The Judiciary

I turn now to the judiciary of the proposed government. In laying out the defects of the existing Confederation, I already showed why a federal judicature is useful and necessary. No one disputes the propriety of the institution itself. The only questions raised concern how it is to be constituted and how far its authority reaches. To those two points I confine my observations.

The manner of constituting the judiciary involves three things: (1) how the judges are appointed, (2) the tenure by which they hold their places, and (3) how judicial authority is divided among the different courts and how those courts relate to one another. The mode of appointment is the same as that for appointing officers of the Union generally. The two preceding papers covered it so fully that anything added here would be useless repetition.

As to tenure, the chief concerns are how long the judges stay in office, the provisions for their support, and the precautions for their responsibility. Under the convention’s plan, all judges appointed by the United States hold their offices during good behavior. This matches the most approved state constitutions, including this State’s own. That the plan’s adversaries have drawn this provision into question is no light symptom of the rage for objection that disorders their imaginations and judgments.

Good behavior as the condition for remaining in judicial office is one of the most valuable modern improvements in the practice of government. In a monarchy it is an excellent barrier against the despotism of the prince. In a republic it is an equally excellent barrier against the encroachments and oppressions of the representative body. It is the best device any government can adopt to secure a steady, upright, and impartial administration of the laws.

Consider the three departments of power where they are kept separate from each other. The judiciary will always be the least dangerous to the political rights of the Constitution, because it is least able to harm them. The Executive dispenses the honors and holds the sword of the community. The legislature commands the purse and prescribes the rules that govern every citizen’s duties and rights. The judiciary, by contrast, controls neither the sword nor the purse. It directs neither the strength nor the wealth of society, and it can take no active resolution of its own. It may truly be said to have neither force nor will, but merely judgment; and it must depend on the executive arm even to make its judgments effective.

This plain view yields several important consequences. It proves beyond dispute that the judiciary is by far the weakest of the three departments; that it can never successfully attack either of the other two; and that every possible care is needed to enable it to defend itself against their attacks. It proves equally that individual oppression may now and then come from the courts, yet the general liberty of the people can never be endangered from that quarter. This holds so long as the judiciary remains truly distinct from both the legislature and the Executive. For I agree that there is no liberty if the power of judging is not separated from the legislative and executive powers. Finally, it proves that while liberty has nothing to fear from the judiciary alone, it would have everything to fear from the judiciary’s union with either of the other departments. The effects of such a union would follow from the judiciary’s dependence on one of them, even behind a nominal separation. Because the judiciary is naturally feeble, it is in continual danger of being overpowered, intimidated, or influenced by its coordinate branches. Nothing strengthens its firmness and independence so much as permanency in office. That permanency must therefore be regarded as an indispensable element of its constitution, and largely as the citadel of public justice and public security.

The complete independence of the courts is especially essential in a limited Constitution. By a limited Constitution I mean one that places specified exceptions on legislative authority, such as that it shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice only through courts of justice. Their duty is to declare void all acts contrary to the manifest tenor of the Constitution. Without this, the reservation of particular rights or privileges would amount to nothing.

Some confusion about the courts’ right to pronounce legislative acts void, as contrary to the Constitution, springs from the idea that this doctrine makes the judiciary superior to the legislature. It is urged that the authority which can declare another’s acts void must be superior to the one whose acts are voided. Because this doctrine matters greatly to all the American constitutions, the ground on which it rests deserves a brief discussion.

No principle is clearer than this: every act of a delegated authority that runs contrary to the commission under which it is exercised is void. No legislative act contrary to the Constitution, therefore, can be valid. To deny this would be to affirm that the deputy is greater than his principal, that the servant is above his master, that the people’s representatives are superior to the people themselves, and that men acting under powers may do not only what those powers fail to authorize but what they forbid.

Suppose it is said that the legislature is itself the constitutional judge of its own powers, and that its reading of them binds the other departments. The answer is that this cannot be the natural presumption where no particular provision of the Constitution supports it. We are not to suppose the Constitution meant to let the people’s representatives substitute their own will for that of their constituents. It is far more rational to suppose the courts were designed as an intermediate body between the people and the legislature. Their office, among other things, is to keep the legislature within the limits assigned to its authority.

Interpreting the laws is the proper and peculiar province of the courts. A constitution must be regarded by the judges as a fundamental law. It therefore belongs to them to determine its meaning, as well as the meaning of any particular act of the legislature. If an irreconcilable conflict arises between the two, the one with the superior obligation and validity ought to prevail. In other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.

This conclusion in no way supposes that the judicial power is superior to the legislative. It supposes only that the power of the people is superior to both. The will of the legislature is declared in its statutes; the will of the people, in the Constitution. Where the two oppose each other, the judges ought to be governed by the will of the people rather than that of the legislature. They ought to regulate their decisions by the fundamental laws rather than by laws that are not fundamental.

This exercise of judicial discretion between two contradictory laws appears in a familiar case. It often happens that two statutes exist at once, clashing in whole or in part, with neither containing any repealing clause. There it falls to the courts to fix their meaning and operation. So far as the two can be reconciled by any fair construction, reason and law agree that this should be done. Where reconciliation is impracticable, one must necessarily be given effect to the exclusion of the other.

The rule the courts have settled on for such statutes is that the later in time is preferred to the earlier. This is merely a rule of construction, drawn not from any positive law but from the nature and reason of the thing. No legislative provision imposes it; the courts adopted it themselves, as consonant with truth and propriety, to guide their conduct as interpreters of the law. They judged it reasonable that, between conflicting acts of an equal authority, the later expression of its will should have preference.

But suppose the conflict is between the acts of a superior and a subordinate authority, an original power and a derivative one. Here the nature and reason of the thing point to the opposite rule. They teach that the prior act of a superior ought to be preferred to the later act of an inferior, subordinate authority. And so, whenever a statute contradicts the Constitution, it is the duty of the courts to adhere to the Constitution and disregard the statute.

It carries no weight to object that the courts, on the pretense of a conflict, may substitute their own pleasure for the constitutional intentions of the legislature. The same could be said of two contradictory statutes, or of any ruling on a single statute. The courts must declare the sense of the law; and if they chose to exercise will instead of judgment, the result would equally be the substitution of their pleasure for the legislature’s. That objection, if it proved anything, would prove that there ought to be no judges distinct from the legislature at all.

If, then, the courts are to be the bulwarks of a limited Constitution against legislative encroachments, this gives a strong argument for permanent tenure of judicial offices. Nothing contributes so much to the independent spirit in judges that is essential to performing so arduous a duty.

This independence is equally needed to guard the Constitution and the rights of individuals from certain ill humors. The arts of designing men, or the influence of particular moments, sometimes spread these humors among the people themselves. Such humors soon give way to better information and more deliberate reflection. In the meantime, though, they tend to occasion dangerous innovations in government and serious oppressions of the minority. I trust the friends of the proposed Constitution will never join its enemies in questioning a certain republican principle. That principle admits the right of the people to alter or abolish the established Constitution whenever they find it inconsistent with their happiness.

But that principle does not imply that the people’s representatives may violate the existing Constitution whenever a momentary inclination happens to seize a majority of their constituents. Nor are the courts under any greater obligation to wink at such violations than at those arising wholly from the schemes of the representative body. Until the people, by some solemn and authoritative act, have annulled or changed the established form, it binds them both collectively and individually. No presumption, or even knowledge, of their sentiments can justify their representatives in departing from it before such an act. Yet it plainly takes an uncommon measure of fortitude for judges to do their duty here. They are the faithful guardians of the Constitution even when legislative invasions of it have been prompted by the major voice of the community.

