Summary and Analysis
Section XII: Judiciary:
Federalist No. 83 (Hamilton)
Objection had been raised that the constitution contained no specific provision for trial by jury in civil cases. In this lengthy essay Hamilton argued that because the constitution did not specifically provide for trial by jury in civil cases, this did not mean that the right to such a trial was entirely abolished.
Hamilton went on to point out that in regard to this right there was no uniformity in the constitutions and laws of the various states. Nor was it desirable to enforce such uniformity by national law. Critics contended that trial by jury in all cases was the "very palladium of free government."
For his part, said Hamilton, "I must acknowledge that I cannot readily discern the inseparable connection between the existence of liberty and the trial by jury in civil cases. . . . I feel a deep and deliberate conviction, that there are many cases in which the trial by jury is an ineligible one. . . . The best judges of the matter will be the least anxious for a constitutional establishment of the trial by jury in civil cases."
This essay is rather specious in its argument against the objection that the proposed Constitution contained no specific provision for trial by jury in civil cases. The Constitution stipulated that anyone indicted on a criminal charge had the right, if he chose to exercise it, to be tried by a jury. But nothing was said about civil cases. The fact that nothing was said did not mean the right to jury trial in civil cases was entirely abolished, said Hamilton. "Every man of discernment must at once perceive the wide difference between silence and abolition." But many men of high discernment, including some leading Federalists, saw a wide difference, thought the silence ominous, and were uneasy about it.