ARTICLES

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ARTICLES

FINISHING A FRIENDLY ARGUMENT:

THE JURY AND THE HISTORICAL

ORIGINS OF DIVERSITY JURISDICTION

OBERT

L. J

ONES

This Article argues that diversity jurisdiction was intended to funnel politically sig-

nificant litigation into the federal courts principally because federal officials would

have the power to dictate the composition of federal juries. All existing accounts

for the origins of diversity jurisdiction ultimately rely upon putative differences

between the state and federal benches for their explanations of the jurisdiction’s

origin. This emphasis on the bench is anachronistic, however, because the jury

possessed far more power than the bench to decide cases in eighteenth-century

American courts. American juries during this period customarily had the right to

decide issues of law as well as fact and were largely beyond the control of the

bench. The Framers saw state court juries—independent bodies of citizens with

almost unfettered power to resolve legal disputes—as one of the greatest dangers in

allowing ordinary citizens too much control over the governance of the nation. By

wresting adjudicative power out of the hands of state court juries and bestowing it

upon federal juries whose compositions could be tightly controlled by federal offi-

cials, diversity jurisdiction accomplished the Constitution’s overarching purpose of

checking the operation of “unrestrained” democracy in the states.

Once the federal courts were established, federal officials controlled the composi-

tion of federal juries in several ways. In most districts, federal marshals dictated the

composition of federal juries by hand-selecting jurors of their choice. In addition,

Congress ensured that the political, economic, and social characteristics of federal

juries would differ dramatically from their state counterparts by providing that the

federal courts would draw their juries overwhelmingly from the urban, commercial

centers of the nation. The state courts, by contrast, drew their juries predominantly

from the agrarian populations living outside those centers. It is highly unlikely that

this pervasive control over the composition of federal juries was an unintended

consequence of the Constitution. Instead, as this Article argues, the evidence

strongly suggests that the federal officials’ control over the composition of federal

juries constituted the single most important impetus behind the creation of diversity

jurisdiction and a significant rationale for the establishment of the lower federal

courts.

* Copyright



2007 by Robert L. Jones, Assistant Professor, Northern Illinois Univer-

sity, College of Law. J.D., New York University School of Law; A.B., University of

California, Berkeley. I want to thank Helen Hershkoff, William Nelson, Gary Rowe, Jack

B. Weinstein, Richard Bernstein, Burt Neuborne, Ty Alper, Lewis Bossing, and Wendy

Vaughn for their advice and support in this and all endeavors. I would also like to thank

Jennifer Hainsfurther, Matthew Dreyer, Dan Wachtell, Derek Kershaw, Kimberly Spoerri,

and the members of the New York University Law Review for their excellent editorial

work, and James Folts and the staff of the National Archives office in New York City for

their assistance. All mistakes, regrettably, are my own.

997

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998 NEW YORK UNIVERSITY LAW REVIEW [Vol. 82:997

NTRODUCTION

................................................. 999

I. F

AILURES OF THE

XISTING

CCOUNTS OF THE

RIGINS OF

IVERSITY

URISDICTION

.................. 1006

A. Deficiencies in the Traditional “State Bias” Account

for the Origins of Diversity Jurisdiction ............. 1006

B. The “Friendly Revolution”: The Modern

Pro-Creditor Accounts for the Origins of Diversity

Jurisdiction .......................................... 1010

1. The Historical Background of Friendly’s

Account ......................................... 1011

a. Post-Revolution Debt and Depression ...... 1011

b. Agrarian Unrest and the Paper Money

Debate...................................... 1012

2. The Superiority of Friendly’s Pro-Creditor

Account over the Traditional “State Bias”

View ............................................ 1015

C. Failures of the Pro-Creditor Accounts ............... 1017

1. Myopic Emphasis on Commercial Issues and

Creditor Constituencies .......................... 1017

2. Overreliance on the Federal Bench .............. 1019

II. A

PPREHENSION OF

TATE

OURT

URIES

: T

RINCIPAL

OTIVATING

ORCE

EHIND THE

REATION

IVERSITY

URISDICTION AND THE

OWER

EDERAL

OURTS

................................................. 1026

A. The Powers and Prerogatives of Eighteenth-Century

American Juries ..................................... 1026

1. The Roots of the American Jury in English

Law............................................. 1026

2. The Jury as a Means of American Colonial

Intransigence .................................... 1028

3. American Juries at the Time of the 1787

Convention ..................................... 1031

B. Direct Democracy and the Framers’ Apprehension of

State Court Juries ................................... 1037

C. Unsuccessful Efforts to Eviscerate the Jury’s Power

in Federal Court .................................... 1044

III. T

ISTORICAL

RIGINS OF

IVERSITY

URISDICTION

AND

EDERAL

ONTROL OVER THE

OMPOSITION OF

EDERAL

URIES

........................................ 1049

A. Control over the Composition of Federal Juries by

U.S. Marshals ....................................... 1055

B. Juror Selection in the New York Circuit Court ...... 1063

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October 2007] THE ORIGINS OF DIVERSITY JURISDICTION 999

C. Control of the Geography of Federal Jury Pools and

Its Impact on the Political, Economic, and Social

Composition of Federal Juries ....................... 1070

1. The Traditional Jury of the Vicinage ............ 1070

2. Repudiation of the Vicinage Principle for Federal

Courts .......................................... 1072

3. Control over the Composition of Federal Jury

Pools............................................ 1077

ONCLUSION

................................................... 1091

PPENDIX

: M

ETHODOLOGY

.................................... 1097

NTRODUCTION

Many judges and practitioners today view diversity jurisdiction as

an anomaly. The bulk of the federal courts’ dockets today are com-

prised of cases implicating the interpretation and enforcement of fed-

eral law.

Diversity jurisdiction,

which requires the federal courts to

interpret and enforce state or foreign law in the adjudication of dis-

putes between citizens of different states or nations, has been widely

criticized as an unnecessary distraction from the federal courts’ pri-

During fiscal years 2002 to 2006, fifty-six percent of the civil cases filed in the United

States District Courts involved federal question controversies between private litigants and

another nineteen percent involved the United States government as either plaintiff or

defendant. A

DMIN

. O

FFICE OF THE

U.S. C

OURTS

, 2006 J

UDICIAL

USINESS OF THE

NITED

TATES

OURTS

: A

NNUAL

EPORT OF THE

IRECTOR

22 (2007), available at

http://www.uscourts.gov/judbus2006/completejudicialbusiness.pdf. During the same

period, diversity cases comprised twenty-five percent of the total number of civil filings in

the district courts and twenty percent of the total civil and criminal filings. See id. at 22, 26

(listing total number of diversity, civil, and criminal cases filed in district court each year

from 2002 to 2006).

In this Article, I use the term “diversity jurisdiction” to refer to the federal courts’

jurisdiction over both claims between citizens of different states and claims between citi-

zens of foreign states and American citizens. See U.S. C

ONST

. art. III, § 2, cl. 1 (“The

judicial Power shall extend to all Cases, in Law and Equity . . . between Citizens of dif-

ferent states . . . and between a State, or the Citizens thereof, and foreign States, Citizens

or Subjects.”). Scholars who want to distinguish the courts’ jurisdiction over cases

involving citizens of different states from that involving foreign citizens and American citi-

zens typically refer to the former as “diversity” jurisdiction and the latter as “alienage”

jurisdiction. See, e.g., Kevin R. Johnson, Why Alienage Jurisdiction? Historical Founda-

tions and Modern Justifications for Federal Jurisdiction over Disputes Involving Nonci-

tizens, 21 Y

ALE

J. I

’

L. 1, 3–5 (1996) (arguing for “analytically distinct” treatment of

alienage and diversity jurisdiction). Because this author believes that the underlying pur-

poses for their creation were essentially the same, both will be analyzed as diversity juris-

diction for the purposes of this Article.

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1000 NEW YORK UNIVERSITY LAW REVIEW [Vol. 82:997

mary functions.

As recently as 1978, legislation has been introduced

in Congress that would have eliminated diversity jurisdiction entirely.

Despite its marginalization in the minds of many modern scholars

and practitioners, however, diversity jurisdiction is fundamental to our

understanding of the historical origins of the lower federal courts.

Ironically, the primary impetus behind the creation of these courts

may have had little to do with “federal questions,” i.e., the interpreta-

tion and enforcement of federal statutes and the U.S. Constitution.

In the Judiciary Act of 1789, the first Federal Congress—which

included a large number of Framers who had attended the

Constitutional Convention

—entrusted the state courts with exclusive

trial jurisdiction over those cases “arising under” the U.S.

Constitution and federal statutes.

The appellate oversight of the

United States Supreme Court was deemed sufficient to address any

Justices Frankfurter and Jackson, for example, each argued for the complete aboli-

tion of diversity jurisdiction. See Lumbermen’s Mut. Cas. Co. v. Elbert, 348 U.S. 48, 54

(1954) (Frankfurter, J., concurring) (calling diversity jurisdiction “the mounting mischief

inflicted on the federal judicial system”); R

OBERT

H. J

ACKSON

, T

UPREME

OURT IN

THE

MERICAN

YSTEM OF

OVERNMENT

37 (1955) (stating that abolition of diversity

would be “the greatest contribution that Congress could make to the orderly administra-

tion of justice in the United States”); see also F

. C

OURTS

TUDY

OMM

., R

EPORT OF

THE

EDERAL

OURTS

TUDY

OMMITTEE

38–42 (1990) (arguing that diversity jurisdiction

should be dramatically curtailed). By comparison, many scholars have noted the federal

courts’ unique qualifications for adjudicating federal claims. See, e.g., Burt Neuborne, The

Myth of Parity, 90 H

ARV

. L. R

. 1105, 1105–06 (1977) (criticizing assumption that federal

and state courts are equally competent fora for adjudicating federal constitutional rights);

see also Larry Kramer, Diversity Jurisdiction, 1990 BYU L. R

. 97, 104 (“[D]iversity juris-

diction forces federal courts to decide issues on which they have no special expertise at the

expense of tasks they can perform significantly better than state courts.”). But see James

William Moore & Donald T. Weckstein, Diversity Jurisdiction: Past, Present, and Future,

43 T

. L. R

. 1, 1 (1964) (arguing for expansion, rather than curtailment, of diversity

jurisdiction).

See H.R. 9622, 95th Cong. (1978) (proposing abolition of diversity jurisdiction); S.

2389, 95th Cong. (1978) (same); see also H.R. 2404, 97th Cong. (1981) (proposing to

abolish diversity jurisdiction—suits between citizens of different states—though retaining

“alienage” jurisdiction—suits between Americans and foreigners).

It is debatable whether the Framers envisioned a world in which federal law would

rival the laws of the states in terms of its volume or importance. In a study revealing the

dearth of federal statutory issues raised during the first several decades of the federal gov-

ernment’s existence, Anthony Bellia found only seventy-four reported state cases that

involved questions of federal statutory interpretation during the first thirty-one years after

the Judiciary Act. Anthony J. Bellia Jr., State Courts and the Interpretation of Federal Stat-

utes, 59 V

AND

. L. R

. 1501, 1529 (2006). It remains unclear how strong a conclusion his

findings permit, however, given that cases were only sparsely reported in this time period.

Id.

See infra note 245 (discussing members of first Congress who attended

Constitutional Convention).

See Judiciary Act of 1789, ch. 20, §§ 9–12, 1 Stat. 73, 76–79 (codified as amended in

scattered sections of 28 U.S.C.) (excluding federal question jurisdiction from express grants

of jurisdiction to federal courts, thereby leaving it to state courts).

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October 2007] THE ORIGINS OF DIVERSITY JURISDICTION 1001

inadequacies that may have existed in the state courts. In fact, nearly

a century elapsed before the federal trial courts assumed permanent

jurisdiction over federal questions.

Unlike federal questions, however, diversity jurisdiction appears

to have been a matter of such immediate importance to the Framers

and the first Federal Congress that it justified, at least in large part,

the creation of the lower federal courts. The 1789 creation of a tier of

lower federal courts represented a substantial departure from existing

practice and many Americans vehemently opposed it. Prior to the

ratification of the Constitution there had been no federal trial courts

in America.

The only national court was the Court of Appeals in

Cases of Capture, which heard appeals from the state courts with

regard to admiralty matters.

At the Constitutional Convention,

Pierce Butler of South Carolina cautioned that “such innovations” as

the establishment of lower federal courts would be unacceptable to

the American people and would engender a “revolt” by the states.

Numerous delegates to the state ratification conventions argued

against the creation of a federal trial court system on the grounds that

it would be an unnecessary encroachment on state judiciaries.

The Judiciary Act gave the Supreme Court appellate jurisdiction over federal ques-

tions decided by the highest court of a state in cases where the federal right being asserted

had been denied. § 25, 1 Stat. at 85–86. The Federalist Congress of 1801 conferred federal

question jurisdiction on the federal courts in the so-called Midnight Judges Act. See Act of

Feb. 13, 1801, ch. 4, § 11, 2 Stat. 89, 92 (repealed 1802) (giving courts “cognizance” of all

cases “arising under” Constitution and federal laws). The incoming Republican Congress,

however, repealed the law just over a year later, see Act of Mar. 8, 1802, ch. 8, § 1, 2 Stat.

132, 132 (codified as amended at 28 U.S.C. § 1331) (repealing Midnight Judges Act), and

the federal courts were not given jurisdiction over federal questions again until 1875, see

Act of Mar. 3, 1875, ch. 137, § 1, 18 Stat. 470, 470 (setting forth jurisdiction of federal

courts, including federal question jurisdiction).

See generally H

ENRY

J. B

OURGUIGNON

, T

IRST

EDERAL

OURT

: T

EDERAL

PPELLATE

RIZE

OURT OF THE

MERICAN

EVOLUTION

1775–1787 (1977) (describing

Court of Appeals in Cases of Capture as first federal court).

See id. at 78 (discussing limited jurisdiction of Court of Appeals in Cases of Cap-

ture); see also 1 J

ULIUS

OEBEL

, J

., H

ISTORY OF THE

UPREME

OURT OF THE

NITED

TATES

, V

OLUME

I: A

NTECEDENTS AND

EGINNINGS TO

1801, at 147–82 (1971) (same).

