Letters from The Federal Farmer to The Republican
(Richard Henry Lee ?)

XV.

January 18, 1788.

Dear sir,

Before I proceed to examine particularly the powers vested, or which
ought to be, vested in each branch of the proposed government, I shall briefly
examine the organization of the remaining branch, the judicial, referring the
particular examining of its powers to some future letters.

In forming this branch, our objects are—a fair and open, a wise
and impartial interpretation of the laws—a prompt and impartial
administration of justice, between the public and individuals, and between man
and man. I believe, there is no feature in a free government more difficult to
be well formed than this, especially in an extensive country, where the courts
must be numerous, or the citizens travel to obtain justice.

The confederation impowers congress to institute judicial courts in four
cases. 1. For settling disputes between individual states. 2. For determining,
finally, appeals in all cases of captures. 3. For the trial of piracies and
felonies committed on the high seas: And, 4. For the administration of martial
law in the army and navy. The state courts in all other cases possess the
judicial powers, in all questions arising on the laws of nations, of the union,
and of the states individually—nor does congress appear to have any
controul over state courts, judges or officers. The business of the judicial
department is, properly speaking, judicial in part, in part executive, done by
judges and juries, by certain recording and executive officers, as clerks,
sheriffs, &c. they are all properly limbs, or parts, of the judicial
courts, and have it in charge, faithfully to decide upon, and execute the laws,
in judicial cases, between the public and individuals, between man and man. The
recording and executive officers, in this department, may well enough be formed
by legislative acts, from time to time: but the offices, the situation, the
powers and duties of judges and juries, are too important, as they respect the
political system, as well as the administration of justice, not to be fixed on
general principles by the constitution. It is true, the laws are made by the
legislature; but the judges and juries, in their interpretations, and in
directing the execution of them, have a very extensive influence for preserving
or destroying liberty, and for changing the nature of the government. It is an
observation of an approved writer, that judicial power is of such a nature,
that when we have ascertained and fixed its limits, with all the caution and
precision we can, it will yet be formidable, somewhat arbitrary and despotic—that is, after all our cares, we must leave a vast deal to the
discretion and interpretation—to the wisdom, integrity, and politics of
the judges—These men, such is the state even of the best laws, may do
wrong, perhaps, in a thousand cases, sometimes with, and sometimes without
design, yet it may be impracticable to convict them of misconduct. These
considerations shew, how cautious a free people ought to be in forming this, as
well as the other branches of their government, especially when connected with
other considerations equally deserving of notice and attention. When the
legislature makes a bad law, or the first executive magistrate usurps upon the
rights of the people, they discover the evil much sooner, than the abuses of
power in the judicial department; the proceedings of which are far more
intricate, complex, and out of their immediate view. A bad law immediately
excites a general alarm; a bad judicial determination, though not less
pernicious in its consequences, is immediately felt, probably, by a single
individual only, and noticed only by his neighbours, and a few spectators in
the court. In this country, we have been always jealous of the legislature, and
especially the executive; but not always of the judiciary: but very few men
attentively consider the essential parts of it, and its proceedings, as they
tend to support or to destroy free government: only a few professional men are
in a situation properly to do this; and it is often alledged, that instances
have not frequently occurred, in which they have been found very alert watchmen
in the cause of liberty, or in the cause of democratic republics. Add to these
considerations, that particular circumstances exist at this time to increase
our inattention to limiting properly the judicial powers, we may fairly
conclude, we are more in danger of sowing the seeds of arbitrary government in
this department than in any other. In the unsettled state of things in this
country, for several years past, it has been thought, that our popular
legislatures have, sometimes, departed from the line of strict justice, while
the law courts have shewn a disposition more punctually to keep to it. We are
not sufficiently attentive to the circumstances, that the measures of popular
legislatures naturally settle down in time, and gradually approach a mild and
just medium; while the rigid systems of the law courts naturally become more
severe and arbitrary, if not carefully tempered and guarded by the
constitution, and by laws, from time to time. It is true, much has been written
and said about some of these courts lately, in some of the states; but all has
been about their fees, &c. and but very little to the purposes, as to their
influence upon the freedom of the government. By art. 3. sect. 1. the judicial
power of the United States shall be vested in one supreme court, and in such
inferior courts, as congress may, from time to time, ordain and establish—the judges of them to hold their offices during good behaviour, and to
receive, at stated times, a compensation for their services, which shall not be
diminished during their continuance in office; but which, I conceive, may be
increased. By the same art. sect. 2. the supreme court shall have original
jurisdiction, “in all cases affecting ambassadors, and other public ministers,
and consuls, and those in which a state shall be a party, and appellate
jurisdiction, both as to law and fact, in all other federal causes, with
such exceptions, and under such regulations, as the congress shall make.” By
the same section, the judicial power shall extend in law and equity to all the
federal cases therein enumerated. By the same section the jury trial, in
criminal causes, except in cases of impeachment, is established; but not in
civil causes, and the whole state may be considered as the vicinage in cases of
crimes. These clauses present to view the constitutional features of the
federal judiciary: this has been called a monster by some of the opponents, and
some, even of the able advocates, have confessed they do not comprehend it. For
myself, I confess, I see some good things in it, and some very extraordinary
ones. “There shall be one supreme court.” There ought in every government to be
one court, in which all great questions in law shall finally meet and be
determined: in Great-Britain, this is the house of lords, aided by all the
superior judges; in Massachusetts, it is, at present, the supreme judicial
court, consisting of five judges; in New-York, by the constitution, it is a
court consisting of the president of the senate, the senators, chancellor and
judges of the supreme court; and in the United States the federal supreme
court, or this court in the last resort, may, by the legislature, be made to
consist of three, five, fifty, or any other number of judges. The inferior
federal courts are left by the constitution to be instituted and regulated
altogether as the legislature shall judge best; and it is well provided, that
the judges shall hold their offices during good behaviour. I shall not object
to the line drawn between the original and appellate jurisdiction of the
supreme court; though should we for safety, &c. be obliged to form a
numerous supreme court, and place in it a considerable number of respectable
characters, it will be found inconvenient for such a court, originally, to try
all the causes affecting ambassadors, consuls, &c. Appeals may be carried
up to the supreme court, under such regulations as congress shall make. Thus
far the legislature does not appear to be limited to improper rules or
principles in instituting judicial courts: indeed the legislature will have
full power to form and arrange judicial courts in the federal cases enumerated,
at pleasure, with these eight exceptions only. 1. There can be but one supreme
federal judicial court. 2. This must have jurisdiction as to law and fact in
the appellate causes. 3. Original jurisdiction, when foreign ministers and the
states are concerned. 4. The judges of the judicial courts must continue in
office during good behaviour—and, 5. Their salaries cannot be diminished
while in office. 6. There must be a jury trial in criminal causes. 7. The trial
of crimes must be in the state where committed—and, 8. There must be two
witnesses to convict of treason.

