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No. 83
A further view of the judicial department,in relation
to the trial by jury
by Alexander Hamilton
A further view of the judicial department, in relation to the trial by jury
The objection to the plan of the convention, which has met with most success in this state, is relative to the want of a constitutional provision for the trial by jury in civil cases. The disingenuous form in which this objection is usually stated, has been repeatedly adverted to and exposed; but continues to be pursued in all the conversations and writings of the opponents of the plan. The mere silence of the constitution in regard to civil causes, is represented as an abolition of the trial by jury; and the declamations to which it has afforded a pretext, are artfully calculated to induce a persuasion that this pretended abolition is complete and universal; extending not only to every species of civil, but even to criminal causes. To argue with respect to the latter, would be as vain and fruitless, as to attempt to demonstrate any of those propositions which, by their own internal evidence, force conviction when expressed in language adapted to convey their meaning.
With regard to civil causes, subtleties almost too contemptible for refutation, having been employed to countenance the surmise that a thing, which is only not provided for, is entirely abolished. Every man of discernment must at once perceive the wide difference between silence and abolition. But as the inventors of this fallacy have attempted to support it by certain legal maxims of interpretation, which they have perverted from their true meaning, it may not be wholly useless to explore the ground they have taken.
The maxims on which they rely are of this nature, “a speci?cation of particulars, is an exclusion of generals;” or, “the expression of one thing, is the exclusion of another.” Hence, say they, 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.
The rules of legal interpretation, are rules of common sense, adopted by the courts in the construction of the laws. The true test, therefore, of a just application of them, is its conformity to the source from which they are derived. This being the case, let me ask if it is consistent with common sense 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? If such a supposition would be unnatural and unreasonable, it cannot be rational to maintain, that an injunction of the trial by jury, in certain cases, is an interdiction of it in others.
A power to constitute courts, is a power to prescribe the mode of trial; and consequently, if nothing was said in the constitution on the subject of juries, the legislature would be at liberty either to adopt that institution, or to let it alone. This discretion, in regard to criminal causes, is abridged by an express injunction; but it is left at large in relation to civil causes, for the very reason that there is a total silence on the subject. The speci?cation of an obligation to try all criminal causes in a particular mode, excludes indeed the obligation of employing the same mode in civil causes, but does not abridge the power of the legislature to appoint that mode, if it should be thought proper. The pretence, therefore, that the national legislature would not be at liberty to submit all the civil causes of federal cognizance to the determination of juries, is a pretence destitute of all foundation.
From these observations, this conclusion results, that the trial by jury in civil cases would not be abolished, and that the use attempted to be made of the maxims which have been quoted, is contrary to reason, and therefore inadmissible. Even if these maxims had a precise technical sense, corresponding with the ideas of those who employ them upon the present occasion, which, however, is not the case, they would still be inapplicable to a constitution of government. In relation to such a subject, the natural and obvious sense of its provisions, apart from any technical rules, is the true criterion of construction.
Having now seen that the maxims relied upon will not bear the use made of them, let us endeavour to ascertain their proper application. This will be best done by examples. The plan of the convention declares, that the power of congress, or in other words of the national legislature, shall extend to certain enumerated cases. This speci?cation of particulars evidently excludes all pretention to a general legislative authority; because an af?rmative grant of special powers would be absurd as well as useless, if a general authority was intended.
In like manner, the authority of the federal judicatures, is declared by the constitution to comprehend certain cases particularly speci?ed. 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, the speci?cation would be nugatory, if it did not exclude all ideas of more extensive authority.
These examples are suf?cient to elucidate the maxims which have been mentioned, and to designate the manner in which they should be used.
From what has been said, it must appear unquestionably true, that trial by jury is in no case abolished by the proposed constitution; and it is equally true, that in those controversies between individuals in which the great body of the people are likely to be interested, that institution will remain precisely in the situation in which it is placed by the state constitutions. The foundation of this assertion is, that the national judiciary will have no cognizance of them, and of course they will remain determinable as heretofore by the state courts only, and in the manner which the state constitutions and laws prescribe. All land causes, except where claims under the grants of different states come into question, and all other controversies between the citizens of the same state, unless where they depend upon positive violations of the articles of union, by acts of the state legislatures, will belong exclusively to the jurisdiction of the state tribunals. Add to this, that admiralty causes, and almost all those which are of equity jurisdiction, are determinable under our own government without the intervention of a jury; and the inference from the whole will be, that this institution, as it exists with us at present, cannot possibly be affected, to any great extent, by the proposed alteration in our system of government.
The friends and adversaries of the plan of the convention, if they agree in nothing else, concur at least in the value they set upon the trial by jury; or if there is any difference between them, it consists in this: the former regard it as a valuable safeguard to liberty, the latter represent it as the very palladium of free government. For my own part, the more the operation of the institution has fallen under my observation, the more reason I have discovered for holding it in high estimation; and it would be altogether super?uous to examine to what extent it deserves to be esteemed useful or essential in a representative republic, or how much more merit it may be entitled to, as a defence against the oppressions of an hereditary monarch, than as a barrier to the tyranny of popular magistrates in a popular government. Discussions of this kind would be more curious than bene?cial, as all are satis?ed of the utility of the institution, and of its friendly aspect to liberty. But I must acknowledge, that I cannot readily discern the inseparable connexion between the existence of liberty, and the trial by jury, in civil cases. Arbitrary impeachments, arbitrary methods of prosecuting pretended offences, arbitrary punishments upon arbitrary convictions, have ever appeared to me the great engines of judicial despotism; and all these have relation to criminal proceedings. The trial by jury in criminal cases, aided by the habeas corpus act, seems therefore to be alone concerned in the question. And both of these are provided for, in the most ample manner, in the plan of the convention.