1 T

ECORDS OF THE

EDERAL

ONVENTION OF

1787, at 125 (Max Farrand rev.

ed., 1937) [hereinafter R

ECORDS OF THE

EDERAL

ONVENTION

] (statement of Pierce

Butler of South Carolina) (June 5, 1787); see also id. at 124 (statement of John Rutledge of

South Carolina criticizing inferior federal courts as “unnecessary encroachment on the

jurisdiction [of the States]” (alteration in original)); id. at 125 (statement of Roger

Sherman of Connecticut criticizing establishment of lower federal courts as unnecessarily

expensive duplication of state judiciaries); 2 id. at 45–46 (statements of Luther Martin of

Maryland and Pierce Butler alleging that inferior federal courts were unnecessary, would

incur jealousy, and would interfere with state tribunals).

During the Virginia ratifying convention, Patrick Henry voiced the following con-

cerns about the proposed federal judiciary’s impact on the state courts: “I see arising out

of [the Constitution], a tribunal, that is to be recurred to in all cases, when the destruction

of the State Judiciaries shall happen; and from the extensive jurisdiction of these para-

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1002 NEW YORK UNIVERSITY LAW REVIEW [Vol. 82:997

Despite this substantial opposition to the creation of lower fed-

eral courts, however, the same Congress that entrusted federal ques-

tions to the state courts balked at the prospect of allowing them to

retain sole power to try diversity suits.

Instead, the lower federal

courts were created and given jurisdiction over both diversity suits

and admiralty claims.

In fact, the first Federal Congress took this

step despite the fact that diversity jurisdiction was arguably the most

controversial aspect of federal jurisdiction contained in the

Constitution.

Therefore, while the point is subject to debate, the his-

torical evidence suggests that the Constitution provided for lower fed-

eral courts at least as much, if not more so, for the purpose of

adjudicating diversity and admiralty suits than for resolving federal

question controversies.

While diversity appears to have been central to the Framers’

interest in establishing the lower federal courts, existing scholarship

has failed to provide a persuasive explanation for its origins. Particu-

larly for modern commentators, the Framers’ determination to strip

the state courts of their diversity claims appears inscrutable in light of

mount Courts, the State Courts must soon be annihilated.” 10 T

OCUMENTARY

IS-

TORY OF THE

ATIFICATION OF THE

ONSTITUTION

1422 (John P. Kaminski & Gaspare J.

Saladino eds., 1993) [hereinafter D

OCUMENTARY

ISTORY OF THE

ATIFICATION

]; see also

Letter from George Mason to George Washington (Oct. 7, 1787), in 8 id. at 43, 44 (“The

Judiciary of the United States is so constructed & extended, as to absorb & destroy the

Judiciarys of the several States.”).

The Judiciary Act of 1789 granted the first federal courts the power to hear contro-

versies between citizens of different states and controversies between citizens of a state and

foreign citizens, provided that the suit met a threshold jurisdictional requirement of $500

and one of the parties was a resident of the forum state. See Judiciary Act of 1789, ch. 20,

§ 11, 1 Stat. 73, 78 (codified as amended at 28 U.S.C. § 1332).

The federal judiciary is established in Article III of the Constitution, which provides

for the creation of one Supreme Court and “such inferior Courts as the Congress may from

time to time ordain and establish.” U.S. C

ONST

. art. III, § 1. In the Judiciary Act,

Congress created a two-tiered system of courts to handle all those cases of original jurisdic-

tion that were not expressly reserved to the Supreme Court. See §§ 9–11, 1 Stat. at 76–79

(codified as amended in scattered sections of 28 U.S.C.). The first level, the district courts,

dealt almost exclusively with maritime claims. § 9, 1 Stat. at 76. The second level, the

circuit courts, handled minor appeals from the district court level and tried the vast major-

ity of nonmaritime cases. See § 11, 1 Stat. at 79 (outlining jurisdiction of circuit courts).

See, e.g., Charles Warren, New Light on the History of the Federal Judiciary Act of

1789, 37 H

ARV

. L. R

. 49, 81 (1923) (“There was no part of the Federal jurisdiction which

had sustained so strong an attack from the Anti-Federalists . . . as that which gave them

power over ‘controversies between citizens of different States.’”).

See, e.g., Wythe Holt, The Origins of Alienage Jurisdiction, 14 O

KLA

. C

ITY

U. L.

. 547, 548 (1989) (arguing that diversity jurisdiction over suits involving foreign citizens

was “the single most important grant of national court jurisdiction embodied in the [Judi-

ciary Act of 1789]”); see also Johnson, supra note 2, at 3 (arguing that authorization of

federal courts to hear alienage cases from inception—and absence of such authorization

for federal questions until 1875—“suggests that the leaders of the young nation attached

special importance to alienage jurisdiction”).

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October 2007] THE ORIGINS OF DIVERSITY JURISDICTION 1003

the fact that the state courts were deemed perfectly adequate to adju-

dicate federal questions for nearly a century.

This Article addresses

that gap in our understanding by focusing on an aspect of early

American judicial history that has been largely ignored in debates

about the origins of diversity jurisdiction and the lower federal courts,

i.e., the jury. As this Article will demonstrate, the key to under-

standing the origins of diversity jurisdiction is to recognize the dra-

matic ways in which federal juries were intended to differ from their

state counterparts.

All existing accounts of the origins of diversity jurisdiction are

fundamentally deficient in their overreliance upon putative differ-

ences between the state and federal benches.

Even if the architects

of the federal courts expected the federal bench to be superior in

some sense to its state court counterparts, the fact remains that juries,

rather than judges, were most responsible for deciding cases in the

courts of eighteenth-century America.

Unlike today, for example,

the juries of the eighteenth century generally exercised the right to

decide issues of law as well as those of fact.

Virtually all of the tech-

niques used by the modern bench to control juries would have been

unacceptable to eighteenth-century practice.

Furthermore, one of the Framers’ principal goals at the

Constitutional Convention was to construct a form of federal govern-

ment that could check the operation of unrestrained democracy in the

states.

To many Framers, state court juries were a particularly

glaring example of the risks associated with allowing ordinary citizens

too much control over the governance of the nation. As an autono-

mous body of common citizens operating with an almost unfettered

power to decide legal controversies,

juries represented one of the

most direct, and therefore dangerous, forms of democracy at the time.

One twentieth-century commentator queried: “Why—a mystery truly dark—why

did the Congress of 1789 provide that appellate jurisdiction should be sufficient in federal

question cases while there should be trial court jurisdiction in diversity cases?” John P.

Frank, Historical Bases of the Federal Judicial System, 13 L

& C

ONTEMP

. P

ROBS

. 3, 28

(1948).

See infra notes 88–112 and accompanying text. Some articulations of the modern

view rely upon choice-of-law considerations. However, these articulations ultimately also

rely upon purported differences between the federal and state benches because they

largely assume that the bench—not the jury—would have been responsible for deter-

mining which substantive law was applied in the courts. See infra notes 90–98 and accom-

panying text.

See infra Part II.A.3.

See infra notes 145–52 and accompanying text.

See infra notes 151–75 and accompanying text.

See infra notes 183–88 and accompanying text.

See infra notes 148–82 and accompanying text.

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1004 NEW YORK UNIVERSITY LAW REVIEW [Vol. 82:997

It is far more likely, therefore, that the Framers’ determination to

create the lower federal courts and bestow them with diversity juris-

diction was attributable to their desire to circumvent state court juries

rather than state judges or legislatures. Although individual juries

decided private disputes, in the aggregate those private disputes had

far-reaching political, social, and economic repercussions for the

entire nation.

The creation of the lower federal courts effectively circumvented

state court juries because it bestowed federal officials with the power

to dictate the composition of federal juries. Throughout the eight-

eenth century, it was not an uncommon practice for those who con-

trolled the courts to manipulate the composition of juries.

At the

time of the Constitutional Convention, the majority of states provided

local sheriffs with virtually unlimited discretion to impanel juries of

their own choosing.

The Framers knew that simply adopting the

prevailing contemporary state practice would provide federal mar-

shals—the analogues of state sheriffs—with a plenary power to dictate

the compositions of federal juries. Similarly, the Framers would have

known that it would be a simple task for those administering the fed-

eral courts to dictate the geography of the federal jury pools and, in so

doing, to pervasively control the political, economic, and social com-

position of the federal juries.

As this Article will explain, the composition of federal juries was

in fact controlled and manipulated by federal officials during the first

several decades of the federal courts’ existence.

The early federal

marshals appointed by Washington and Adams were prominent polit-

ical figures who repeatedly selected federal juries with political, eco-

nomic, and social orientations that resembled their own.

addition, the architects of the federal courts ensured that the

demographics of federal jury pools differed radically from their state

court counterparts by providing that federal juries would be drawn

overwhelmingly from the urban commercial centers of the country.

These cities were the primary sources of support for the new

Constitution during the ratification period

and offered a much larger

pool of wealthy, professional, and college-educated jurors than did the

See infra Part III. During the period leading up to the Revolution, for example, the

compositions of American juries were often manipulated by American patriots as a means

of frustrating British policy. See infra Part II.A.2.

See infra note 257 and accompanying text.

See infra Part III.

See infra notes 259–310 and accompanying text.

See infra note 389 and accompanying text.

See infra note 432 and accompanying text.

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October 2007] THE ORIGINS OF DIVERSITY JURISDICTION 1005

rural state interiors that supplied the majority of state court jurors.

As a result, the federal officials’ control over the geography of federal

jury pools ensured that the jurors who sat in federal court would

resemble the nation’s early elites far more closely than did the jurors

who sat in state court. Federal jurors were more likely to be wealthy,

educated, urban, and lawyers or other professionals, and they were far

more likely to favor a vigorous (or at least viable) form of federal

government than their state counterparts.

The crucial point is that this manipulation and control over the

composition of federal juries during the first several decades of the

federal courts’ existence was neither unforeseen nor unintended. The

federal officials’ power to control the composition of federal juries

was eminently foreseeable in 1787, and was entirely consistent with

the Framers’ overarching purpose of creating a federal government

that would check the operation of direct democracy in the states. In

fact, many of those responsible for controlling the composition of fed-

eral juries during the early decades of the federal courts’ existence

were Framers themselves.

Just as the proponents of the Constitution believed that various

factors would make the federal legislature and executive superior to

their state counterparts—for example, nationwide presidential elec-

tions by electors, a relatively small Congress populated by a more elite

class of legislators, a more deliberative Senate, larger congressional

districts that diffused the influence of “factions,” etc.—the Framers

believed that the tight control maintained by federal officials over the

selection of juries in federal courts would transform the federal courts

into a superior forum, i.e., one that was more aligned with the values

and perspectives of the Framers than the state courts. Whereas the

mass of ordinary citizens might have had the power to issue the final

word in state court cases, federal officials could judiciously exercise

their control over federal jury compositions to ensure that only the

“better sort” of Americans would decide cases in the federal courts. It

was this desire to ensure that important cases were decided by these

jurors, rather than a putative desire to wrest cases away from state

benches or state legislatures, that constituted the single most impor-

tant driving force behind the creation of diversity jurisdiction.

Part I of this Article summarizes existing accounts of the origins

of diversity jurisdiction and explores their common central weakness,

i.e., their overemphasis on putative differences between the state and

federal benches. Part II briefly surveys the powers and prerogatives

of eighteenth-century juries and discusses the Framers’ perception

See infra text accompanying notes 433–40.

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1006 NEW YORK UNIVERSITY LAW REVIEW [Vol. 82:997

that state court juries were a particularly dangerous manifestation of

direct democracy. Part III explores the various ways in which the fed-

eral courts were established to draw jurors whose political, economic,

and social compositions differed dramatically from their state court

counterparts. In particular, Part III.A focuses on the federal jury

selection procedures as implemented by those who created and

administered the early federal courts. Part III.C focuses on ways in

which the composition of federal juries was controlled by virtue of the

geography of the early federal jury pools. To facilitate the comparison

between federal and state jury pools, a detailed empirical study was

conducted of the juror population of the New York federal circuit

court between the years of 1791 and 1808. The results of this study are

provided in Parts III.B and III.C.3.

AILURES OF THE

XISTING

CCOUNTS OF THE

RIGINS

IVERSITY

URISDICTION

A. Deficiencies in the Traditional “State Bias” Account

for the Origins of Diversity Jurisdiction

The traditional justification for diversity jurisdiction is based on

the notion that the federal courts were necessary to provide an

“impartial” federal forum that would allow litigants to avoid state

prejudices inherent in the state courts.

The validity of this tradi-

tional account has been repeatedly challenged by modern scholars.

Richard Posner, for example, has pointed out that the configuration of

the diversity statute—from the first Judiciary Act to today—suggests

that bias must have “played a smaller role in the creation of diversity

jurisdiction than is assumed today . . . .”

Others, such as Henry

Friendly, have challenged the view’s essential premise that the state

See, e.g., Pappas v. Middle Earth Condo. Ass’n, 963 F.2d 534, 539 (2d Cir. 1992)

(“Diversity jurisdiction . . . was in the view of some scholars instituted to obviate the fear

that state courts would be prejudiced against out-of-state litigants. . . . [D]iversity jurisdic-

tion has traditionally been justified on this basis.” (citation omitted)).

ICHARD

A. P

OSNER

, T

EDERAL

OURTS

: C

RISIS AND

EFORM

141 (1985). The

logic of the “impartiality” justification is that out-of-state parties would suffer from state

court bias in favor of in-state parties. From this perspective, one would expect a rule

allowing an out-of-state party to invoke federal jurisdiction as a protective measure when

litigating against an in-state opponent. Conversely, one would not expect the in-state

party—who would likely benefit from the purported bias—to be able to invoke diversity

jurisdiction. The Judiciary Act, however, allowed anyone to invoke diversity, provided

only that one of the parties be from the forum state. Judiciary Act of 1789, ch. 20, § 11, 1

Stat. 73, 78. In-state parties—the supposed beneficiaries of “local prejudice” in the state

courts—were thus allowed to invoke federal jurisdiction when suing or defending against

an out-of-state party. See §§ 11–12, 1 Stat. at 78–79 (codified as amended at 28 U.S.C.

§ 1332).

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October 2007] THE ORIGINS OF DIVERSITY JURISDICTION 1007

courts were biased against out-of-state litigants. According to

Friendly, the historical record reveals little evidence that any such

prejudices existed or that state bias was the source of the Framers’

dissatisfaction with state courts.

Proponents of the “state bias” view have relied upon various

statements offered during the ratification period to defend their posi-

tion. In The Federalist No. 80, for example, Alexander Hamilton

argued:

[I]t is necessary that [the] construction [of the privileges and immu-

nities clause in Article IV] should be committed to that tribunal

which, having no local attachments, will be likely to be impartial

between the different states and their citizens, and which, owing its

official existence to the union, will never be likely to feel any bias

inauspicious to the principles on which it is founded.