In all other respects Congress may organize the judicial department
according to their discretion; the importance of this power, among others
proposed by the legislature (perhaps necessarily) I shall consider hereafter.
Though there must, by the constitution, be but one judicial court, in which all
the rays of judicial powers as to law, equity, and fact, in the cases
enumerated must meet; yet this may be made by the legislature, a special court,
consisting of any number of respectable characters or officers, the federal
legislators excepted, to superintend the judicial department, to try the few
causes in which foreign ministers and the states may be concerned, and to
correct errors, as to law and fact, in certain important causes on appeals.
Next below this judicial head, there may be several courts, such as are usually
called superior courts, as a court of chancery, a court of criminal
jurisdiction, a court of civil jurisdiction, a court of admiralty jurisdiction,
a court of exchequer, &c. giving an appeal from these respectively to the
supreme judicial court. These superior courts may be considered as so many
points to which appeals may be brought up, from the various inferior courts, in
the several branches of judicial causes. In all these superior and inferior
courts, the trial by jury may be established in all cases, and the law and
equity properly separated. In this organization, only a few very important
causes, probably, would be carried up to the supreme court.—The superior
courts would, finally, settle almost all causes. This organization, so far as
it would respect questions of law, inferior, superior, and a special supreme
court, would resemble that of New-York in a considerable degree, and those of
several other states. This, I imagine, we must adopt, or else the Massachusetts
plan; that is, a number of inferior courts, and one superior or supreme court,
consisting of three, or five, or seven judges, in which one supreme court all
the business shall be immediately collected from the inferior ones. The
decision of the inferior courts, on either plan, probably will not much be
relied on; and on the latter plan, there must be a prodigious accumulation of
powers and business in all cases touching law, equity and facts, and all kinds
of causes in a few hands, for whose errors of ignorance or design, there will
be no possible remedy. As the legislature may adopt either of these, or any
other plan, I shall not dwell longer on this subject.