It has been observed, that trial by jury is a safeguard against an oppressive exercise of the power of taxation. This observation deserves to be canvassed. It is evident that it can have no in?uence upon the legislature, in regard to the amount of the 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. If it can have any in?uence, therefore, it must be upon the mode of collection, and the conduct of the of?cers intrusted with the execution of the revenue laws.
As to the mode of collection in this state, under our own constitution, the trial by jury is in most cases out of use. The taxes are usually levied by the more summary proceeding of distress and sale, as in cases of rent. And it is acknowledged on all hands, that this is essential to the ef?cacy of the revenue laws. The dilatory course of a trial at law to recover the taxes imposed on individuals, would neither suit the exigencies of the public, nor promote the convenience of the citizens. It would often occasion an accumulation of costs, more burthensome than the original sum of the tax to be levied.
And as to the conduct of the of?cers of the revenue, the provision in favour of trial by jury in criminal cases, will afford the desired security. Wilful abuses of a public authority, to the oppression of the subject, and every species of of?cial extortion, are offences against the government: for which, the persons who commit them, may be indicted and punished according to the circumstances of the case.
The excellence of the trial by jury in civil cases, appears to depend on circumstances foreign to the preservation of liberty. The strongest argument in its favour is, that it is a security against corruption. As there is always more time, and better opportunity, to tamper with a standing body of magistrates, than with a jury summoned for the occasion, there is room to suppose, that a corrupt in?uence would more easily ?nd its way to the former than to the latter. The force of this consideration is, however, diminished by others. The sheriff, who is the summoner of ordinary juries, and the clerks of courts who have the nomination of special juries, are themselves standing of?cers, and acting individually, may be supposed more accessible to the touch of corrup-tion than the judges, who are a collective body. It is not dif?cult to see, that it would be in the power of those of?cers to select jurors, who would serve the purpose of the party, as well as a corrupted bench. In the next place, it may fairly be supposed, that there would be less dif?culty in gaining some of the jurors promiscuously taken from the public mass, than in gaining men who had been chosen by the government for their probity and good character. But making every deduction for these considerations, the trial by jury must still be a valuable check upon corruption. It greatly multiplies the impediments to its success. As matters now stand, it would be necessary to corrupt both court and jury; for where the jury have gone evidently wrong, the court will generally grant a new trial, and it would be in most cases of little use to practice upon the jury, unless the court could be likewise gained. Here then is a double security; and it will readily be perceived, that this complicated agency tends to preserve the purity of both institutions. By increasing the obstacles to success, it discourages attempts to seduce the integrity of either. The temptations to prostitution, which the judges might have to surmount, must cer-tainly be much fewer, while the cooperation of a jury is necessary, than they might be, if they had themselves the exclusive determination of all causes.
Notwithstanding, therefore, the doubts I have expressed, as to the essentiality of trial by jury in civil suits to liberty, I admit that it is in most cases, under proper regulations, an excellent method of determining questions of property; and that on this account alone, it would be entitled to a constitutional provision in its favour, if it were possible to ?x with accuracy the limits within which it ought to be comprehended. This, however, is in its own nature an affair of much dif?culty; and men not blinded by enthusiasm, must be sensible, that in a federal government, which is a composition of societies whose ideas and institutions in relation to the matter, materially vary from each other, the dif?culty must be not a little augmented. For my own part, at every new view I take of the subject, I become more convinced of the reality of the obstacles, which we are authoritatively informed, prevented the insertion of a provision on this head in the plan of the convention.
The great difference between the limits of the jury trial in different states, is not generally understood. And as it must have considerable in?uence on the sentence we ought to pass upon the omission complained of, in regard to this point, an explanation of it is necessary. In this state, our judicial estab-lishments resemble more nearly, than in any other, those of Great Britain. We have courts of common law, courts of probates (analogous in certain matters to the spiritual courts in England) a court of admiralty, and a court of chancery. In the courts of common law only, the trial by jury prevails, and this with some exceptions. In all the others, a single judge presides, and proceeds in general either according to the course of the canon or civil law, without the aid of a jury.* In New Jersey there is a court of chancery which proceeds like ours, but neither courts of admiralty, nor of probates, in the sense in which these last are established with us. In that state, the courts of common law have the cognizance of those causes, which with us are determinable in the courts of admiralty and of probates, and of course the jury trial is more extensive in New Jersey, than in New York. In Pennsylvania, this is perhaps still more the case, for there is no court of chancery in that state, and its common law courts have equity jurisdiction. It has a court of admiralty, but none of probates, at least on the plan of ours. Delaware has in these respects imitated Pen[n]sylvania. Maryland approaches more nearly to New York, as does also Virginia, except that the latter has a plurality of chancellors. North Carolina bears most af?nity to Pennsylvania. South Carolina to Virginia. I believe however, that in some of those states which have distinct courts of admiralty, the causes depending in them are triable by juries. In Georgia there are none but common law courts, and an appeal of course lies from the verdict of one jury to another, which is called a special jury, and for which a particular mode of appointment is marked out. In Connecticut they have no distinct courts, either of chancery or of admiralty, and their courts of probates have no jurisdiction of causes. Their common law courts have admiralty, and, to a certain extent, equity jurisdiction. In cases of importance, their general assembly is the only court of chancery. In Connecticut, therefore, the trial by jury extends in practice further than in any other state yet mentioned. Rhode Island is, I believe, in this particular pretty much in the situation of Connecticut. Massachusetts and New Hampshire, in regard to the blending of law, equity, and admiralty jurisdictions, are in a similar predicament. In the four eastern states, the trial by jury not only stands upon a broader foundation than in the other states, but it is attended with a peculiarity unknown, in its full extent, to any of them. There is an appeal of course from one jury to another, till there have been two verdicts out of three on one side.
