Article 3, Section 2, Clause 1

Document 12

Timothy Pickering to Charles Tillinghast

24 Dec. 1787Life 2:359--60, 366--67

He [the Federal Farmer] objects to the powers of the judicial department, saying: "In the Judges of the Supreme Court are lodged the law, the equity, and the fact." These powers, he says, in well-balanced governments, are ever kept distinct. Why, Sir, there are no such governments in the world, save the British, and those which have been formed on the British model; that is, the governments of the United States. Except in those governments, a court of equity, distinct from a court of law, is unknown. And among the United States, two or three only, I believe, have such distinct courts of equity. In the rest, the courts of law possess also the powers of courts of equity, for the most common and useful purposes. "It is," says the "Federal Farmer," "very dangerous to vest, in the same Judge, power to decide on the law and also general powers in equity; for, if the law restrain him, he is only to step into his shoes of equity, and give what judgment his reason or opinion may dictate." Sir, this is all stuff. Read a few passages in "Blackstone's Commentaries," and you will be convinced of it. "Equity" (says he, Book III., chapter xxvii.), "is the soul and spirit of all law. Positive (or statute) law is construed, and rational law is made, by it. In this, equity is synonymous to justice; in that, to the true sense and sound interpretation of the rule. But the very terms of a court of equity and a court of law, as contrasted to each other, are apt to confound and mislead us; as if the one judged without equity, and the other was not bound by any law. Whereas, every definition or illustration to be met with, which now draws a line between the two jurisdictions, by setting law and equity in opposition to each other, will be found either totally erroneous or erroneous to a certain degree." "Thus, it is said that it is the business of a court of equity in England to abate the rigor of the common law. But no such power is contended for." "It is also said that a court of equity determines, according to the spirit of the rule, and not according to the strictness of the letter. But so also does a court of law. Both, for instance, are equally bound, and equally profess to interpret statutes according to the true intent of the legislature." "There is not a single rule of interpreting laws, whether equitably or strictly, that is not equally used by the Judges in the courts both of law and equity." "Each endeavors to fix and adopt the true sense of the law in question, and neither can enlarge, diminish, or alter that sense in a single tittle." Where then, you will ask, consists the essential difference between the two courts? Take Blackstone's answer: "It principally consists in the different modes of administering justice in each; in the mode of proof, the mode of trial, and the mode of relief." From him, also, you will learn that an act of Parliament was passed, in the reign of Edward I. (see "Commentaries," Book III., chapter iv.), making provisions which, by a little liberality in the Judges of the courts of law, "might have effectually answered all the purposes of a court of equity." As our ideas of a court of equity are derived from the English jurisprudence, so, doubtless, the Convention, in declaring that the judicial power shall extend to all cases in equity as well as law, under the Federal jurisdiction, had, principally, a reference to the mode of administering justice in cases of equity, agreeably to the practice of the Court of Chancery in England.

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There is but one other objection which I have time to notice. That respects the judicial power. The 'Federal Farmer' and other objectors say, the causes between a State and citizens of another State, between citizens of different States, and between a State, or the citizens thereof, and the citizens or subjects of foreign States, should be left, as they now are, to the decision of the particular State courts. The other cases enumerated in the Constitution seem to be admitted as properly cognizable in the Federal courts. With respect to all the former, it may be said, generally, that as the local laws of the several States may differ from each other, as particular States may pass laws unjust in their nature, or partially unjust, as they regard foreigners and the citizens of other States, it seems to be a wise provision which puts it in the power of such foreigners and citizens to resort to a court where they may reasonably expect to obtain impartial justice. But as the courts of particular States will, in these cases, have a concurrent jurisdiction, so whilst they proceed with reasonable despatch, and support their characters by upright decisions, they will probably be almost exclusively resorted to. But there is a particular and very cogent reason for securing to foreigners a trial, either in the first instance or by appeal in a Federal court. With respect to foreigners, all the States form but one nation. This nation is responsible for the conduct of all its members towards foreign nations, their citizens, and subjects, and therefore ought to possess the power of doing justice to the latter. Without this power a single State, or one of its citizens, might embroil the whole Union in a foreign war.

The trial by jury, in civil cases, I grant, is not explicitly secured by the Constitution; but we have been told the reason of the omission: and to me it is satisfactory. In many of the civil causes subject to the jurisdiction of the Federal courts, trial by jury would evidently be improper; in others, it was found impracticable in the Convention to fix on the mode of constituting juries. But we may assure ourselves that the first Congress will make provision for introducing it in every case in which it shall be proper and practicable. Recollect that the Congress of 1775 directed jury trials in the cases of captures at sea, and that the inconveniences soon discovered in that mode of trial obliged them to recommend an alteration, and to commit all admiralty causes to the decision of the Judge alone. So if the Convention had positively fixed a trial by jury in all the civil cases in which it is contended that it ought to have been established, it might have been found highly inconvenient in practice, as in the case above stated; but, if fixed by the Constitution, the inconvenience would have had to be endured (whatever mischief might arise from it) until the Constitution itself should be altered.

The Founders' Constitution
Volume 4, Article 3, Section 2, Clause 1, Document 12
The University of Chicago Press

Upham, Charles W. The Life of Timothy Pickering. 2 vols. Boston: Little, Brown & Co., 1873.

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