of three cases:
1. Where an exclusive authority is granted to the Federal government in express terms;
2. Where a particular authority is granted to the Federal government and the exercise of a like authority is prohibited to the States; and
3. Where an authority is granted to the Federal government, and the exercise of a similar authority by the States would be utterly incompatible.
Although these principles may not apply to the Federal judicial power with the same force as they do to the Federal legislative power, in general they justly apply to both.
And from this it follows the State courts retain the jurisdiction they now have, unless it appears to be taken away in one of the enumerated modes.
Nonetheless, State courts will be divested of no part of their preexisting jurisdiction, other than may relate to the appeal of Federal issues.
The only thing in the Constitution appearing to confine the causes of Federal cognizance to the Federal courts is contained in this passage: “The judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress shall from time to time ordain and establish.” Art. III, § 1, emphasis added.
This sentence could signify simply that the organs of the Federal judiciary are one Supreme Court and as many subordinate courts as Congress should think proper to appoint.
Or it could signify the supreme and subordinate courts of the United States alone have the power of deciding those causes to which their authority extends.
The first view admits concurrent State court jurisdiction; the second view excludes it.
Since an exclusion of concurrent State court jurisdiction would amount to an alienation of State power by implication, the first view – concurrent State court jurisdiction – appears the most natural and defensible construction.
This construction in favor of concurrent jurisdiction most clearly applies to those causes which were cognizable in State courts prior to ratification of the Constitution.
It is not so evident as to cases which grow out of and are based on the Constitution.
It can hardly be considered an abridgment of a preexisting authority to deny the State courts a right of jurisdiction in such cases.
The Congress may commit the decision of causes arising upon a particular regulation to the Federal courts alone if such a measure should be deemed expedient.
Nonetheless, State courts will be divested of no part of their preexisting jurisdiction, other than may relate to the appeal of Federal issues.
Unless expressly excluded by the future acts of the national legislature, State courts will of course take cognizance of the causes to which those acts may give birth.
This follows from the nature of judicial power, as well as the general genius of the judicial system.
The judicial power of every government looks beyond its own local or municipal laws.
In civil cases, it considers all the subjects of the litigation between the parties within its jurisdiction, even though the causes of the dispute may relate to the laws of the most distant part of the globe.
For instance, the laws of Japan – not less than of New York – may furnish the objects of legal discussion to our courts.
When we further consider that the State governments and the Federal government are truly kindred systems – parts of one whole – it seems conclusive that State courts would have a concurrent jurisdiction in all cases arising under the laws of the United States, unless expressly prohibited.
An Appeal Will Lie from State Courts to Federal Courts in Cases of Concurrent Jurisdiction
Turning to the relationship between the Federal and State courts in cases of concurrent jurisdiction, an appeal would certainly lie from the State courts to the Supreme Court of the United States.
The Constitution in direct terms gives the Supreme Court appellate jurisdiction in all the enumerated cases of Federal cognizance in which it is not to have original jurisdiction, without a single expression to confine its operation to the inferior Federal courts.
It states: “In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.” Art. III, § 2, cl. 2.
When we further consider that the State governments and the Federal government are truly kindred systems – parts of one whole – it seems conclusive that State courts would have a concurrent jurisdiction in all cases arising under the laws of the United States, unless expressly prohibited.
The objects of an appeal – not the tribunals from which it is to be made – are alone contemplated.
Both reason and circumstance favor extending the appellate jurisdiction of the Supreme Court to causes arising in State tribunals.
Since the national and State systems should be regarded as one whole, the State courts will of course be natural auxiliaries to the execution of the laws of the United States, and an appeal from them will as naturally lie to that tribunal — the Supreme Court – which is destined to unite and assimilate the principles of national justice and the rules of national decisions.
Were there no right to appeal, the State courts would have to be excluded from concurrent jurisdiction in matters of national concern, for otherwise every plaintiff and prosecutor could elude the judiciary of the United States at their pleasure.
These consequences would defeat some of the most important and avowed purposes of the Federal government, and essentially embarrass its measures.
The evident aim of the constitutional provision is to ensure all the causes of Federal jurisdiction shall – for weighty public reasons – receive their original or final determination in the courts of the United States.
To confine the appellate jurisdiction of the Supreme Court only to appeals from subordinate Federal courts would abridge the terms and subvert the intent of the provision granting the Supreme Court appellate jurisdiction of Federal issues.
Whether their authority shall be original or appellate – or both – is not declared, with all this being left to the discretion of the Federal legislature. This being so, there exists no impediment to the establishment of an appeal from State courts to the subordinate national tribunals.