From this sketch it appears, that there is a material diversity as well in the modi?cation as in the extent of the institution of trial by jury in civil cases in the several states; and from this fact, these obvious re?ections ?ow. First, that no general rule could have been ?xed upon by the convention which would have corresponded with the circumstances of all the states; and secondly, that more, or at least as much might have been hazarded, by taking the system of any one state for a standard, as by omitting a provision altogether, and leaving the matter as has been done to legislative regulation.
The propositions which have been made for supplying the omission, have rather served to illustrate, than to obviate the dif?culty of the thing. The minority of Pennsylvania have proposed this mode of expression for the purpose, “trial by jury shall be as heretofore;” and this I maintain would be inapplicable and indeterminate. The United States, in their collective capacity, are the object to which all general provisions in the constitution must be understood to refer. Now it is evident, that though trial by jury, with various limitations, is known in each state individually, yet in the United States, as such, it is, strictly speaking, unknown; because the present federal government has no judiciary power whatever; and consequently there is no antecedent establishment, to which the term heretofore could properly relate. It would therefore be destitute of precise meaning, and inoperative from its uncertainty.
As on the one hand, the form of the provision would not ful?l the intent of its proposers; so on the other, if I apprehend that intent rightly, it would be in itself inexpedient. I presume it to be, that causes in the federal courts should be tried by jury, if in the state where the courts sat, that mode of trial would obtain in a similar case in the state courts . . . that is to say, admiralty causes should be tried in Connecticut by a jury, in New York without one. The capricious operation of so dissimilar a method of trial in the same cases, under the same government, is of itself suf?cient to indispose every well regulated judgment towards it. Whether the cause should be tried with or without a jury, would depend, in a great number of cases, on the accidental situation of the court and parties.
But this is not, in my estimation, the greatest objection. I feel a deep and deliberate conviction, that there are many cases in which the trial by jury is an ineligible one. I think it so particularly, in suits which concern the public peace with foreign nations; that is, in most cases where the question turns wholly on the laws of nations. Of this nature, among others, are all prize causes. Juries cannot be supposed competent to investigations, that require a thorough knowledge of the laws and usages of nations; and they will sometimes be under the in?uence of impressions which will not suffer them to pay suf?cient regard to those considerations of public policy, which ought to guide their inquiries. There would of course be always danger, that the rights of other nations might be infringed by their decisions, so as to afford occasions of reprisal and war. Though the true province of juries be to determine matters of fact, yet in most cases, legal consequences are complicated with fact in such a manner, as to render a separation impracticable.
It will add great weight to this remark, in relation to prize causes, to mention, that the method of determining them has been thought worthy of particular regulation in various treaties between different powers of Europe, and that, pursuant to such treaties, they are determinable in Great Britain in the last resort before the king himself in his privy council, where the fact as well as the law, undergoes a re-examination. This alone demonstrates the impolicy of inserting a fundamental provision in the constitution which would make the state systems a standard for the national government in the article under consideration, and the danger of incumbering the government with any constitutional provisions, the propriety of which is not indisputable.
My convictions are equally strong, that great advantages result from the separation of the equity from the law jurisdiction; and that the causes which belong to the former, would be improperly committed to juries. The great and primary use of a court of equity, is to give relief in extraordinary cases, which are exceptions* to general rules. To unite the jurisdiction of such cases, with the ordinary jurisdiction, must have a tendency to unsettle the general rules, and to subject every case that arises to a special determination: while a separation between the jurisdictions has the contrary effect of rendering one a sentinel over the other, and of keeping each within the expedient limits. Besides this, the circumstances that constitute cases proper for courts of equity, are in many instances so nice and intricate, that they are incompatible with the genius of trials by jury. They require often such long and critical investi-gation, as would be impracticable to men called occasionally from their occupations, and obliged to decide before they were permitted to return to them. The simplicity and expedition which form the distinguishing characters of this mode of trial require, that the matter to be decided should be reduced to some single and obvious point; while the litigations usual in chancery, frequently comprehend a long train of minute and independent particulars.
It is true, that the separation of the equity from the legal jurisdiction, is peculiar to the English system of jurisprudence; the model which has been followed in several of the states. But it is equally true, that the trial by jury has been unknown in every instance in which they have been united. And the separation is essential to the preservation of that institution in its pristine purity. The nature of a court of equity will readily permit the extension of its jurisdiction to matters of law, but it is not a little to be suspected, that the attempt to extend the jurisdiction of the courts of law to matters of equity, will not only be unproductive of the advantages which may be derived from courts of chancery, on the plan upon which they are established in this state, but will tend gradually to change the nature of the courts of law, and to undermine the trial by jury, by introducing questions too complicated for a decision in that mode.
