Federalist No.83

The Judiciary Continued In Relation To Trial By Jury

Wednesday, May 28, 1788

Alexander Hamilton


Article III, Section 2, Clause 3 of the Constitution of the Constitution:

The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

83.1

This paper concerns the right to a trial by jury in the United States under the section of the Constitution quoted above. In this commentary I will limit myself to summary of Hamilton’s argument rather than also considering the 6th Amendment, which makes specific guarantees as to a right to trial by jury, since it does not materially affect the import of Hamilton’s argument here.

83.2

Hamilton’s defence is mounted against the assertion that the Constitution’s wording, which states that crimes shall be subject to jury trial, means that by omission, trial by jury would be denied people in civil cases, and according to even less rational arguments, it means the abolishment of trial by jury entirely. Hamilton suggests that the rationale for these arguments relies upon two maxims:

83.3

Therefore, since the Constitution provides for trial by jury in the case of crimes, the argument goes, its silence on civil cases means jury trials are not available in those cases.

83.4

Yet Hamilton argues that legal interpretations of rules are based upon common sense. And Hamilton asserts that common sense dictates that the Constitution’s silence on the matter of civil cases leaves it open to the legislature to decide how such cases will be determined.

83.5

In order to demonstrate his logic, he considers common sense applications of the above maxims. In one example he considers the position of a married woman who has been granted permission to dispose of her property, to be done in the presence of a magistrate. In this case, the maxim makes sense, since the specifics of the ruling excludes a disposal of the property without a magistrate. But were a law to exist that prevented a woman from disposing of her property that had a determinate value, without the consent of her three nearest relations, it would not be a common sense application of the maxim to suppose she could not dispose of the property without consent if it was of a lesser value. From these observations, Hamilton concludes, it must appear unquestionably true, that trial by jury is in no case abolished by the proposed Constitution. And since the test of the application of a rule also depends on its conformity to the source from which they are derived, it would be unlikely that State courts would abandon trials by jury, or wish to change the means by which they already determine when a trial by jury is appropriate. This is a point that is important later in Hamilton’s discussion.

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Hamilton readily acknowledges the importance of trial by jury in criminal cases, and throughout his discussion he raises a number of reasons to maintain this system. He believes juries are a barrier to the tyranny of popular magistrates in a popular government. He also asserts that juries also limit the potential of corruption in cases, even if they cannot absolutely guarantee against it. The greatest danger to justice is that members of the judiciary might be bribed, whereas a jury whose composition would not be known before a trial would be more difficult to bribe. Hamilton grants that those officials who are responsible for forming the jury may be bribed to stack its members with sympathisers, but he believes that the appellate court’s power to demand a retrial makes that likelihood doubly unlikely: By increasing the obstacles to success, it discourages attempts to seduce the integrity of either [officials or jurors].

83.7

Yet Hamilton does not believe that trials by jury are necessarily needed in civil cases. He uses the example of taxation, in which the legislature can only be interested in how it is collected and in the conduct of the officers of the State. In the first instance, the need for a jury trial to extract taxes from every defaulting individual would be too costly to the State and too onerous an imposition of time. As to the second – the matter of conduct – if officers of the State were to be accused of misconduct, their actions would likely fall under the aegis of criminal law, and therefore it would be subject to a trial by jury.

83.8

The silence of the Constitution on the matter of trial by jury in civil cases raises the obvious question: when would it be deemed appropriate to give a trial by jury in civil cases? Without considering the many details of the matter, the short answer to this is that no rule for it could easily be written into the Constitution on the basis that State constitutions were formed prior to the writing of the federal Constitution, and they are not consistent. Hamilton, in fact, covers in detail the various arrangements of State courts and their handling of trial by jury. He expresses a particular regard for arrangements in the State of New York, where only in cases of common law do trials by jury exist. In all other cases a judge applies canon or civil law without a jury. Hamilton concedes that people in other States may prefer the arrangements they have. This is the problem. To have attempted to fix a universal rule at the Constitutional Convention would have been near impossible, given the variety of systems already established by the States, and to have imposed one would have opened the Constitution to criticism which would have been difficult to defend.

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Hamilton also rejects the idea that federal trials might follow the constitution of the State from which matters arise. This would make the system not only capricious – something of a lottery in some cases – but given that the federal court is meant to be a single court representing the entire Union, its character and its judgments could not be considered consistent.

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Yet Hamilton does cite one specific class of cases in which jury trials are not appropriate: in cases that involve the public peace with foreign nations. Part of his rationale for this lies with a similar argument he makes in a previous paper, that the House of Representatives not be involved in foreign treaties: that jurors would not have the requisite knowledge of laws and relations, and might be influenced by general knowledge of public policy, rather than the technicalities of a case. Added to this, the law regarding foreign cases also relies on a complex system of treaties. Second, of course, is the danger posed by decisions involving such cases, that they might lead to foreign reprisals, even war.

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Hamilton’s case against jury trials for civil cases can also be extrapolated from the problems of foreign trials. He argues that civil cases are often brought before a court because they are exceptions to general rules which require relief in extraordinary cases. Hamilton reasons that in such cases juries are usually less appropriate because the matters are generally complicated and too long for jurors to digest, who must make a decision before returning to their lives. Also, the exceptional nature of these cases would also potentially overcomplicate the interpretation of common law, since the increasing burden of decisions made in exceptional cases would make the law evermore difficult to apply in cases where juries must make a decision.

83.12

Hamilton cites the constitution of Massachusetts, which allows a trial by jury in civil cases if it is requested. This seems like a reasonable compromise over the question as to when to grant a trial by jury, but Hamilton again returns to the problem of the States agreeing in the Constitutional Convention. To have opened the matter about which method to adopt to debate would not have been to guarantee a good or reasonable result, and any decision would have drawn criticism and caused jealousy. So, in the end, the Constitution remains silent on the matter.

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This means that trial by jury is guaranteed in criminal cases. In civil cases brought before State courts, the individual State constitution’s rules on the matter remain in force, since it would be beyond reason for them to be nullified when the Constitution has nothing to say about the matter. Later, an individual's right to trial by jury in federal civil cases was guaranteed by the 7th Amendment.

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Hamilton finishes by suggesting that the silence of the Constitution on the matter is not just a compromise, but that it might also be a benefit. He considers it almost impossible to write a rule that could determine in every case the appropriate use of a jury. He also anticipates that future generations might find better innovations to decide matters of civil cases than exist in his own time, and the silence of the Constitution therefore offers no impediment to the adoption of those measures. And in the end, it is the general principles of the Constitution and the design of the system which are the greatest safeguards to liberty, rather than any one specific rule.

21 December 2019