FEDERALIST No. 83

The Judiciary Continued in Relation to Trial by Jury

From MCLEAN's Edition, New York.

HAMILTON

To the People of the State of New York:

THE objection to the plan of the convention, which has met with

most success in this State, and perhaps in several of the other

States, is THAT 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, however, be as vain and

fruitless as to attempt the serious proof of the EXISTENCE of

MATTER, or 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 have 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

specification 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 COMMONSENSE,

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 the express injunction of

trial by jury in all such cases; but it is, of course, left at

large in relation to civil causes, there being a total silence on

this head. The specification of an obligation to try all criminal

causes in a particular mode, excludes indeed the obligation or

necessity of employing the same mode in civil causes, but does not

abridge THE POWER of the legislature to exercise that mode if it

should be thought proper. The pretense, therefore, that the

national legislature would not be at full liberty to submit all the

civil causes of federal cognizance to the determination of juries,

is a pretense destitute of all just 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 common-sense, and therefore not admissible.

Even if these maxims had a precise technical sense, corresponding

with the idea 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 endeavor to ascertain their proper use and

true meaning. 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 specification of particulars evidently excludes all

pretension to a general legislative authority, because an

affirmative grant of special powers would be absurd, as well as

useless, if a general authority was intended.

In like manner the judicial authority of the federal judicatures

is declared by the Constitution to comprehend certain cases

particularly specified. 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 specification would be nugatory if it did not

exclude all ideas of more extensive authority.

These examples are sufficient to elucidate the maxims which have

been mentioned, and to designate the manner in which they should be

used. But that there may be no misapprehensions upon this subject,

I shall add one case more, to demonstrate the proper use of these

maxims, and the abuse which has been made of them.

Let us suppose that by the laws of this State a married woman

was incapable of conveying her estate, and that the legislature,

considering this as an evil, should enact that she might dispose of

her property by deed executed in the presence of a magistrate. In

such a case there can be no doubt but the specification would amount

to an exclusion of any other mode of conveyance, because the woman

having no previous power to alienate her property, the specification

determines the particular mode which she is, for that purpose, to

avail herself of. But let us further suppose that in a subsequent

part of the same act it should be declared that no woman should

dispose of any estate of a determinate value without the consent of

three of her nearest relations, signified by their signing the deed;

could it be inferred from this regulation that a married woman

might not procure the approbation of her relations to a deed for

conveying property of inferior value? The position is too absurd to

merit a refutation, and yet this is precisely the position which

those must establish who contend that the trial by juries in civil

cases is abolished, because it is expressly provided for in cases of

a criminal nature.

From these observations 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 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 plan

under consideration. 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 superfluous 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 defense 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 beneficial, as all are

satisfied of the utility of the institution, and of its friendly

aspect to liberty. But I must acknowledge that I cannot readily

discern the inseparable connection between the existence of liberty,

and the trial by jury in civil cases. Arbitrary impeachments,

arbitrary methods of prosecuting pretended offenses, and arbitrary

punishments upon arbitrary convictions, have ever appeared to me to

be the great engines of judicial despotism; and these have all

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 influence upon the

legislature, in regard to 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. If it can have any influence,

therefore, it must be upon the mode of collection, and the conduct

of the officers 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 efficacy 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 burdensome than the original sum of the

tax to be levied.

And as to the conduct of the officers of the revenue, the

provision in favor of trial by jury in criminal cases, will afford

the security aimed at. Wilful abuses of a public authority, to the

oppression of the subject, and every species of official extortion,

are offenses 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 favor 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 influence

would more easily find 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 officers, and, acting individually, may be supposed more

accessible to the touch of corruption than the judges, who are a

collective body. It is not difficult to see, that it would be in

the power of those officers 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

difficulty 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 certainly be much

fewer, while the co-operation 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 cases 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 favor if it were possible to fix the limits within which it

ought to be comprehended. There is, however, in all cases, great

difficulty in this; 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, that difficulty 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 influence 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 establishments 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.1 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 Pennsylvania. Maryland

approaches more nearly to New York, as does also Virginia, except

that the latter has a plurality of chancellors. North Carolina

bears most affinity 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 modification as in the extent of the institution of

trial by jury in civil cases, in the several States; and from this

fact these obvious reflections flow: first, that no general rule

could have been fixed 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 difficulty 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 senseless and nugatory.

The United States, in their united or collective capacity, are the

OBJECT to which all general provisions in the Constitution must

necessarily be construed 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 at this time

altogether unknown, because the present federal government has no

judiciary power whatever; and consequently there is no proper

antecedent or previous establishment to which the term HERETOFORE

could relate. It would therefore be destitute of a precise meaning,

and inoperative from its uncertainty.

As, on the one hand, the form of the provision would not fulfil

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 sufficient

to indispose every wellregulated 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 cases 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 influence of impressions which will

not suffer them to pay sufficient 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 proper 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

encumbering 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 EXCEPTIONS2

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 of the one from the other 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,

deliberate, and critical investigation as would be impracticable to

men called 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:

which is the model that has been followed in several of the States.

But it is equally true that the trial by jury has been unknown in

every case 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 appeared 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

attempt 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 confined 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 first, 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 difficulty 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 judicatories varied as to common-law jurisdiction.

It is obvious, therefore, that the Massachusetts proposition,

upon this subject 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 reflection to mature. It would be extremely

difficult, 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 would entertain the same

opinion of our institutions as we do ourselves. It is natural to

suppose that they are hitherto 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 difficult by the predilection of each

representation in favor 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 fine pretext for raising a host of local

prejudices against it, which perhaps might have hazarded, in no

inconsiderable degree, its final establishment.

To avoid the embarrassments of a definition 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 firm 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, and those in which

the great body of the community is interested, that mode of trial

will remain in its full force, as established in the State

constitutions, untouched and unaffected by the plan of the

convention; that it is in no case abolished3 by that plan; and

that there are great if not insurmountable difficulties 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 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 fix 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 affirmed 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 endeavor to persuade the people they are the

warmest defenders of popular liberty, but who have rarely suffered

constitutional obstacles to arrest them in a favorite 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

efficacy 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

affirm 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.

PUBLIUS.

1 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.

2 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.

3 Vide No. 81, in which the supposition of its being

abolished by the appellate jurisdiction in matters of fact being

vested in the Supreme Court, is examined and refuted.