The independence of the judges guards not only against infractions of the Constitution. It also guards against occasional ill humors in society that reach no further than the private rights of particular classes of citizens, injured through unjust and partial laws. Here too the firmness of the judiciary is of vast importance in softening the severity and confining the operation of such laws. It moderates the immediate mischief of laws already passed. It also operates as a check on the legislature in passing them. Lawmakers who foresee that the scruples of the courts will obstruct an unjust design are in a manner compelled, by the very motives of that injustice, to qualify their attempts.

This is a circumstance likely to have more influence on the character of our governments than most people realize. The benefits of an upright and moderate judiciary have already been felt in more states than one. Such conduct may have displeased those whose sinister expectations it disappointed, but it must have won the esteem of all who are virtuous and disinterested. Thoughtful men of every kind ought to value whatever tends to create or strengthen that temper in the courts. No one can be sure he will not tomorrow be the victim of a spirit of injustice from which he profits today. Everyone must feel that the inevitable tendency of such a spirit is to undermine public and private confidence and to replace it with universal distrust and distress.

We see that an inflexible and uniform adherence to the rights of the Constitution and of individuals is indispensable in the courts. It cannot be expected from judges who hold office by a temporary commission. Periodical appointments, however regulated and by whomever made, would in one way or another be fatal to the judges’ necessary independence. If the power to make them rested with the Executive or the legislature, there would be danger of improper deference to that branch. If with both, an unwillingness to risk the displeasure of either. If with the people, or with persons they chose for the purpose, there would be too great a disposition to court popularity. In that case we could not trust that nothing but the Constitution and the laws would guide the judges.

There is a further and weightier reason for permanent judicial offices, drawn from the qualifications the office requires. It has often been justly observed that a voluminous body of laws is one of the inconveniences inseparable from the advantages of a free government. To avoid arbitrary discretion, the courts must be bound down by strict rules and precedents that define their duty in every case. Given the variety of controversies that grow out of human folly and wickedness, the records of those precedents must swell to a considerable bulk. They must demand long, laborious study to master.

For this reason there can be only a few men in society with skill enough in the laws to qualify them for the office of judge. And after making the proper allowance for the ordinary depravity of human nature, the number is smaller still of those who join the requisite integrity to the requisite knowledge. These considerations show that the government has little real choice among fit characters. A temporary term in office would discourage such men from leaving a lucrative practice for a seat on the bench. It would thus tend to throw the administration of justice into less able and less qualified hands. In this country’s present circumstances, and those likely to last a long time, the disadvantages on this score would be greater than they first appear. Even so, they are far less than those that arise under the other aspects of the subject.

On the whole, there can be no doubt that the convention acted wisely. It copied those constitutions that have made good behavior the tenure of judicial office in point of duration. So far from being blamable on this account, the plan would have been inexcusably defective had it lacked this important feature of good government. The experience of Great Britain offers an illustrious comment on the excellence of the institution.

Next to permanence in office, nothing does more to secure the independence of the judges than a fixed provision for their pay. What I said about the President applies here too. In the general course of human nature, a power over a man’s livelihood amounts to a power over his will. So we can never hope to see the judicial power truly separated from the legislative in any system that leaves the judges dependent for money on the occasional grants of the legislature. In every State, the enlightened friends of good government have had cause to regret how the State constitutions lack precise, explicit safeguards on this point. Some of those constitutions did declare that permanent salaries should be established for the judges. But experience has in some cases shown that such words are not definite enough to keep the legislature from evading them.

Something firmer and more unequivocal proved necessary. The plan of the convention accordingly provides 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.” All things considered, this is the best arrangement that could have been devised. Fluctuations in the value of money and in the state of society made a fixed dollar amount in the Constitution unworkable; what might be lavish today could in half a century become meager and inadequate. It was therefore necessary to leave it to the legislature to adjust the pay as circumstances change. But this comes under restrictions that bar that body from changing any sitting judge’s situation for the worse.

Under this rule a judge can be sure of the ground he stands on, and can never be deterred from his duty by the fear of being placed in a worse position. The quoted clause secures both advantages. Judicial salaries may be altered from time to time as occasion requires, yet never so as to lessen the allowance with which a particular judge came into office, as it applies to him. Note that the convention treated the President’s pay and the judges’ pay differently. The President’s can be neither raised nor lowered; the judges’ can only not be lowered. This likely arose from the difference in the length of the two offices. Since the President serves no more than four years, a salary set at the start will rarely become inadequate by the end. But a judge, if he behaves properly, holds his place for life, and a stipend ample at his first appointment may, especially in the government’s early years, grow too small as his service goes on.

This provision for the support of the judges shows every mark of prudence and effectiveness. One may safely say that, together with the permanent tenure of their offices, it offers a better prospect of judicial independence than is found in any of the State constitutions regarding their own judges. The safeguards for the judges’ responsibility are contained in the article on impeachments. They may be impeached for misconduct by the House of Representatives and tried by the Senate; if convicted, they may be removed from office and disqualified from holding any other. This is the only such provision consistent with the independence the judicial office requires, and the only one our own Constitution applies to our own judges.

Some have complained that there is no provision for removing judges on the ground of incapacity. But all thoughtful men will see that such a provision would either go unused or would be more open to abuse than fit to serve any good purpose. Measuring the faculties of the mind has, I believe, no place in the catalogue of known arts. An attempt to fix the boundary between ability and inability would far more often give play to personal and party loyalties and hatreds than advance justice or the public good. Except in cases of insanity, the result would mostly be arbitrary; and insanity, without any formal or express provision, may safely be treated as a virtual disqualification.

The constitution of New York, to avoid inquiries that must always be vague and dangerous, has fixed a particular age as the test of incapacity: no man can serve as a judge beyond sixty. I believe few now fail to disapprove of that rule. There is no office to which it is less suited than that of a judge. The faculties of deliberation and comparison generally keep their strength well past that age in men who live so long. Add to this how few outlive the season of intellectual vigor, and how unlikely it is that any large part of the bench should be in that condition at the same time. Weighing all this, we are led to conclude that limits of this sort have little to recommend them. In a republic, where fortunes are not large and pensions are not advisable, we should think hard before dismissing men from positions in which they have served their country long and well, on which they depend for their livelihood, and from which it will be too late to turn to any other occupation. Such a step ought to have some better justification to humanity than the imaginary danger of an aged bench.

To judge accurately how far the federal judiciary should reach, I must first consider what its proper objects are.

• It seems scarcely open to dispute that the judicial authority of the Union ought to extend to these classes of cases: (1) all cases arising out of the laws of the United States, passed under their just and constitutional powers; (2) all cases concerning the execution of provisions expressly contained in the articles of Union; (3) all cases in which the United States are a party; (4) all cases involving the peace of the confederacy, whether they touch dealings between the United States and foreign nations or between the States themselves; (5) all cases originating on the high seas, of admiralty or maritime jurisdiction; and (6) all cases in which the State courts cannot be supposed impartial and unbiased.

The first point rests on an obvious truth: there must always be a constitutional method of giving force to constitutional provisions. Restrictions on the State legislatures would be worthless without some constitutional way to enforce them. Under the plan of the convention, the States are forbidden a range of acts. Some are incompatible with the interests of the Union, others with the principles of good government; laying duties on imports and issuing paper money are examples of each. No sensible person believes such prohibitions would be scrupulously observed without some effectual power in the government to restrain or correct violations of them.