A more difficult question is whether an appeal could be made to lie from the State courts to the subordinate Federal courts.
The following considerations countenance the affirmative. In the first place, the Constitution authorizes the Congress “to constitute tribunals inferior to the Supreme Court.” Art. I, § 8, cl. 9.
It declares, in the next place, that “the judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as Congress shall ordain and establish.” Art. III, § 1, emphasis added.
It then proceeds to enumerate the cases to which this judicial power shall extend. Art. III, § 2.
It afterwards divides the jurisdiction of the Supreme Court into original and appellate, but gives no definition of the subordinate courts, other than they shall be “inferior to the Supreme Court,” and that they shall not exceed the specified limits of the Federal judiciary.
Whether their authority shall be original or appellate – or both – is not declared, with all this being left to the discretion of the Federal legislature.
This being so, there exists no impediment to the establishment of an appeal from State courts to the subordinate national tribunals.
This would diminish the need to multiply Federal courts, and to refine the causes the Supreme Court would consider pursuant to its appellate jurisdiction.
State tribunals would be left with a more entire charge of Federal causes.
In cases where an appeal is deemed proper, they would be made to lie to the subordinate Federal courts instead of the Supreme Court.
Hamilton
Federalist 83: Trial by Jury in Federal Courts
THE OBJECTION which met with the most success in New York – and perhaps several other States – is the absence of a constitutional provision for the trial by jury in civil cases.
This objection was repeatedly exposed as disingenuous, but continues to be pursued by opponents of the Constitution, who propose the mere silence of the Constitution in regard to civil causes amounts to an abolition of the trial by jury.
This erroneous pretext is artfully calculated to induce the belief that this pretended abolition is complete and universal, and extends not only to every species of civil cases, but even to criminal causes.
The provision at issue is in set forth in the first clause of the third paragraph of Article III: “The Trial of all Crimes, except in Cases of Impeachment; shall be by Jury; . . . .”
To refute the false claim of abolition of a jury trial in regard to criminal cases would 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 a mental conviction, assuming they are expressed in language adapted to convey their meaning.
Opponents of the Constitution Have Misapplied Maxims of Legal Interpretation
With regard to civil cases, subtleties almost too contemptible for refutation have been employed to countenance the surmise that a thing which is merely not provided for is entirely abolished.
Every person 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.
One of the maxims relied upon is that “a specification of particulars is an exclusion of generals” – or stated slightly differently – “the expression of one thing is the exclusion of another.”
The Constitution specifies the right trial by jury in criminal cases, yet is silent in respect to civil cases.
This silence, say they, denotes an implied prohibition of trial by jury in civil cases.
The rules or maxims of legal interpretation adopted by the courts in the construction of laws are based on common sense.
Therefore, the true test of a just application of a legal maxim is its conformity to the source from which it is derived.
This being the case, is it consistent with common sense to suppose that a provision obliging the legislative authority to commit the trial of criminal cases to juries deprives that same authority of its right to permit jury trials in other cases?
Is it natural to suppose that a command to do one thing is a prohibition of the doing of another, especially where a previous power existed 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.
To refute the false claim of abolition of a jury trial in regard to criminal cases would 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 a mental conviction, assuming they are expressed in language adapted to convey their meaning.
A power to constitute courts includes a power to prescribe the mode of trial.
Consequently, if the Constitution said nothing on the subject of juries, the legislative authority of each State would be at liberty either to adopt that institution or to let it alone.
In regard to criminal cases, however, this discretion is abridged by the express requirement of trial by jury in all such cases.
In regard to civil cases, there is a total silence, thereby leaving it at large in relation to civil cases.
The specification of an obligation to try all criminal cases in a particular mode merely excludes the obligation to employ the same mode in civil cases, but it does not abridge the power of a State legislature to exercise that mode if it should be thought proper.
The contention that the national legislature would not be at full liberty to submit all the civil cases of federal cognizance to the determination of juries is thus no more than a pretense destitute of all just foundation.
From these observations, one must conclude that trial by jury in civil cases would not be abolished; and that the attempted use of the maxims quoted above is contrary to reason and common sense.
Even if these maxims had a precise technical sense corresponding with the idea of those who employ them upon the present occasion, they would still be inapplicable to a constitution of government. In relation to such a subject, the natural and obvious sense of its provisions is the true criterion of construction, apart from any technical rules.
The rules or maxims of legal interpretation adopted by the courts in the construction of laws are based on common sense. Therefore, the true test of a just application of a legal maxim is its conformity to the source from which it is derived.
