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cery, on the plan upon which they are established in this state, but will tend gradually to change the nature of the courts of law, and to undermine the trial by jury, by introducing questions too complicated for a decision in that mode.
These appear to be conclusive reasons against incorporating the systems of all the states, in the forination of the national judiciary ; according to what may be conjectured to have been the intent of the Pennsylvania minority. Let us now examine how far the proposition of Massachusetts is calculated to remedy the supposed defect.
It is in this form : " In civil actions between citizens 66 of different states, every issue of fact, arising in ac6 tions at common law, may be tried by a jury, if the 66 parties, or either of them, request it.”
This, at best, is a proposition confined to one descrip. tion of causes; and the inference is fair either that the Massachusetts convention considered that as the only class of federal causes, in which the trial by jury would be proper; or that, if desirous of a more extensive provi. sion, they found it impracticable to devise one which would properly answer the end. If the first, the omission of a regulation respecting so partial an object, can never be considered as a material imperfection in the system, If the last, it affords a strong corroboration of the extreme difficulty of the thing. · But this is not all : if we advert to the observations already made respecting the courts that subsist in the several states of the union, and the different powers exercised by them, it will appear, that there are no expressions more vague and indeterminate than those which bave been employed to characterize that species of causes which it is intended shall be entitled to a trial by jury. In this state, the boundaries between actions at common law and actions of equitable jurisdiction, are ascertained in conformity to the rules which prevail in England upon that subject. In many of the other states, the boundaries are less precise. In some of them, every cause is to be tried in a court of common law, and upon that founda
If thidered as a nag so parti
tion every action may be considered as an action at com. mon law, to be determined by a jury, if the parties, or either of them, choose it. Hence the same irregularity and confusion would be introduced by a compliance with this proposition, that I have already noticed as resulting from the regulation proposed by the Pennsylvania minority. In one state a cause would receive its determina. tion from a jury, if the parties, or either of them, requested' it ; but in another state, a cause exactly similar to the other, must be decided without the intervention of a jury, because the state tribunals varied as to common law jurisdiction.
It is obvious, therefore, that the Massachusetts proposition cannot operate as a general regulation, until some uniform plan, with respect to the limits of common law and equitable jurisdictions, shall be adopted by the different states. To devise a plan of that kind, is a task arduous in itself, and which it would require much time and reflection to mature. It would be extremely difficult, if not impossible, to suggest any general regulation that would be acceptable to all the states in the union, or that would perfectly quadrate with the several state institutions.
It may be asked, why could not a reference have been made to the constitution of this state, taking that, which is allowed by me to be a good one, as a standard for the United States? I answer, that it is not very probable the other states should entertain the same opinion of our institutions which we do ourselves. It is natural to suppose that they are more attached to their own, and that each would struggle for the preference. If the plan of taking one state as a model for the whole had been thought of in the convention, it is to be presumed that the adoption of it in that body, would have been rendered difficult by the predilection of each representation in favour of its own government; and it must be ovcertain which of the states would have been taken as the wodel. It has been shown, that many of them would be improper ones. And I leave it to conjecture whether, under all circumstances, it is most likely that New York, or
shown, that nt to conjectinet New Y
ted trial by jussments of establishmhazarded.
some other state, would have been preferred. But ad. mit that a judicious selection could have been effected in the convention, still there would have been great dan. ger of jealousy and disgust in the other states, at the partiality wbich had been shown to the institutions of one. The enemies of the plan would have been fur. pished with a fine pretext, for raising a host of local pre. judices agaiost it, which perhaps might have hazarded, in no inconsiderable degree, its final establishment...
To avoid the embarrassments of a definition of the cases which the trial by jury ought to embrace, it is some. times suggested by men of enthusiastic tempers, that a provision might have been inserted for establishing it in all cases whatsoever. For this, I believe no precedent is to be found in any member of the union; and the con: siderations which have been stated in discussing the proposition of the minority of Pennsylvania, must satisfy every sober mind, that the establishment of the trial by jury in all cases, would have been an unpardonable error in the plan.