That power must take one of two forms. It is either a direct veto on the State laws, or an authority in the federal courts to overrule those laws that plainly contradict the articles of Union. I can imagine no third course. The convention judged the second preferable to the first, and I presume it will be the most agreeable to the States.

On the second point, argument can hardly make the matter plainer than it already is. If there are such things as political axioms, one belongs among them: a government’s judicial power should be coextensive with its legislative power. The need for uniformity in interpreting the national laws settles the question by itself. Thirteen independent courts of final jurisdiction over the same causes, arising under the same laws, would be a hydra in government, yielding nothing but contradiction and confusion.

Still less need be said of the third point. Controversies between the nation and its members or citizens can only be referred properly to the national courts. Any other plan would run contrary to reason, to precedent, and to decorum.

The fourth point rests on a plain proposition: the peace of the whole ought not to lie at the disposal of a part. The Union will surely be answerable to foreign powers for the conduct of its members. And responsibility for an injury ought always to be joined with the power to prevent it. The denial or perversion of justice by the sentences of courts is, with reason, classed among the just causes of war. It follows that the federal judiciary ought to have cognizance of all causes in which the citizens of other countries are concerned. This serves the preservation of the public faith no less than the security of the public tranquillity.

One might imagine a distinction between two kinds of case: those arising on treaties and the law of nations, and those resting merely on ordinary municipal law. The distinction would assign the former to federal jurisdiction and the latter to the States. But suppose an unjust sentence is passed against a foreigner where the dispute turned wholly on local law. It is at least doubtful whether that sentence, if left unredressed, would be any less an aggression upon his sovereign than one violating a treaty or the general law of nations. A still greater objection is the immense difficulty, perhaps impossibility, of telling the two kinds of case apart in practice. So large a share of cases involving foreigners raise national questions that it is far safest and most expedient to refer all of them to the national courts.

The power to decide causes between two States, between one State and the citizens of another, and between citizens of different States, may be no less essential to the peace of the Union. History gives a horrid picture of the dissensions and private wars that distracted and desolated Germany before Maximilian instituted the Imperial Chamber near the close of the fifteenth century. It also tells of that institution’s vast influence in calming the disorders and settling the tranquillity of the empire. It was a court empowered to decide finally all differences among the members of the Germanic body.

Even the imperfect system that has held the States together until now provided some method of ending territorial disputes under the authority of the federal head. But quarrels and animosities may arise among the members of the Union from many sources besides clashing boundary claims. We have witnessed some of these in our past experience; I refer to the fraudulent laws passed in too many of the States. The proposed Constitution sets particular guards against repeating the instances already seen. Even so, it is reasonable to fear that the spirit which produced them will take new shapes that could not be foreseen or specifically guarded against. Whatever practices tend to disturb the harmony between the States are proper objects of federal superintendence and control.

It may be taken as a basis of the Union that “the citizens of each State shall be entitled to all the privileges and immunities of citizens of the several States.” It is a just principle that every government ought to possess the means of executing its own provisions by its own authority. It follows that, to maintain that equality of privileges and immunities inviolably, the national judiciary ought to preside in all cases in which one State or its citizens stand opposed to another State or its citizens. To secure so fundamental a provision against all evasion and subterfuge, its construction should be committed to a tribunal with two qualities. Having no local attachments, it is likely to be impartial between the different States and their citizens; and owing its official existence to the Union, it will never be likely to feel a bias hostile to the principles on which it is founded.

The fifth point needs little comment. Even the most bigoted idolizers of State authority have not so far shown any disposition to deny the national judiciary cognizance of maritime causes. These so generally depend on the law of nations, and so commonly affect the rights of foreigners, that they fall within the considerations relating to the public peace. The most important part of them are already submitted to federal jurisdiction under the present Confederation.

The reasonableness of letting national courts act where the State courts cannot be supposed impartial speaks for itself. No one ought to be a judge in his own cause, or in any cause in which he has the least interest or bias. That principle weighs considerably in marking the federal courts as the proper tribunals for controversies between different States and their citizens, and it ought to apply equally to some cases between citizens of the same State. Claims to land under grants from different States, founded on opposing boundary pretensions, are of this kind. The courts of neither granting State could be expected to be unbiased. The laws may even have prejudged the question and bound the courts to decide for the grants of their own State. And even where they had not, the judges, being men, would naturally favor the claims of their own government.

Having laid down and discussed the principles that ought to govern the structure of the federal judiciary, I now test by them the particular powers the convention’s plan assigns it. The judicial power is to comprehend “all cases in law and equity arising under the 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 and grants of different States; and between a State or the citizens thereof and foreign states, citizens, and subjects.” This is the entire mass of the Union’s judicial authority. Let me now review it in detail. It extends:

First, to all cases in law and equity arising under the Constitution and the laws of the United States. This answers to the first two classes of causes already listed as proper for federal jurisdiction. It has been asked what “cases arising under the Constitution” means as distinct from those “arising under the laws of the United States.” The restrictions on the State legislatures supply the examples. The States are forbidden, for instance, to issue paper money; that prohibition flows from the Constitution itself and has no connection with any statute of the United States. Should paper money be issued anyway, controversies over it would be cases arising under the Constitution, not under the laws of the United States, in the ordinary sense of the terms. This may stand as a sample of the whole.

It has also been asked why the word “equity” is needed, and what equitable causes can grow out of the Constitution and the laws of the United States. There is hardly a subject of litigation between individuals that may not involve the ingredients of fraud, accident, trust, or hardship. These make a matter fit for equitable rather than legal jurisdiction, as the distinction is established in several of the States. It is the peculiar province of a court of equity, for instance, to relieve against what are called hard bargains. These are contracts in which some undue and unconscionable advantage has been taken of one party’s necessities or misfortunes. There may be no direct fraud or deceit sufficient to void them at law, yet the advantage taken is one equity will not tolerate. Where foreigners are concerned on either side of such cases, the federal courts could not do justice without an equitable as well as a legal jurisdiction. Agreements to convey lands claimed under grants of different States offer another example of that necessity. This reasoning may be less obvious in States that do not keep the formal distinction between law and equity than in this State, where every day’s practice shows it.

Second, the judicial authority extends to treaties made, or to be made, under the authority of the United States, and to all cases affecting ambassadors, other public ministers, and consuls. These belong to the fourth class of the listed cases, having an evident connection with preserving the national peace.

Third, to cases of admiralty and maritime jurisdiction. These make up the fifth of the listed classes of causes proper for the national courts.

Fourth, to controversies to which the United States shall be a party. These form the third of those classes. Fifth, to controversies between two or more States, between a State and citizens of another State, and between citizens of different States; these belong to the fourth class and partake somewhat of the nature of the last. Sixth, to cases between citizens of the same State claiming lands under grants of different States; these fall within the last class, and are the only instances in which the proposed Constitution directly contemplates the cognizance of disputes between citizens of the same State. Seventh, to cases between a State or its citizens and foreign states, citizens, or subjects; these belong to the fourth class and have been shown to be, in a peculiar way, the proper subjects of the national judicature.

From this review of the particular powers of the federal judiciary as marked out in the Constitution, they all appear conformable to the principles that ought to have governed that department and that were necessary to perfect the system. If some partial inconveniences should appear connected with any of them, recall that the national legislature will have ample authority to make exceptions and prescribe regulations calculated to remove them. The possibility of particular mischiefs can never be regarded by a well-informed mind as a solid objection to a general principle calculated to avoid general mischiefs and to obtain general advantages.