Similarly, James Madison offered the following defense of diver-

sity during the Virginia ratification convention:

It may happen that a strong prejudice may arise in some States,

against the citizens of others, who may have claims against them.

We know what tardy, and even defective administration of justice,

has happened in some States. A citizen of another State might not

chance to get justice in a State Court, and at all events he might

think himself injured.

It is important to remember the context in which these state-

ments were made. Both were public statements intended to answer a

barrage of criticism levied against the Constitution’s proposal of a fed-

eral judiciary, and both were made at a time when the ratification of

the document was still very much in question.

In 1969, the American Law Institute recommended that the diversity jurisdiction

statute be amended to prohibit its invocation by in-state litigants. S

TUDY OF THE

IVISION

URISDICTION

ETWEEN

TATE AND

EDERAL

OURTS

§ 1302 (1969). Nonetheless, the

diversity statute continues to allow in-state parties to invoke the jurisdiction.

Henry J. Friendly, The Historic Basis of Diversity Jurisdiction, 41 H

ARV

. L. R

. 483,

493–94 (1928).

EDERALIST

. 80, at 486 (Alexander Hamilton) (Bantam Books 1982).

10 D

OCUMENTARY

ISTORY OF THE

ATIFICATION

, supra note 12, at 1414. Chief

Justice Marshall used similar language in a judicial opinion issued shortly after the

Constitution’s adoption:

However true the fact may be, that the tribunals of the states will administer

justice as impartially as those of the nation, to parties of every description, it is

not less true that the constitution itself either entertains apprehensions on this

subject, or views with such indulgence the possible fears and apprehensions of

suitors, that it has established national tribunals for the decision of controver-

sies between aliens and a citizen, or between citizens of different states.

Bank of the U.S. v. Deveaux, 9 U.S. (5 Cranch) 61, 87 (1809).

Virginia’s ratifying convention, in which Madison made his statements, was pivotal to

the Constitution’s ultimate adoption and acceptance by the nation. See, e.g., Alan V.

Briceland, Virginia: The Cement of the Union, in T

ONSTITUTION AND THE

TATES

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1008 NEW YORK UNIVERSITY LAW REVIEW [Vol. 82:997

Even assuming that we can take these statements at face value,

however, neither statement provides definitive support for the “state

bias” account of diversity. The statements suggest that Hamilton and

Madison believed, and expected their opponents to agree, that there

was a propensity on the part of state courts to favor their own

residents. Neither statement, however, directly supports the conten-

tion that state biases or prejudices were the cause of this favoritism.

Hamilton referred to local attachments rather than state attachments.

Madison referred to a “prejudice” against citizens of other states but

never identified the source of this prejudice. As a matter of fact, the

most salient divisions in America at the time were not along state

lines. Madison himself maintained that the most significant divisions

in American society at the time were economic, social, and political.

In The Federalist No. 10, he argued:

[T]he most common and durable source of factions, has been the

various and unequal distribution of property. Those who hold, and

those who are without property, have ever formed distinct interests

in society. Those who are creditors, and those who are debtors, fall

under a like discrimination. A landed interest, a manufacturing

interest, a mercantile interest, a monied interest, with many lesser

interests, grow up of necessity in civilized nations, and divide them

into different classes, actuated by different sentiments and views.

The divisions identified by Madison had little to do with lines

drawn on a map. An owner of a small tract of land in upstate New

York would likely have shared more interests in common with a simi-

larly situated farmer in Massachusetts than with a merchant in

Manhattan. It is far more likely, therefore, that proponents of diver-

sity jurisdiction like Hamilton and Madison were referring to these

deeper divisions in American society when they referred to the “local

attachments” and “biases” that, in their view, affected the state courts.

It is quite possible that the Framers themselves, confident in their

own vision for the young nation’s long-term prosperity, would have

OLE OF THE

RIGINAL

HIRTEEN IN THE

RAMING AND

DOPTION OF THE

ED-

ERAL

ONSTITUTION

201, 210 (Patrick T. Conley & John P. Kaminski eds., 1988) (“[M]any

observers became convinced that Virginia held the key to the whole ratification ques-

tion.”). Virginia’s ratification—which came only by a narrow vote of eighty-nine to sev-

enty-nine—remained in doubt until the last stages of that convention. R

ICHARD

ERNSTEIN WITH

S. R

ICE

, A

ATION

? T

AKING OF THE

ONSTITUTION

208–11 (1987).

Completed bound volumes of The Federalist, in which Hamilton’s statement appeared,

were published by May 1788, before a sufficient number of states had ratified and prior to

the crucial conventions in Virginia and New York. See id. at 234 (noting that last eight

essays of The Federalist were written in great haste to “arm every prominent Federalist” at

Virginia’s ratifying convention).

EDERALIST

. 10 (James Madison), supra note 34, at 52–53.

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October 2007] THE ORIGINS OF DIVERSITY JURISDICTION 1009

been willing to denigrate those views inconsistent with their own as

“prejudices.”

Hamilton and Madison, after all, were skilled propa-

gandists. The public disparagement of the interests of a contrary con-

stituency in terms such as “prejudice” or “bias” was not a new

phenomenon in 1787, just as it is neither a new nor completely ineffec-

tive practice in today’s political world. That said, we must resist the

temptation to interpret this historical struggle solely through the lens

of those who emerged victorious. In today’s world of bankruptcy pro-

tections, farm subsidies, and the Federal Reserve, it would be disin-

genuous to characterize efforts to protect agrarian interests, to ease

the plight of debtors, and to use currency to stimulate the economy as

instances of “prejudice.”

An additional flaw of the traditional account is that it relies virtu-

ally exclusively on the federal bench for its explanation of diversity’s

origins. Because federal juries were drawn entirely from the same in-

state population that was supposedly biased against those from other

states,

proponents of the traditional view have focused on the fed-

eral bench to account for the federal courts’ putative “impartiality”

toward out-of-state residents.

As Friendly pointed out, however, the

historical evidence does not support the essential premise of the con-

ventional view: that state judges were prone to favor their own

Cf. Wythe Holt, “To Establish Justice,” Politics, The Judiciary Act of 1789, and the

Invention of the Federal Courts, 1989 D

UKE

L.J. 1421, 1425–26. In describing the confron-

tation between the different economic interests, Holt notes:

During this period, creditors and proto-capitalistic elements were confronted

with state legislatures and courts that responded in a more or less democratic

fashion to the needs and desires of an essentially debtor-oriented, pre-capi-

talist majority of the citizenry. The creditor element . . . viewed such activity as

dangerous, contemptibly immoral, and the product of irrational, localistic bias.

Id.

Cf. G

ORDON

S. W

OOD

, T

ADICALISM OF THE

MERICAN

EVOLUTION

140

(1991) (arguing that Rhode Island offered most extensive legislation for relief of debtors

precisely because it was “the most liberal, the most entrepreneurial, and the most ‘modern’

of the eighteenth-century colonies”).

In order to serve as a juror in federal court, one had to be eligible for jury service in

their state’s court, which meant, among other things, that one was necessarily a resident of

the forum state. See Judiciary Act of 1789, ch. 20, § 29, 1 Stat. 73, 88 (codified as amended

in scattered sections of 28 U.S.C.) (describing federal juror eligibility).

See, e.g., Orie L. Phillips & A. Sherman Christenson, The Historical and Legal Back-

ground of the Diversity Jurisdiction, 46 A.B.A. J. 959, 962 (1960) (arguing that diversity

jurisdiction was intended in part to provide litigants with access to federal judiciary

“independent and free from political pressures, local prejudice and local attachments”); see

also Bank of N.Y. v. Bank of Am., 861 F. Supp. 225, 229 (1994) (“The raison d’etre of

diversity jurisdiction is to guard against the possibility that state court judges will treat

litigants from the forum state more favorably than out-of-state adversaries.”).

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1010 NEW YORK UNIVERSITY LAW REVIEW [Vol. 82:997

residents.

Furthermore, had the architects of the federal judiciary

been so concerned about the neutrality or competency of the state

benches, it seems illogical that they would have entrusted the state

courts with the exclusive power to interpret the U.S. Constitution and

the laws of Congress at the trial level.

More fundamentally, this reliance on the federal bench to explain

the origins of diversity is anachronistic. As we shall see in the fol-

lowing sections, eighteenth-century juries possessed a wide variety of

prerogatives that rendered judges largely powerless to enforce their

own judgments against the will of the local jury.

B. The “Friendly Revolution”: The Modern Pro-Creditor Accounts

for the Origins of Diversity Jurisdiction

Despite its flaws, the traditional “state bias” account of the ori-

gins of diversity remained the dominant view until 1928, when Henry

Friendly published The Historic Basis of Diversity Jurisdiction.

Friendly rejected the conventional view that the federal courts were

intended to provide a more “impartial” forum and argued instead that

the original purpose of diversity jurisdiction was to provide a federal

forum that would be favorable to the interests of creditors and com-

mercial parties.

In order to assess both the strengths and failings of

See Friendly, supra note 33, at 493 (“[S]uch information as we are able to gather

from the reporters entirely fails to show the existence of prejudice on the part of the state

judges.”).

One reply to this point would be that they were relying upon the Supreme Court to

reverse wayward state judiciaries. There are several weaknesses in this answer. First, the

Supreme Court’s review applied only to cases where a federal right was denied, thus

depriving the Court of the chance to consider a large number of potentially important

cases. Second, its docket was at the mercy of litigants’ willingness and ability to pursue

costly appeals. Finally, and most importantly, if the state judiciaries really were biased,

there was the danger that they would simply find ways around the Supreme Court’s

precedent.

Friendly, supra note 33.

See id. at 498 (“[T]he commercial interests of the country were reluctant to expose

themselves to the hazards of litigation before [the state courts]. [Those courts] might be

good enough for the inhabitants of their respective states, but merchants from abroad felt

themselves entitled to something better.”). Some have sought to harmonize Friendly’s pro-

creditor account with the traditional view by characterizing the state courts’ propensity to

favor debtors as a form of bias or prejudice. See, e.g., Barton H. Thompson, Jr., The His-

tory of the Judicial Impairment “Doctrine” and Its Lessons for the Contract Clause, 44

TAN

. L. R

. 1373, 1384 (1992) (“Federal courts were awarded diversity powers in part

out of fear that state courts would not always be impartial, and this fear focused almost

entirely on lawsuits over debts and other contractual obligations.”). As discussed in the

text, however, it would be a mistake to characterize the legitimate political, economic, and

social interests of large segments of American society as “prejudices” merely because such

language was in the political discourse of the era. It would also appear to be inaccurate to

claim that the federal courts were originally intended to be more “impartial” than the state

courts if their creation was motivated by a desire to favor one set of political and economic

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October 2007] THE ORIGINS OF DIVERSITY JURISDICTION 1011

this theory, it is necessary to briefly recount its historical

underpinnings.

1. The Historical Background of Friendly’s Account

a. Post-Revolution Debt and Depression

The United States suffered significant economic instability in the

years leading up to the Constitutional Convention.

The American

states had gone deeply into debt in order to finance the Revolutionary

War,

and the new levels of taxation that were imposed to pay off the

state debts were burdensome on the general population.

The plight

of taxpayers was compounded by the fact that the American economy

was in a severe depression between 1784 and 1786.

Optimism

during the war years had led many to borrow money in order to fuel

enterprise and consumption.

Furthermore, the renewal of trade

interests over another. The most accurate reading of Friendly’s view, therefore, is that

diversity jurisdiction represented a political triumph of one set of interests over another.

See, e.g., A

LLAN

EVINS

, T

MERICAN

TATES

URING AND

FTER THE

EVOLUTION

1775–1789, at 515 (1924) (“In these two years [1785–86] the country felt itself

full in the trough of the economic depression that had swept over it like a wave in since

1781.”).

The state debts were staggeringly large by the standards of the times. See M

ERRILL

ENSEN

, T

ATION

: A H

ISTORY OF THE

NITED

TATES

URING THE

ONFEDERATION

1781–1789, at 303–04 (1950) (reporting that Pennsylvania’s debt was

£4,641,535 as of 1787; New York’s was approximately £1,000,000 as of 1790; Virginia’s was

estimated at £4,251,283 as of 1784; Connecticut’s was approximately $3,750,000 as of 1783;

and Massachusetts’s was £1,468,554 as of 1785). The debts were owed to private creditors

who had financed the war effort, to former holders of the states’ paper money, and to

soldiers for back or inadequate pay. Id. at 303. Some of the debt was contracted when the

states pulled in paper money that they had issued during the war. The paper money was

often converted, at a great discount, into interest-bearing debt. Id.

The federal government had gone into debt during the war as well. The Continental

Congress had issued $240,000,000 worth of notes. N

EVINS

, supra note 46, at 470–71. That

debt had been largely repudiated by 1787, however, as a result of rampant inflation and the

recall of notes at a forty-to-one ratio. Id. at 471–72. The repudiation of the federal debt

left some Americans who had helped finance the war destitute. Id. at 472 & n.3; see also

ENSEN

, supra, at 235 (describing post-Revolution collapse of paper currency).

See, e.g., J

ENSEN

, supra note 47, at 304–11 (describing increasing severity and unfair-

ness of state tax burdens, especially in Massachusetts, between 1777 and 1787).

Id. at 187 (“By the spring of 1784 the glutted market, the scarcity of specie, and the

overextension of credit all combined to produce a serious commercial depression . . . .”);

EVINS

, supra note 46, at 518 (“During 1785–86 the wave of economic discouragement

reached its crest in all the States; depression and pessimism were converted in many com-

munities into desperation.”); W

OOD

, supra note 39, at 249 (“The collapse of internal mar-

kets and the drying up of paper money meant diminished incomes, overextended

businesses, swollen inventories of recently imported manufactures, and debt-laden farmers

and traders.”); Holt, supra note 38, at 1445 (“[A] deep recession commenced in late 1784

and lasted into the 1790s. For the average farmer or planter or rural householder, there

was nothing to pay debts with and a lot of debts to pay.”).

OOD

, supra note 39, at 248 (“Debt . . . emerg[ed] as a symptom of expansion and

enterprise. Farmers, traders, and others in these revolutionary years borrowed money, just

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1012 NEW YORK UNIVERSITY LAW REVIEW [Vol. 82:997

relations with England in 1783 helped drain the nation of its hard cur-

rency, as Americans eagerly imported goods that had been scarce

during the war.

