Page:Federalist, Dawson edition, 1863.djvu/730

 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 senseless and nugatory. The United States, in their united or collective capacity, are the to which all general provisions in the Constitution must necessarily be construed 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, at this time altogether unknown; because the present Fœderal Government has no Judiciary power whatever; and consequently, there is no proper antecedent or previous establishment, to which the term heretofore could relate. It would therefore be destitute of a precise meaning, and inoperative from its uncertainty.

As on the one hand, the form of the provision would