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 EXCEPTIONS[2] 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

abolished[3] 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.









THE FEDERALIST.