of the National Judiciary, according to what may be
conjectured to have been the intent of the Pennsylvania
minority. Let us now examine, how far the proposition
of Massachusetts is calculated to remedy the supposed
defect.

It is in this form : " In civil actions between citizens
" of different States, every issue of fact, arising in actions
" at common law, may be tried by a jury if the parties,
'' or either of them, request it."

This, at best, is a proposition confined to one descrip-
tion of causes ; and the inference is fair, either that the



590 The Fcsderalist

Massachusetts Convention considered that as the only
class of Foederal cauSes, in which the trial by jury would
be proper ; or that if desirous of a more extensive pro-
vision, they found it impracticable to devise one which
would properly answer the end. If the first, the omis-
sion of a regulation respecting so partial an object can
never be considered as a material imperfection in the
system. If the last, it affords a strong corroboration of
the extreme difficulty of the thing.

But this is not all : if we advert to the observations
already made respecting the Courts that subsist in the
several States of the Union, and the different powers ex-
ercised by them, it will appear, that there are no expres-
sions more vague and indeterminate than those which
have been employed, to characterize that species of causes
which it is intended shall be entitled to a trial by jury.
In this State, the boundaries between actions at com-
mon law and actions of equitable jurisdiction, are ascer-
tained in conformity to the rules which prevail in Eng-
land upon that subject. In many of the other States,
the boundaries are less precise. In some of them, every
cause is to be tried in a Court of common law, and upon
that foundation every action may be considered as an
action at common law, to be determined by a jury, if
the parties, or either of them, choose it. Hence the
same irregularity and confusion would be introduced by
a compliance with this proposition, that I have already
noticed as resulting from the regulation proposed by the
Pennsylvania minority. In one State a cause would
receive its determination from a jury, if the parties, or
either of them, requested it; but in another State, a
cause exactly similar to the other, must be decided with-
out the intervention of a jury, because the State judi-
catories varied as to common-law jurisdiction.

It is obvious, therefore, that the Massachusetts prop-
osition, upon this subject, cannot operate as a general



Tlie Fmleralist. 591

regulation, until some uniform plan, with respect to the
limits of common-law and equitable jurisdictions, shall
be adopted by the different States. To devise a plan of
that kind, is a task arduous in itself, and which it would
require much time and reflection to mature. It would be
extremely difHcult, if not impossible, to suggest any gen-
eral regulation that would be acceptable to all the States
in the Union, or that would perfectly quadrate with the
several State institutions.

It may be asked. Why could not a reference have been
made to the Constitution of this State, taking that,
which is allowed by me to be a good one, as a standard
for the United States ? I answer, that it is not very
probable the other States should entertain the same
opinion of our institutions which we do ourselves. It is
natural to suppose that they are hitherto more attached
to their own, and that each would struggle for the pref-
erence. If the plan of taking one State as a model for
the whole had been thought of in the Convention, it is
to be presumed that the adoption of it in that body,
would have been rendered difficult by the predilection
of each representation in favor of its own Government;
and it must be uncertain, which of the States would
have been taken as the model. It has been shown that
many of them would be improper ones. And I leave
it to conjecture, whether, under all circumstances, it is
most likely that New York, or some other State, would
have been preferred. But admit that a judicious selec-
tion could have been effected in the Convention, still
there would have been great danger of jealousy and dis-
gust in the other States, at the partiality which had been
shown to the institutions of one. The enemies of the
plan would have been furnished with a fine pretext for
raising a host of local prejudices against it, which per-
haps might have hazarded, in no inconsiderable degree,
its final establishment.



592 The Feeder alist.

To avoid the embarrassments of a definition of the
cases which the trial by jury ought to embrace, it is
sometimes suggested by men of enthusiastic tempers,
that a provision might have been inserted for establish-
ing it in all cases whatsoever. For this, I believe no
precedent is to be found in any member of the Union ;
and the considerations which have been stated in discuss-
ing the proposition of the minority of Pennsylvania,
must satisfy every sober mind, that the establishment
of the trial by jury in all cases, would have been an un-
pardonable error in the plan.