Then, as the price of goods dropped in the

depressed economy of the post–Revolutionary War era, creditors

pressed for the satisfaction of their debts and debtors often found

themselves squeezed by an economy that demanded hard money but

offered little in circulation.

b. Agrarian Unrest and the Paper Money Debate

Farmers, in particular, suffered during the depression years

between 1784 and 1786, and an alarming percentage were being

driven into bankruptcy by the combination of public taxes and private

creditors.

Rural opposition to the new taxes was intensified by the

fact that public debts had been consolidated into the hands of a rela-

tively small number of wealthy speculators who had purchased the

debts (often from veterans) at large discounts.

Furthermore, the

new taxes raised to pay off the debts were often disproportionately

burdensome for small farmers by virtue of the states’ reliance on poll

taxes and inequitable methods of assessment.

On several occasions

as they married earlier and had more children than ever before, because they thought the

future was going to be even better than the present.”).

After the peace of 1783, many Americans were anxious to import various goods that

had been scarce during the war. British and other foreign goods poured into the country

far more quickly than American goods were exported, and the trade imbalance drained the

country of its specie. N

EVINS

, supra note 46, at 516 (“Because there was no national

coinage of specie, and a steady purchase of goods from overseas was maintained, the busi-

ness and agricultural depression was accompanied by a stringency of hard money.”).

See P

ETER

J. C

OLEMAN

, D

EBTORS AND

REDITORS IN

MERICA

115 (1974) (“Two

or three debtors [in New York] petitioned for relief each week in 1784 and 1785; by 1786

the number soared in some periods to as many as thirty-five a day. Sheriffs busily auc-

tioned off property; jails became crowded with defaulters.”); J

ENSEN

, supra note 47, at 240,

314 (describing how farmers operated in barter system that brought in little hard money

with which to pay debts and taxes); N

EVINS

, supra note 46, at 527 (“Money lenders charged

double interest, demanded double security, and insisted upon collecting their loans on the

day they fell due. Lands and houses, put in the market by poor devils who had not a ready

six-pence, brought only half their real worth.”).

See J

ENSEN

, supra note 47, at 240 (“[M]any a farmer who saw little hard money . . .

was subject to court action, the loss of property, and even a debtor’s prison, not only for his

taxes but for private debts as well.”). The plight of farmers was particularly acute in

Massachusetts, where the legislature levied heavy taxes that disproportionately burdened

farmers. Id. at 308. At least a third of the average farmer’s income went to taxes, id., and

in one western Massachusetts town, the farmers’ tax burden equaled the entire rental value

of their land for each of five consecutive years, N

EVINS

, supra note 46, at 536.

E.g., J

ENSEN

, supra note 47, at 306; see also id. at 308 (stating that mercantile-credi-

tors who owned majority of public debt in Massachusetts opposed efforts to alleviate tax

burdens on farmers in that state).

E.g., id. at 305–06. For example, land was often taxed on the basis of total acreage,

without any reference to the value of the land. Id. at 305.

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October 2007] THE ORIGINS OF DIVERSITY JURISDICTION 1013

during this period, frustration and desperation in agrarian communi-

ties boiled over into social unrest, the most famous instance of which

was the rebellion of rural farmers in western Massachusetts led by

Daniel Shays in 1786.

The economic hardships of 1785 and 1786 led many distressed

individuals, particularly those in America’s agrarian communities, to

seek relief from their state legislatures.

Among other things, these

constituents pressed for the public issuance of paper money.

State

issuance of paper currency promised to alleviate the plight of

debtors—particularly debtor farmers—in several ways.

First, paper currency could be issued by the states to pay interest

on public debts, thereby alleviating the need for additional taxation on

the general population.

Second, paper notes could be issued as

mortgage loans, thereby enabling property-owning farmers to ward

off tax collectors and private creditors alike.

Third, increasing the

amount of currency in circulation was thought by some to be an essen-

tial ingredient for economic growth.

Debtors would benefit even

more if the new circulation resulted in inflation, as the relative value

of their debts would be lessened.

During this period, the vast majority of the American electorate

resided in the agrarian sections of the country that were hit hardest by

the economic difficulties of the mid-1780s and where the support for

paper money legislation was strongest.

As a result, seven state legis-

For detailed historical accounts of Shays’s Rebellion and the underlying economic

problems faced by farmers in Massachusetts, see generally D

AVID

P. S

ZATMARY

, S

HAYS

’

EBELLION

: T

AKING OF AN

GRARIAN

NSURRECTION

(1980), and R

OBERT

AYLOR

, W

ESTERN

ASSACHUSETTS IN THE

EVOLUTION

(1954). For brief accounts of

similar, if less notorious, uprisings in Connecticut, New Hampshire, Maryland, New Jersey,

Virginia, Vermont, Pennsylvania, and South Carolina, see S

ZATMARY

, supra, at 77–79,

124–26.

ENSEN

, supra note 47, at 240. Relief was often sought in the form of “stay laws, the

privilege of paying taxes in kind, and the issuance of paper money.” Id.

Id. at 314; see N

EVINS

, supra note 46, at 521 (discussing paper money debate in

Pennsylvania); id. at 524 (discussing farmers’ support for paper money legislation in

Georgia); id. at 535 (noting that the western part of Massachusetts was “especially aflame

with demand” for issuance of paper money).

ENSEN

, supra note 47, at 317.

Id.

See, e.g.,W

OOD

, supra note 39, at 249 (noting that calls for paper money came pri-

marily from those claiming that paper money could best meet needs of specie-poor

economy).

See J

ENSEN

, supra note 47, at 319–24 (explaining depreciating effect of new

circulation).

It is commonly estimated that ninety percent of the American population during this

period engaged in agriculture as a means of subsistence. F

ORREST

ONALD

, W

E THE

EOPLE

: T

CONOMIC

RIGINS OF THE

ONSTITUTION

359 n.3 (1992). However, some

sources put the figure closer to seventy-five percent. Id. at 359 & n.3.

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1014 NEW YORK UNIVERSITY LAW REVIEW [Vol. 82:997

latures enacted forms of paper money legislation in either 1785 or

1786 over vehement opposition from most creditors and those located

in the nation’s commercial centers.

Under most of these laws, paper

money was issued as interest payments on state debts and as mortgage

loans on farms and real estate.

The paper money was legal tender

that could then be used for the payment of taxes and, in most states,

the satisfaction of private debts.

Although the experimentation with

paper money proved moderately successful in relieving the burdens of

debtors in some states, the notes significantly depreciated in value

elsewhere.

This depreciation greatly devalued the holdings of credi-

tors and precipitated social turmoil in states such as Rhode Island.

2. The Superiority of Friendly’s Pro-Creditor Account over the

Traditional “State Bias” View

It was with this historical understanding that Friendly argued that

diversity jurisdiction was intended to favor those creditors and com-

The seven states were: Pennsylvania (1785), South Carolina (1785), North Carolina

(1785), New York (1786), New Jersey (1786), Georgia (1786), and Rhode Island (1786).

ENSEN

, supra note 47, at 316–24. For a discussion of urban opposition to paper money

legislation, see infra text accompanying notes 391–94.

See J

ENSEN

, supra note 47, at 316–27 (describing different features of paper money

legislation adopted by states during this period). Of the seven states that issued paper

money, five—Pennsylvania, New York, New Jersey, South Carolina, and Rhode Island—

issued at least a portion of the money as loans on real estate. Id. at 326. New York’s

legislation was fairly typical of the legislation passed at this time. New York issued

£200,000 in paper, £150,000 of which was loaned on real estate and £50,000 of which was

used to pay part of the interest due on the state and national debt owned by New York

citizens. Id. at 321. The real estate loans carried a five percent interest rate with one-tenth

of the principal due each year beginning in 1791. Id. at 322 n.20.

Id. at 321–22. The proposition that paper money could be used to satisfy private

debts was one of the more controversial aspects of such legislation, and two states,

Pennsylvania and South Carolina, did not provide that the paper money would be legal

tender for the payment of private debts. Id. at 318–19.

The successful states included Pennsylvania, South Carolina, and New York. See id.

at 317 (stating that Pennsylvania currency depreciated only seven and one-half percent in

its first year); id. at 319 (noting favorably that in South Carolina paper money was prefer-

able to specie by 1789); id. at 322 (describing New York paper money as successful due to

low level of depreciation). The issuances in North Carolina, New Jersey, Georgia, and

Rhode Island were considerably less successful. See id. at 320 (stating that North Carolina

issuance was marked by difficulties and significant depreciation); id. at 322–23 (describing

refusal of New York City and Philadelphia merchants to accept New Jersey paper money

and consequential substantial depreciation); id. at 323 (describing immediate depreciation

of Georgia’s money, which lost seventy-five percent of its value within one year); id. at

323–25 (describing difficulties of Rhode Island issuance).

See id. at 324–25 (describing range of social and political unrest that resulted when

creditors refused to accept paper money). The refusal of merchants to accept the paper

money was a prime cause of the legislation’s failure in several states. See, e.g., id. at 325

(“The Rhode Island debtors won a complete victory in passing legislation, but they were

defeated by the economic power of the merchants.”).

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October 2007] THE ORIGINS OF DIVERSITY JURISDICTION 1015

mercial parties whose interests were threatened in the state legislative

process. “In summary,” Friendly stated, “we may say that the desire

to protect creditors against legislation favorable to debtors was a prin-

cipal reason for the grant of diversity jurisdiction.”

In several important respects, Friendly’s account constitutes an

improvement over the traditional “state bias” view for the origins of

diversity. The empirical evidence suggests that the federal courts were

indeed more conducive to creditor interests than the state courts, and

that British creditors frequently utilized the federal courts during the

early decades of the nation’s existence.

In addition, Friendly’s

account is rooted in some of the most salient political, economic, and

social divisions that gripped American society at the time the

Constitution was written, i.e., divisions between creditors and debtors,

between obligors of public securities and those who made their pay-

ments possible through heavy taxation, and between proponents and

opponents of debtor relief legislation.

Friendly’s account of the origins of diversity jurisdiction is also

more consistent than the traditional “state bias” view with respect to

the defenses that were offered for diversity jurisdiction at the

Constitutional Convention and during ratification. At the

Constitutional Convention, for example, the states’ experimentations

with paper money were repeatedly cited as a justification for the new

federal government.

In his opening speech to the Convention,

Edmund Randolph referred to the “havoc” of paper money as a prin-

cipal shortcoming of the state of affairs under the Articles of

Friendly, supra note 33, at 496–97.

As soon as they were established, the federal courts in the South were flooded with

debt claims from British creditors. See D

WIGHT

F. H

ENDERSON

, C

OURTS FOR A

ATION

74–75 (1971) (describing how British creditors viewed opening of federal circuit

courts as “opportunity to commence . . . recovery of their debts”). The Circuit Court for

the District of Virginia adjudicated the single largest number of claims. According to

Henderson, 445 non-Virginian plaintiffs filed claims in the Virginia Circuit Court in the

years between 1790 and 1797. Id. at 76. Of these, 329 (74%) were citizens of Great

Britain, 76 (17%) were Americans from other states, 3 (1%) were foreigners not from

Great Britain, and 37 (8%) were parties of unknown citizenship. Id. at 75–76. Between

1790 and 1795, according to Henderson, British creditors obtained “approximately 500

favorable judgments” in the Virginia Circuit Court alone. Id. at 77. In the South Carolina

Circuit Court, a British creditor secured a $53,902.48 jury verdict against South Carolinian

defendant-debtors. Id. at 79–80. The favorable early verdicts precipitated a large number

of subsequent settlements. Id. at 82.

See, e.g., 2 R

ECORDS OF THE

EDERAL

ONVENTION

, supra note 11, at 7, 308–10

(describing strong opposition to paper money by delegates such as Gouverneur Morris,

George Mason, Edmond Randolph, and Oliver Ellsworth and proposal to include in

Constitution prohibition preventing Congress from ever issuing paper money); see also

Letter from James Madison to Thomas Jefferson (Oct. 24, 1787), in 10 T

APERS OF

AMES

ADISON

206, 212 (Robert A. Rutland et al. eds., 1977) [hereinafter P

APERS OF

AMES

ADISON

] (arguing for importance of restraining “paper emissions”).

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1016 NEW YORK UNIVERSITY LAW REVIEW [Vol. 82:997

Confederation.

In an effort to prevent further innovations with

paper money, the delegates adopted Article I, Section 10 of the

Constitution, which provides that no state shall “make any Thing but

gold and silver Coin a Tender in Payment of Debts,”

and prohibited

the outright repudiation of public debts in Article VI, which provided

that all public debts existing under the Articles of Confederation

remained in force under the new Constitution.

The delegates also

attempted to curtail the states’ efforts to alleviate the burdens of pri-

vate debtors with the incorporation of the Contract Clause, which pro-

vides that no state shall pass any law “impairing the Obligation of

Contracts.”

During the state ratification debates, the need to protect creditors

was one of the most cited arguments supporting the creation of diver-

sity jurisdiction and the lower federal courts. In North Carolina, dele-

gate William Richardson Davie argued that, “It is necessary therefore

in order to obtain justice, that we recur to the judiciary of the United

States, where justice must be equally administered, and where a debt

may be recovered from the citizen of one state as soon as from the

citizen of another.”

Delegate Edmund Pendleton in Virginia argued

that diversity jurisdiction was necessary in order to protect creditors

from having to attempt to collect their debts in places such as Rhode

Island.

James Wilson of Pennsylvania asked the following of dele-

gates in his state’s ratification debates: “[I]s it not necessary, if we

mean to restore either public or private credit, that foreigners as well

as ourselves, have a just and impartial tribunal to which they may

resort?”

1 R

ECORDS OF THE

EDERAL

ONVENTION

, supra note 11, at 18.

U.S. C

ONST

. art. I, § 10, cl. 1.

U.S. C

ONST

. art. VI, cl. 1.

U.S. C

ONST

. art. I, § 10, cl. 1.

4 T

EBATES IN THE

EVERAL

TATE

ONVENTIONS ON THE

DOPTION OF THE

EDERAL

ONSTITUTION AS

ECOMMENDED BY THE

ENERAL

ONVENTION AT

HILADELPHIA IN

1787, at 159 (Jonathan Elliot ed., Philadelphia, J.B. Lippincott Comp.

