The Judiciary

I turn now to the judiciary. In laying out the Confederation’s defects, I showed why federal courts are needed. No one disputes the institution itself. The only questions are how it is constituted and how far its authority reaches. The first has three parts: (1) how judges are appointed, (2) their tenure, and (3) how judicial power is divided among the courts. Appointment follows the mode for Union officers, already covered.

Tenure raises three concerns: how long judges stay, how they are paid, and how they answer for their conduct. Under the convention’s plan, all judges appointed by the United States hold office during good behavior. The most approved state constitutions agree. Good behavior in office is one of the most valuable modern improvements in government. In a monarchy it bars the despotism of the prince. In a republic it bars the encroachments of the representative body. It is the best device for a steady, upright, and impartial administration of the laws.

Where the departments are kept separate, the judiciary is always least dangerous to the political rights of the Constitution. It is least able to injure them. The Executive holds the sword. The legislature commands the purse and sets the rules for every citizen. The judiciary directs neither the strength nor the wealth of society and takes no action of its own. It has neither force nor will, but merely judgment, and depends on the executive arm to enforce its judgments.

So the judiciary is by far the weakest department. It can never attack the other two with success, and needs care to defend itself. The courts may oppress a person now and then, but the people’s general liberty can never be in danger. This holds so long as the judiciary stays truly distinct from the legislature and the Executive. Without that separation there is no liberty. Liberty fears nothing from the judiciary alone, but everything from its union with either. Weak by nature, it risks being overpowered or cowed by them. Nothing secures its independence like permanent tenure, the citadel of public justice and security.

Complete judicial independence is most needed in a limited Constitution. By that I mean one that bars the legislature from certain acts, such as bills of attainder. Such limits hold only through courts whose duty is to void all acts against the Constitution. Otherwise reserved rights mean nothing. Some suppose this makes the judiciary superior to the legislature, since whoever voids another’s acts must outrank him. But every act of a delegated authority against its commission is void. So is any statute against the Constitution. To deny this is to set the people’s representatives above the people themselves.

Suppose the legislature judges its own powers, binding the others. No provision warrants that reading, and the Constitution cannot let representatives put their will above their constituents’. Far more rational that the courts stand between people and legislature, holding it within its limits. Interpreting the laws is the courts’ proper work. A constitution is fundamental law, and where a statute conflicts with it the Constitution prevails. This does not put judges above legislators, only the people above both.

Judges use this discretion between clashing laws in a familiar case. Two statutes often stand at once, and neither repeals the other. The courts must then fix what each one means. A fair reading reconciles them where it can; where it cannot, one must take effect and the other give way. The rule the courts settled on prefers the later statute to the earlier. No law imposes it. The judges adopted it themselves, holding that between clashing acts of an equal authority the later will should govern.

Between a superior authority and a subordinate one, reason points the other way. The earlier act of the superior beats the later act of the inferior. So when a statute contradicts the Constitution, the courts must hold to the Constitution and disregard the statute. Some object that judges may claim a conflict and put their own pleasure in place of the legislature’s. The same could happen in any ruling on any statute. If that objection proved anything, it would prove we need no judges apart from the legislature.

If the courts are the bulwarks of a limited Constitution against legislative encroachments, that argues strongly for permanent tenure. Nothing else so builds the independent spirit this duty demands. Judges must also guard the Constitution and private rights against ill humors that designing men spread among the people. Such humors pass, yet meanwhile they breed dangerous changes and oppress the minority. I trust the friends of this plan will never question a republican principle. The people may alter or abolish the Constitution whenever they find it inconsistent with their happiness.

That principle does not let representatives violate the Constitution whenever a passing wish seizes a majority of their constituents. The courts owe such breaches no more indulgence than the legislature’s own schemes. The established form binds the people until they annul or change it by some solemn act. Yet judges need uncommon courage to stay its faithful guardians when the major voice has prompted the invasion.

The judges’ independence guards more than the Constitution. Ill humors also injure the private rights of certain classes of citizens through unjust and partial laws. A firm judiciary softens such laws, and it checks the legislature in passing them. Lawmakers who expect the courts’ scruples to block an unjust design are forced by that very injustice to hold back. This shapes our governments more than most realize. No man can be sure that tomorrow he will not suffer the injustice he gains by today.