In short, the more it is considered, the more arduous
will appear the task of fashioning a provision in such a
form as not to express too little to answer the purpose,
or too much to be advisable ; or which might not have
opened other sources of opposition to the great and
essential object of introducing a firm National Govern-
ment.

I cannot but persuade myself on the other hand, that
the different lights in which the subject has been placed
in the course of these observations, will go far towards
removing in candid minds the apprehensions they may
have entertained on the point. They have tended to
show, that the security of liberty is materially concerned
only in the trial by jury in criminal cases, which is pro-
vided for in the most ample manner in the plan of the
Convention ; that even in far the greatest proportion of
civil cases, and those in which the great body of the com-
munity is interested, that mode of trial will remain in its
full force, as established in the State Constitutions, un-
touched and unaffected by the plan of the Convention ;
that it is in no case abolished* by that plan; and that
there are great, if not insurmountable difficulties, in the

* Vide No. LXXXI.,in which the ters of fact being vested in the Su-
supposition of its being abolislied preme Court, is examined and re-
by tlie appellate jurisdiction in mat- futed. — Publius.



The Feeder alist. 593

way of making any precise and proper provision for it,
in a Constitution for tlie United States.

The best judges of the matter will be the least anxious
for a constitutional establishment of the trial by jury in
civil cases, and will be the most ready to admit, that the
changes which are continually happening in the affairs
of society, may render a different mode of determining
questions of property preferable in many cases in which
that mode of trial now prevails. For my part I ac-
knowledge myself to be convinced, that even in this
State it might be advantageously extended to some cases
to which it does not at present apply, and might as ad-
vantageously be abridged in others. It is conceded by
all reasonable men, that it ought not to obtain in all
cases. The examples of innovations which contract its
ancient limits as well in these States as in Great Britain,
afford a strong presumption that its former extent has
been found inconvenient; and give room to suppose
that future experience may discover the propriety and
utility of other exceptions. I suspect it to be impos-
sible in the nature of the thing, to fix the salutary point
at which the operation of the institution ought to stop;
and this is with me a . strong argument for leaving the
matter to the discretion of the Legislature.

This is now clearly understood to be the case in
Great Britain, and it is equally so in the State of Con-
necticut ; and yet it may be safely affirmed, that more
numerous encroachments have been made upon the trial
by jury in this State since the Revolution, though pro-
vided for by a positive Article of our Constitution, than
has happened in the same time either in Connecticut or
Great Britain. It may be added, that these encroach-
ments have generally originated with the men who en-
deavor to persuade the People they are the warmest de-
fenders of popular liberty, but who have rarely suffered
constitutional obstacles to arrest them in a favorite career.

VOL. I. 38



594 Tlie Faederalist.

The truth is, that the general genius of a Government is
all that can be substantially relied upon for permanent
effects. Particular provisions, though not altogether
useless, have far less virtue and efficacy than are com-
monly ascribed to them ; and the want of them will
never be, with men of sound discernment, a decisive
objection to any plan which exhibits the leading char-
acters of a good Government.

It certainly sounds not a little harsh and extraordinary
to affirm that there is no secui'ity for liberty in a Con-
stitution which expressly establishes the trial by jury in
criminal cases, because it does not do it in civil also ;
while it is a notorious fact that Connecticut, which has
been always regarded as the most popular State in the
Union, can boast of no constitutional provision for

either.

PUBLIUS.



IFrom M'Lean's Edition, New York, M.DCC.LXXXVIIIJ

[THE FGEDERALIST.] NO. LXXXIY.

[To THE People of the State of New York:]

IN the course of the foregoing review of the Consti-
tion, I have taken notice of, and endeavored to an-
swer most of the objections which have appeared against
it. There, however, remain a few which either did not
fall naturally under any particular head, or were forgot-
ten in their proper places. These shall now be discussed ;
but as the subject has been drawn into great length, I
shall so far consult brevity, as to comprise all my obser-
vations on these miscellaneous points in a single paper.
The most considerable of the remaining objecfions is.