Now I return to how judicial authority is divided among the different courts and how those courts relate to one another. Under the plan of the convention, the judicial power of the United States is to be vested in one Supreme Court, and in whatever lower courts Congress chooses, from time to time, to ordain and establish.

That there should be one court of supreme and final jurisdiction is hardly worth disputing. The reasons for it are obvious and have been given elsewhere. The only real question raised is whether that court should be a separate body or a branch of the legislature. Here I notice the same contradiction that runs through several other objections. The very men who attack the Senate as a court of impeachments, on the ground that it improperly mixes powers, turn around and argue the opposite. At least by implication, they hold that final judgment in all cases should rest in the whole legislature or in some part of it.

The arguments, or rather suggestions, on which this charge rests run roughly as follows. The proposed Supreme Court, being separate and independent, will stand above the legislature. Its power to read the laws according to the spirit of the Constitution will let it shape them however it pleases, especially since no legislative body can revise or correct its decisions. This is said to be both unprecedented and dangerous. In Britain final judicial power rests in the House of Lords, a branch of the legislature, and most State constitutions imitate that arrangement. Parliament and the State legislatures can at any time correct objectionable rulings by passing a law. But the errors and usurpations of the Supreme Court, the objection concludes, will be beyond control and beyond remedy. On examination this turns out to be false reasoning built on misunderstood facts.

First, there is not a syllable in the plan that directly empowers the national courts to construe the laws according to the spirit of the Constitution, or that gives them any wider latitude here than the courts of every State already claim. I grant that the Constitution ought to be the standard by which the laws are construed, and that where a law plainly conflicts with it, the law must give way. But that principle does not arise from anything peculiar to this plan. It follows from the general theory of a limited Constitution, and so far as it is true it applies equally to most, if not all, of the State governments. Any objection on this score would strike just as hard at the State courts, and would condemn every constitution that tries to set bounds to what a legislature may do.

Perhaps the real force of the objection lies in the particular makeup of the Supreme Court: that it is a distinct body of magistrates rather than a branch of the legislature, as in Britain and the States. To press this point, though, the objectors must abandon the very meaning they have worked so hard to attach to the celebrated maxim requiring a separation of the departments of power. I will still concede to them, following how that maxim has been read in these papers, that it is not violated by lodging the final power of judging in a part of the legislature. Yet even if that is not an outright breach of the rule, it comes so close to one that, on this ground alone, it is less desirable than the mode the convention preferred.

From a body that had even a partial hand in passing bad laws, we could rarely expect any willingness to soften and moderate those laws in applying them. The same spirit that shaped them in the making would be too apt to govern their interpretation. Still less could we expect that men who had violated the Constitution as legislators would set about repairing the breach as judges. Nor is that all. Every reason that recommends holding judicial office during good behavior argues against placing final judicial power in a body whose members are chosen for a limited term. It is absurd to refer cases at first instance to judges of permanent standing, and in the last resort to judges of a temporary and shifting tenure. It is more absurd still to subject the decisions of men selected for legal knowledge, gained by long and laborious study, to revision by men who, lacking that training, must be deficient in it.

Legislators will rarely be chosen for the qualifications that fit a man to be a judge, so there is real reason to fear all the ill effects of poor legal knowledge. And because such bodies naturally fall into party divisions, there is equal reason to fear that the pestilential breath of faction may poison the very fountains of justice. The habit of being continually drawn up on opposite sides would too readily stifle the voice of both law and equity.

These considerations lead us to applaud the wisdom of those States that entrusted final judicial power not to a part of the legislature but to distinct and independent bodies of men. Some call this feature of the plan novel and unprecedented. In truth it merely copies the constitutions of New Hampshire, Massachusetts, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia, and the preference shown for those models deserves high praise.

Second, it is not true that the Parliament of Britain or the State legislatures can correct objectionable court rulings in any sense beyond what a future Congress of the United States could also do. Neither the British nor the State constitutions authorize a legislature to revise a judicial sentence by a legislative act, and nothing in the proposed Constitution, any more than in those, forbids it. In every case the sole obstacle is the impropriety of the thing on the general principles of law and reason. A legislature, without exceeding its province, cannot reverse a decision already made in a particular case, though it may lay down a new rule for future cases. This principle, with all its consequences, applies in exactly the same way and to the same extent in the States as in the national government now under consideration. Not the least difference can be shown.

Finally, the much-repeated danger that the judiciary will encroach on the legislature is in reality a phantom. Particular misreadings or departures from the legislature’s will may happen now and then, but they can never grow extensive enough to amount to a real inconvenience, or to disturb the order of the political system in any noticeable degree. This follows with certainty from the general nature of the judicial power, from the matters it deals with, from the way it is exercised, from its comparative weakness, and from its total inability to back any usurpation by force.

The inference is greatly strengthened by an important constitutional check. The power to bring impeachments in one part of the legislature and to try them in the other gives that body a firm hold over the members of the judiciary. This alone is a complete security. The judges will never run the risk of provoking, through a series of deliberate usurpations, the united resentment of the very body that can punish their presumption by stripping them of their offices. While this should remove all fear on the subject, it also supplies a strong argument for making the Senate the court for the trial of impeachments.

Having examined, and I trust removed, the objections to organizing the Supreme Court as a distinct and independent body, I turn to the power of creating lower courts and the relationship those courts will have to the Supreme Court. That power plainly serves to spare the country from carrying every federal case to the Supreme Court. It is meant to let the national government set up, or authorize, in each State or district a tribunal able to decide matters of national jurisdiction within its bounds.

But why, it is asked, could the same end not have been reached through the existing State courts? Several answers apply. Even granting those courts full fitness and competence, the substance of this power still belongs in the plan, if only to let the national legislature hand them the cognizance of cases arising under the national Constitution. Conferring such jurisdiction on the existing State courts would be as much “to constitute tribunals” as creating new courts with the same authority. Still, should the plan not have made a more direct and explicit provision in favor of the State courts? In my opinion there are substantial reasons against it.

No one, however discerning, can foresee how far a prevailing local spirit might disqualify the local courts from handling national cases. Yet anyone can see that courts framed like those of some States would be poor channels for the judicial authority of the Union. State judges who hold office at pleasure, or only from year to year, will be too dependent to be trusted with the unbending enforcement of the national laws. And if we had to commit the original handling of national cases to them, there would be a matching need to leave the door of appeal as wide as possible. The greater our confidence in the lower courts, the more freely appeals may be limited; the greater our distrust, the wider appeals must be left. I am well satisfied that the appellate jurisdiction the plan grants is proper, and so I would regard anything that gave appeals an unrestrained course in practice as a source of public and private inconvenience.

I rather suspect it will prove highly useful to divide the United States into four, five, or half a dozen districts, and to set up a federal court in each district instead of one in every State. The judges of these courts, aided by the State judges, could ride circuit to try cases throughout the several parts of their districts. Justice could thus be administered with ease and dispatch, and appeals could be safely kept within a narrow compass. This plan seems to me at present the most eligible that could be adopted. For it to work, the power of creating inferior courts must exist in the full extent given by the proposed Constitution. These reasons should satisfy any candid mind that the lack of such a power would have been a serious defect in the plan.