Judges on a temporary commission cannot hold so firmly to the rights of the Constitution and of individuals. Appointments renewed at set terms, however arranged, would prove fatal to the independence judges need. Left to the Executive or the legislature, they would breed deference to that branch. Left to both, an unwillingness to risk the anger of either. Left to the people, too great a wish to court popularity. In none could we trust that only the Constitution and the laws would guide them.

A weightier reason lies in what the office demands. Free government brings a vast body of laws, and strict rules and precedents must bind the courts against arbitrary discretion. Those records swell to a bulk demanding long study. Few men have skill enough in the laws to serve as judges, and fewer still join integrity to that knowledge. A temporary term would keep such men in lucrative practice, throwing justice into less able hands. The convention acted wisely in copying constitutions that make good behavior the judicial tenure; without it the plan would have been inexcusably defective.

Next to permanence in office, nothing secures judicial independence more than fixed pay. A power over a man’s livelihood amounts to a power over his will. Judges who depend on the legislature’s occasional grants are never truly separate from it. State constitutions declared salaries permanent, yet such words proved too loose to stop legislative evasion. The plan of the convention provides that judges’ pay “shall not be diminished during their continuance in office.” Money changes value, and a sum fixed in the Constitution could grow meager in half a century. The legislature may therefore adjust pay, but never worsen a sitting judge’s situation.

Under this rule a judge can be sure of the ground he stands on. No fear of a worse position can deter him from his duty. The convention treated the two offices differently: the President’s pay can be neither raised nor lowered, the judges’ only not lowered. The reason is likely tenure: the President serves at most four years, so a salary set at the start rarely fails by the end. A judge who behaves properly holds his place for life, and a stipend ample at his appointment may in time grow too small.

This provision, with permanent tenure, offers a better prospect of judicial independence than any State constitution gives its own judges. The safeguards for the judges’ responsibility sit in the article on impeachments. The House of Representatives may impeach them for misconduct, and the Senate tries them. If convicted, they may be removed from office and barred from holding any other. This is the only such provision consistent with the independence the judicial office requires.

Some complain that the plan provides no way to remove judges for incapacity. Such a provision would go unused, or be abused more than used well. Measuring the faculties of the mind is, I believe, no known art. Fixing the line between ability and inability would serve personal and party feeling more often than justice. Except in insanity, which disqualifies without express provision, the result would be arbitrary. New York fixes sixty as the test, and few now approve it. Deliberation and comparison keep their strength well past that age. In a republic, fortunes are modest and pensions unwise. Dismissing men who served long and depend on the office needs better ground than the imaginary danger of an aged bench.

I must first ask what the federal judiciary’s proper objects are. Six classes of cases seem scarcely open to dispute. (1) Cases arising under the laws of the United States, passed under their just and constitutional powers. (2) Cases about provisions written expressly into the articles of Union. (3) Cases in which the United States are a party. (4) Cases touching the peace of the confederacy, with foreign nations or between the States. (5) Admiralty and maritime cases arising on the high seas. (6) Cases where the State courts cannot be supposed impartial.

The first class rests on an obvious truth: a constitutional restriction needs a constitutional way to enforce it. The plan forbids the States a range of acts, and no sensible person believes such bans would hold without an effectual power to correct violations. That power must take one of two forms. It is either a direct veto on State laws, or authority in the federal courts to overrule State laws that plainly contradict the articles of Union. The convention preferred the second, and I presume the States will too.

The second class needs little argument. One axiom applies: a government’s judicial power should be as wide as its legislative power. Uniform interpretation of the national laws settles it by itself. Thirteen independent courts with final say over the same causes, under the same laws, would yield nothing but contradiction and confusion. The third class needs less still. Disputes between the nation and its members or citizens can only go to the national courts.

In the fourth class, the peace of the whole must not depend on a part. The Union answers to foreign powers for its members’ conduct, so it must hold the power to prevent injury. A denial or perversion of justice by a court is justly counted a cause of war. So the federal judiciary ought to hear all causes involving citizens of other countries. Causes between two States, between a State and citizens of another, and between citizens of different States may be no less essential to the Union’s peace.

