At about this time in 1788, Alexander Hamilton (a.k.a. Publius) writes Federalist Paper No. 83. His essay would later appear in a bound volume with other Federalist essays (see below).
You guessed it. Hamilton is STILL talking about the judiciary. This time, he is talking about the provisions regarding trial by jury.
Article III of the Constitution provides that criminal trials “shall be by Jury,” but it contains no similar provision protecting the right to jury in civil cases. At the time, some anti-Federalists were attacking the Constitution because of its silence on the matter. They worried that such silence meant that jury trials would be abolished in civil cases. Hamilton finds this argument to be a bit ridiculous. “Every man of discernment,” he wrote, “must at once perceive the wide difference between SILENCE and ABOLITION. . . . The rules of legal interpretation are rules of COMMON SENSE.”
Is it “consistent with common-sense,” he asks, “to suppose that a provision obliging the legislative power to commit the trial of criminal causes to juries, is a privation of its right to authorize or permit that mode of trial in other cases? Is it natural to suppose, that a command to do one thing is a prohibition to the doing of another, which there was a previous power to do, and which is not incompatible with the thing commanded to be done?”
Congress has the power to constitute courts; thus, it follows that Congress is at liberty to rely on juries in civil trials.
In any event, Hamilton notes, the federal judicial authority is limited, extending only to certain cases, just as the legislative power is limited. (Hmm. Maybe we should remind our Congress and courts. They seem to have forgotten.) In many cases, the right to trial by jury will remain “precisely in the same situation in which it is placed by the State constitutions, and will be in no degree altered or influenced by the adoption of the [Constitution].”
Hamilton acknowledges that the right to trial by jury is essential to liberty in criminal cases, but he is less certain about the need for it in civil cases. He specifically addresses the issue of taxation in this context. A right to a jury trial will not influence legislators’ decisions about “the AMOUNT of taxes to be laid, to the OBJECTS upon which they are to be imposed, or to the RULE by which they are to be apportioned.” (This is the civil side.) It could, however, influence the conduct of those collecting the revenue. (This is the criminal side.)
The best argument for jury trials in a civil case is that it provides “security against corruption.” It is harder to tamper with a jury than with a “standing body of magistrates.” However, Hamilton notes the difficulty of fixing a constitutional provision for jury trials. To illustrate his point, he speaks (at great length!) about the wide variety of provisions on this matter, then existing within the states. And he discusses some policy reasons why you might or might not want to have jury trials in various situations.
“In short,” he concludes, “the more it is considered the more arduous will appear the task of fashioning a provision in such a form as not to express too little to answer the purpose, or too much to be advisable; or which might not have opened other sources of opposition to the great and essential object of introducing a firm national government.”
Logistical note for those who care:
As I noted in the last essay, Federalists 78 through 85 all appeared for the first time in a bound volume published on May 28. I can’t post 8 summaries of the last 8 Federalist Papers all on May 28, so I am going to do one a week from now until then. More information on these publication logistics is available on my Federalist No. 77 summary (posted April 2).