In short, the more it is considered, the more arduous will appear the task of fashioning a provision in such a form as not to express too little to answer the purpose, or too much to be advisable; or which might not have opened other sources of opposition, to the great and essential object, of introducing a firm national govern. ment.
I cannot but persuade myself on the other band, that the different lights in which the subject has been placed in the course of these observations, will go far towards removing in candid minds, the apprehensions they may have entertained on the point. They have tended to show, that the security of liberty is, materially concerned only in the trial by jury in criminal cases, which is provided for in the most ample manner in the plan of the convention; that even in far the greatest proportion of civil cases, those in which the great body of the community is interested, that mode of trial will remain in full force, as established in the state constitutions, untouched and unaffected by the plan of the convention ; that it
is interested.ned in the start the conven
is in no case abolished* by that plan; and that there are great, if not insurmountable difficulties in the way of making any precise and proper provision for it, in a constitution for the United States.
The best judges of the matter will be the least anxious for a constitutional establishment of the trial by jury in civil cases, and will be the most ready to admit, that the changes which are continually happening in the affairs of society, may render a different mode of determining questions of property, preferable in many cases, in which that mode of trial now prevails. For my own part, I acknowledge myself to be convinced that, even in this state, it might be advantageously extended to some cases to which it does not at present apply, and 'might as ad. vantageously be abridged in others. It is conceded by all reasonable men, that it ought not to obtain in all cases. The examples of innovations which contract its ancient limits, as well in these states as in Great Britain, afford a strong presumption that its former extent has been found inconvenient ; and give room to suppose that future experience may discover the propriety and utility of other exceptions. I suspect it to be impossible in the nature of the thing, to fix the salutary point at which the operation of the institution ought to stop ; and this is with me a strong argument for leaving the matter to the discretion of the legislature.
This is now clearly understood to be the case in Great Britain, and it is equally so in the state of Connecticut; and yet it may be safely affirmed, that more numerous encroachments have been made upon the trial by jury in this state since the revolution, though provided for by a positive article of our constitution, than has happened in the same time either in Connecticut or Great Britain. It may be added, that these encroachments have generally originated with the men who endeavour to persuade the people they are the warmest defenders of popular liberty, but who have rarely suffered constitutional obstacles to
* Vide No. LXXXI in which the supposition of its being abolished by the appellate jurisdiction in matters of fact being vested in the supreme court, is examined and refuted.
arrest them in a favourite career. The truth is, that the general GENIUS of a government is all that can be substantially relied upon for permanent effects. Particular provisions, though not altogether useless, have far less virtue and efficacy than are commonly ascribed to them; and the want of them, will never be with men of sound discernment, a decisive objection to any plan which exhibits the leading characters of a good government.
It certainly sounds not a little harsh and extraordinary to affirm, that there is no security for liberty in a consti. tution which expressly establishes the trial by jury in criminal cases, because it does not do it in civil also; while it is a notorious fact that Connecticut, which has been always regarded as the most popular state in the union, can boast of no constitutional provision for either.
BY ALEXANDER HAMILTON.
IN the course of the foregoing review of the constitution, I have endeavoured to answer most of the objections which have appeared against it. There remain, however, a few which either did not fall naturally under any particular head, or were forgotten in their proper places. These shall now be discussed : but as the subject has been drawn into great length, I shall so far consult brevity, as to comprise all my observations on these miscellaneous points in a single paper.
The most considerable of the remaining objections is, that the plan of the convention contains no bill of rights. Among other answers given to this, it has been upon different occasions remarked, that the constitutions of seve. ral of the states are in a similar predicament. I add, that New York is of the number. And yet the persons who in this state oppose the new system, while they profess an unlimited admiration for our particular constitution, are among the most intemperate partizans of a