Page:Federalist, Dawson edition, 1863.djvu/728

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584
The Fœderalist.

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 Fœderal 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,

  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. — Publius.