In examining the federal judiciary, there appears to be some things very
extraordinary and very peculiar. The judges or their friends may seize every
opportunity to raise the judges salaries; but by the constitution they cannot
be diminished. I am sensible how important it is that judges shall always have
adequate and certain support; I am against their depending upon annual or
periodical grants, because these may be withheld, or rendered too small by the
dissent or narrowness of any one branch of the legislature; but there is a
material distinction between periodical grants, and salaries held under
permanent and standing laws: the former at stated periods cease, and must be
renewed by the consent of all and every part of the legislature; the latter
continue of course, and never will cease or be lowered, unless all parts of the
legislature agree to do it. A man has as permanent an interest in his salary
fixed by a standing law, so long as he may remain in office, as in any property
he may possess; for the laws regulating the tenure of all property, are always
liable to be altered by the legislature. The same judge may frequently be in
office thirty or forty years; there may often be times, as in cases of war, or
very high prices, when his salary may reasonably be increased one half or more;
in a few years money may become scarce again, and prices fall, and his salary,
with equal reason and propriety be decreased and lowered: not to suffer this to
be done by consent of all the branches of the legislature, is, I believe, quite
a novelty in the affairs of government. It is true, by a very forced and
unnatural construction, the constitution of Massachusetts, by the governor and
minority in the legislature, was made to speak this kind of language. Another
circumstance ought to be considered; the mines which have been discovered are
gradually exhausted, and the precious metals are continually wasting: hence the
probability is, that money, the nominal representative of property, will
gradually grow scarcer hereafter, and afford just reasons for gradually
lowering salaries. The value of money depends altogether upon the quantity of
it in circulation, which may be also decreased, as well as encreased, from a
great variety of causes.

The supreme court, in cases of appeals, shall have jurisdiction both as
to law and fact: that is, in all civil causes carried up [to] the supreme court
by appeals, the court, or judges, shall try the fact and decide the law. Here
an essential principle of the civil law is established, and the most noble and
important principle of the common law exploded. To dwell a few minutes on this
material point: the supreme court shall have jurisdiction both as to law and
fact. What is meant by court? Is the jury included in the term, or is it not? I
conceive it is not included: and so the members of convention, I am very sure,
understand it. Court, or curia, was a term well understood long before juries
existed; the people, and the best writers, in countries where there are no
juries, uniformly use the word court, and can only mean by it the judge or
judges who determine causes: also, in countries where there are juries we
express ourselves in the same manner; we speak of the court of probate, court
of chancery, justices court, alderman’s court, &c. in which there is no
jury. In our supreme courts, common pleas, &c. in which there are jury
trials, we uniformly speak of the court and jury, and consider them as
distinct. Were it necessary I might site a multitude of cases from law books to
confirm, beyond controversy, this position, that the jury is not included, or a
part of the court.

But the supreme court is to have jurisdiction as to law and fact, under
such regulations as congress shall make. I confess it is impossible to say how
far congress may, with propriety, extend their regulations in this respect. I
conceive, however, they cannot by any reasonable construction go so far as to
admit the jury, on true common law principles, to try the fact, and give a
general verdict. I have repeatedly examined this article: I think the meaning
of it is, that the judges in all final questions, as to property and damages,
shall have complete jurisdiction, to consider the whole cause, to examine the
facts, and on a general view of them, and on principles of equity, as well as
law, to give judgment.