1836) [hereinafter D

EBATES ON THE

DOPTION OF THE

EDERAL

ONSTITUTION

Pendleton argued:

But may no case happen in which it may be proper to give the Federal Courts

jurisdiction in such a dispute? Suppose a bond given by a citizen of Rhode-

Island, to one of our citizens. The regulations of that State being unfavorable

to the claims of the people of the other States, if he is obliged to go to Rhode-

Island to recover it, he will be obliged to accept payment of one-third, or less,

of his money.

10 D

OCUMENTARY

ISTORY OF THE

ATIFICATION

, supra note 12, at 1427–28; see also id.

at 1415 (quoting James Madison describing diversity jurisdiction as “favourable to those

States who carry on commerce”).

2 id. at 519.

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October 2007] THE ORIGINS OF DIVERSITY JURISDICTION 1017

The superiority of Friendly’s theories to the traditional “state

bias” account has led to growing acceptance (at least among aca-

demics) of Friendly’s basic tenet that the federal courts were intended

to favor creditors and commercial litigants.

As with the traditional

“state bias” account, however, the commercial/creditor accounts for

the origins of diversity jurisdiction are fundamentally flawed and ulti-

mately unpersuasive.

C. Failures of the Pro-Creditor Accounts

1. Myopic Emphasis on Commercial Issues and Creditor

Constituencies

The first fundamental error of the pro-creditor/commercial

accounts is that they assume that diversity jurisdiction was established

overwhelmingly, if not solely, in response to a single socioeconomic

issue and for the benefit of a single segment of the American public—

creditors. In light of the multiplicity of problems facing the nation at

this critical juncture, and in light of the fact that the Framers were

attempting to construct a form of government that would endure

beyond their own lifetimes, it is difficult to believe that any single

issue or constituency could have been responsible for the creation of

the lower federal courts and the establishment of diversity

jurisdiction.

In reality, the difficulties experienced by creditors were simply

one manifestation of a larger, more fundamental problem that the

Framers were trying to address in 1787. For the Framers, the use of

paper money by state legislatures to alleviate debtors’ burdens repre-

sented the failings of unrestrained democracy.

In the eyes of many

See, e.g., Patrick Borchers, The Origins of Diversity Jurisdiction, the Rise of Legal

Positivism, and a Brave New World for Erie and Klaxon, 72 T

. L. R

. 79, 81 (1993)

(“[D]iversity was intended at least in part as a protection against aberrational state laws,

particularly those regarding commercial transactions.”); Holt, supra note 38, at 1518

(“[T]he Constitution is . . . a nationalizing and creditor-oriented document, and the

national court system was there in large part because state courts could not be trusted to

handle creditors’ suits against debtors . . . .”); Johnson, supra note 2, at 6 (“[T]he Framers

ensured that foreigners had access to a national court system perceived as less susceptible

to the democratic impulse than the state courts.”); see also G

OEBEL

, supra note 10, at xx

(“The so-called diversity jurisdiction conferred upon the federal judicial [sic] had been con-

trived among other reasons to provide a forum where British creditors could pursue their

claims without impediment as covenanted in the treaty of peace.”); Frank, supra note 17, at

23–28 (describing with approval Friendly’s theory, which “casts doubt” on theory that

diversity jurisdiction was designed to counter biased state courts).

See W

OOD

, supra note 39, at 252 (“As far as [the political elites] were concerned, all

the paper money and debtor-relief legislation of the states were simply the consequence of

men using government to promote their private interests at the expense of the public

good.”); see also J

ENNIFER

EDELSKY

, P

RIVATE

ROPERTY AND THE

IMITS OF

MERICAN

ONSTITUTIONALISM

: T

ADISONIAN

RAMEWORK AND

EGACY

25 (1990)

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1018 NEW YORK UNIVERSITY LAW REVIEW [Vol. 82:997

Framers, debtor relief measures and paper money legislation

amounted to an unjust infringement on the property rights of a

minority (creditors) by a tyrannical majority (debtors).

When presenting his own plan for the Constitution, Hamilton

referred to paper money legislation and various other pro-debtor state

laws as primary examples of the ability of “the many” to oppress “the

few.”

South Carolinian Charles Pinckney argued that the U.S.

Senate should be elected by the state legislatures, rather than directly

by the people, because the legislature of South Carolina had displayed

enough “sense of character” to oppose popular pressures to make

paper money legal tender for the payment of private debts.

Many of the Framers viewed debtor-friendly state laws as prime

examples of how popular majorities in the new democracy were prone

to enact legislation that represented shortsighted public policy.

The

mistreatment of foreign and domestic creditors, it was feared, would

dry up sources of credit for the young nation and imperil the growth

(describing Madison’s concern for “the threats republican government posed to prop-

erty”); J

ACK

N. R

AKOVE

, O

RIGINAL

EANINGS

: P

OLITICS AND

DEAS IN THE

AKING OF

THE

ONSTITUTION

314 (1996) (“[Madison’s] concern about the security of private rights

was rooted in a palpable fear that economic legislation was jeopardizing fundamental

rights of property. Paper-money laws, debtor-stay laws, and the specter of Shays’s

Rebellion in Massachusetts all alarmed him terribly.”); G

ORDON

S. W

OOD

, C

REATION OF

THE

MERICAN

EPUBLIC

, 1776–1787, at 404 (1998) (“An excess of power in the people

was leading not simply to licentiousness but to a new kind of tyranny, not by the traditional

rulers, but by the people themselves—what John Adams in 1776 had called a theoretical

contradiction, a democratic despotism.”).

Jack Rakove writes:

The emission of an unsecured currency amounted to an ‘unjust’ . . . assault on

the rights of property; the more popular such measures appeared, the more

[James Madison] fretted that Americans were supporting a policy that would

‘disgrace Republican Govts. in the eyes of mankind.’ Given the force of this

concern, Madison was prone to suspect that the ‘great commotions’ in

Massachusetts were ultimately aimed toward ‘an abolition of debts public &

private, and a new division of property.’

AKOVE

, supra note 80, at 44 (quoting Letter from James Madison to James Madison, Sr.

(Nov. 1, 1786), in 9 P

APERS OF

AMES

ADISON

, supra note 71, at 153, 154).

See 1 R

ECORDS OF THE

EDERAL

ONVENTION

, supra note 11, at 288.

See 1 id. at 137.

Hamilton writes:

The states, by the plan of the convention are prohibited from doing a variety of

things; some of which are incompatible with the interests of the union, and

others with the principles of good government. The imposition of duties on

imported articles, and the emission of paper money, are specimens of each

kind.

EDERALIST

. 80 (Alexander Hamilton), supra note 34, at 484; see also R

AKOVE

supra note 80, at 47 (“One central conviction lay at the heart of [Madison’s] analysis.

Experience conclusively proved that neither state legislators nor their constituents could

be relied upon to support the general interest of the Union, the true public good of their

own communities, or the rights of minorities and individuals.”).

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October 2007] THE ORIGINS OF DIVERSITY JURISDICTION 1019

of the country’s fledgling economy and commerce.

The experience

of Rhode Island following its passage of paper money legislation was

cited as an example of the type of turmoil that could result from the

actions of a legislature that was too responsive to pressures from its

citizens—“too democratic.”

Given that the Framers viewed debt

relief legislation as only part of the greater problem of unrestrained

democracy, it is far more likely that the origins of diversity and the

creation of the lower courts are rooted in a comprehensive effort to

address the broader dangers of majoritarianism, rather than a short-

term solution to a particular subspecies of the problem.

2. Overreliance on the Federal Bench

After discrediting the notion that the state benches were inade-

quate, Friendly struggled to identify a substantive difference between

the federal and state courts that could account for the federal courts’

pro-creditor orientation. Friendly queried:

[W]hy should the federal courts reach any different result than

would those of the states? In either court the same rules of the

conflict of laws should be applied and the same decision given. But

the Federalists seem to have cherished a vague feeling that these

new courts would have none of paper money.

Friendly’s conundrum stems from the fact that his approach

shares a fundamental infirmity with the traditional “state bias”

account. As with the traditional accounts, he looked primarily (if not

exclusively) to the federal bench for the explanation of diversity juris-

diction’s origins and ignored the central role played by the jury in

eighteenth-century courts.

Friendly, for example, postulated that

See, for example, N

EDELSKY

, supra note 80, at 74, summarizing the views of the

Framers as being that, “[n]o one would want to risk money in a country whose government

could not be relied upon to uphold the just rights of property.”

In The Federalist No. 51, Madison wrote:

It can be little doubted, that if the state of Rhode Island was separated from

the confederacy, and left to itself, the insecurity of rights under the popular

form of government within such narrow limits, would be displayed by such

reiterated oppressions of factious majorities, that some power altogether

independent of the people would soon be called for by the voice of the very

factions whose misrule had proved the necessity of it.

EDERALIST

. 51 (James Madison), supra note 34, at 319; see also J

ENSEN

, supra

note 47, at 325 (“Outside the state, Rhode Island was pointed to as the most horrible

example of untrammeled democracy in action.”).

See infra notes 183–86 and accompanying text.

Friendly, supra note 33, at 495.

See id. at 493 (“Only if we could find that the state judges had been notoriously

unfair to foreigners, would we be in a position to place much faith in the genuineness of the

classical theory.”); see also Frank, supra note 17, at 28 (describing diversity jurisdiction as

motivated, in part, by desire to allow commercial interests to litigate in front of judges who

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1020 NEW YORK UNIVERSITY LAW REVIEW [Vol. 82:997

choice-of-law considerations might offer the key to understanding

diversity jurisdiction on the theory that the federal courts would

refrain from applying pro-debtor state laws in instances where those

same laws would be enforced by the state courts.

As an initial matter, it is questionable whether many Framers

actually believed that the federal courts would be free to disregard

state law in diversity cases.

While there are statements that suggest

that at least some of the Framers believed (or at least hoped) that the

federal courts would be free to apply their own choice-of-law or

common law norms in commercial disputes,

there is also evidence

that suggests that a number of influential Framers believed the federal

courts would apply the state’s substantive law in diversity cases.

Defending the diversity provision at Virginia’s ratification convention,

for example, John Marshall attempted to assure opponents of the

Constitution that the federal courts would faithfully apply the substan-

tive law of the states:

By the laws of which State will [a diversity claim] be determined,

said he? By the laws of the State where the contract was made.

According to those laws, and those only, can it be decided. . . . If a

man contracted a debt in the East-Indies, and it was sued for here,

the decision must be consonant to the laws of that country.

shared their interests); cf. Matthew P. Harrington, The Economic Origins of the Seventh

Amendment, 87 I

OWA

L. R

. 145, 209 (2001) (“[I]n preserving jury trial rights in cases

brought at law, [the Federalists] sacrificed a degree of legal certainty and opened the door

to having such claims nullified by local juries. In the end, it would be left to federalist

judges to devise some means of controlling jury verdicts.”).

See Friendly, supra note 33, at 496 (reasoning that, although conflict-of-laws rules

would presumably be same for both state and federal courts, state courts might apply laws

of their own state that were debtor-friendly to their residents even if debt at issue was

payable in another state); see also Borchers, supra note 79, at 98 (“The prevailing percep-

tion appears to have been that diversity courts were to have some freedom to apply laws

independent of state laws, particularly with regard to anticreditor legislation.”); Frank,

supra note 17, at 23–27 (“[D]rafters of Article III thought that the federal courts would

counterbalance the spirit of paper money and debt relief in state legislatures.”).

See, e.g., Borchers, supra note 79, at 97–98 (arguing that federal courts were

intended to apply different substantive law but conceding that historical records on

drafting and ratification of Constitution are not clear regarding law to be applied by diver-

sity courts).

See, e.g., 2 D

OCUMENTARY

ISTORY OF THE

ATIFICATION

, supra note 12, at 518–19

(statement of James Wilson at Pennsylvania ratifying convention) (“I would ask, how a

merchant must feel to have his property lay at the mercy of the laws of Rhode Island? I

ask further, how will a creditor feel, who has his debts at the mercy of tender laws in other

states?”); see also Borchers, supra note 79, at 97 & nn.138–39 (recounting statements by

Marshall and other Federalists implying support for diversity courts making their own

choice-of-law rules).

10 D

OCUMENTARY

ISTORY OF THE

ATIFICATION

, supra note 12, at 1434; see also

Letter from Edmund Pendleton to James Madison (July 3, 1789), in 16 D

OCUMENTARY

ISTORY OF THE

IRST

EDERAL

ONGRESS

927, 928–29 (Charlene Bangs Bickford et al.

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October 2007] THE ORIGINS OF DIVERSITY JURISDICTION 1021

In addition, section 34 of the Judiciary Act of 1789 (drafted in a

Senate where ten of the twenty-six members were Framers)

would

appear to require the federal courts to apply state law in diversity

suits,

although this interpretation of the language of the statute has

been challenged.

More importantly, these existing pro-creditor accounts for the

origins of diversity jurisdiction are fundamentally flawed because they

overlook the role of the jury. Even if we assume that the Framers

believed that there would be salient differences between the federal

and state benches,

and even if we grant that some of the Framers

hoped that these new federal judges would feel free to disregard sub-

stantive state law in commercial disputes and instruct federal juries to

do the same, none of the pro-creditor accounts for diversity’s origins

are persuasive, or even complete, because they are predicated on the

anachronistic misconception that juries in the post–Revolutionary

War era were controlled by the bench.

As we shall see in the next

section, it was the juries—not the judges—that decided cases and

chose the substantive law in the courts of eighteenth-century America.

eds., 2004) (“The Judges of the State Courts . . . have the same law to direct their decisions,

as the Fœdral . . . .”).

See infra note 246 and accompanying text (noting that three main drafters of Act had

attended Constitutional Convention).

See Warren, supra note 15, at 51–52, 81–88, 108 (concluding from historical analysis

that federal courts were meant to apply state law, both statutory and judge-made, in diver-

sity suits).

See W

ILFRED

J. R

ITZ

, R

EWRITING THE

ISTORY OF THE

UDICIARY

CT OF

1789, at

148 (Wythe Holt & L.H. LaRue eds., 1989) (“The one thing that can be said with assurance

is that Section 34 was not intended to apply exclusively to diversity proceedings; that it was

not intended to direct the application of the law of particular states in diversity proceed-

ings . . . .”); Borchers, supra note 79, at 101–10 (arguing that evidence contradicts conven-

tional interpretation of Section 34 as choice-of-law command in diversity suits); Holt, supra

note 38, at 1506–07 (same).

At least some of the Framers undoubtedly hoped that federal judges would be more

qualified, more professional, and more immune from political pressures than their state

court counterparts. See, e.g., T

EDERALIST

. 81 (Alexander Hamilton), supra note

34, at 495 (“State judges, holding their offices during pleasure, or from year to year, will be

too little independent to be relied upon for an inflexible execution of the national laws.”).