Even the imperfect system holding the States together gave a way to end boundary disputes under the federal head. But quarrels between the States rise from other sources too. I mean the fraudulent laws passed in too many of them. The Constitution guards against the cases already seen. Yet that spirit may take new shapes no one can foresee. Whatever tends to disturb the harmony between the States is a proper object of federal control.

A basis of the Union is that “the citizens of each State shall be entitled to all the privileges and immunities of citizens of the several States.” Every government ought to enforce its own provisions by its own authority. So the national judiciary ought to preside wherever one State or its citizens oppose another. To guard this against evasion, its reading belongs to a court with no local ties. Such a court is likely to be impartial between the States. Owing its existence to the Union, it will never turn against the principles that made it.

The fifth point draws little dispute. Maritime causes turn on the law of nations and touch foreigners’ rights, so they belong to the public peace. The sixth point speaks for itself: no man ought to judge his own cause. That marks the federal courts proper for disputes between States and their citizens. It applies too where citizens of one State claim land under grants of different States. Neither granting State’s courts could be expected to be impartial. The laws may even have prejudged it; and judges, being men, favor their own government.

I now test the plan’s judicial powers by the principles just laid down. It extends, first, to all cases in law and equity under the Constitution and the laws of the United States. These answer the first two classes. It is asked how cases under the Constitution differ from those under its laws. The ban on paper money flows from the Constitution itself, not from any statute. So a suit over such money arises under the Constitution.

It is asked what need there is of the word “equity.” Hardly any suit is free of fraud, accident, trust, or hardship. Such matters fit equity rather than law. A court of equity relieves against hard bargains. These are contracts that take undue advantage of one party’s need, though no fraud voids them at law. Where foreigners are parties, the federal courts could not do justice without equity as well as law.

Second, to treaties and to all cases affecting ambassadors, other public ministers, and consuls. These are the fourth class, touching the national peace. Third, to admiralty and maritime cases: the fifth class. Fourth, to controversies where the United States is a party: the third class. Fifth, to controversies between two or more States, between a State and another’s citizens, and between citizens of different States: the fourth class. Sixth, to cases between citizens of one State claiming lands under grants of different States. This is the last class, the only same-State dispute the plan covers. Seventh, to cases between a State or its citizens and foreign states, citizens, or subjects: again the fourth class.

From this review, the judiciary’s powers all appear to match the principles that ought to govern it. If some bring trouble in particular cases, the national legislature has ample power to make exceptions and rules. The chance of a particular harm is no solid objection to a general rule. That rule avoids general harms and wins general gains.

I now return to how the judicial power is divided among the courts. The plan vests it in one Supreme Court and in whatever lower courts Congress creates. One final court is hardly disputed. The question is whether it should be a separate body or a branch of the legislature. Here the objection contradicts itself. Men who attack the Senate as a court of impeachments for mixing powers imply that final judgment belongs to the legislature, or part of it.

The charge: the Supreme Court, separate and independent, will stand above the legislature. Reading the laws by the spirit of the Constitution, it will shape them at will. No legislature can revise it. In Britain final judgment rests in the House of Lords, part of the legislature, and Parliament can correct bad rulings by law. So its errors and usurpations, they say, will be beyond remedy. First, no syllable of the plan gives the national courts wider latitude than the State courts claim. I grant that a law plainly against the Constitution must give way. That rule follows from the theory of a limited Constitution, not from this plan. The objection would strike the State courts just as hard.

Perhaps the objection really rests on the Court being a distinct body of magistrates, not legislators. I concede that final judgment in part of the legislature may not breach the maxim of separation. Still, it comes so near that the convention’s way is better. A body that helped pass bad laws will rarely soften them in applying them. Men who broke the Constitution as legislators will hardly repair it as judges. Every reason for tenure during good behavior argues against a last resort of men with short, shifting terms. It is absurd to let men without legal training revise the work of men chosen for it.