As the trial by jury is provided for in criminal causes, I shall confine
my observations to civil causes—and in these, I hold it is the
established right of the jury by the common law, and the fundamental laws of
this country, to give a general verdict in all cases when they chuse to do it,
to decide both as to law and fact, whenever blended together in the issue put
to them. Their right to determine as to facts will not be disputed, and their
right to give a general verdict has never been disputed, except by a few judges
and lawyers, governed by despotic principles. Coke, Hale, Holt, Blackstone, De
Lo[l]me, and almost every other legal or political writer, who has written on
the subject, has uniformly asserted this essential and important right of the
jury. Juries in Great-Britain and America have universally practised
accordingly. Even Mansfield, with all his wishes about him, dare not directly
avow the contrary. What fully confirms this point is, that there is no instance
to be found, where a jury was ever punished for finding a general verdict, when
a special one might, with propriety, have been found. The jury trial,
especially politically considered, is by far the most important feature in the
judicial department in a free country, and the right in question is far the
most valuable part, and the last that ought to be yielded, of this trial.
Juries are constantly and frequently drawn from the body of the people, and
freemen of the country; and by holding the jury’s right to return a general
verdict in all cases sacred, we secure to the people at large, their just and
rightful controul in the judicial department. If the conduct of judges shall be
severe and arbitrary, and tend to subvert the laws, and change the forms of
government, the jury may check them, by deciding against their opinions and
determinations, in similar cases. It is true, the freemen of a country are not
always minutely skilled in the laws, but they have common sense in its purity,
which seldom or never errs in making and applying laws to the condition of the
people, or in determining judicial causes, when stated to them by the parties.
The body of the people, principally, bear the burdens of the community; they of
right ought to have a controul in its important concerns, both in making and
executing the laws, otherwise they may, in a short time, be ruined. Nor is it
merely this controul alone we are to attend to; the jury trial brings with it
an open and public discussion of all causes, and excludes secret and arbitrary
proceedings. This, and the democratic branch in the legislature, as was
formerly observed, are the means by which the people are let into the knowledge
of public affairs—are enabled to stand as the guardians of each others
rights, and to restrain, by regular and legal measures, those who otherwise
might infringe upon them. I am not unsupported in my opinion of the value of
the trial by jury; not only British and American writers, but De Lo[l]me, and
the most approved foreign writers, hold it to be the most valuable part of the
British constitution, and indisputably the best mode of trial ever
invented.

It was merely by the intrigues of the popish clergy, and of the Norman
lawyers, that this mode of trial was not used in maritime, ecclesiastical, and
military courts, and the civil law proceedings were introduced; and, I believe,
it is more from custom and prejudice, than for any substantial reasons, that we
do not in all the states establish the jury in our maritime as well as other
courts.

In the civil law process the trial by jury is unknown; the consequence
is, that a few judges and dependant officers, possess all the power in the
judicial department. Instead of the open fair proceedings of the common law,
where witnesses are examined in open court, and may be cross examined by the
parties concerned—where council is allowed, &c. we see in the civil
law process judges alone, who always, long previous to the trial, are known and
often corrupted by ministerial influence, or by parties. Judges once
influenced, soon become inclined to yield to temptations, and to decree for him
who will pay the most for their partiality. It is, therefore, we find in the
Roman, and almost all governments, where judges alone possess the judicial
powers and try all cases, that bribery has prevailed. This, as well as the
forms of the courts, naturally lead to secret and arbitrary proceedings—to taking evidence secretly—exparte, &c. to perplexing the cause—and to hasty decisions:—but, as to jurors, it is quite
impracticable to bribe or influence them by any corrupt means; not only because
they are untaught in such affairs, and possess the honest characters of the
common freemen of a country; but because it is not, generally, known till the
hour the cause comes on for trial, what persons are to form the jury.