In terms of institutional differences between the two benches, Article II of the Constitution

provides that federal judges shall be appointed rather than elected. U.S. C

ONST

. art. II,

§ 2, cl. 2. Federal judges, furthermore, enjoy life tenure and may not have their salaries

reduced. U.S. C

ONST

. art. III, § 1.

Patrick Borchers, for example, concluded that diversity jurisdiction “would be a

weapon against this prejudice [of state jurors] only if it allowed federal courts to apply

different substantive rules in diversity cases,” Borchers, supra note 79, at 94, based on the

anachronistic assumption that “federal judges can still control to a significant degree the

fact-finding process with their power to grant new trials, to grant judgments notwith-

standing the verdict, to comment on evidence, and to instruct the jury,” id. at 87 n.50.

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1022 NEW YORK UNIVERSITY LAW REVIEW [Vol. 82:997

The problems creditors faced in state courts, after all, were not

simply the creation of state legislatures.

More fundamentally, the

creditors’ difficulties were caused by the widespread hostility felt

towards them by the majority of American citizens; the same majority

who pressured the state legislatures into enacting the sorts of pro-

debtor legislation discussed previously and who pressured state judges

to close courts where such legislation had not yet been passed.

100

Lawyers who sought to pursue claims on behalf of foreign creditors

were often the targets of mob violence.

101

In 1786, for example, an

angry crowd gathered at the courthouse in Charles County, Maryland,

to obstruct early attempts by British creditors to bring claims in that

state.

102

By virtue of their numbers, this majority who sympathized with

debtor constituencies was often able to dominate the juries which

decided cases in the state courts.

103

As a result, state court juries

To be sure, some of the creditors’ problems were the result of legislation. For

example, some states, for a time, barred claims by British creditors in their courts. See,

e.g., G

OEBEL

, supra note 10, at 196–97 (“Far from executing the terms of the Treaty of

Paris, they [many states] resorted to contrivances to obstruct the collection of debts by

British creditors . . . .”); Holt, supra note 38, at 1442 (describing legislation in South

Carolina that closed courts to British creditors from March 1783 to January 1785); id. at

1444 (describing actions by Virginia’s legislature that effectively closed state courts to

British creditors through 1787). Similarly, other states passed stay laws or laws that

reduced the amount of interest that creditors could lawfully recover. See, e.g., id. at 1441

(“Massachusetts and Connecticut acts allowed courts and juries to deduct wartime interest

from prewar British debts. Pennsylvania allowed executions for debts . . . to be made only

in three equal annual payments . . . .” (citation omitted)); id. at 1446–47 (describing South

Carolina “tender” laws of 1785 that required creditors to accept debtors’ offers of prop-

erty—often of minimal value—as full payment for existing debt); id. at 1454 (discussing

stay laws in South Carolina and Rhode Island). The jury, however, had the ultimate power

to interpret and enforce these state laws. A pro-creditor jury could simply circumvent

state laws that favored the debtor, see infra notes 158–70 and accompanying text, and a

pro-debtor jury would have no difficulty assisting debtors even in the absence of such legis-

lation, see infra notes 104–10 and accompanying text.

100

Cf. Holt, supra note 38, at 1441–42 (describing closure of courts in North Carolina

and Georgia to British creditors despite absence of legislation).

101

See, e.g., 31 J

OURNALS OF THE

ONTINENTAL

ONGRESS

1774-1789, at 786 (1934)

(“[T]he Lawyers, dreading the resentment of some of the most violent among their Coun-

trymen, have refused to engage in the recovery of these unpopular demands, and the Com-

mittee are well assured that not one Action for the payment of an old British debt has been

prosecuted in this State.”), quoted in Holt, supra note 38, at 1442 n.71; Holt, supra note 38,

at 1440–41 (describing actions by Americans in various states to intimidate lawyers and

creditors attempting to pursue legal claims for collection of debts owed to British lenders).

102

Holt, supra note 38, at 1449. In response to the mob, the lawyer representing the

creditor dismissed the claims and the local judge closed the court. Id. .

103

See, e.g., F. T

HORNTON

ILLER

, J

URIES AND

UDGES

ERSUS THE

: V

IRGINIA

’

ROVINCIAL

EGAL

ERSPECTIVE

, 1783–1828, at 7 (1994) (“Indebted farmers [in Virginia]

were tried by their peers, twelve honest, indebted farmers.”). An analysis of the District

Court in Prince Edward County, Virginia, in 1789 reveals that two-thirds of petit jurors had

also served on other juries within the same court session; that over half owned land in the

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October 2007] THE ORIGINS OF DIVERSITY JURISDICTION 1023

often ensured that creditors experienced little success even in those

courts that were accessible to them.

104

In New York and

Pennsylvania, for example, juries deducted wartime interest from

creditors’ claims even though no legislation in either state provided

for such a deduction.

105

In Virginia, both domestic and foreign credi-

tors had little hope of success, as the local juries tended to be domi-

nated by state residents who were debtors themselves.

106

George

Mason argued that the Virginia legislature should remove all formal

obstacles to the collection of British debts in its state courts because

the local juries could take it upon themselves to protect the interests

of Virginian debtors. In a 1783 letter to Virginia Governor Patrick

Henry, Mason stated:

I cou’d have wished indeed that some reasonable time had been

allowed for the Payment of British Debts, and that the Interest on

them had been relinquished. As to the first, the Desire of the

British Merchants to reinstate themselves in their Trade here, will

probably prevent their pressing their Debtors; and as to the last,

their Bond-Debts only will carry Interest. It is notorious that the

Custom of giving Interest upon common Accounts was introduced

by the Partiality of the Merchants, of whom the Jurys at the General

Court were chiefly composed for several Years before the late

Revolution. Under our present Circumstances, I think the

Accounts of British Creditors may be safely trusted to the Virginia

Jurys, without any Interposition of the Legislature.

107

Others undoubtedly shared Mason’s confidence, if not his

cheerful disposition, about the ability and propensity of state court

county in which the courthouse was located; and that one-fourth of the jurors had some

business transpiring in the courthouse during the same session—including instances where

jurors who were adjudicating debt actions were also defendants in debt actions being liti-

gated in the same court during the same session. Id. at 30.

104

See Matthew P. Harrington, The Law-Finding Function of the American Jury, 1999

. L. R

. 377, 397 (“Even when the courts were open, juries exercising their power to

find law as well as fact severely limited the ability of loyalists and British creditors to

collect debts incurred before the Revolution.”); Holt, supra note 38, at 1455–58

(“[P]opular concern about debt and depreciation, about speculation in land and the com-

mercial paper that evidences debts, and generally about the intrusion of capitalist values

into rural lives expressed itself in [inter alia] jury verdicts.”).

105

See Holt, supra note 38, at 1450 n.94 (citing cases in Pennsylvania and New York and

concluding that it was likely that judges and juries in other states “from Maryland north-

ward” also deducted interest during 1780s); see also infra note 152 (discussing jury disre-

gard of bench instructions to award interest to creditors).

106

Records of the District Court in Prince Edward County, Virginia, demonstrate that

creditor plaintiffs between 1789 and 1792 recovered damages in less than fifty percent of all

cases brought, and even when they received damages, in eighty-one percent of those cases

the damages did not include interest. M

ILLER

, supra note 103, at 37 tbl.3.

107

Letter from George Mason to Patrick Henry (May 6, 1783), in 2 T

APERS OF

EORGE

ASON

, 1725–1792, at 769, 771 (Robert A. Rutland ed., 1970).

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1024 NEW YORK UNIVERSITY LAW REVIEW [Vol. 82:997

jurors to protect the interests of debtors. As a result of the state court

venue rules of the era, creditors were forced to litigate their claims in

the debtors’ home communities.

108

The areas with the most debt

would likely have also been the most difficult venues for creditors to

collect their debts; juries in such courts would have been drawn

predominantly from those who were debtors themselves or were

closely associated with similarly situated debtors. As will be discussed

in the subsequent section, state court judges (whether or not they

were inclined to do so) would have been largely powerless to compel

verdicts that contradicted those imposed by the populist, pro-debtor

state court juries.

109

As one delegate argued in the South Carolina ratifying conven-

tion, the local jury was the most intractable problem creditors faced in

the state courts. In fact, this delegate went so far as to argue that jury

trials should be abandoned altogether in such diversity suits:

A suit is depending between a citizen of Carolina and Georgia, and

it becomes necessary to try it in Georgia. What is the consequence?

Why, the citizen of this state must rest his cause upon the jury of his

opponent’s vicinage, where, unknown and unrelated, he stands a

very poor chance for justice against one whose neighbors, whose

friends and relations compose the greater part of his judges. It is in

this case, and only in cases of a similar nature with this, that the

right of trial by jury is not established; and judging from myself, it is

in this instance only that every man would wish to resign it, not to a

jury with whom he is unacquainted, but to an impartial and respon-

sible individual.

110

In summary, their failure to account for the central role of the

jury has rendered modern pro-creditor accounts of diversity incapable

of offering a satisfactory explanation for why the early federal courts

were expected to be more sympathetic to creditors and commercial

litigants than early state courts.

111

The most that Friendly could say,

108

See infra notes 354–56 and accompanying text (explaining New York venue rules of

era).

109

See infra notes 151–75 and accompanying text.

110

Robert Barnwell, Remarks at the South Carolina Convention (Jan. 17, 1788), in 4

EBATES ON THE

DOPTION OF THE

EDERAL

ONSTITUTION

, supra note 76, at 291, 295.

111

The closest any scholar has come to exploring whether the composition of federal

juries was intended to differ from that of their state counterparts, or to suggesting that

these differences might have played a role in the creation of the federal courts, was when

Wythe Holt speculated that federal marshals “might select a different sort of jury.” Holt,

supra note 38, at 1458. Holt, however, did not analyze whether such differences actually

existed and did not address the ramifications of his observation. He therefore failed (in

this author’s view) to grasp the key component of the lower federal courts and the single

most important impetus behind the creation of diversity jurisdiction. In fact, in direct con-

tradiction to this author’s empirical findings, Holt concluded that the federal courts were

ultimately not as pro-creditor as the Framers had intended. See id. at 1427 (“[T]he greatest

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October 2007] THE ORIGINS OF DIVERSITY JURISDICTION 1025

for example, was that there was a “vague feeling” among the advo-

cates of diversity jurisdiction that the federal courts would be more

favorable to creditors and commercial parties.

112

It is only when we take the role of juries into account that the

origins of diversity jurisdiction come clearly into focus. Among other

things, an analysis of early federal juries reveals that there was

nothing “vague” at all about the pro-creditor orientation of the early

federal courts.

113

The perceived superiority of federal juries to state

juries in the Framers’ eyes, furthermore, was not limited to the ways in

which they favored creditors or even commercial litigants in general.

By virtue of their belief that federal juries would be drawn from “the

better sort” of society, the Framers had faith that the federal courts

would provide a superior alternative to state courts—not just with

respect to one issue and not just with respect to events that might

transpire during their own lifetimes.

114

Instead, the Framers had

reason to believe that, because of the juries that decided their cases,

the lower federal courts would be a superior forum for every type of

litigation that could arise under diversity jurisdiction, not just during

their own lives but for the life of the nation.

PPREHENSION OF

TATE

OURT

URIES

: T

RINCIPAL

OTIVATING

ORCE

EHIND THE

REATION OF

IVERSITY

URISDICTION AND THE

OWER

EDERAL

OURTS

A. The Powers and Prerogatives of Eighteenth-Century

American Juries

In order to appreciate the Framers’ concerns about state court

juries, it is necessary to summarize the powers and prerogatives that

surprise to be derived from the history of the invention of the national judiciary is that the

compromises written into the Judiciary Act of 1789 in large part favored debtors.”); see

also Harrington, supra note 104, at 402 (noting that marshals had power to select jury

panels—and may have favored certain types of jurors in their selections—but describing it

as “ironic twist of fate” rather than as fundamental purpose for creation of diversity).

112

Friendly stated that “[t]here was a vague feeling that the new courts would be strong

courts, creditors’ courts, business men’s courts.” Friendly, supra note 33, at 498; see also

Frank, supra note 17, at 23 (“[I]n a vague but real sense the drafters of Article III thought

that the federal courts would counterbalance the spirit of paper money and debt relief in

state legislatures.”).

113

See infra notes 294–97, 390–422 and accompanying text.

114

Of course, the Framers’ confidence that federal juries would be perpetually domi-

nated by “the better sort” was predicated on their faith in the character of the federal

officials who controlled jury selection. See infra notes 247–55 and accompanying text

(describing various reasons why Framers believed that elected and appointed federal offi-

cials would be superior to their state counterparts).

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1026 NEW YORK UNIVERSITY LAW REVIEW [Vol. 82:997

American juries enjoyed in the courts of the late eighteenth century.

Having such an understanding will provide the framework for the

final section’s analysis of the ways in which the federal courts were

structured to circumvent the powers of the state court juries.

1. The Roots of the American Jury in English Law

The expansive powers and prerogatives of eighteenth-century

American juries can be traced all the way back to the institution’s

roots in the English common law. Dating back to the late medieval

period, capital punishment was the sanction for all English felonies,

including minor instances of larceny.

115

The English bench, appointed

by the Crown and removable at its pleasure, was largely sympathetic

to the government’s interests.

116

Early juries, however, were free to

ignore judges’ legal instructions in order to reach verdicts that they

felt were most equitable under the circumstances.

117

The English tra-

dition, therefore, was one in which the participation of ordinary citi-

zens in the judicial process was an essential liberty and a crucial

safeguard against judges’ severe and unyielding application of the

law.

118

In civil and criminal matters alike, the seventeenth- and eight-

eenth- century jury functioned as the voice of the community and as a

115

See T

HOMAS

NDREW

REEN

, V

ERDICT

CCORDING TO

ONSCIENCE

: P

ERSPEC-

TIVES ON THE

NGLISH

RIMINAL

RIAL

URY

1200–1800, at 10–11 (1985) (discussing pos-

sible reasons for Crown’s decision to extend capital punishment to all crimes).