These appear to be conclusive reasons against incorporating the systems of all the states, in the formation of the national judiciary; according to what may be conjectured to have been the intent of the Pennsylvania minority. Let us now examine how far the proposition of Massachusetts is calculated to remedy the supposed defect.
It is in this form: “In civil actions between citizens of different states, every issue of fact, arising in actions at common law, may be tried by a jury, if the parties, or either of them, request it.”
This, at best, is a proposition con?ned to one description of causes; and the inference is fair either that the Massachusetts convention considered that as the only class of federal causes, in which the trial by jury would be proper; or that, if desirous of a more extensive provision, they found it impracticable to devise one which would properly answer the end. If the ?rst, the omission of a regulation respecting so partial an object, can never be considered as a material imperfection in the system. If the last, it affords a strong corroboration of the extreme dif?culty of the thing.
But this is not all: if we advert to the observations already made respecting the courts that subsist in the several states of the union, and the different powers exercised by them, it will appear, that there are no expressions more vague and indeterminate than those which have been employed to characterize that species of causes which it is intended shall be entitled to a trial by jury. In this state, the boundaries between actions at common law and actions of equitable jurisdiction, are ascertained in conformity to the rules which prevail in England upon that subject. In many of the other states, the boundaries are less precise. In some of them, every cause is to be tried in a court of common law, and upon that foundation every action may be considered as an action at common law, to be determined by a jury, if the parties, or either of them, choose it. Hence the same irregularity and confusion would be introduced by a compliance with this proposition, that I have already noticed as resulting from the regulation proposed by the Pennsylvania minority. In one state a cause would receive its determination from a jury, if the parties, or either of them, requested it; but in another state, a cause exactly similar to the other, must be decided without the intervention of a jury, because the state tribunals varied as to common law jurisdiction.
It is obvious, therefore, that the Massachusetts proposition cannot operate as a general regulation, until some uniform plan, with respect to the limits of common law and equitable jurisdictions, shall be adopted by the different states. To devise a plan of that kind, is a task arduous in itself, and which it would require much time and re?ection to mature. It would be extremely dif?cult, if not impossible, to suggest any general regulation that would be acceptable to all the states in the union, or that would perfectly quadrate with the several state institutions.
It may be asked, why could not a reference have been made to the constitution of this state, taking that, which is allowed by me to be a good one, as a standard for the United States? I answer, that it is not very probable the other states should entertain the same opinion of our institutions which we do ourselves. It is natural to suppose that they are more attached to their own, and that each would struggle for the preference. If the plan of taking one state as a model for the whole had been thought of in the convention, it is to be presumed that the adoption of it in that body, would have been rendered dif?cult by the predilection of each representation in favour of its own government; and it must be uncertain which of the states would have been taken as the model. It has been shown, that many of them would be improper ones. And I leave it to conjecture whether, under all circumstances, it is most likely that New York, or some other state, would have been preferred. But admit that a judicious selection could have been effected in the convention, still there would have been great danger of jealousy and disgust in the other states, at the partiality which had been shown to the institutions of one. The enemies of the plan would have been furnished with a ?ne pretext, for raising a host of local prejudices against it, which perhaps might have hazarded, in no inconsiderable degree, its ?nal establishment.
To avoid the embarrassments of a de?nition of the cases which the trial by jury ought to embrace, it is sometimes suggested by men of enthusiastic tempers, that a provision might have been inserted for establishing it in all cases whatsoever. For this, I believe no precedent is to be found in any member of the union; and the considerations which have been stated in discussing the proposition of the minority of Pennsylvania, must satisfy every sober mind, that the establishment of the trial by jury in all cases, would have been an unpardonable error in the plan.
In short, 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 ?rm national government.
I cannot but persuade myself on the other hand, that the different lights in which the subject has been placed in the course of these observations, will go far towards removing in candid minds, the apprehensions they may have entertained on the point. They have tended to show, that the security of liberty is materially concerned only in the trial by jury in criminal cases, which is provided for in the most ample manner in the plan of the convention; that even in far the greatest proportion of civil cases, those in which the great body of the community is interested, that mode of trial will remain in full force, as established in the state constitutions, untouched and unaffected by the plan of the convention; that it is in no case abolished* by that plan; and that there are great, if not insurmountable dif?culties in the way of making any precise and proper provision for it, in a constitution for the United States.
The best judges of the matter will be the least anxious for a constitutional establishment of the trial by jury in civil cases, and will be the most ready to admit, that the changes which are continually happening in the affairs of society, may render a different mode of determining questions of property, preferable in many cases, in which that mode of trial now prevails. For my own part, I acknowledge myself to be convinced that, even in this state, it might be advantageously extended to some cases to which it does not at present apply, and might as advantageously be abridged in others. It is conceded by all reasonable men, that it ought not to obtain in all cases. The examples of innovations which contract its ancient limits, as well in these states as in Great Britain, afford a strong presumption that its former extent has been found inconvenient; and give room to suppose that future experience may discover the propriety and utility of other exceptions. I suspect it to be impossible in the nature of the thing, to ?x the salutary point at which the operation of the institution ought to stop; and this is with me a strong argument for leaving the matter to the discretion of the legislature.
