No. 83 — The Judiciary Continued in Relation to Trial by Jury (Hamilton)

Hamilton opens by characterizing the anti-jury objection as proceeding from a rule of legal interpretation applied beyond its proper scope. The rules that 'a specification of particulars is an exclusion of generals' and 'the expression of one thing is the exclusion of another' are canons of statutory construction designed to resolve ambiguities in particular legal texts; they are not general principles about what constitutional silence means. When the Constitution provides for jury trial in criminal cases and says nothing about civil cases, it has not abolished civil juries; it has simply not addressed civil juries in that provision. The provision for criminal jury trial no more excludes civil jury trial than a provision for freedom of the press would exclude freedom of speech.

The practical reason for constitutional silence on civil jury trial is the enormous variation in jury practice across the thirteen states. Some states use juries in all civil cases; others use them in some; others have different standards for different courts; others use different forms of jury in equity versus common law cases. A constitutional provision requiring trial by jury in civil cases would have to choose one of these models and impose it on all the states, which would have meant overriding settled state practices that differed radically from one another. The framers declined to impose that disruption, not because they disliked juries but because they could not draft a workable uniform rule.

Hamilton's conclusion is that Congress, through its authority to establish the inferior federal courts and to regulate their procedures, can and should provide for jury trial in civil cases where the English common law tradition has established it as appropriate. The constitutional silence on the subject is therefore not a permanent deprivation but a delegation to the legislature to fill in detail that the Constitution wisely declined to ossify in an unworkable form. The Anti-Federalist objection mistakes a design choice — leaving procedural detail to Congress — for a substantive decision to eliminate juries in civil cases. The two things are entirely different.