Legislators are rarely chosen for the traits that fit a judge. Poor legal knowledge is a real danger. Such bodies also fall into parties, and faction may poison the fountains of justice. So I praise the States that gave final judicial power to distinct, independent bodies. The feature is called new, but it copies the constitutions of New Hampshire, Massachusetts, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia.

Second, Parliament and the State legislatures cannot correct bad rulings in any way a future Congress could not. No British or State constitution lets a legislature revise a judicial sentence. Nor does this Constitution forbid it any more than they do. The only bar is that it is wrong on the general principles of law and reason. A legislature cannot reverse a decision already made, though it may set a new rule for future cases.

Finally, the danger that the judiciary will encroach on the legislature is a phantom. Some misreadings of the legislature’s will may happen, but never enough to disturb the political order. That follows from the nature of judicial power, its weakness, and its lack of force to back a usurpation. A constitutional check strengthens the point. One part of the legislature brings impeachments and the other tries them. That hold is a complete security. Judges will not risk provoking, by deliberate usurpations, the resentment of a body that can strip them of office.

Having answered the objections to a distinct and independent Supreme Court, I turn to the power of creating lower courts. That power spares the country from carrying every federal case to the Supreme Court. It lets the national government set up, or authorize, a tribunal in each State or district for national matters.

Why not reach the same end through the existing State courts? Even if those courts were fully fit, this power belongs in the plan. It lets the national legislature give them cases arising under the Constitution. Handing them that jurisdiction is as much “to constitute tribunals” as building new courts. But should the plan have provided directly for the State courts? I think there are strong reasons against it.

No one can foresee how far a local spirit might unfit local courts for national cases. State judges who hold office at pleasure, or year to year, are too dependent to enforce national laws firmly. If national cases started with them, appeals would have to be left wide open. The more we trust the lower courts, the more appeals can be limited. I think the appellate jurisdiction the plan grants is proper; unrestrained appeals would burden everyone.

I suspect it will prove useful to divide the United States into four, five, or half a dozen districts. Each would have one federal court, instead of a court in every State. Those judges, helped by the State judges, could ride circuit and try cases across their districts. Justice would be done with ease and speed, and appeals could safely be kept narrow. This requires the power to create inferior courts in the full extent the Constitution gives; without it the plan would be seriously defective.

Next, how is the judicial authority divided between the supreme and inferior courts? The Supreme Court has original jurisdiction only in cases touching ambassadors, other public ministers, and consuls, and in cases where a State is a party. Public ministers represent their sovereigns directly, and questions about them touch the public peace. Such cases should start in the highest court. Consuls are public agents of their nations, so the same reasoning holds. And a State’s dignity ill suits being sent down to an inferior tribunal.

One supposition has stirred alarm on mistaken grounds. Some say citizens who hold another State’s securities could sue that State in the federal courts. But by its nature a sovereign cannot be sued by an individual without its own consent. Unless the plan of the convention surrenders that immunity, the States keep it. Contracts between a nation and individuals bind only the conscience of the sovereign. No judgment on such a debt could be enforced without making war on the State. To read that power into the federal courts by mere implication would be forced and unwarranted.

To resume: that original jurisdiction covers two classes of case that will rarely arise. All other federal cases begin in the inferior courts. The Supreme Court hears them only on appeal, subject to exceptions and regulations Congress makes. That power has drawn little question as to law, but loud complaints as to fact. Some here read it by the forms of our own courts, and see trial by jury abolished in favor of the civil-law mode of admiralty, probate, and chancery. In New England, appeal from one jury to another is a matter of course.

“Appellate” is read differently in New England and New York, so no State’s usage can fix its meaning. In the abstract it means only one court’s power to review another’s proceedings, as to law, fact, or both. How that review is done rests on custom or statute. A fact once found by a jury could be sent to a second jury, if it were re-examined at all. It does not follow that it will be. On a writ of error the higher court takes the fact from the record and states the law on it. That is jurisdiction of both, and the two cannot be separated.