This is now clearly understood to be the case in Great Britain, and it is equally so in the state of Connecticut; and yet it may be safely af?rmed, that more numerous encroachments have been made upon the trial by jury in this state since the revolution, though provided for by a positive article of our constitution, than has happened in the same time either in Connecticut or Great Britain. It may be added, that these encroachments have generally originated with the men who endeavour to persuade the people they are the warmest defenders of popular liberty, but who have rarely suffered constitutional obstacles to arrest them in a favourite career. The truth is, that the general genius of a government is all that can be substantially relied upon for permanent effects. Particular provisions, though not altogether useless, have far less virtue and ef?cacy than are commonly ascribed to them; and the want of them, will never be with men of sound discernment, a decisive objection to any plan which exhibits the leading characters of a good government.
It certainly sounds not a little harsh and extraordinary to af?rm, that there is no security for liberty in a constitution which expressly establishes 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.
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*It has been erroneously insinuated, with regard to the court of chancery, that this court generally tries disputed facts by a jury. The truth is, that references to a jury in that court rarely happen, and are in no case necessary but where the validity of a devise of land comes into question.
*It is true that the principles by which that relief is governed are now reduced to a regular system; but it is not the less true that they are in the main applicable to special circumstances, which form exceptions to general rules.
*Vide No. LXXXI in which the supposition of its being abolished by the appellate ju-risdiction in matters of fact being vested in the supreme court, is examined and refuted.
No. 83
续论司法部门
原载１７８８年麦克莱恩版
第八十三篇（汉密尔顿）
致纽约州人民： 
在本州，可能还在其他数州中，对制宪会议的宪法草案最大的意见是指责宪法缺少民事案件由陪审团审判的规定。持此异议通常所用的虚妄不实之词曾被多次揭露、驳倒，而仍不断流传于宪法草案反对派的口头、书面言论中。宪法中未提到民事诉讼被解释为废除陪审制度，为在辩论中寻觅借口，此辈千方百计使人相信在宪法中陪审制不仅在各种民事诉讼中，而且在刑事诉讼中均已全面废除。但后者之无需争辩正如力图证明物质的存在，或说明某些意义明显、不解自明之理是同样徒劳无益的。
反对派不惜借用诡辩以为论据，妄行断言凡无明文规定的制度即是从此全部废除。任何有识之士当可察觉缄默与废除实在大有区别。但既然此一谬论的发明者企图以若干曲解的法理常规作为理论根据，对之作一考查亦非全无补益。
