f 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 OBJECT 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 federal 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 not fulfil the
intent of its proposers, so, on the other, if I apprehend that intent
rightly, it would be in itself inexpedient. I presume it to be, that
causes in the federal courts should be tried by jury, if, in the State
where the courts sat, that mode of trial would obtain in a similar case
in the State courts; that is to say, admiralty causes should be tried in
Connecticut by a jury, in New York without one. The capricious operation
of so dissimilar a method of trial in the same cases, under the same
government, is of itself sufficient to indispose every wellregulated
judgment towards it. Whether the cause should be tried with or without
a jury, would depend, in a great number of cases, on the accidental
situation of the court and parties.

But this is not, in my estimation, the greatest objection. I feel a deep
and deliberate conviction that there are many cases in which the trial
by jury is an ineligible one. I think it so particularly in cases which
concern the public peace with foreign nations--that is, in most cases
where the question turns wholly on the laws of nations. Of this nature,
among others, are all prize causes. Juries cannot be supposed competent
to investigations that