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