\ The Feeder alist. 59 1

that the plan of the Convention contains no Bill of Rights.
Among other answers given to this, it has been upon
different occasions remarked, that the Constitutions of
several of the States are in a similar predicament. I
add, that New York is of the number. And yet the
opposers of the new system, in this State, who profess
an unlimited admiration for its Constitution, are among
the most intemperate partisans of a Bill of Rights. To
justify their zeal in this matter, they allege two things:
one is, that though the Constitution of New York has
no Bill of Rights prefixed to it, yet it contains, in the
body of it, various provisions in favor of particular
privileges and rights, which, in substance, amount to
the same thing; the other is, that the Constitution
adopts, in their full extent, the common and statute
law of Great Britain, by which many other rights, not
expressed in it, are equally secured.

To the first I answer, that the Constitution proposed
by the Convention contains, as well as the Constitution
of this State, a number of such provisions.

Independent of those which relate to the structure of
the Government, we find the following : — Article 1, Sec-
tion 3, Clause 7, " Judgment in cases of impeachment
" shall not extend further than to removal from office,
"and disqualification to hold and enjoy any office of
" honor, trust, or profit under the United States ; but the
" party convicted shall, nevertheless, be liable and subject
" to indictment, trial, judgment, and punishment accord-
" ing to law." Section 9, of the same Article, Clause 2,
« The privilege of the writ of habeas corpus shall not be
" suspended, unless when in cases of rebellion or inva-
" sion the public safety may require it." Clause 3,
" No bill of attainder or ex post facto law shall be
"passed." Clause 7, "No title of nobility shall be
"granted by the United States ; and no person hold-
« ing any office of profit or trust under them, shall,



596 The Fcederalist.

" without the consent of the Congress, accept of any
" present, emolument, office, or title of any kind what-
" ever, from any king, prince, or foreign State." Article
3, Section 2, Clause 3, " The trial of all crimes, except
"in cases of impeachment, shall be by jury; and such
" trial shall be held in the State where the said crimes
" shall have been committed ; but when not committed
"within any State, the trial shall be at such place or
" places as the Congress may by law have directed."
Section 3, of the same Article, " Treason against the
" United States shall consist only in levying war against
" them, or in adhering to their enemies, giving them aid
" and comfort. No person shall be convicted of treason,
" unless on the testimony of two witnesses to the same
"overt act, or on confession in open Court." And
Clause 3, of the same Section, " The Congress shall
" have power to declare the punishment of treason ; but
" no attainder of treason shall work corruption of blood,
" or forfeiture, except during the life of the person at-
« tainted."

It may well be a question, whether these are not,
upon the whole, of equal importance with any which
are to be found in the Constitution of this State. The
establishment of the writ of habeas co7'pus, the prohibi-
tion of ex post facto laws, and of titles of nobility, to
which we have no corresponding provisions in our Consti-
tution, are perhaps greater securities to liberty and repub-
licanism than any it contains. The creation of crimes
after the commission of the fact, or, in other words, the
subjecting of men to punishment for things which,
• when they were done, were breaches of no law, and
the practice of arbitrary imprisonments, have been, in all
ases, the favorite and most formidable instruments of
tyranny. The observations of the judicious Blackstone,*
in reference to the latter, are well worthy of recital :
* Vide Blackstone's Commentaries, vol. 1, page 136. — PuUius.



The FmleraUst. 597

" To bereave a man of life," (says he,) « or by violence to
" confiscate his estate without accusation or trial, would
" be so gross and notorious an act of despotism, as must
" at once convey the alarm of tyranny throughout the
" whole nation ; but confinement of the person, by se-
'•cretly hurrying him to jail, where his sufferings are
" unknown or forgotten, is a less public, a less striking,
" and therefore a more dangerous engine of arbitrary
" Government." And as a remedy for this fatal evil,
he is everywhere peculiarly emphatical in his enco-
miums on the habeas corpus Act, which in one place he
calls " the bulwark of the British Constitution." *

Nothing need be said to illustrate the importance of
the prohibition of titles of nobility. This may truly be
denominated the corner-stone of Republican Govern-
ment ; for so long as they are excluded, there can never
be serious danger that the Government will be any
other than that of the People.