Proper Application of the Maxim that the Specific Excludes the General
Having now seen that the maxims relied upon will not bear the use made of them, let us endeavor through examples to ascertain their proper use and true meaning as applied to the Constitution.
The Constitution declares the power of Congress – the national legislature – shall extend to certain enumerated cases.
This specification of particulars excludes all pretension to a general legislative authority, and is consistent with the maxim that “a specification of particulars is an exclusion of generals.”
An affirmative grant of special powers would be absurd – as well as useless – if a general authority was intended.
In like manner the authority of the federal judiciary 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.
Since the objects within the cognizance of the federal judiciary are enumerated, said specification would be nugatory if it did not exclude all ideas of more extensive authority.
From these observations it is unquestionably true that trial by jury is in no case abolished by the Constitution.
It is equally true that in those civil controversies between individuals, the ability to try the case before a jury will remain precisely the same as it now is under the State constitutions, and will be in no degree altered or influenced by the adoption of the federal Constitution.
The national judiciary will have no cognizance of them, and as such those cases will remain determinable (as heretofore) by the State courts only, and in the manner which the State constitutions and laws prescribe.
The contention that the national legislature would not be at full liberty to submit all the civil cases of federal cognizance to the determination of juries is thus no more than a pretense destitute of all just foundation.
Most Civil Suits Will Arise under State Law, and thereby Be Subject to State Laws regarding Trial by Jury
All land cases will belong exclusively to the jurisdiction of the State tribunals, except where claims under the grants of different States come into question.
All other controversies between the citizens of the same State – unless they depend upon positive violations of the Constitution – will be decided in accordance with the mode of trial enacted by the State legislature.
I might add that in New York, admiralty cases and almost cases invoking equity jurisdiction are determinable without the intervention of a jury.
On the whole, the most reasonable inference will be that the right to a jury trial – as it exists with us at present – cannot possibly be affected to any great extent by the federal Constitution.
On the whole, the most reasonable inference will be that the right to a jury trial – as it exists with us at present – cannot possibly be affected to any great extent by the federal Constitution.
The Value of the Right to Trial by Jury
The friends and adversaries of the Constitution – if they agree on nothing else – concur at least in the value they set upon the trial by jury.
If there is any difference between them it consists in this: those supporting the Constitution regard the right to trial by jury in criminal cases as a valuable safeguard to liberty, while those in opposition view the right to a jury trial as the very palladium of a free government.
For my own part, the more the operation of jury trials has fallen under my observation, the more reason I have discovered for holding it in high estimation.
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 a 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 an 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 right to a 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 most amply in the Constitution.
For in addition to the requirement of jury trial in criminal cases, Congress may not suspend habeas corpus except in limited circumstances: “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.” Art. I, § 9, cl. 2.
Trial by Jury in regard to the Power of Taxation
Some have 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 the right to trial by jury can have no influence upon a legislative body in regard to the amount of taxes to be laid, the objects upon which they are to be imposed, or the rule by which they are to be apportioned.
Therefore, if the right to jury trial it can have any influence, it must be upon the mode of collection, and the conduct of the officers entrusted with the execution of the revenue laws.
As to the mode of collection in New York, trial by jury is in most cases out of use under its constitution.
The taxes are usually levied by the more summary proceeding of distress and sale, as in cases of rent.
And all acknowledge 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 security desired is afforded by the provision in favor of trial by jury in criminal cases.
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.
And as to the conduct of the officers of the revenue, the security desired is afforded by the provision in favor of trial by jury in criminal cases. 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.
While it Does Not Appear a Jury Trial in Civil Cases Is Essential to Liberty, It Makes Corruption More Difficult
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 body of magistrates than to a jury.
The force of this consideration is diminished by others, however.
Both the sheriff (who is the summoner of ordinary juries) and the clerk of the court (who nominates special juries) are themselves standing officers.
Acting individually, each 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 sheriffs and clerks to select jurors who would serve the purposes of the party as well as would a corrupted bench.
It also fairly may be supposed that there would be less difficulty in gaining the assistance of some jurors – promiscuously taken from the public mass – than in gaining individual judges, 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, since it greatly multiplies the impediments to its success.
At present, it would be necessary to corrupt both the court and the jury, for where a jury has gone evidently wrong, the court will generally grant a new trial, and it would be in most cases of little use to practice corruption upon a jury unless the court could be likewise gained.
Here then is a double security: 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 judges might have to surmount must certainly be much fewer where the cooperation of a jury is necessary, than they might be if judges alone had the exclusive determination of all cases.
A Constitutional Provision Requiring a Jury in Civil Actions Would Raise Many Difficulties
Notwithstanding the doubts I have expressed that trial by jury in civil cases is essential to liberty, I admit that in most cases (and under proper regulations) it is an excellent method of determining questions of property.