This may well have guided the convention. Its appellate jurisdiction reaches cases decided by the common law and cases decided by the civil law. In common-law cases it will generally review only the law. In civil-law cases re-examining fact is customary, and in prize cases may be essential to the public peace. An express exception for jury cases would not do, since some States try every case that way. So the safest course was a general grant over law and fact, subject to such exceptions and regulations as the national legislature may prescribe.

Congress has full power to provide that facts tried by juries below are not re-examined on appeal. In sum: the judicial authority is confined to cases plainly fit for the national courts. Only a small share of original jurisdiction stays with the Supreme Court; the rest goes to the lower courts. Its appellate jurisdiction covers law and fact, subject to whatever exceptions and regulations are thought advisable. That jurisdiction in no case abolishes trial by jury. And ordinary prudence and integrity in the national councils will secure us solid advantages from this judiciary.

Building a new government, however careful the work, must raise hard questions. We should expect them most where a constitution joins separate sovereignties. Only time can mature so complex a system and fit its parts together. Such questions have arisen about the convention’s plan, above all the judiciary. The chief one concerns the State courts and the cases given to federal jurisdiction. Is that jurisdiction exclusive, or do the State courts share it? If they share it, what relation do they bear to the national courts?

Earlier papers teach that the States keep every authority they held, unless granted to the Union alone. Such exclusive delegation happens in only three cases. First, the Constitution grants the Union an exclusive authority in express terms. Second, it grants an authority to the Union and forbids a like one to the States. Third, a similar State authority would be wholly incompatible with the one granted. These rules may bind judicial power less tightly than legislative, yet I think they mainly hold for both. So the State courts keep their present jurisdiction unless taken away in one of these ways.

One passage seems to confine federal cases to the federal courts. It vests the judicial power “in one Supreme Court, and in such inferior courts as the Congress shall ordain and establish.” This reads two ways. It may mean the Union’s courts alone may decide the cases their authority reaches. Or it may only name the parts of the national judiciary, leaving the State courts their share. The first would alienate State power by implication, so the second seems to me more natural and defensible.

This shared jurisdiction clearly covers only cases the State courts already handled. Cases peculiar to the new Constitution are another matter. To bar the State courts takes away no authority they had. I do not claim the Union may never give such cases to the federal courts alone. I claim only that the State courts lose no original jurisdiction, except as to appeal. Judicial power reaches past a government’s own local laws. The laws of Japan, no less than New York’s, may furnish argument in our courts. The State and national governments are parts of one whole. So the State courts would share jurisdiction in all cases under the Union’s laws, unless expressly forbidden.

Where they share jurisdiction, an appeal would certainly lie from the State courts to the Supreme Court. The Constitution gives that Court appellate jurisdiction in all listed federal cases where it has no original jurisdiction. Nothing confines that appeal to the lower federal courts. Without it, any plaintiff or prosecutor could evade the Union’s judicial authority. The other course is to shut the State courts out of national matters. The State courts serve as natural auxiliaries to the laws of the Union. Appeals from them run to the tribunal meant to harmonize national justice. The plan’s aim is that every specified case get its first or final decision in the courts of the Union.

Could an appeal from the State courts lie instead to the lower federal courts? That is harder, but several considerations favor it. The plan lets Congress set up tribunals inferior to the Supreme Court. It divides that Court’s jurisdiction into original and appellate. For the lower courts it says only that they are inferior and within the federal judiciary’s limits. Whether their power is original, appellate, or both is left to the legislature. So I see no obstacle to such an appeal. It would lessen the motive to multiply federal courts, narrow the Supreme Court’s appellate jurisdiction, and leave the State courts a fuller charge of federal cases.

One objection to the convention’s plan has taken hold here, and probably in other States. The Constitution, they say, nowhere guarantees jury trial in civil cases. Opponents state this in a misleading way, as I have shown before. They treat mere silence as if it abolished the jury, and some stretch the charge to criminal trials too. Anyone with judgment sees the gap between silence and abolition. Yet the fallacy leans on two maxims of interpretation: specifying particulars excludes the general, and expressing one thing excludes another. Juries are secured in criminal cases and unmentioned in civil ones. That silence, they say, forbids them.