To the second, that is, to the pretended establishment
of the common and statute law by the Constitution, I
answer, that they are expressly made subject " to such
" alterations and provisions as the Legislature shall from
" time to time make concerning the same." They are
therefore at any moment liable to repeal by the ordinary
Legislative power, and of course have no constitu-
tional sanction. The only use of the declaration was
to recognize the ancient law, and to remove doubts
which might have been occasioned by the Revolution.
This consequently can be considered as no part of a
declaration of rights ; which under our Constitutions
must be intended as limitations of the power of the
Government itself.

It has been several times truly remarked, that Bills of
Rights are, in their origin, stipulations between kings and
heir subjects, abridgments of prerogative in favor of

* Vide Blackstone's Commentaries, vol. 4, page 438. — Publius.



598 Tlie Federalist.

privilege, reservations of rights not surrendered to the
prince. Such was Magna Charta, obtained by the
Barons, sword in hand, from King John. Such were
the subsequent confirmations of that charter by suc-
ceeding princes. Such was the Petition of Right as-
sented to by Charles I., in the beginning of his reign.
Such, also, was the Declaration of K-ight presented by the
Lords and Commons to the Prince of Orange in 1688,
and afterwards thrown into the form of an Act of Parlia-
ment called the Bill of Rights. It is evident, therefore,
that, according to their primitive signification, they have
no application to Constitutions professedly founded upon
the power of the People, and executed by their im-
mediate representatives and servants. Here, in strict-
ness, the People surrender nothing ; and as they retain
everything, they have no need of particular reservations.
" We, the People of the United States, to secure the
" blessings of liberty to ourselves and our posterity, do
'* ordain and establish this Constitution for the United
" States of America." Here is a better recognition of
popular rights, than volumes of those aphorisms which
make the principal figure in several of our State Bills
of Rights, and which would sound much better in a
treatise of ethics, than in a Constitution of Govern-
ment.

But a minute detail of particular rights is certainly
far less applicable to a Constitution like that under con-
sideration, which is merely intended to regulate the gen-
eral political interests of the Nation, than to a Constitu-
tion which has the regulation of every species of per-
sonal and private concerns. If, therefore, the loud
clamors against the plan of the Convention, on this
score, are well founded, no epithets of reprobation will
be too strong for the Constitution of this State. But
the truth is, that both of them contain all which, in
relation to their objects, is reasonably to be desired.



The Fcederalist. 599

I go further, and affirm, that Bills of Rights, in the
sense and to the extent in which they are contended for,
are not only unnecessary in the proposed Constitution,
but would even be dangerous. They would contain vari-
ous exceptions to powers not granted ; and on this very
account, would afford a colorable pretext to claim more
than were granted. For why declare that things shall
not be done which there is no power to do ? Why, for
instance, should it be said, that the liberty of the press
shall not be restrained, when no power is given by
which restrictions may be imposed ? I will not contend
that such a provision would confer a regulating power;
but it is evident that it would furnish, to men disposed
to usurp, a plausible pretence for claiming that power.
They might urge with a semblance of reason, that the
Constitution ought not to be charged with the absurdity
of providing against the abuse of an authority, which
was not given, and that the provision against restrain-
ing the liberty of the press afforded a clear implication,
that a power to prescribe proper regulations concerning it
was intended to be vested in the National Government.
This may serve as a specimen of the numerous handles
which would be given to the doctrine of constructive
powers, by the indulgence of an injudicious zeal for
Bills of Rights.

