Page:Joseph Story, Commentaries on the Constitution of the United States (1st ed, 1833, vol III).djvu/648

lieved, incorporated into, and secured in every state constitution in the Union; and it is found in the constitution of Louisiana. One of the strongest objec-

---

dissimilar a method of trial in the same cases, under the same government, is of itself sufficient to indispose every well-regulated 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 suits, 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 true 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 arc 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 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 between the