Now consider how the judicial authority is to be divided between the supreme and the inferior courts. The Supreme Court is to have original jurisdiction only in cases affecting ambassadors, other public ministers, and consuls, and in cases to which a State is a party. Public ministers of every class are the direct representatives of their sovereigns, and all questions touching them bear so closely on the public peace that such questions should go first to the highest court in the nation. This serves both to preserve that peace and to show respect for the sovereignties they represent. Consuls, though not strictly diplomatic, are the public agents of their nations, so much the same reasoning applies to them. And where a State is a party, it would ill suit its dignity to be sent down to an inferior tribunal.

Though it digresses somewhat from the immediate subject, I will address here a supposition that has stirred alarm on quite mistaken grounds. It has been suggested that assigning the public securities of one State to citizens of another would let those citizens sue that State in the federal courts for the value of the securities. The following considerations show the suggestion to be groundless.

It is inherent in the nature of sovereignty that a sovereign cannot be sued by an individual without its own consent. This is the general understanding and the general practice of mankind, and this immunity, as one of the attributes of sovereignty, is now enjoyed by the government of every State in the Union. Unless the plan of the convention surrenders that immunity, it stays with the States, and the danger suggested is purely imaginary. The circumstances that would actually surrender State sovereignty were examined in discussing the article of taxation and need not be repeated. The principles established there show there is no color for pretending that the States, by adopting this plan, would lose the privilege of paying their own debts in their own way, bound by nothing but the obligations of good faith.

The contracts between a nation and individuals bind only the conscience of the sovereign. They carry no compulsive force and confer no right of action apart from the sovereign’s will. What purpose would it serve to authorize suits against States for the debts they owe? How could any judgment be enforced? Plainly it could not be done without making war on the contracting State. To read into the federal courts, by mere implication and in destruction of a pre-existing right of the States, a power carrying such a consequence would be wholly forced and unwarranted.

Let me resume the thread. We have seen that the Supreme Court’s original jurisdiction is confined to two classes of cases, both of a kind that will rarely arise. In all other matters of federal cognizance the original jurisdiction falls to the inferior courts, and the Supreme Court has nothing more than appellate jurisdiction, with such exceptions and under such regulations as Congress shall make.

This appellate jurisdiction has scarcely been questioned as to matters of law, but it has drawn loud complaints as applied to matters of fact. Some well-meaning men in this State take their notions from the language and forms of our own courts. They have come to see it as an implied abolition of trial by jury in favor of the civil-law mode of trial used in our courts of admiralty, probate, and chancery. They have fixed a technical sense on the word “appellate,” which in our legal usage commonly refers to appeals under the civil law. But, if I am not misinformed, the word would carry no such meaning anywhere in New England. There an appeal from one jury to another is familiar in both language and practice, and is even a matter of course until two verdicts fall on the same side.

Since “appellate” will not be understood the same way in New England as in New York, it is improper to read it through the technical lens of any single State’s law. Taken in the abstract, the word means nothing more than the power of one court to review the proceedings of another, whether as to law, or fact, or both. How that review is done may depend on ancient custom or on legislative provision (in a new government it must depend on the latter), and it may be done with or without a jury, as is thought advisable. So if re-examining a fact once found by a jury were ever allowed under the proposed Constitution, it could be regulated so as to be done by a second jury. This could be arranged either by sending the case back to the lower court for a new trial of the fact, or by directing an issue out of the Supreme Court itself.

But it does not follow that re-examination of a fact once found by a jury will be permitted in the Supreme Court at all. When a writ of error is brought from a lower to a higher court of law in this State, why may we not say, quite properly, that the higher court has jurisdiction of the fact as well as the law? True, it cannot open a fresh inquiry into the fact, but it takes the fact as it appears on the record and pronounces the law arising upon it. That is jurisdiction of both fact and law, and the two cannot even be separated. Our common-law courts settle disputed facts by a jury, yet they plainly have jurisdiction of both fact and law. When the fact is admitted in the pleadings, they call no jury at all but proceed straight to judgment. On this ground I maintain that the words “appellate jurisdiction, both as to law and fact” do not necessarily mean the Supreme Court will re-examine facts decided by juries in the lower courts.

The following line of thought may well have guided the convention on this provision. The Supreme Court’s appellate jurisdiction will reach cases decided in different ways, some by the course of the common law, others by the course of the civil law. In common-law cases the Supreme Court will generally review only the law. In civil-law cases the re-examination of fact is customary, and in some, such as prize cases, may be essential to preserving the public peace. The appellate jurisdiction must therefore, in certain cases, extend in the fullest sense to matters of fact.

It would not do to make an express exception for cases originally tried by a jury, because in some States all cases are tried that way. Such an exception would block the review of facts where it might be proper as well as where it might be improper. To avoid every inconvenience, the safest course is to declare in general that the Supreme Court shall have appellate jurisdiction over both law and fact, subject to such exceptions and regulations as the national legislature may prescribe. That lets the government adjust the jurisdiction in whatever way best serves public justice and security.

This view of the matter puts it beyond doubt that the supposed abolition of trial by jury through this provision is false. Congress would certainly have full power to provide that in appeals to the Supreme Court there be no re-examination of facts already tried by juries in the original cases; that would be an authorized exception. And if, for the reason already noted, even that were thought too sweeping, it could be qualified to apply only to causes that are determinable at common law by jury trial.

The sum of these observations on the authority of the judicial department is this: that authority has been carefully confined to cases plainly fit for the national courts; that in dividing it only a very small share of original jurisdiction is kept by the Supreme Court, the rest going to the lower courts; that the Supreme Court will have appellate jurisdiction over both law and fact in the cases referred to it, subject to whatever exceptions and regulations are thought advisable; that this appellate jurisdiction in no case abolishes trial by jury; and that ordinary prudence and integrity in the national councils will secure us solid advantages from the proposed judiciary, without exposing us to any of the inconveniences that have been predicted from it.

Building a new government, however careful and wise the work, is bound to raise questions of great intricacy and delicacy. We should expect such questions above all when a constitution rests on combining a number of separate sovereignties, whether in whole or in part. Only time can mature and perfect so complex a system. Only time can settle the meaning of all its parts and fit them into a harmonious and consistent whole.

Such questions have indeed arisen about the convention’s plan, especially about the judiciary. The chief of them concerns where the State courts stand in relation to the cases assigned to federal jurisdiction. Is that jurisdiction to be exclusive, or are the State courts to share it? And if they share it, what relation will they bear to the national courts? These are the inquiries we hear from men of sense, and they are certainly entitled to attention.

The principles set out earlier teach us that the States keep every authority they already held, unless it has been exclusively delegated to the federal government. That exclusive delegation can exist in only one of three cases. First, where an exclusive authority is granted to the Union in express terms. Second, where an authority is granted to the Union and a like authority is forbidden to the States. Third, where an authority is granted to the Union that a similar authority in the States would be wholly incompatible with. These principles may not apply with the same force to judicial power as to legislative power. Yet I am inclined to think that, on the whole, they hold for the former as well as the latter. On that footing, I lay down a rule: the State courts keep the jurisdiction they now have, unless it appears to be taken away in one of these enumerated ways.

One part of the proposed Constitution looks like it confines federal cases to the federal courts. It is 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.” This could be read two ways. It might mean that the Union’s supreme and lower courts alone may decide the cases their authority reaches. Or it might simply mean that the national judiciary is to consist of one Supreme Court and as many lower courts as Congress chooses to create. On that second reading, the United States exercises its judicial power through those courts. The first reading excludes the State courts from any shared jurisdiction; the second allows it. Because the first reading would alienate State power by implication, the second strikes me as the more natural and defensible one.