But it is said, that no words could be found by which the states could
agree to establish the jury-trial in civil causes. I can hardly believe men to
be serious, who make observations to this effect. The states have all derived
judicial proceedings principally from one source, the British system; from the
same common source the American lawyers have almost universally drawn their
legal information. All the states have agreed to establish the trial by jury,
in civil as well as in criminal causes. The several states, in congress, found
no difficulty in establishing it in the Western Territory, in the ordinance
passed in July 1787. We find, that the several states in congress, in
establishing government in that territory, agreed, that the inhabitants of it,
should always be entitled to the benefit of the trial by jury. Thus, in a few
words, the jury trial is established in its full extent; and the convention
with as much ease, have established the jury trial in criminal cases. In making
a constitution, we are substantially to fix principles.—If in one state,
damages on default are assessed by a jury, and in another by the judges—if in one state jurors are drawn out of a box, and in another not—if
there be other trifling variations, they can be of no importance in the great
question. Further, when we examine the particular practices of the states, in
little matters in judicial proceedings, I believe we shall find they differ
near as much in criminal processes as in civil ones. Another thing worthy of
notice in this place—the convention have used the word equity, and
agreed to establish a chancery jurisdiction; about the meaning and extent of
which, we all know, the several states disagree much more than about jury
trials—in adopting the latter, they have very generally pursued the
British plan; but as to the former, we see the states have varied, as their
fears and opinions dictated.

By the common law, in Great Britain and America, there is no appeal from
the verdict of the jury, as to facts, to any judges whatever—the
jurisdiction of the jury is complete and final in this; and only errors in law
are carried up to the house of lords, the special supreme court in Great
Britain; or to the special supreme courts in Connecticut, New-York, New-Jersey,
&c. Thus the juries are left masters as to facts: but, by the proposed
constitution, directly the opposite principles is established. An appeal will
lay in all appellate causes from the verdict of the jury, even as to mere
facts, to the judges of the supreme court. Thus, in effect, we establish the
civil law in this point; for if the jurisdiction of the jury be not final, as
to facts, it is of little or no importance.

By art. 3. sect. 2. “the judicial power shall extend to all cases in law
and equity, arising under this constitution, the laws of the United States,”
&c. What is here meant by equity? what is equity in a case arising under
the constitution? possibly the clause might have the same meaning, were the
words “in law and equity,” omitted. Cases in law must differ widely from cases
in law and equity. At first view, by thus joining the word equity with the word
law, if we mean any thing, we seem to mean to give the judge a discretionary
power. The word equity, in Great Britain, has in time acquired a precise
meaning—chancery proceedings there are now reduced to system—but
this is not the case in the United States. In New-England, the judicial courts
have no powers in cases in equity, except those dealt out to them by the
legislature, in certain limited portions, by legislative acts. In New-York,
Maryland, Virginia, and South Carolina, powers to decide, in cases of equity,
are vested in judges distinct from those who decide in matters of law: and the
states generally seem to have carefully avoided giving unlimitedly, to the same
judges, powers to decide in cases in law and equity. Perhaps, the clause would
have the same meaning were the words, “this constitution,” omitted: there is in
it either a careless complex misuse of words, in themselves of extensive
signification, or there is some meaning not easy to be comprehended. Suppose a
case arising under the constitution—suppose the question judicially
moved, whether, by the constitution, congress can suppress a state tax laid on
polls, lands, or as an excise duty, which may be supposed to interfere with a
federal tax. By the letter of the constitution, congress will appear to have no
power to do it: but then the judges may decide the question on principles of
equity as well as law. Now, omitting the words, “in law and equity,” they may
decide according to the spirit and true meaning of the constitution, as
collected from what must appear to have been the intentions of the people when
they made it. Therefore, it would seem, that if these words mean any thing,
they must have a further meaning: yet I will not suppose it intended to lodge
an arbitrary power or discretion in the judges, to decide as their conscience,
their opinions, their caprice, or their politics might dictate. Without
dwelling on this obscure clause, I will leave it to the examination of
others.