Rules of legal interpretation are rules of common sense, so the test is whether the result matches it. Does a command to try all crimes by jury strip the legislature of a power it already had? The power to create courts includes the power to prescribe how trials run. Silence would leave the legislature free to use juries or not. The express command narrows that choice for criminal cases only. In civil cases the document says nothing, so the choice stays open. The jury is therefore not abolished. Even in their technical sense, these maxims would not govern a constitution, where the plain meaning of the words is the standard.

The maxims do have a proper use, best shown by example. The plan declares that the power of the national legislature extends to certain listed cases. That listing excludes any claim to a general legislative authority; granting specific powers would be pointless if a general one were meant. In the same way, the judicial authority of the federal courts covers specified cases, and naming them marks the limit of their jurisdiction. One further case shows both use and abuse.

Suppose that under this State’s laws a married woman could not convey her estate. The legislature enacts that she may dispose of it by deed made before a magistrate. That specification does exclude other modes, since she had no power to convey before. Now suppose the act adds a further rule. No woman may dispose of an estate above a certain value without three near relations signing. Could anyone infer that she may not also seek their approval for a smaller deed? The inference is absurd, yet it is exactly the opponents’ position.

Jury trial, then, is nowhere abolished by the proposed Constitution. In disputes between individuals it stays exactly where the State constitutions place it. The national judiciary will have no authority over such cases. Land cases and suits between citizens of the same State belong to the State courts alone. Two exceptions: land claims under conflicting grants from different States, and disputes turning on a State legislature violating the articles of union. Admiralty and nearly all equity cases are already decided here without a jury. The institution can hardly be much affected by the change.

Friends and adversaries of the plan agree on the value of jury trial. One side calls it a valuable safeguard of liberty; the other, the very palladium of free government. Still, I cannot easily see an inseparable bond between liberty itself and the civil jury. Arbitrary impeachments, arbitrary prosecutions, and arbitrary punishments on arbitrary convictions are the great engines of judicial despotism, and all of them are criminal. Jury trial in criminal cases, with the writ of habeas corpus, is what liberty truly rests on. The plan provides both.

Some claim the jury guards against oppressive taxation. It cannot influence how much tax the legislature lays, on what, or how it is shared. Its only reach is the method of collection and the conduct of revenue officers. Our own State mostly collects without juries. Taxes are levied by the quicker process of seizure and sale, which everyone admits the revenue laws require. A lawsuit against each taxpayer would move too slowly and often cost more than the tax. For the officers, the criminal jury supplies the protection sought. Deliberate abuse of public authority and official extortion are crimes, punishable by indictment.

The real merit of the civil jury lies elsewhere: it guards against corruption. A permanent body of magistrates offers more time to tamper than a jury called for one occasion. Yet the sheriff summons ordinary juries and the clerks name special ones. Both are permanent officers acting alone. They may be corrupted more easily than judges acting as a body, and could pick jurors to serve a party. Even so, the jury multiplies the obstacles. Both court and jury must be bought, since the court usually grants a new trial where a jury has clearly erred. This double security discourages the attempt on either.

So I doubt that the civil jury is essential to liberty. Under proper regulation it is still, in most cases, an excellent way to decide questions of property. On that ground alone it would deserve a place in the Constitution, if its limits could be fixed. Fixing them is always hard, and a federal government joins societies whose ideas and institutions on this matter differ widely. Every fresh look convinces me of the difficulty. We are told it kept such a provision out of the convention’s plan.

The States differ widely in how far jury trial reaches, and few people understand this. New York’s courts come closest to Britain’s: common law, probate, admiralty, and chancery. Jury trial prevails only in the common-law courts. New Jersey has no admiralty or probate courts in our sense, so its common-law courts take those cases and its jury reaches further. In the four Eastern States the jury stands on the broadest ground. There an appeal lies from one jury to another until two verdicts of three agree.

This survey shows real diversity across the States, both in the form of civil jury trial and in its extent. Two things follow. First, the convention could have fixed no general rule that matched the circumstances of every State. Second, taking any one State’s system as the standard would have risked at least as much as leaving the matter, as was done, to legislative regulation.

