Article 3, Section 2, Clause 3
[Volume 4, Page 394]
Cincinnatus, no. 28 Nov. 1787Storing 6.1.13--15
I come now to the consideration of the trial by jury in civil cases. And here you have, indeed, made use of your professional knowledge--But you did not tell the people that your profession was always to advocate one side of a question--to place it in the most favorable, though false, light--to rail where you could not reason--to pervert where you could not refute--and to practice every fallacy on your hearers--to mislead the understanding and pervert judgement. In light of this professional practice, you make a refutable objection of your own, and then triumphantly refute it. The objection you impute to your opponents is--the trial by jury is abolished in civil cases. This you call a disingenuous form--and truly it is very much so on your part and of your own fabrication. The objection in its true form is, that--trial by jury is not secured in civil cases. To this objection, you could not possibly give an answer; you therefore ingenuously coined one to which you could make a plausible reply. We expected, and we had a right to expect, that such an inestimable privilege as this would have been secured--that it would not have been left dependent on the arbitrary exposition of future judges, who, when it may suit the arbitrary views of the ruling powers will explain it away at pleasure. We may expect Tressellians, Jeffree's and Mansfield's here, and if they should not be native with us, they may possibly be imported.
But, if taken even on your own ground it is not so clearly tenable. In point of legal construction, the trial by jury does seem to be taken away in civil cases. It is a law maxim, that the expression of one part is an exclusion of the other. In legal construction therefore, the preservation of trial by jury in criminal, is an exclusion of it in civil cases. Why else should it be mentioned at all? Either it followed of course in both cases, or it depended on being stipulated. If the first, then the stipulation was nugatory--if the latter, then it was in part given up. Therefore, either we must suppose the Convention did a nugatory thing; or that by the express mention of jury in criminal, they meant to exclude it in civil cases. And that they did intend to exclude it, seems the more probable, as in the appeal they have taken special care to render the trial by jury of no effect by expressly making the court judges both of law and fact. And though this is subjected to the future regulation of Congress, yet it would be absurd to suppose, that the regulation meant its annihilation. We must therefore conclude, that in appeals the trial by jury is expressly taken away, and in original process it is by legal implication taken away in all civil cases.
Here then I must repeat--that you ought to have stated [Volume 4, Page 395] fairly to the people, that the trial by jury was not secured; that they might know what, it was they were to consent to; and if knowing it, they consented, the blame could not fall on you. Before they decide, however, I will take leave to lay before them the opinion of the great and revered Judge Lord Camden, whose authority is, I hope, at least equal to that of Mr. Wilson.--"There is, says he, scarce any matter of challenge allowed to the judge, but several to the jurors and many of them may be removed without any reason alledged." This seems to promise as much impartiality as human nature will admit, and absolute perfection is not attainable, I am afraid, either in judge or jury or any thing else. The trial by [jury in] our country, is in my opinion, the great bulwark of freedom, and for certain, the admiration of all foreign writers and nations. The last writer of any distinguished note, upon the principles of government, the celebrated Montesquieu, is in raptures with this peculiar perfection in the English policy. From juries running riot, if I may [say] so, and acting wildly at particular seasons, I cannot conclude, like some Scottish Doctors of our law and constitutions, that their power should be lessened. This would, to use the words of the wise, learned, and intrepid Lord Chief Justice Vaughan, be--"a strange newfangled conclusion, after a trial so celebrated for so many hundreds of years."
Such are the opinions of Lord Camden and Vaughan, and multitudes of the first names, both English and other foreigners[,] might be cited, who bestow unbounded approbation on this best of all human modes for protecting, life, liberty, and property.
Storing, Herbert J., ed. The Complete Anti-Federalist. 7 vols. Chicago: University of Chicago Press, 1981.
© 1987 by The University of Chicago