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 great difficulty in this in all cases, however.
Individuals 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.
At every new view I take of the subject, I become more convinced of the reality of the obstacles which prevented the insertion of a provision for jury trials in civil cases in the Constitution.
There are great differences in the States on the limits of the jury trial that are not generally understood, yet merit examination, in order to explain the omission in the Constitution of a provision for civil jury trials.
New York’s judicial establishments more closely resemble those of Great Britain than of any other State.
New York has courts of common law, probate courts (analogous in certain matters to the spiritual courts in England), as well as admiralty courts and chancery courts.
Trial by jury prevails only in the courts of common law, 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.
New Jersey has a court of chancery like that of New York, but neither a court of admiralty nor of probates, which are instead cognizable in its courts of common law.
Jury trials are more extensive in New Jersey than New York.
Pennsylvania has no court of chancery, for its common law courts have equity jurisdiction. It has a court of admiralty, but none of probates.
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; and South Carolina to Virginia.
I believe in some of those States which have distinct courts of admiralty, the cases pending in them are triable by juries.
In Georgia there are only courts at common law, and an appeal 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.
Connecticut has no distinct courts either of chancery or of admiralty, and their courts of probates have no jurisdiction of cases.
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.
In this particular, Rhode Island is 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 these four eastern States, trial by jury not only stands upon a broader foundation than in the other States, but there is an appeal as a right from one jury to another until there have been two verdicts out of three on one side.
From this sketch it appears that there is a material diversity in the several States of the institution of trial by jury in civil cases.
And from this fact several obvious reflections flow: first, no general rule could have been fixed upon by the Constitutional Convention which would have corresponded with the circumstances of all of the States.
And secondly, if the Convention had taken the system of any one State for a standard, it would have hazarded at least as much or more than by omitting a provision altogether and leaving the matter to the regulation of State legislatures.
The Proposal of the Pennsylvania Minority
The propositions made for supplying the omission illustrate rather than obviate the difficulties presented.
A minority of the Convention’s representatives from Pennsylvania, proposed this expression: “Trial by jury shall be as heretofore.”
This expression is both senseless and nugatory, for the United States – in their united or collective capacity – are the object to which all general provisions in the Constitution must necessarily refer.
Although it is evident that trial by jury is known in each State individually, in the United States, as such, it is at this time altogether unknown, because the federal government operating under the Articles of Confederation 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.
Just as the form of the provision would not fulfil the intent of its proposers, the substance of it would itself be inexpedient.
The mode of trial in federal courts would be similar to that in the state courts; that is to say, admiralty cases would 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 well regulated judgment towards it.
Whether the case 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.
Some Cases, such as Prize Causes, Ought Not Be Tried by a Jury
But the greatest objection, in my estimation, is that there are many cases which should be ineligible for a jury trial.
This is particularly so 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 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 always be the 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 is to determine matters of fact – rather than the law – yet in most cases the 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 facts as well as the law undergo a reexamination.
This alone demonstrates the impropriety of inserting a fundamental provision in the Constitution which would make the state systems a standard for the national government, and the danger of encumbering the government with any constitutional provisions which lack indisputable propriety.
A Case in Equity Ought Not Be Tried before a Jury
My convictions are equally strong that the great advantages which result from separating equitable from legal jurisdiction would diminish if equitable cases were committed to juries.
The great and primary use of a court of equity is to give relief in extraordinary cases, which are exceptions to general rules.
To unite jurisdiction of cases sounding in equity with those of ordinary jurisdiction necessarily tends to unsettle the general rules, and to subject every such case to a special determination, while separation of the two has the contrary effect of rendering one a sentinel over the other, and of keeping each within expedient limits.
Aside from this, the circumstances constituting cases proper for courts of equity are in many instances so nice and intricate as to be incompatible with the genius of a trial by jury.
Cases in equity often require long, deliberate, and critical investigations, which are impracticable for jurors taken from their occupations for an extended period.
Litigations usual in courts of equity frequently comprehend a long train of minute and independent particulars.
The simplicity and expedition which are the distinguishing characters of most jury trials will require the matter be reduced to some single and obvious point.
To unite jurisdiction of cases sounding in equity with those of ordinary jurisdiction necessarily tends to unsettle the general rules, and to subject every such case to a special determination, while separation of the two has the contrary effect of rendering one a sentinel over the other, and of keeping each within expedient limits.
It is true that the separation of equity cases from legal cases is peculiar to the English system of jurisprudence, which was the model followed in several of the States.