116

In his autobiography, Henry Adams summed up the history of English criminal law

by quoting John Bright: “‘For two hundred years, the Judges of England sat on the bench,

condemning to the penalty of death, every man, woman and child who stole property to

the value of five shillings; and during all that time not one Judge ever remonstrated against

the law.’” H

ENRY

ROOKS

DAMS

, T

DUCATION OF

ENRY

DAMS

: A

UTOBIOG-

RAPHY

191 (Modern Library 1996) (1918). Herbert Hadley commented on this passage

and on English criminal law, maintaing that “[i]t is difficult to realize the unfairness, the

brutality, the almost savage satisfaction in conviction and execution that characterized

criminal prosecutions in England up to well along in the nineteenth century.” Herbert S.

Hadley, The Reform of Criminal Procedure, in 10 P

ROCEEDINGS OF THE

CADEMY OF

OLITICAL

CIENCE

396, 398 (Samuel McCune Lindsay et al. eds., 1924).

117

Thomas Green provides several examples:

There were . . . many other defendants who were guilty under the strict rules of

the law whom juries refused to convict. These were persons whose acts,

whether theft, homicide, or rape, were not considered sufficiently serious to

merit capital punishment. . . . Thefts of a relatively trivial amount perpetrated

by persons in dire straits, slayings born of sudden anger by persons long of

good standing, these were offenses for which the law prescribed death but for

which the community frequently refused to convict. Juries in these cases

simply nullified the law of felony.

REEN

, supra note 115, at 26.

118

See id. at 105 (“[A]s the result of its role in individual cases, the jury reflected the

interests of the local community as opposed to those of central authorities.”).

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October 2007] THE ORIGINS OF DIVERSITY JURISDICTION 1027

guardian of local autonomy.

119

In the late seventeenth century, when

the English Parliament enacted legislation which outlawed “seditious”

religious meetings, many Quakers were able to persuade jurors to

reject the English bench’s holding that the Quakers constituted a sedi-

tious sect. Quaker pamphlets urged jurors to follow their own con-

sciences rather than rely upon the judge’s instructions:

Can you take a passionate and testy judge’s word as your infallible

director in so many most difficult controversies as must in this case

be decided? Will you pin your faith upon the judge’s sleeve in mat-

ters of religion (of which perhaps he knows no more than he can

find in the statute book)?

120

In effect, the Quakers were asking the jury to decide the law as

well as the facts; the English bench responded by attempting to exert

control over insubordinate juries that refused to abide by clear and

unequivocal directions. In 1670, after a jury refused to comply with

the bench’s direction to convict prominent Quakers William Penn and

William Mead of unlawful assembly, the bench fined the jurors for

finding contrary to the “evidence” and the “law.”

121

When several

jurors refused to pay the fine, they were jailed.

122

In its famous pro-

nouncement in Bushell’s Case, the English Court of Common Pleas

held that a jury’s freedom to reach a verdict according to its con-

science could not be challenged by the bench or otherwise interfered

with through coercive measures.

123

Throughout the eighteenth century, English-speaking lawyers

and commentators would rely on Bushell’s Case for the proposition

that jurors were free to disregard the bench and formulate their own

interpretations of the law.

124

As William Penn noted in 1675, jury ser-

vice and voting constituted the two great “rights and privileges” of

English citizens everywhere.

125

It was principally through these privi-

119

See id. at 372 (“It is also significant that mid-seventeenth-century jury proponents

sometimes failed to distinguish between civil and criminal trial juries. . . . [T]hey looked to

the local community to judge cases, whether crimes, civil trespasses, or disputes over prop-

erty rights or contracts.”).

120

URY

MAN

HARGED

;

OR A

ETTER TO A

ITIZEN OF

ONDON

9 (1664), quoted

in G

REEN

, supra note 115, at 204, 204.

121

REEN

, supra note 115, at 221–25.

122

See id. at 236 (discussing imprisonment of juror Edward Bushell for failure to pay

fine).

123

Bushell’s Case, (1670) 124 Eng. Rep. 1006, 1009 (C.P.).

124

See, e.g.,G

REEN

, supra note 115, at 237–49 (discussing Bushell’s Case and other

important English cases that helped to establish jury’s lawmaking prerogatives and inde-

pendence from bench); Harrington, supra note 104, at 383–86 (same).

125

ILLIAM

ENN

, E

NGLAND

’

RESENT

NTEREST

ONSIDERED

WITH

ONOUR TO

THE

RINCE

AND

AFETY TO THE

EOPLE

(1675), as reprinted in 1 T

OUNDERS

’

ONSTITUTION

429, 429 (Philip B. Kurland & Ralph Lerner eds., 1987).

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1028 NEW YORK UNIVERSITY LAW REVIEW [Vol. 82:997

leges that individuals directly participated in the governing of the state

and thereby ensured the preservation of their personal and property

rights.

126

2. The Jury as a Means of American Colonial Intransigence

It was of particular importance to colonial Americans that local

juries remain unfettered from the bench’s control.

127

In 1771, John

Adams wrote in his diary that it would be “absurd” for a jury to be

constrained by a judge’s instructions or view of the law:

Therefore the Jury have a Power of deciding an Issue upon a gen-

eral Verdict. And if they have, is it not an Absurdity to suppose

that the Law would oblige them to find a Verdict according to the

Direction of the Court, against their own Opinion, Judgment and

Conscience . . .

. . . .

. . . It is not only his right but his Duty in that Case to find the

Verdict according to his own best Understanding, Judgment, and

Conscience, tho in Direct opposition to the Direction of the

Court. . . .

The English Law obliges no Man . . . to pin his faith on the

sleve of any mere Man.

128

The result was that juries drawn from the local communities, and not

judges, were most responsible for shaping the substantive law of the

colonies.

129

By virtue of its autonomy within the British legal system, the

institution of the jury proved to be one of the most effective tools with

which the colonists could oppose unpopular imperial policies and

126

Penn wrote, “[T]hose rights and privileges which I call English, and which are the

proper birth-right of Englishmen . . . may be reduced to these three[:] . . . [ownership]

[voting] [and] [a]n influence upon, and a real share in, that judicatory power that must

apply every such law; which is the ancient, necessary and laudable use of juries.” Id., as

reprinted in 1 T

OUNDERS

’ C

ONSTITUTION

, supra note 125, at 429, 429.

127

See W

ILLIAM

E. N

ELSON

, A

MERICANIZATION OF THE

OMMON

20–21 (Univ. of

Ga. Press 1994) (1975) (stating that contemporaries viewed juries in prerevolutionary

Massachusetts as “means of controlling judges’ discretion and restraining their possible

arbitrary tendencies”); id. at 30 (“[T]he communities of prerevolutionary Massachusetts

freely received the common law of England as the basis of their jurisprudence but simulta-

neously reserved the unfettered right to reject whatever parts of that law were inconsistent

with their own views of justice and morality or with their own needs and circumstances.”);

AKOVE

, supra note 80, at 300 (“When courts exercised their properly judicial (as opposed

to administrative) functions, the decision-makers were the juries. The most striking feature

of colonial justice was the bare modicum of authority that judges actually exercised.”).

128

1 L

EGAL

APERS OF

OHN

DAMS

230 (L. Kinvin Wroth & Hiller B. Zobel eds.,

1965).

129

ELSON

, supra note 127, at 18–31.

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October 2007] THE ORIGINS OF DIVERSITY JURISDICTION 1029

harass the British officials charged with carrying them out.

130

In 1735,

for example, an American jury refused to convict the printer John

Peter Zenger for publishing criticisms of the New York governor even

though Zenger’s actions clearly satisfied the existing legal definition of

“seditious libel.”

131

The jury in the Zenger case was instructed by the

bench to render a special verdict solely on the issue of whether

Zenger had, in fact, published the articles in question.

132

Zenger’s

lawyer, however, asked the jury to ignore the judge’s instructions and

to render a general verdict on the overarching issue of guilt and inno-

cence. “I know [juries] have the right beyond all dispute to determine

both the law and fact,” Zenger’s lawyer stated during the trial, “and

where they do not doubt of the law, they ought to do so.”

133

The jury

followed the lawyer’s advice rather than the judge’s instructions and

found Zenger innocent.

134

Contributing to the difficulties faced by British officials in the

American colonial courts was the colonists’ ability to control jury

selection.

135

Even in those jurisdictions that selected jurors by lot,

American Whigs—those in favor of a greater measure of indepen-

dence for America—were able to manipulate jury selection as a

means of controlling the outcomes of important trials during the

130

See, e.g., J

OHN

HILLIP

EID

, I

EFIANT

TANCE

: T

ONDITIONS OF

AW I N

ASSACHUSETTS

THE

RISH

OMPARISON

AND THE

OMING OF THE

MERICAN

EVOLUTION

27–28 (1977) (“In their arsenal of legal warfare, perhaps the most unre-

nowned instrument the whigs possessed was the civil traverse jury, especially in

Massachusetts where the conditions of local law made the jury a remarkably effective

device for ‘punishing’ those placemen bold enough to enforce imperial law.”).

131

See E

DWIN

G. B

URROWS

& M

IKE

ALLACE

, G

OTHAM

: A H

ISTORY OF

ORK

ITY TO

1898, at 153–55 (1999) (stating that English common law definition of seditious

libel was “publication of any material undermining the authority of government”).

132

See J

AMES

LEXANDER

, A B

RIEF

ARRATIVE OF THE

ASE AND

RIAL OF

OHN

ETER

ENGER

RINTER OF THE

ORK

EEKLY

OURNAL

78 (Stanley Nider Katz

ed., The Belknap Press of Harvard Univ. Press 1963) (1736) (recounting judge’s explana-

tion of special verdict instruction to prosecution); B

URROWS

& W

ALLACE

, supra note 131,

at 154 (describing jury charge).

133

LEXANDER

, supra note 132, at 78.

134

Had the jury limited itself to a special verdict, the bench would have been free to

decide the legal issue of whether the articles constituted seditious libel. The jury, however,

refused to follow the judge’s instructions. Instead, it rendered a general verdict on the

overarching issue of guilt and found Zenger innocent of the charges. See id., at 100–01

(recounting judge’s instructions to jury and jury’s not guilty verdict); see also B

URROWS

ALLACE

, supra note 131, at 154–55 (describing defense attorney Andrew Hamilton’s

argument that case concerned “right of free people to criticize their rulers” and jury’s sub-

sequent acquittal on all charges).

135

See, e.g., R

EID

, supra note 130, at 28 (“[I]n prerevolutionary Massachusetts . . . a

political majority could control Massachusetts juries . . . .”); S

HANNON

C. S

TIMSON

, T

MERICAN

EVOLUTION IN THE

: A

NGLO

-A

MERICAN

URISPRUDENCE

EFORE

OHN

ARSHALL

71 (1990) (attributing colonists’ administrative and substantive control over

American law to colonists’ control over jury selection).

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1030 NEW YORK UNIVERSITY LAW REVIEW [Vol. 82:997

period leading up to the Revolutionary War.

136

Peter Oliver, the

Chief Justice of the Massachusetts Superior Court and a leading Tory

during the revolutionary era, described some of the methods by which

American colonists manipulated the jury selection procedures:

[T]he Select Men of Boston would draw out of the Lottery Box; & if

any popular Cause was to be before the Court, & that drawn Juror

was not like to serve their Cause, they would make some Excuse for

the absent Man, either that he was sick & would not be well, or he

was going [on] a Journey or Voyage; & so return his Name into the

Box, & draw untill they drew him who was for their Purpose.

137

According to one contemporary in 1765, “a Bostonian could

boast that the Whigs ‘would always be sure of Eleven jury men in

Twelve.’”

138

The ability of American juries to protect violators of the

custom laws prompted one royal governor of Massachusetts to com-

plain that “a trial by jury here is only trying one illicit trader by his

fellows, or at least by his well-wishers.”

139

British efforts to rein in the power of American juries were obsti-

nately opposed and the resulting conflict intensified the mounting ten-

sions between British authorities and American revolutionaries.

140

136

Daniel Leonard, a contemporary British observer in the colonies, explained this

occurrence:

It is difficult to account for so many of the first rate whigs being returned to

serve on the petit-jury at the term next after extra-ordinary insurrections,

without supposing some legerdemain in drawing their names out of the box. It

is certain, that, notwithstanding swarms of the most virulent libels infested the

province, and there were so many riots and insurrections, scarce one offender

was indicted, and I think not one convicted and punished.

ANIEL

EONARD

, M

ASSACHUSETTENSIS

22 (1776), quoted in Richard B. Morris, Legalism

Versus Revolutionary Doctrine in New England, in E

SSAYS IN THE

ISTORY OF

ARLY

MERICAN

418, 430 n.62 (David H. Flaherty ed., 1969).

137

ETER

LIVER

, O

RIGIN

& P

ROGRESS OF THE

MERICAN

EBELLION

85 (Douglass

Adair & John A. Schutz eds., 1961) (n.d.). For a quick summary of Oliver’s career, see id.

at x–xii.

138

EID

, supra note 130, at 29 (quoting H

ILLER

B. Z

OBEL

, T

OSTON

ASSACRE

169

(1970)). According to John Reid, the colonial control over grand juries “meant that it was

impossible for the king’s officials to obtain indictments against persons accused . . . of

violating imperial statutes such as the revenue laws.” Id. at 45; see also Harrington, supra

note 89, at 162–63 (“In the colonies . . . common-law juries could frustrate the enforcement

of the revenue laws by simply refusing to convict those accused.”).

139

TEPHEN

OTEIN

, E

ARLY

MERICAN

AW AND

OCIETY

57 (1983) (quoting

Governor William Shirley); see also Harrington, supra note 104, at 394 & nn.78–81

(quoting Shirley as example of imperial officials’ complaints regarding jury trials of viola-

tors of customs laws).

140

See, e.g., Stephen Landsman, The Civil Jury in America: Scenes from an Unap-

preciated History, 44 H

ASTINGS

L.J. 579, 596 (1993) (“Because of the jury’s power, the

British authorities increasingly sought to either control or avoid jury adjudications. The

struggle over jury rights was, in reality, an important aspect of the fight for American

independence and served to help unite the colonies.”).

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October 2007] THE ORIGINS OF DIVERSITY JURISDICTION 1031

The Stamp Act Crisis of 1765–66, for example, was precipitated in

significant part by the British authorities’ threat to try American colo-

nists in admiralty courts without the benefit of American juries.

141

response both to royal regulations that interfered with the selection of

jurors in Massachusetts and to various attempts to remove certain

trials to Britain, the First Continental Congress resolved in 1774 that

“the respective colonies are entitled to the common law of England,

and more especially to the great and inestimable privilege of being

tried by their peers of the vicinage . . . .”

142

Finally, among the griev-

ances listed in the Declaration of Independence were the deprivation

of jury trials and the transportation of Americans for trials

overseas.