此辈所依据的法理常规，其性质不外：“个别事项的列举即对一般的排斥”，或“列举一端即排除另一端”。据此说法，宪法既规定刑事案由陪审团审判，而未提民事案应当如何，则此处的缄默意即在民事诉讼中已将陪审制予以废除。
解释法律的准则就是法庭据常理所作的推断。因此，法庭能否正确解释法律端在于其是否符合常理。笔者因而请问据常理判断，宪法要求立法机关将刑事案交由陪审团审判，是否即为剥夺立法机关对其他各类案件指令或允许以同样方式审判之权？指令做一事即禁止做另一原属权限范围之内且不违反原指令的事，难道是合乎情理的设想？既然此种设想并不合乎情理，则无法坚持认为规定某类案件由陪审团审判即禁止他类案件以相同方式审判。
凡拥有设立法庭之权者，自当拥有规定审判方式之权；因此，如宪法中无陪审问题的明文规定，则立法机关自然拥有采用或不采用陪审制的自由。在刑事诉讼方面，由于宪法有明文规定，一切刑事案件由陪审团审判，立法机关自无选择的自由余地；但在民事诉讼方面，宪法既未作明文规定，立法机关自可权宜行事。宪法特为一切刑事诉讼规定特定的审判方式确系对民事诉讼必须采用同样方式的排除，但并未剥夺立法机关视情况需要采取同一方式的权力。因此，所谓国会将无权将联邦司法的一切民事案件交由陪审团审判之说，实为毫无根据的妄言。
综合以上分析的结论是：民事诉讼的陪审制将不会废除；反对派对前文引用之法理常规的解释乃违反事理与常情之说，是不能接受的议论。即使此类法理常规具有确切的技术含义，符合目前用以作为论据之人的想法，亦不能应用于一国政府的宪法上。在宪法问题上，条文的自然明显寓意是衡量其意义的真正标准，不能受任何技术常规的约束。
此辈所依据的法理常规既不能在此处应用，吾人可试就其正常用法与真正含意加以说明。此处最好举例说明。宪法草案规定国会权力，即国家立法机关权力，应及于若干列举事项。此处个别事项的列举自系对国家立法机关拥有普及各个领域的立法权的排除。因为宪法意欲授予普遍性的立法权，则逐项授与其各别权力即为荒唐无用之举。
联邦司法机关的司法权同样亦?宪法明文列举。所列各项即为联邦司法的确切范围，此外则非联邦法院权力之所及，因其受理的各类案件业已逐项列举，如不排除此外的任何权力，则所列举的各项权力即失去其意义。 
以上两例足以阐明前文涉及的法理常规并已明确其正当应用。（但为排除对此点的任何误解，笔者现再补充一例借以说明其正当应用以及其如何为人所滥用。） 
吾人可以假设根据本州法律一已婚妇女不具有转让其财产的能力，立法机关为解除其困难，制定法律使其在地方司法官员监视下以契约方式转让其财产。本例所作的规定显然排除此人以其他方式转让财产。因该妇人原不具备转让财产的能力，故对其转让方式作出具体规定。但如进而假设此条法律后文又规定任何妇女未经三个最近亲属签字同意不得转让一定价值的财产；是否即可推论已婚妇女订约转让较小价值的财产时不必取得其亲属之同意？此说诚属荒唐不经，不值一驳，但此种立场正是坚持因刑事诉讼明文规定陪审制，则民事诉讼陪审制即被废除论者所持的立场。
据此，毫无疑问可以看出，宪法草案并未在任何情况下废除陪审制；同样，在人民普遍关切的私人间争讼中，其审判制度与在州宪法下的情况无异。（各州宪在宪法草案通过之后将毫不为之所变更或影响。）以上结论的根据是：联邦司法无此司法权，此类案件当然仍援前例由州法院按照州宪法及法律所规定的方式审判。除持有不同州发给土地证有关争讼以外，其他一切土地争讼及一切同州居民间其他争讼，除非所根据的州立法机关法律与联邦法律，均纯属州法院的司法范围。此外，在本国政府制度下，海事诉讼及几乎全部衡平法诉讼均不由陪审团干预。总括以上诸点应可认为：就现有陪审团制而论，拟议中的政府制度的变更不可能产生多大影响。
宪法草案拥戴者至少可以同意的一点，是持此异议者对陪审制的重视；在此点上如果认识上有所区别，则在于：前者视陪审制为对自由的有价值保证；后者则认为陪审制为自由政体的守卫神。至于笔者个人，对陪审制见识愈多则愈给予更高的评价；考察陪审制在代议制政府中的价值与重要作用，或者去比较其在世袭君主制中防止专制压迫与在庶民政府制度中防止群众拥戴的行政首长的专权的相对价值如何等问题不免失于空泛。此类议论多属空谈，实际价值不大，因争论双方均承认陪审制的价值及有利于自由。
但应说明笔者并未发现自由的存亡与在民事诉讼中维持陪审制有何不可分割的联系。历来司法的专横主要表现在武断起诉、以武断方法审判莫须有的罪行，以及武断定罪与武断判刑；凡此均属刑事诉讼范围。刑事诉讼由陪审员审判，辅之以人民保护令立法，似为与此有关的惟一问题。此二者均已在宪法草案中作了最充分的规定。
亦曾有人提出陪审制乃防范滥用课税权的保障。此一论点值得分析。陪审制对立法机关有关税额、课税对象或分配原则等法令无涉。有关的只是课税方式、税收人员的行为等方面。
考诸本州宪法，凡有关税收的多数案件的审判，本州均不设陪审制。与未交地租案相同，未完税款案通常均用简单的财产扣押与拍卖法处理，公认此乃实施财政法令所必需采取的有效办法。以法庭审判方法追索私人未完税款，拖延时日，既不利满足公用急需，亦不利于广大公民，其诉讼费用常形成较?税款更大的负担。至于税收人员的行为，刑事案用陪审制的规定应能确保其预期的效果。政府官员滥用职权、敲诈勒索、压迫纳税人等行为，乃对政府的犯罪，政府得依法对其起诉，并得视情况予以惩处。