But it is equally true that trial by jury has been unknown where the equitable case has been united the legal one.
And that separation is essential to the preservation of equity jurisdiction in its pristine purity.
The nature of a court of equity will readily permit the extension of its jurisdiction to matters of law, but the attempt to extend the jurisdiction of the courts of law to matters of equity does not produce the advantages which may be derived from courts of equity.
Extending equity jurisdiction will tend gradually to change the nature of the courts of law, and to undermine the advantages of trial by jury, by introducing questions too complicated for a decision in that mode.
These were the conclusive reasons against incorporating the systems of all the States in the formation of the national judiciary, according to the attempt of the Pennsylvania minority.
The Massachusetts Proposal
Delegates from Massachusetts also proposed a remedy to the supposed defect, 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.” Emphasis added.
At best, this proposition is confined to one description of cases.
From this it is fair to infer that the Massachusetts delegates believed either that this was the only class of federal cases in which a right to trial by jury would be proper or – if desirous of a more extensive provision – they found it impracticable to devise one which would properly answer the end.
In the first place, the omission of a regulation respecting the limited class of cases identified in the Massachusetts proposal cannot be considered a material imperfection in the overall system.
In the second place, if the limitation resulted from the inability to fashion a more extensive provision, 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 – and the different powers exercised by them – there are no expressions more vague and indeterminate than those which have been employed to characterize that species of cases entitled to a trial by jury.
In New York, the boundaries between actions at common law and actions of equitable jurisdiction are ascertained in conformity to the rules which prevail in England.
In many of the other States the boundaries are less precise. In some States every case is to be tried in a court of common law.
Upon that foundation, every action – considered as one at common law – is to be determined by a jury, if either of the parties choose it.
Hence the same irregularity and confusion would be introduced by a compliance with the Massachusetts proposal as would arise from the regulation proposed by the Pennsylvania minority.
In one State a case would receive its determination from a jury, if either party requested it; but in another State, the exact same case would be decided without the intervention of a jury, simply because the two States varied as to common law jurisdiction.
It is obvious that the Massachusetts proposition cannot operate as a general regulation until some uniform plan shall be adopted by the different States regarding the limits of common law and equity jurisdictions.
To devise a plan of that kind is a task arduous in itself, and 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 of the States, or that would perfectly quadrate with the several State institutions.
Referral to the Law of a Single State Would Have Raised Insuperable Objections
It may be asked, “Why could not a reference have been made to the constitution of New York as a standard for the United States?”
First, it is improbable that other States would entertain the same opinion of New York’s institutions as do New Yorkers themselves.
It is natural to suppose that other States are more attached to their own laws, and that each would have struggled for the preference.
If the Convention thought of taking one State as a model for the whole, it must be presumed that the adoption of it in that body would have been rendered difficult by the predilection of each State representation to favor its own laws.
It is also uncertain which State would have been taken as the model.
Even if a judicious selection could have been effected in the Convention, still there would have been a great danger of jealousy and disgust in the other States at the partiality which had been shown to the institutions of one.
Furthermore, the enemies of the Constitution would have been furnished with a fine pretext for raising a host of local prejudices against it, which might have prevented its final establishment.
Requiring a Jury Trial in All Cases Would Have Been Be Improper
Individuals of enthusiastic tempers suggested the right to trial by jury ought to embrace all cases, so as to avoid the embarrassments of a more limited definition.
There is, however, no precedent for so broad a right in any State, and the considerations stated in discussing the proposition of the minority of Pennsylvania ought to 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 am persuaded 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.
These observations 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 Constitution.
Even in the greatest proportion of civil cases – in which the great body of the community is most likely to be interested – the right to jury trial will remain in its full force, as established in the State constitutions, untouched and unaffected by the Constitution, which in no case is abolished.
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 New York the right to trial by jury might be advantageously extended to some cases to which it does not at present apply, and might as advantageously be abridged in others.
All reasonable individuals concede it ought not to obtain in every case.
The examples of innovations which have narrowed its ancient limits in several States as well 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 will be impossible (due to the nature of the thing) to fix the salutary point at which the right to a jury trial ought to stop, and this is with me a strong argument for leaving the matter to the discretion of the Federal or State legislatures.
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.
This is now clearly understood to be the case in Great Britain, and it is equally so in the State of Connecticut.
Nonetheless, numerous encroachments have been made upon the right to trial by jury in New York since the Revolution – even though it is provided for by a positive article of New York’s 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 individuals who have endeavored 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 individuals 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 cases also, particularly where it is a notorious fact that Connecticut – which has been always regarded as the State where the popular will most prevails – can boast of no constitutional provision for either.
Hamilton