On the subject of the liberty of the press, as much
has been said, I cannot forbear adding a remark or two :
in the first place, I observe, that there is not a syllable
concerning it in the Constitution of this State ; in the
next, I contend, that whatever has been said about it in
that of any other State, amounts to nothing. What
signifies a declaration, that " the liberty of the press shall
" be inviolably preserved ? " What is the liberty of the
press ? Who can give it any definition which would
not leave the utmost latitude for evasion? I hold it to
be impracticable ; and from this I infer, that its security,



600 The Federalist.

whatever fine declarations may be inserted in any Con-
stitution respecting it, must altogether depend on public
opinion, and on the general spirit of the People and of
the Government.* And here, after all, as is intimated
upon another occasion, must we seek for the only solid
basis of all our rights.

There remains but one other view of this matter to
conclude the point. The truth is, after all the declama-
tion we have heard, that the Constitution is itself, in
every rational sense, and to every useful purpose, a Bill
OF Rights. The several Bills of Rights in Great Britain
form its Constitution, and conversely the Constitution
of each State is its Bill of Rights. And the proposed
Constitution, if adopted, will be the Bill of Rights of
the Union. Is it one object of a Bill of Rights to de-
clare and specify the political privileges of the citizens in
the structure and administration of the Government?
This is done in the most ample and precise manner in
the plan of the Convention ; comprehending various
precautions for the public security, which are not to be
found in any of the State Constitutions. Is another ob-
ject of a Bill of Rights to define certain immunities and

* To show tliat there is a power if duties of any kind may be laid
in the Constitution, by which tlie without a violation of that liberty,
liberty of the press may be atieeted, it is evident that the extent must
recourse has been had to tlie power depend on Legislative discretion,
of taxation. It is said, that duties regulated by public opinion ; so
may be laid upon pubUcations so that, after all, general dechirations
high as to amount to a proliibition. respectino: the liberty of the press,
I know not by what logic it coiild will give it no greater security than
be maintained, that the declarations it will have without them. The
in the State Constitutions, in favor same invasions of it may be ef-
of the freedom of the press, would fected under the State Constitu-
be a' constitutional impediment to tions wliich contain those declara-
the imposition of duties upon j)ub- tions through the means of taxa-
lications by tlie State Legislatures, tion, as under tlie proposed Con-
It cannot certainly be pretended stitution, wliich has notliing of the
that any degree of duties, however kind. It would be quite as signifi-
low, would be an abridgment of the cant to declare, that Government
liberty of the press. We know that ought to be free, that taxes ought
newspapers are taxed in Great not to be excessive, &c., as that the
Britain, and yet it is notorious that liberty of the press ought not to be
the press nowhere enjoys greater restrained. — Publius.
liberty than in that country. And



Tlie F(£deralist. 601

modes of proceeding, which are relative to personal and
private concerns ? This we have seen has also been at-
tended to, in a variety of cases, in the same plan. Ad-
verting therefore to the substantial meaning of a Bill of
Rights, it is absurd to allege that it is not to be found in
the work of the Convention. It may be said that it does
not go far enough, though it will not be easy to make
this appear ; but it can with no propriety be contended,
that there is no such thing. It certainly must be imma-
terial what mode is observed as to the order of declaring
the rights of the citizens, if they are to be found in any
part of the instrument which establishes the Government.
And hence it must be apparent, that much of what has
been said on this subject rests merely on verbal and
nominal distinctions, entirely foreign from the substance
of the thing.

Another objection, which has been made, and which,
from the frequency of its repetition, it is to be presumed
is relied on, is of this nature : It is improper " (say the
objectors) "to confer such large powers, as are proposed,
upon the National Government ; because the seat of that
Government must of necessity be too remote from many
of the States to admit of a proper knowledge on the part
of the constituent, of the conduct of the representative
body." This argument, if it proves anything, proves that
there ought to be no General Government whatever. For
the powers which, it seems to be agreed on all hands,
ought to be vested in the Union, cannot be safely intrusted
to a body which is not under every requisite control. But
there are satisfactory reasons to show, that the objection
is, in reality, not well founded. There is in most of the
arguments which relate to distance a palpable illusion of
the imagination. What are the sources of information,
by which the people in Montgomery county must regulate
their judgment of the conduct of their Representatives in