民事案设陪审制的优点似与维护自由并无关系。主张设陪审制者，其最大理由为可以防止受贿行为。因对常设的司法官员应较对为一事临时召集的陪审团，当事人应有更多时间、更好机会进行贿赂，故可设想对前者较对后者更易施加腐化影响。但除此之外，尚有其他种种考虑足以抵销此点。作为普通陪审团召集人的县司法官员及负责特设陪审团提名的法院书记官，皆为常设官职，独立执行职务，可以设想此辈应较集体执行职务的法官更易受到腐蚀。不难看出，与腐化的法院一样，此类官员有权选择陪审员以达到 循私枉法的目的。其次，亦可设想，拉拢任意从公众中遴选的陪审员较诸拉拢政府所选择的品德高尚的官员更为容易。
但纵然如此，陪审制仍为防止受贿行为，使之难以得逞的有效办法，因既设陪审制，则需对法院与陪审团进行双重腐蚀，如陪审团的判决有明显差错，法院通常将宣布重新审判，是则如仅施贿赂于陪审团，不在法院方面暗通关节，则不能收到效果。如此则为一双重保证；不难看出此一复杂体制有助于维护双方的声誉。达到目的的可能既然减少，也就会预先制止向任何一方行贿的企图。法官在需取得陪审员合作的情况下面临受贿的诱惑，较其对一切案件均独享裁判权，其被收买的可能定当大为减少。
因此，纵然笔者对民事诉讼设陪审制以维护自由的必要性表示怀疑，但承认在大多数情况下，在若干适宜的规范内，陪审制乃审判财产诉讼的良好方式；仅此一点，如有可能为之确定一应用范围，亦值得在宪法中加以规定。问题在欲做到此点甚为困难。凡不宥于过分热情者应能察觉在一联邦政府之下，联邦的各成员州在思想上、体制上各异，解决此一问题更为困难。从笔者本人而论，每就权威方面提供的情况重新思考，便更加相信在宪法草案中作此规定，障碍确曾存在。
各州应用陪审制范围所存在的差异并非众所周知。既然对宪法草案中未提此点的评论具有相当影响，似有必要略加解释。与其他州比较，本州司法体制更与英国近似。本州所设的法庭有习惯法法庭、遗嘱查验法庭（在若干方面与英国的教会法庭类似）、海事诉讼法庭与衡平法法庭。在以上诸类法庭中，仅在习惯法法庭上多由陪审团审判，且有一些例外情况。其余各类法庭均由单一的法官主持，按照教会法规或民法程序进行审判①。新泽西州亦设有与本州类似的衡平法法庭，但未设海事诉讼法庭与遗嘱查验法庭，其有关诉讼统由习惯法法庭审理，所以新泽西州陪审范围自较纽约州为广泛。宾夕法尼亚州因无衡平法法庭，由习惯法法庭审判衡平法诉讼，情况更是如此。该州设有海事诉讼法庭但无遗嘱查验法庭，至少其后者与我州不同。特拉华州在这些方面均仿照宾夕法尼亚州作法。马里兰州更接近纽约州，弗吉尼亚亦然，惟后者规定衡平法法官以多数票判决。北卡罗来纳更接近于宾夕法尼亚，南卡罗来纳接近弗吉尼亚。但笔者相信设有独立的海事诉讼法庭各州，海事诉讼亦可由陪审团审判。佐治亚州仅设习惯法法庭，自然，其上诉方法为由一陪审团上诉至由特委陪审员组成的特设陪审团审理。康涅狄格州无衡 平法法庭及海事诉讼法庭；其遗嘱查验法庭无审判权，而习惯法法庭有权审理海事诉讼案件及一定范围之衡平法案件。其国民大会为惟一之衡平法法庭，审理重大案件。因此，事实上，康涅狄格州的陪审制应用范围较以上提到的各州均为广泛。笔者相信，罗得岛在这一方面与康涅狄格州情况颇为类似。马萨诸塞州及新罕布什尔州在民法、衡平法及海事诉讼审判权上其混淆之处亦与之类似。东部四州陪审制的应用不仅较其他各州更为广泛，且有一项特殊规定为其他各州所未全面实施者，即：案件由一陪审团当然上诉至另一陪审团，到三次判决中有两次一方胜诉为止。
从以上简介中可以看出各州民事诉讼陪审制的运用变化及应用范围存在具体差异；由此事实可明显得出以下结论。第一，制宪会议不可能订出符合所有各州情况的一般规定；第二，如采取一州体制作为标准，与目前之不作任何规定，将此问题留待立法解决，可能引起的争论如不更大，至少相同。
亦曾有人建议不提不好，结果不但并未排除困难，反而突出摆出了这一困难。宾夕法尼亚少数派曾建议用以下方式加以说明：“陪审制应援旧例”。笔者认为作此规定既无意义，又无作用。合众国以其统一或集体的身分乃是宪法草案一切一般性条款的授权对象。陪审制的应用尽管有不同范围，但各州均有旧例可提，而合众国因联邦政府尚无司法权而并无案件与体制之旧例可援。故作此规定实无确切意义，亦无法实施。
 一方面此规定并不能实现建议者的意图，另一方面，如笔者理解该项意图无误，其实该项意图本身并无权便之处。笔者设想此建议的原意是：如联邦法院开庭所在之州的州法院在审理类似案件时用陪审制，则联邦法庭亦由陪审团审判；即：海事诉讼在康涅狄格审理时设陪审团，在纽约州审理时则不设。同一政府审判同类案件用如此不同的审判方式，此法足以使任何具有理性判断力之人感到不安。由是，则一特定案件是否由陪审团审判在多数情况下将视法庭与当事人双方的偶然情况而定。
但此点尚非笔者预料到的最大缺点，笔者深切感到，许多案件实不宜采用陪审团审判，特别是有关公共安全之涉外案件——此类案件大多涉及国际法。所有处理缴获品案件均属之。对于陪审员，很难期待其胜任需具备各国法律与惯例知识的专业性调查工作；陪审员有时单凭印象，不能从国家政策种种考虑指导审讯，自有触及外国权益的危险，以至造成外国采取报复性行动，乃至引起战争。固然，陪审团的正常工作领域在于判定案情，但在大多数情况下，法律与案情混淆不清，实难加以区分。
应提到，更能补充此一论点者为在欧洲各国间所订条约中有关缴获品司法案件的审理，各国曾认为应有特殊规定。根据上述条约，大不列颠规定此类案件须最后送呈英王在枢密院中就案情与法律两个方面进行亲自复审。仅此一点即足以说明：宪法中将陪审制作为基本条款、以各州体制充为联邦国家体制的不智。这一并非全无争论的问题，一经列入宪法，必使联邦政府有受其掣肘的危险。
