Federalist Papers Summary 83
The Federalist Essays Summary No 83: Alexander Hamilton May 28, 1788
This entire very long paper tries to justify why the Constitution is quiet on the subject of trial by jury in civil cases and why this is not a problem. This silence it taken by the critics as an abolition of trial by jury. They use arguments like “a specification of particulars is an exclusion of generals” or “the expression of one thing is the exclusion of another”. Hence, as the constitution has established the trial by jury in criminal cases and is silent in respect to civil, this silence is an implied prohibition of trial by jury in regard to the latter.
Hamilton’s counter arguments go like this; one uses common sense for legal interpretations and it does not make sense to suppose that the inclusion of trial by jury in criminal cases excludes it from civil cases particularly when it has always been the case. Since trial by jury for civil cases is neither required or denied the legislature is at full liberty to submit all civil cases of federal cognizance to juries. As an example of how the above arguments are used incorrectly in this case he gives the proper use of the argument. The federal judicial authority is declared to comprehend particular cases. The expression of those cases marks the precise limits beyond which the federal courts cannot extend their jurisdiction because, the objects of their cognizance being enumerated, all ideas of a more extensive authority are excluded otherwise the enumeration would have no value. And a further example where a hypothetical law requires a woman selling property above a certain value to have approval of three nearest relatives and then asks could not this woman sell property of a lesser value without the same approval? Of course she could for the law requiring the one does not exclude the other.
Having disproved the use of the objectors arguments he writes that all states will continue to use jury trials in civil cases since the federal government has no delegated authority for those cases except for those previously mentioned such as land grant claims issued by different states.
He now observes that it is claimed that liberty and jury trial are inseparable but he does not see this connection with regard to civil cases. But perhaps it is true as a safeguard against an oppressive exercise of the power of taxation but he finds not. Or perhaps as a security against corruption which he finds in the affirmative. So it could have been included in the Constitution except for the difficulty in defining it for federal cases. All states have a different set of courts, for example New York has courts of common law, courts of probates, courts of admiralty, and a court of chancery, but only the courts of common law have trials by juries, whereas in Connecticut admiralty cases are tried by jury . This demonstrates the difficulty of adding a statement to the plan to cover jury trials particularly when the civil cases are the jurisdiction of the state courts.
He continues for the remainder of the paper discussing the difficulty of adding a statement to the plan to cover jury trials in civil cases. He examines the constitutions of New York, Massachusetts, Pennsylvania, and Connecticut with respect to this issue and can find no statement that could be used for the national plan that would satisfy all the states. He summarizes this paper with a final sentence “It certainly sounds not a little harsh and extraordinary to affirm that there is no security for liberty in a constitution which expressly established the trial by jury in criminal cases, because it does not do it in civil also; while it is a notorious fact that Connecticut, which has been always regarded as the most popular state in the union, can boast of no constitutional provision for either”.
Federalist Papers Summary 83 Written by Donald Mellon