Antifederalist No. 83 

THE FEDERAL JUDICIARY AND THE ISSUE OF TRIAL BY JURY 

by Luther Martin of Maryland 


      . . . . in all those cases, where the general government 
has jurisdiction in civil questions, the proposed Constitution 
not only makes no provision for the trial by jury in the first 
instance, but, by its appellate jurisdiction, absolutely takes 
away that inestimable privilege, since it expressly declares the 
Supreme Court shall have appellate jurisdiction both as to law 
and fact.  Should, therefore, a jury be adopted in the inferior 
court, it would only be a needless expense, since, on an appeal, 
the determination of that jury, even on questions of fact, 
however honest and upright, is to be of no possible effect.  The 
Supreme Court is to take up all questions of fact; to examine the 
evidence relative thereto; to decide upon them, in the same 
manner as if they had never been tried by a jury.  Nor is trial 
by jury secured in criminal cases.  It is true that, in the first 
instance, in the inferior court, the trial is to be by jury.  In 
this, and in this only, is the difference between criminal and 
civil cases.  But, sir, the appellate jurisdiction extends, as I 
have observed, to cases criminal, as well as civil, and on the 
appeal the court is to decide not only on the law but on the 
fact.  If, therefore, even in criminal cases, the general 
government is not satisfied with the verdict of the jury, its 
officer may remove the prosecution to the Supreme Court; and 
there the verdict of the jury is to be of no effect, but the 
judges of this court are to decide upon the fact as well as the 
law, the same as in civil cases. 
     Thus, sir, jury trials, which have ever been the boast of 
the English constitution-which have been by our several state 
constitutions so cautiously secured to us-jury trials, which have 
so long been considered the surest barrier against arbitrary 
power, and the palladium of liberty, with the loss of which the 
loss of our freedom may be dated, are taken away by the proposed 
form of government, not only in a great variety of questions 
between individual and individual, but in every case, whether 
civil or criminal, arising under the laws of the United States, 
or the execution of those laws.  It is taken away in those very 
cases where, of all others, it is most essential for our liberty 
to have it sacredly guarded and preserved: in every case, whether 
civil or criminal, between government and its officers on the one 
part, and the subject or citizen on the other.  Nor was this the 
effect of inattention, nor did it arise from any real difficulty 
in establishing and securing jury trials by the proposed 
Constitution if the Convention had wished to do so; but the same 
reason influenced here as in the case of the establishment of the 
inferior courts.  As they could not trust state judges, so would 
they not confide in state juries.  They alleged that the general 
government and the state governments would always be at variance-
that the citizens of the different states would enter into the 
views and interests of their respective states, and therefore 
ought not to be trusted in determining causes in which the 
general government was any way interested, without giving the 
general government an opportunity, if it disapproved the verdict 
of the jury, to appeal, and to have the facts examined into 
again, and decided upon by its own judges, on whom it was thought 
a reliance might be had by the general government, they being 
appointed under its authority. Thus, sir, in consequence of this 
appellate jurisdiction, and its extension to facts as well as to 
law, every arbitrary act of the general government, and every 
oppression of all that variety of officers appointed under its 
authority for the collection of taxes, duties, impost, excise, 
and other purposes, must be submitted to by the individual, or 
must be opposed with little prospect of success, and almost a 
certain prospect of ruin, at least in those cases where the 
middle and common class of citizens are interested.  Since, to 
avoid that oppression, or to obtain redress, the application must 
be made to one of the courts of the United States-by good 
fortune, should this application be in the first instance 
attended with success, and should damages be recovered equivalent 
to the injury sustained, an appeal lies to the Supreme Court, in 
which case the citizen must at once give up his cause, or he must 
attend to it at the distance, perhaps, of more than a thousand 
miles from the place of his residence, and must take measures to 
procure before that court, on the appeal, all the evidence 
necessary to support his action, which, even if ultimately 
prosperous, must be attended with a loss of time, a neglect of 
business, and an expense, which will be greater than the original 
grievance, and to which men in moderate circumstances would be 
utterly unequal.