Page:Joseph Story, Commentaries on the Constitution of the United States (1st ed, 1833, vol III).djvu/647

been an object of deep interest and solicitude, and every encroachment upon it has been watched with great jealousy. The right to such a trial is, it is be-

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ral 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 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 fulfil the intent of its proposers; so, on the other, if I apprehend that intent lightly, 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