But this doctrine of shared jurisdiction clearly applies only to the kinds of cases the State courts already handled. It is less clear for cases that arise out of, and are peculiar to, the new Constitution. Denying the State courts jurisdiction over such cases can hardly be called the taking away of a pre-existing authority. So I do not claim that the United States may never assign cases arising under a particular law to the federal courts alone. In legislating on the matters entrusted to it, it may do so where that course seems wise. I hold only that the State courts will lose none of their original jurisdiction except as it relates to appeal. I even think that, in every case where a future national law does not expressly exclude them, they will of course take up the cases that law gives rise to. I draw this from the nature of judicial power and from the general character of the system. The judicial power of every government reaches beyond its own local laws. In civil cases it takes hold of every dispute between parties within its jurisdiction. It does so even when the matter in dispute concerns the laws of the most distant part of the world. The laws of Japan, no less than those of New York, may supply matter for legal argument in our courts. Add to this that the State and national governments are, as they truly are, kindred systems and parts of one whole. The conclusion then seems unavoidable: the State courts would have shared jurisdiction in all cases arising under the laws of the Union, wherever it is not expressly forbidden.

Here another question arises: what relation would hold between the national and State courts where they share jurisdiction? My answer is that an appeal would certainly lie from the State courts to the Supreme Court of the United States. The Constitution in plain terms gives the Supreme Court appellate jurisdiction in all the listed cases of federal concern where it does not have original jurisdiction. Nothing in it limits that appeal to the lower federal courts. It contemplates the subjects of appeal, not the courts from which the appeal is taken. From this, and from the reason of the thing, the appellate power ought to be read to extend to the State courts.

Either this must be so, or the local courts must be shut out from any shared jurisdiction in matters of national concern. Otherwise the judicial authority of the Union could be evaded at the pleasure of any plaintiff or prosecutor. Neither result should be brought about without clear necessity. The latter would be wholly inadmissible, since it would defeat some of the most important and openly stated purposes of the proposed government and seriously hamper its operations. Nor do I see any ground for such a fear. As I have already noted, the national and State systems are to be regarded as one whole. The State courts will naturally serve as auxiliaries in carrying out the laws of the Union. An appeal from them will naturally run to the tribunal meant to unite and harmonize the principles of national justice and the rules of national decision. For weighty public reasons, the plain aim of the convention’s plan is this: all cases in the specified classes shall receive their first or final decision in the courts of the Union. Some would confine the general words granting the Supreme Court appellate jurisdiction to appeals from the lower federal courts alone, rather than letting them reach the State courts too. That would narrow the terms in defiance of their intent, and contrary to every sound rule of interpretation.

But could an appeal be made to lie from the State courts to the lower federal courts rather than the Supreme Court? This is another question that has been raised, and a harder one than the last. Several considerations support the affirmative. The convention’s plan, first, authorizes the national legislature “to constitute tribunals inferior to the Supreme Court.” It next declares 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.” It then lists the cases to which this judicial power extends. It afterward divides the Supreme Court’s jurisdiction into original and appellate, but gives no definition of the jurisdiction of the lower courts.

The only outlines drawn for the lower courts are that they shall be “inferior to the Supreme Court” and shall not exceed the specified limits of the federal judiciary. Whether their authority is to be original, appellate, or both is not declared. All of this seems left to the discretion of the legislature. That being so, I see at present no obstacle to setting up an appeal from the State courts to the lower national courts. Many advantages in the power to do so may be imagined. It would lessen the reasons for multiplying federal courts, and would allow arrangements designed to narrow the appellate jurisdiction of the Supreme Court. The State courts could then be left with a fuller charge of federal cases. And in most cases where an appeal is thought proper, it could run from the State courts to the district courts of the Union. It need not be carried up to the Supreme Court.

One objection to the convention’s plan has gained the most traction in this State, and probably in several others. It is that the Constitution contains no provision guaranteeing trial by jury in civil cases. The objection is usually stated in a misleading way, one I have exposed before. Yet the opponents keep repeating it in conversation and in writing. They treat the Constitution’s mere silence about civil cases as if it abolished the jury. The speeches built on that pretext are artfully calculated to make people believe the abolition is complete, reaching not only every kind of civil case but even criminal ones. To argue the criminal side would be as vain and fruitless as trying to prove seriously that matter exists. Some propositions, by their own internal evidence, force conviction the moment they are clearly stated.

On civil cases, the opponents have used arguments almost too trifling to answer. Their aim is to support the claim that something merely left unaddressed has been entirely abolished. Anyone with judgment sees at once the wide gap between silence and abolition. But the inventors of this fallacy try to prop it up with certain legal maxims of interpretation, which they have twisted from their real meaning. So it is worth examining the ground they stand on.

The maxims they rely on run like this: “Specifying particulars excludes the general”; or, “Expressing one thing excludes another.” From this they argue as follows. The Constitution establishes jury trial in criminal cases and says nothing about civil ones. That silence, they claim, implicitly forbids jury trial in civil cases.

Rules of legal interpretation are simply rules of common sense that courts adopt when construing the laws. So the true test of applying them correctly is whether the result matches that common-sense source. Given that, ask whether a certain supposition makes sense. It is that a provision requiring the legislature to assign criminal trials to juries strips it of the right to authorize or permit jury trial in other cases. Is it natural to think a command to do one thing forbids doing another? Remember that there was already a power to do the second thing, and it is not incompatible with the first. If that supposition would be unnatural and unreasonable, then it cannot be rational to claim that requiring jury trial in some cases bars it in others.

A power to create courts includes the power to prescribe how trials are conducted. So if the Constitution had said nothing about juries, the legislature would be free either to use them or not. For criminal cases that discretion is narrowed by the express command of jury trial in all such cases. For civil cases it remains open, since the document is wholly silent there. Requiring that all criminal cases be tried one way removes any obligation to use the same method in civil cases. But it does not strip the legislature of the power to use that method in civil cases if it sees fit. The claim that the national legislature would not be fully free to send all civil cases within federal reach to juries has no real foundation.

From all this the conclusion follows. Jury trial in civil cases would not be abolished, and the use made of these maxims runs against reason and common sense, so it cannot be accepted. Even if the maxims carried the exact technical sense their users imagine, which they do not, they would still not apply to a constitution of government. For a subject of that kind, the natural and plain meaning of the provisions, apart from any technical rules, is the true standard of interpretation.

Having shown that the maxims cannot bear the use made of them, let me establish their proper use and true meaning, which is best done by examples. The plan declares that Congress’s power, the power of the national legislature, extends to certain listed cases. That listing clearly excludes any claim to a general legislative authority. Granting specific powers would be both absurd and pointless if a general authority had been intended.

In the same way, the Constitution declares that the judicial authority of the federal courts covers certain specified cases. Naming those cases marks the precise limit beyond which the federal courts cannot extend their jurisdiction. Once the matters they may hear are listed, the listing would be meaningless if it did not exclude every idea of more extensive authority.

These examples are enough to clarify the maxims and show how they should be used. But to remove any misunderstanding, let me add one more case. It demonstrates both their proper use and the abuse made of them.