The proposals to fill the gap illustrate the difficulty rather than solve it. The Pennsylvania minority proposed the words “Trial by jury shall be as heretofore.” I maintain this is meaningless. General provisions in the Constitution must refer to the United States collectively. There jury trial is at present unknown, since the federal government has no judicial power. The wording would also be unwise. Its intent, I take it, is that a federal case get a jury whenever a similar State case would. Whether a case got a jury would then turn on the accidental location of the court and parties.

But this is not the strongest objection. I am deeply convinced that jury trial is unsuitable in many cases, above all in cases touching the public peace with foreign nations. These turn wholly on the law of nations; all prize cases are of this kind. Juries cannot be assumed competent in inquiries that require a thorough knowledge of the laws and usages of nations. Their decisions might infringe the rights of other nations and so give occasions for reprisal and war. A jury’s proper role is to determine facts, yet here law and fact cannot be separated. Britain, under treaties, decides prize cases before the king in his privy council.

I am equally convinced that separating equity from law brings great advantages, and that equity cases would be wrongly given to juries. A court of equity exists to relieve extraordinary cases, which are exceptions to general rules. Merging them with ordinary jurisdiction would unsettle those rules and make every case special. Separation makes each court a sentinel over the other. Besides, equity cases are often so intricate that they suit ill with jury trial, which requires a single obvious point. Jury trial has been unknown wherever law and equity are united. Extending the law courts into equity would undermine it by bringing in questions too complicated to decide that way.

These reasons are conclusive against folding all the States’ systems into the national judiciary, the Pennsylvania minority’s apparent aim. Massachusetts proposes this: every issue of fact in common-law actions between citizens of different States may be tried by a jury if either party asks. At best this covers one class of cases. Either the Massachusetts convention thought it the only federal class fit for a jury, or it wanted more and could frame nothing suitable. On the first reading, so narrow an omission is no serious flaw. On the second, it confirms how hard the thing is.

No words are vaguer than those marking which cases carry a right to jury trial. In New York the line between actions at common law and actions of equity follows England’s rules; elsewhere it blurs. In some States every cause is tried in a common-law court. So every action may go to a jury if either party chooses. The Massachusetts proposal breeds the same confusion as the Pennsylvania plan. A case tried by jury in one State must be decided without one in another. It cannot serve as a general rule until the States adopt a uniform plan on the limits of common-law and equity jurisdiction. That task is hard, perhaps impossible.

One might ask why the convention did not take this State’s constitution as the standard. My answer is that the other States are unlikely to value our institutions as we do. Each is attached to its own and would press for the preference. It is also uncertain which State would have been chosen, and many would be unfit. Even granting a sound choice, the other States would resent the partiality shown to one. That would give the plan’s enemies a fine pretext for raising local prejudices, and might have endangered its adoption.

Some men of enthusiastic temper would dodge the trouble of defining which cases the jury should cover. They suggest a provision establishing it in all cases whatever. I believe no member of the Union offers a precedent, and the Pennsylvania objections show it would have been an unpardonable error. The more one studies it, the harder the task appears. A provision must say neither too little to serve the purpose nor too much to be advisable. It must not open fresh sources of opposition to a firm national government.

I have now placed the subject in several lights that should calm candid minds. They show four things. The security of liberty is concerned only in jury trial for criminal cases, which the plan amply provides. In the great majority of civil cases, those touching most people, jury trial stays in full force as the State constitutions set it. It is in no case abolished by the plan. And great, if not insurmountable, difficulties stand in the way of any precise provision for it in a Constitution for the United States.

The best judges will be the least eager for a constitutional guarantee of civil jury trial. Society changes, and another way of deciding property questions may come to serve better. All reasonable men concede the jury should not govern every case. Since the point where it ought to stop cannot be fixed, I would leave the matter to the legislature.

Jury trial here rests on an express article of our constitution. Yet it has suffered more encroachments since the Revolution than in Connecticut or Great Britain. The general genius of a government is what secures lasting effects; particular provisions carry less force than people suppose. It sounds harsh to say a Constitution gives no security for liberty because it establishes criminal jury trial and not civil. But Connecticut, always thought the most popular State in the Union, provides for neither.