同样，笔者认为，对衡平法与普通法律诉讼加以区分的益处甚大，属衡平法诉讼不应由陪审团审判。衡平法法庭的首要作用在于使特殊性案件得以例外情况的缘故不按普遍性规则的审理办法。如将此类案件与一般案件同样处理必将使一般规则遭到破坏，致使一切案件均沿用特殊方式审理；而如对二者加以区分可造成一种相反效果，即两种审理方式互相监督使各自不超越其正当范围。此外，适于衡平法法庭审理的案件案情往往复杂，非陪审团审理方式所能解决。此类案件常须作长期深入的调查，不宜由兼职人员从事。陪审员为早日返回岗位，毋需被迫匆忙作出决定。陪审制宜于审理简单明显之案 件；而衡平法诉讼案件时常需处理许多互不关联的细节问题。
衡平法诉讼与普通法律诉讼的区分确为英国司法制度的特有形式，为我国若干州所采用。而衡平法与普通法律混淆的案件从无用陪审制审理者亦为实际情况。区分二者实维持陪审制本来做法所必须。衡平法法庭审理范围可以扩大到包括普通法律诉讼案件，但按本州体制，民事法庭范围如扩大到包括审理衡平法案件则不仅将使衡平法法庭的优点丧失，且将逐渐使民事法庭的性质产生变化，民事法庭由于受理过于复杂的诉讼将使陪审制的原有作用遭到损害。
以上所述似可推倒掺合各州体制以形成国家司法制度的论点。据推测此乃宾夕法尼亚少数派的企图。而马萨诸塞州为补救上述缺陷所提的建议，现在亦可作如下探讨。
此项建议规定：“不同州公民间的民事诉讼，凡涉及习惯法诉讼案情的事实部分，如诉讼双方或一方提出请求，可由陪审团审理。”此项建议至多不过限于一类案件，据此推断，马萨诸塞州国民大会似认为此乃联邦司法范围中惟一可设陪审制者，不然则马萨诸塞州拟作一更加详尽的规定，但力不从心。如系第一种情况，则宪法未作此细节规定绝不能视为缺点。如系后一种情况，则恰好说明作一详尽规定的极端困难。
不仅如此，如注意到前述联邦各州现有的各类法庭，以及各类法庭的不同权力，不难看出前述应由陪审团审理的案件，其性质非常不明确。本州习惯法诉讼与衡平法诉讼的区分系按照英国现行制度，而在其他各州则不如本州明确。有若干州中一切案件均在习惯法法庭审理，因而一切案件均可视为习惯法案件，?诉讼双方或一方请求即均可由陪审团审理。因此，如采纳以上建议，将与宾夕法尼亚建议一样造成混乱，此点笔者上文已经论及：同一案件在一州经诉讼双方或一方请求可由陪审团审判，而在另一州，因 习惯法法庭司法范围不同，则不由陪审团审判。
因此，在各州的习惯法与衡平法司法范围尚无统一规划之前，马萨诸塞州的建议不能作为一般规定甚为明显。而欲作出统一规划则需时日方能酝酿成熟，乃非常艰巨之工作。提出联邦诸州均能接受并能符合诸州体制的建议如非不可能，亦为十分困难的事。
有人不免问道：既然笔者认为本州宪法较好，何不提出即以之作为合众国宪法的蓝本？笔者的答复是：其他各州对本州体制的看法与我等不甚可能相同。彼等各自倾向于本州体制而竞相推荐乃自然之理。如果制宪会议曾设想以一州体制为其楷模，可以设想各州代表团由于偏爱本州政府而致使草案难以获得通过，究以何州为楷模将难以定夺。前已论及，许多州的体制作为楷模甚不相宜。至于是否可能在某种情况下以纽约州或其他一州的体制为楷模则是纯然揣测之事。但应承认，即使在制宪会议上选择适当，亦难免遭到其他州的嫉妒与反感，从而为宪法草案反对派提供许多口实，以煽动地方偏见， 以致危及宪法的最后确立。
曾有热心之士建议：为避免对适设陪审制案件规定确切范围，可以规定一切诉讼均设陪审制。此议在联邦各成员当中无例可循；笔者在讨论宾夕法尼亚州少数派论点时所作分析，应使一切头脑清晰之士相信，在一切诉讼中设陪审制实在是不可原谅的错误。
综上所述，吾人愈经深思熟虑，愈会认为：作一既达到要求又不过份的规定，而同时又不增加建立一稳定之全国政府这一伟大与重要目标的阻力，实在是很困难的。
而另一方面，笔者不得不相信，经过本文多方面研究此一问题之后，审慎之士对之所抱疑虑应已解除。本文说明：陪审制对自由的保证只牵涉到刑事诉讼由陪审团审判问题，而此点记在宪法草案中作了充分规定；甚至在民事诉讼中，绝大多数案件，特别是为社会公众所关注的重要案件中，陪审制将一如州宪旧制，不受宪法草案的影响，丝毫未因宪法草案而废除。在合众国宪法中对此作出确切与恰当的规定，确有不可克服的困难。
对此问题最有判断力者，最不急于在宪法中列入以陪审团审理民事诉讼，最能看出由于社会的不断变化，将来可能出现新方式审理目前用陪审团审理的财产纠纷。至于笔者，本人相信即使本州陪审团审判范围可能扩大到包括目前尚未采用陪审制的某些诉讼，在另外一些诉讼中则可予以废除。一切有识之士均能同意陪审制不能在一切诉讼中适用。我国诸州及大不列颠对陪审制应用范围的削减例证均可说明过去办法有不便之处，将来亦可发现其他可作例外处理的情况。从此一性质出发，笔者估计陪审制应用范围不可能予以确定，而这正是将之留与立法机关权益决定的有力论据。
吾人均甚清楚大不列颠如此、康涅狄格州亦如此；同样清楚，本州自革命以来，尽管本州宪法明文规定需由陪审团审理的案例，其废弃不用者反较在康涅狄格州与大不列颠为多。而且，此处可附带提及，在某些案例中废弃陪审制之人亦即自称为自由保卫者，此辈并未受宪法的束缚。实际情况是：只有政府的一般特质，才是具有永久效用的，个别规定虽非完全不起作用，但较一般人认为的重要性与效用要远较为小；有识之士均能看到，宪法中缺少个别规定决非决定性问题、不能作为对可以建立一良好政府具有的主要特征加以反对的理由。
认定宪法中既然明文规定刑事犯罪由陪审团审判，而民事案件未作同样规定，即会危及自由，自然纯属苛求与反常之举。众所周知，康涅狄格州对二者均无明文规定，而康涅狄格乃公认联邦中最得人心之一州。
普布利乌斯