Suppose that under this State’s laws a married woman could not convey her estate. The legislature, seeing this as a wrong, enacts that she may dispose of her property by deed executed before a magistrate. There the specification would indeed exclude any other mode of conveyance. Having had no prior power to part with her property, she is now told the particular method she must use. But suppose a later part of the same act added a further rule. It declared that no woman could dispose of an estate of a certain value without the consent of three of her nearest relations signing the deed. Could anyone infer that a married woman may not also seek her relations’ approval for a deed conveying property of lesser value? The inference is too absurd to need refutation. Yet it is exactly the position taken by those who argue that jury trial in civil cases is abolished because it is expressly provided for in criminal cases.

From all this it is plainly true that jury trial is in no case abolished by the proposed Constitution. It is equally true in the disputes between individuals where ordinary people are most likely to be concerned. There the institution will stay exactly where the State constitutions place it, in no degree altered or influenced by the new plan. The reason is that the national judiciary will have no authority over such cases. They will remain decided as before, by the State courts alone and in the manner State constitutions and laws prescribe. Consider land cases and disputes between citizens of the same State. All of them will belong exclusively to the State courts, except land cases involving conflicting grants from different States, and except disputes that turn on State legislatures violating the articles of union. Add that admiralty cases and nearly all equity cases are already decided here without a jury. The conclusion is that the institution, as it now stands among us, cannot be much affected by the proposed change.

The plan’s friends and its adversaries, whatever else divides them, agree at least on the value of trial by jury. The only difference is that the friends call it a valuable safeguard of liberty, while the adversaries call it the very palladium of free government. For myself, the more I have observed the institution work, the more I have come to esteem it. But it would be pointless to weigh just how useful or essential it is in a representative republic. It would be equally pointless to weigh how much more it is worth as a shield against a hereditary monarch than as a barrier against the tyranny of popular magistrates in a popular government. Everyone is already satisfied of its value and its friendliness to liberty.

But I must admit I cannot easily see an inseparable bond between liberty itself and jury trial in civil cases. Arbitrary impeachments, arbitrary ways of prosecuting alleged offenses, and arbitrary punishments on arbitrary convictions have always struck me as the great engines of judicial despotism. All of these concern criminal proceedings. Jury trial in criminal cases, supported by the writ of habeas corpus, therefore seems to be the only thing truly at stake in the question of liberty. Both are amply provided for in the convention’s plan.

It has been claimed that jury trial guards against oppressive taxation. That claim deserves to be tested. The jury can have no influence on the legislature regarding how much tax is laid, what it is laid upon, or how it is apportioned. If it has any influence at all, it can only be on the method of collection and the conduct of the officers charged with enforcing the revenue laws.

As for collection in this State under our own constitution, jury trial is in most cases not used. Taxes are usually levied by the quicker process of seizure and sale, as with overdue rent, and everyone admits this is essential to making the revenue laws work. A lawsuit to recover taxes from individuals would move too slowly. It would neither serve the public’s needs nor suit the citizens’ convenience, and would often pile up costs heavier than the original tax. As for the conduct of revenue officers, the provision securing jury trial in criminal cases supplies the protection sought. Deliberate abuses of public authority and every kind of official extortion are crimes against the government. The officers who commit them can be indicted and punished according to the case.

The real merit of jury trial in civil cases seems to rest on grounds unrelated to liberty. Its strongest recommendation is that it guards against corruption. There is always more time and opportunity to tamper with a permanent body of magistrates than with a jury called for a single occasion. So a corrupt influence might reach the judges more easily than the jurors. Yet that consideration is weakened by others. The sheriff summons ordinary juries, and the clerks name special juries, and both are themselves permanent officers acting individually. So they may be more open to corruption than the judges, who act as a body. Such officers could readily pick jurors who would serve a party’s purpose as well as a corrupt bench would. And it is fair to suppose one further thing. It would be easier to win over some jurors drawn at random from the public than men chosen by the government for their honesty and good character.

Even after all those deductions, the jury still remains a valuable check on corruption, because it greatly multiplies the obstacles. As things stand, one would have to corrupt both court and jury. Where a jury has clearly gone wrong, the court will usually grant a new trial. So it is generally useless to work on the jury unless the court can be bought too. Here, then, is a double security, and this layered arrangement tends to keep both institutions honest. By raising the obstacles to success, it discourages attempts to seduce either one. The judges’ temptations to corruption must be far fewer while a jury’s cooperation is required than if they decided every case alone.

So I have raised doubts about whether civil jury trial is essential to liberty. Still, I grant that under proper regulation it is in most cases an excellent way of deciding questions of property. On that ground alone it would deserve a constitutional provision if its proper limits could be fixed. But fixing those limits is always hard. A federal government is a composition of societies whose ideas and institutions on this matter differ widely, and men not blinded by enthusiasm must see that the difficulty grows considerably there. For my part, every fresh look at the subject convinces me more of the reality of these obstacles. We are reliably told they kept any such provision out of the convention’s plan.

The great differences among the States in the scope of jury trial are not widely understood. This should weigh on our judgment of the omission complained of, so it needs explaining. This State’s courts resemble Great Britain’s more closely than any other’s. We have courts of common law, courts of probate (akin in some matters to England’s spiritual courts), a court of admiralty, and a court of chancery. Jury trial prevails only in the common-law courts, and even there with some exceptions. In all the others a single judge presides, generally following canon or civil law without a jury. New Jersey has a chancery court like ours but no admiralty or probate courts in our sense. So its common-law courts handle cases we send to admiralty and probate, and its jury trial reaches further than New York’s. In Pennsylvania this is perhaps still more so, for it has no chancery court and its common-law courts exercise equity jurisdiction. It has an admiralty court but no probate court on our plan. Delaware has copied Pennsylvania. Maryland comes closer to New York, as does Virginia, except that Virginia has several chancellors. North Carolina most resembles Pennsylvania, and South Carolina resembles Virginia. In some States with separate admiralty courts, I believe, those cases are tried by juries.

Georgia has only common-law courts, with an appeal as a matter of course from one jury’s verdict to a second, called a special jury, appointed in a prescribed way. Connecticut has no separate chancery or admiralty courts, and its probate courts decide no cases. Its common-law courts hold admiralty and, to some extent, equity jurisdiction, with the General Assembly serving as the only court of chancery in important cases. There, jury trial in practice reaches further than in any State yet named. Rhode Island stands roughly where Connecticut does. Massachusetts and New Hampshire are in a similar position as to the blending of law, equity, and admiralty. In these four Eastern States jury trial rests on a broader base than elsewhere. It also carries a peculiarity unknown in full to the others. There is an appeal as a matter of course from one jury to another, until there have been two verdicts out of three on the same side.

This survey shows real diversity, both in the form and in the extent of civil jury trial across the States, and two obvious points follow. First, the convention could have fixed no general rule that matched the circumstances of every State. Second, adopting any one State’s system as the standard would have risked as much, or more, than leaving the matter, as was done, to legislative regulation.

The proposals offered to fill the gap have illustrated the difficulty rather than solved it. The Pennsylvania minority proposed the wording “Trial by jury shall be as heretofore,” which I maintain would be meaningless. The United States in their collective capacity are the object to which all general constitutional provisions must refer. Jury trial, with various limits, exists in each State on its own. But in the United States as such it is at present wholly unknown, because the existing federal government has no judicial power at all. There is therefore no prior federal establishment for the word “heretofore” to point to. The phrase would lack precise meaning and be inoperative for its uncertainty.

Just as that wording would fail its proposers’ intent, so, if I understand that intent correctly, it would be unwise in itself. I take the intent to be this: cases in the federal courts should be tried by jury whenever a similar case would be so tried in the State where the court sits. Admiralty cases would then be tried by jury in Connecticut, without one in New York. The erratic result of so unequal a method, for the same kinds of cases under the same government, is enough to set any sound mind against it. Whether a case got a jury would often depend on the accidental location of the court and the parties.

But that is not, in my view, the strongest objection. I am deeply convinced that there are many cases in which jury trial is unsuitable. I think so especially in cases touching the public peace with foreign nations, that is, in most cases turning wholly on the law of nations; among these are all prize cases. Juries cannot be assumed competent in inquiries requiring a thorough knowledge of the laws and usages of nations. They will sometimes be swayed by impressions that keep them from giving due weight to the considerations of public policy that ought to guide such cases. There would always be danger that their decisions might infringe the rights of other nations and so provide occasions for reprisal and war. A jury’s proper role is to determine facts. Yet in most such cases the legal consequences are so entangled with the facts that the two cannot be separated.

This point about prize cases gains weight from another fact. The way of deciding them has been thought worthy of special regulation in various treaties among the powers of Europe. Under such treaties they are decided in Great Britain, in the last resort, before the king himself in his privy council, where both fact and law are re-examined. That alone shows how unwise it would be to plant in the Constitution a provision making the State systems a standard for the national government on this point. It also shows how dangerous it is to burden the government with constitutional provisions whose propriety is not beyond dispute.

I am equally convinced that great advantages come from keeping equity jurisdiction separate from law, and that cases belonging to equity would be wrongly entrusted to juries. The chief use of a court of equity is to give relief in extraordinary cases that are exceptions to general rules. Merging such cases with ordinary jurisdiction would tend to unsettle the general rules and subject every case to special treatment. Keeping the two apart has the opposite effect: it makes each a sentinel over the other and holds each within proper bounds. Besides, the circumstances that make a case fit for equity are often so delicate and intricate that they suit ill with the nature of jury trial. They frequently demand long, deliberate, and critical study, which is impractical for men called from their occupations and required to decide before returning to them. The simplicity and speed that mark jury trial require the matter to be reduced to a single, obvious point. Chancery litigation, by contrast, often involves a long train of minute and separate particulars.

It is true that separating equity from law is peculiar to the English system, the model several States have followed. But it is equally true that jury trial has been unknown wherever the two have been united, and the separation is essential to preserving the jury in its original purity. A court of equity can readily extend its reach to matters of law. But there is much reason to suspect that extending the law courts into matters of equity would do real harm. It would forfeit the benefits of chancery, on the plan established in this State. It would also gradually change the nature of the law courts and undermine jury trial by introducing questions too complicated to be decided in that way.

These seem to me conclusive reasons against folding all the States’ systems into the national judiciary, which appears to have been the aim of the Pennsylvania minority. Now consider how far the Massachusetts proposal would remedy the supposed defect. It runs: “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.”

At best this is confined to one class of cases, and the fair inference is one of two things. Perhaps the Massachusetts convention thought it the only class of federal cases in which jury trial would be proper. Or perhaps they wanted something broader and found it impractical to frame a suitable provision. If the first, then omitting a rule on so narrow a subject can hardly be a serious flaw in the system. If the second, it strongly confirms how extremely difficult the thing is.

And there is more. Recall the earlier observations about the courts of the several States and their differing powers. It then becomes clear that no expressions are vaguer than those used to mark out the kind of cases meant to carry a right to jury trial. In this State the line between actions at common law and actions of equitable jurisdiction follows the rules that prevail in England. In many other States the line is less precise, and in some every cause is tried in a common-law court. There, every action counts as an action at common law to be decided by a jury if either party chooses. The Massachusetts proposal would therefore breed the same irregularity and confusion I noted in the Pennsylvania plan. In one State a case would go to a jury on request. In another State a nearly identical case must be decided without one, because the State courts differ as to common-law jurisdiction.

Clearly, then, the Massachusetts proposal cannot serve as a general rule until the States adopt some uniform plan about the limits of common-law and equitable jurisdiction. Devising such a plan is hard in itself and would take much time and reflection to perfect. It would be extremely difficult, perhaps impossible, to suggest any general rule acceptable to all the States or perfectly fitted to their several institutions.

One might ask why a reference could not have been made to this State’s constitution, which I myself allow to be a good one, as a standard for the United States. My answer is that the other States are unlikely to value our institutions as highly as we do. They are naturally more attached to their own, and each would press for the preference. Suppose the idea of taking one State as a model for all had been raised in the convention. Its adoption would have been hard, given each delegation’s favor for its own government, and it would have been uncertain which State to choose. Many of them, as shown, would be unfit. I leave it to conjecture whether New York or some other State would more likely have been preferred.

But even granting that the convention could have made a sound choice, a serious danger would remain. There would still have been great danger of jealousy and resentment in the other States at the partiality shown to one. The plan’s enemies would have gained a fine pretext for raising local prejudices against it, which might well have endangered, to no small degree, its final adoption.

Some men of enthusiastic temper would dodge the trouble of defining which cases jury trial should cover. They sometimes suggest that a provision might simply have established it in all cases whatever. For this I believe no precedent exists in any member of the Union. The considerations raised against the Pennsylvania minority’s proposal must satisfy every sober mind that establishing jury trial in all cases would have been an unpardonable error in the plan. In short, the more one studies it, the harder the task appears. Any provision must not say too little to serve the purpose, nor too much to be advisable. And it must not open fresh sources of opposition to the great object of establishing a firm national government.

On the other side, I cannot help believing that I have placed the subject in several different lights. In candid minds, these will go far toward removing the fears they may have held. They have shown that the security of liberty is materially concerned only in jury trial in criminal cases, which the plan amply provides for; that even in the great majority of civil cases, those touching most people, jury trial will remain in full force as set by the State constitutions, untouched by the plan; that it is in no case abolished by the plan; and that there are great, if not insurmountable, difficulties in framing any precise and proper provision for it in a constitution for the United States.

The best judges of the matter will be the least eager for a constitutional guarantee of civil jury trial. They will also be the readiest to admit a further point. The constant changes in society may make some other way of deciding questions of property preferable in many cases where the jury now prevails. For my part, I am convinced that even in this State jury trial might usefully be extended to some cases where it does not now apply, and as usefully be cut back in others. All reasonable men concede it should not govern every case. The examples of innovations narrowing its old limits, both here and in Great Britain, strongly suggest that its former extent proved inconvenient. They also give room to suppose that future experience may reveal the wisdom of still other exceptions. I suspect it is simply impossible to fix the precise point at which the institution ought to stop. That, to me, is a strong argument for leaving the matter to the legislature’s discretion.

This is now plainly understood in Great Britain and equally so in Connecticut. Yet something can safely be said about this State. Jury trial here is guaranteed by an express article of our constitution. Even so, more numerous encroachments have been made on it since the Revolution than in the same period in either Connecticut or Great Britain. And these encroachments have generally come from the very men who claim to be the warmest defenders of popular liberty. Those same men have rarely let constitutional barriers stop them in a favorite course. The truth is that the general genius of a government is all that can be substantially relied upon for lasting effects. Particular provisions, though not wholly useless, carry far less virtue and force than people commonly suppose. Their absence will never be, for men of sound judgment, a decisive objection to a plan that displays the leading marks of good government.

It certainly sounds harsh and strange to make one particular assertion. It is that there is no security for liberty in a Constitution that expressly establishes jury trial in criminal cases simply because it does not also do so in civil ones. Yet it is a notorious fact that Connecticut, always regarded as the most popular State in the Union, can boast no constitutional provision for either.