143

3. American Juries at the Time of the 1787 Convention

At the time of the Constitutional Convention, every state consti-

tution in existence guaranteed the right to a jury trial in both civil and

criminal cases.

144

As in the colonial era, furthermore, civil juries at

this time usually possessed the power to decide questions of both law

and fact.

145

In civil matters, the jury was often forced to decide the law for

itself because it received disparate or contradictory legal interpreta-

tions from the bench and from counsel. In eighteenth-century

American courts, most states allowed each party’s counsel to proffer

their own legal instructions to the jury during their closing argu-

ment.

146

In fact, juries often received contradictory instructions from

141

See, e.g., G

OEBEL

, supra note 10, at 86–87 (describing British efforts to try

Americans in admiralty courts as “amount[ing] in colonial eyes to the employment of an

unconstitutional means to effect an unconstitutional end”); Harrington, supra note 89, at

161–67 (discussing role of jury in escalating tensions between Britain and American colo-

nies); Landsman, supra note 140, at 595 (“The denial of jury trial was a strong irritant in

relations between America and Great Britain, featuring prominently in formal colonial

complaints in the 1760s and 1770s.”).

142

See Landsman, supra note 140, at 596 (quoting D

ECLARATION AND

ESOLVES OF

THE

IRST

ONTINENTAL

ONGRESS

Res. 5 (1774), reprinted in S

OURCES OF OUR

IBER-

TIES

286, 288 (Richard L. Perry & John C. Cooper eds., 1959)).

143

ECLARATION OF

NDEPENDENCE

paras. 20, 21 (U.S. 1776).

144

KHIL

EED

MAR

, T

ILL OF

IGHTS

: C

REATION AND

ECONSTRUCTION

(1998) (criminal juries); id. at 92 & n.33 (civil juries); Harrington, supra note 89, at 168 &

n.101. In the two states that did not have state constitutions at the time of the Convention,

Rhode Island and Connecticut, the right to civil and criminal juries was preserved by colo-

nial law and established practice. L

LOYD

E. M

OORE

, T

URY

104 (1973).

145

William E. Nelson, The Eighteenth-Century Background of John Marshall’s

Constitutional Jurisprudence, 76 M

ICH

. L. R

. 893, 916 (1978) (“It accordingly seems safe

to conclude that juries in most, if not all, eighteenth-century American jurisdictions nor-

mally had the power to determine law as well as fact in both civil and criminal cases.”).

146

See id. at 911 (“One potential source of contradiction was counsel, who on summa-

tion could argue the law as well as the facts, at least in Georgia, Massachusetts, New York,

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1032 NEW YORK UNIVERSITY LAW REVIEW [Vol. 82:997

the bench itself because most state courts tried cases before multiple

judges.

147

It was not thought necessary for the bench to present a unitary

view of the law to the jury because it was seen as the jury’s preroga-

tive to decide the case as it saw fit.

148

Often, instructions from the

bench amounted to no more than a terse affirmation of the jury’s

freedom to decide the case at its own prerogative.

149

In some states,

such as Virginia, instructions were frequently not given at all.

150

When instructions were given, juries retained the freedom to

ignore them and decide the law themselves.

151

In debtor cases, for

Pennsylvania, South Carolina and Virginia, and probably in other colonies for which no

direct evidence is available.” (citation omitted)). In Georgia v. Brailsford, 3 U.S. (3 Dall.)

1 (1794), a Supreme Court case tried before a Philadelphia jury, the lawyers’ arguments on

the law lasted for four days. Nelson, supra note 145, at 911 n.97 (citing Brailsford, 3 U.S.

(3 Dall.) at 3).

147

See N

ELSON

, supra note 127, at 26 (describing prerevolutionary Massachusetts prac-

tice where “each judge sitting on the court that tried a case gave his own interpretation of

the law—an interpretation that could and sometimes did differ from those of his

brethren”); Nelson, supra note 145, at 911 & n.98, 912 (citing examples from Massachusetts

and South Carolina where multiple judge panels gave conflicting instructions to juries).

The evidence suggests that judges customarily retained the right to propose their own set

of legal instructions, notwithstanding the fact that each judge’s directions could contradict

the instructions of the other judges on the panel. See id. at 911–12. In 1803, a Common

Pleas judge in Pennsylvania, Alexander Addison, was impeached for refusing to allow

other judges on his court to independently address the jury. Id. at 912. In those cases

where the bench was divided, juries were forced to decide for themselves the version of the

law that they found most applicable. Id. at 913; see also R

ITZ

, supra note 96, at 30 (“There

is evidence that each judge gave the jury his own views as to what the law was, and these

views might very well differ from the views of his fellow judges.”); Harrington, supra note

104, at 390 & nn.56 & 59 (observing that multiple-judge panels were used in states such as

Connecticut, New York, Maryland, Pennsylvania, Virginia, and Georgia and stating that

individual judges could provide juries with their own legal instructions, with possible

exception of Maryland, where practice may have been for bench to jointly issue

instructions).

148

See, e.g., R

ITZ

, supra note 96, at 30 (reasoning that disparate instructions from mul-

tiple-judge bench were viewed as acceptable because “judges were only giving the jurors

the benefit of their views, and it was up to the jury to choose among the views so expressed

or to ignore all of them and lay down its own view of the ‘true rule of law’”); see also

RUCE

H. M

ANN

, N

EIGHBORS AND

TRANGERS

: L

AW AND

OMMUNITY IN

ARLY

ONNECTICUT

70 (1987) (“[J]udges generally left juries to their own devices.”).

149

See, e.g.,N

ELSON

, supra note 127, at 26 (“In colonial Massachusetts . . . . [I]t appears

that in many civil cases no instructions were given at all and that even in those cases where

the jury was charged the charges were often brief and compressed.” (citation omitted)).

150

See Commonwealth v. Garth, 30 Va. (3 Leigh) 761, 773 (Va. 1831) (Leigh’s amicus

curiae brief) (noting that no instructions were given in “numerous cases”).

151

As William Nelson describes:

Although judges with the multifarious duties of mid-eighteenth-century courts

were prominent local leaders, they were leaders who had power only to guide,

not to command. For juries rather than judges spoke the last word on law

enforcement in nearly all, if not all, of the eighteenth-century American colo-

nies. Except in equitable actions, which were nonexistent in some colonies and

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October 2007] THE ORIGINS OF DIVERSITY JURISDICTION 1033

example, state court juries could—and did—simply ignore the bench’s

instructions or its recommendations to award interest to a plaintiff.

152

The eighteenth-century American bench could not effectively utilize

the procedures that judges today use to discipline juries, such as

directed verdicts, special verdicts, or judgments non obstante

veredicto. The eighteenth-century versions of the directed verdict

were largely useless as a check on the power of American juries,

153

and almost no American jurisdiction at the time allowed the bench to

set aside a jury verdict.

154

One year after the Constitution was

drafted, the Connecticut Supreme Court denied motions for a new

trial on the grounds that “[i]t doth not vitiate a verdict, that the jury

have mistaken the law or the evidence; for by the practice of this state,

they are judges of both.”

155

In Massachusetts, an 1808 statute codified

the right of a petit jury to “decide at their discretion, by a general

verdict, both the fact and the law, involved in the issue.”

156

narrowly limited in the rest, judges could not enter a judgment or impose a

penalty without a jury verdict.

Nelson, supra note 145, at 904 (citations omitted); see also Harrington, supra note 104, at

388 (“[A] judge intent on forcing a jury to find a verdict in accordance with his particular

view of the law was apt to be disappointed. A judge could not simply instruct a jury on the

law and expect that it would go along.”); Nelson, supra note 145, at 913 (“Even when the

courts’ instructions were unanimous, however, juries could not be compelled to adhere to

them.”).

152

See Harrington, supra note 104, at 389 (citing, inter alia, 1803 Pennsylvania case of

Crawford v. Willing, 4 Dall. 286 (Pa. 1803), where state court jury refused to award interest

to plaintiff despite bench’s instruction that law clearly supported awarding such interest).

153

Two techniques existed by which a party could move to close a case before jury

deliberations: the demurrer to the evidence and the compulsory nonsuit. Prior to 1787,

however, there were no published cases in which a compulsory nonsuit was used to prevent

a jury from deciding an issue of law otherwise before it. Nelson, supra note 145, at 908 &

n.82. The demurrer to the evidence was an option in at least five states but was largely

unused due to procedural disadvantages. Id. at 908, 909 & n.84 (“The most severe disad-

vantage was that the demurrant had to admit all the facts shown in the evidence against

him and all adverse inferences that could be drawn from those facts.”).

154

Id. at 913. According to Nelson, this was viewed as impermissible in all of the New

England states as well as Maryland and Virginia. Id. at 913–14. Furthermore, some evi-

dence suggests that at least four other states—Pennsylvania, South Carolina, Georgia, and

New Jersey—also maintained this rule. Id. at 914. It appears that only in New York did

judges and commentators believe that a jury verdict could be set aside for being contrary

to law or evidence. Id. at 915. Even still, examples of this happening in New York are

rare, and the view that judges held this power remained controversial in New York

throughout the eighteenth century. See id. (“[A]s late as 1800, judges did not fully agree

that they could set aside a verdict against law or evidence.”); cf. R

ITZ

, supra note 96, at 51

(“Judges did not make law; with the collegial assistance of counsel, of jurors, and some-

times of members of the executive and legislative parts of the government, they engaged in

a continual struggle to discover the law.”).

155

Witter v. Brewster, Kirby 422, 423 (Conn. Super. Ct. 1788); see also Nelson, supra

note 145, at 913 n.106 (citing additional cases where similar charges were given).

156

Mass. Laws 1807, ch. 139, § 15 (1808); see Note, The Changing Role of the Jury in the

Nineteenth Century, 74 Y

ALE

L.J. 170, 174–75 (1964) (“There is considerable evidence . . .

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1034 NEW YORK UNIVERSITY LAW REVIEW [Vol. 82:997

In New York, the one state that did allow the bench to set aside a

verdict, a second jury was free to impose its will over the bench simply

by ignoring the judge’s instructions and returning the same verdict

that had been rendered by the first jury. Judgments non obstante

veredicto, even in New York, were simply an unthinkable intrusion

upon the prerogatives of a jury.

157

A debtor case filed in a New York

state court in 1800 illustrates this point. In Wilkie v. Roosevelt,

158

the

plaintiff brought an action to recover on a promissory note.

159

1801, the parties tried their case before a state jury in Manhattan.

160

The panel of judges instructed the jury to hold the note void if it fell

within the statutory definition of usury, which in fact it plainly did.

161

When the jury nonetheless decided to find in favor of the plaintiff, the

bench set aside the verdict on the grounds that it was contrary to both

the evidence and the law.

162

A second trial was held in 1802 and again the jury found in favor

of the plaintiff.

163

Before a full, five-man bench of the New York

Supreme Court, the judges split three to two in favor of granting

another new trial.

164

The majority was troubled by the jury’s determi-

nation to ignore the clear mandate of the statute, but it lacked the

power to direct a verdict.

165

On December 21, 1802, the case was sent

to the jury for a third time.

166

Once again, the jury found for the

plaintiff, this time awarding him $1680

167

on a note that was originally

signed for $1366.

168

In addition, the jury awarded the plaintiff $295.12

indicating that the jury’s right in both civil and criminal cases was recognized [in

Massachusetts] during the early part of the [nineteenth] century.”).

157

New York courts did not use the judgment non obstante veredicto because, as one

scholar has written, “the judgment non obstante veredicto was too overt an invasion of

public sentiments regarding the jury as the safeguard of liberty.” 2 T

RACTICE OF

LEXANDER

AMILTON

15 (Julius Goebel Jr. ed., 1969).

158

3 Johns. Cas. 66 (N.Y. Sup. Ct. 1802). We owe our knowledge of the specifics of this

case to the involvement of Alexander Hamilton. See 2 T

RACTICE OF

LEXANDER

AMILTON

, supra note 157, at 228–30 (noting Hamilton’s involvement in

case).

159

2 T

RACTICE OF

LEXANDER

AMILTON

, supra note 157, at 228.

160

Id. at 229.

161

Id.

162

Id. Writing for the court on January 2, 1802, Judge Kent stated: “When a case

appears as strongly marked as this, we have nothing to do with the policy of the defence. It

is our duty to give effect to the statute, to cause it to be observed, and to suffer no contri-

vance or covin of the parties to evade it.” Id. (quoting Wilkie, 3 Johns. Cas. at 69–70).

163

Id.

164

Id. at 229–30 (citing and discussing Wilkie, 3 Johns. Cas. 206, at 206–13).

165

Id. at 230 (noting that “all three judges writing opinions were certain that the evi-

dence” favored defendant and they agreed it was within court’s power to grant third trial).

166

Id.

167

Id. at 231.

168

Id. at 228.

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October 2007] THE ORIGINS OF DIVERSITY JURISDICTION 1035

in costs.

169

The defendant finally gave up appealing and satisfied the

judgment.

170

Special verdicts, commonly used today to limit the jury’s discre-

tion, were not an effective check on an eighteenth-century jury

because their use generally required the consent of both parties.

171

Even in the rare case where both parties requested a special verdict, a

determined jury might still have been free to return a general ver-

dict.

172

John Adams maintained that juries were under no “legal or

moral or divine Obligation to find a Special Verdict where they them-

selves are in no doubt of the Law,”

173

and at least one early eight-

eenth-century court upheld the jury’s right to return a general verdict

even where a special verdict had been charged by the court.

174

Special

pleading, an eighteenth-century common law practice which could

have limited the scope of the jury’s review in a manner similar to that

of the special verdict, appears to have been rarely used in American

jurisdictions prior to 1787.

175

Some of the most persuasive confirmations of the civil jury’s

power to determine issues of law at the time of the Constitutional

Convention can be found in the statements of prominent contempo-

raries.

176

In 1794, John Jay, then the Chief Justice of the U.S.

Supreme Court, affirmed the civil jury’s right to decide both questions

169

Id. at 231.

170

Id.

171

See Nelson, supra note 145, at 906 (“Any party could as a matter of right demand a

general verdict in which the jury applied the law to the facts.”).

172

See Edith Guild Henderson, The Background of the Seventh Amendment, 80 H

ARV

L. R

. 289, 307–10 (1966) (discussing examples of when general verdicts were allowed

and disallowed when special verdicts were requested); Nelson, supra note 145, at 906

(“Furthermore, it was not clear that an unwilling jury could be forced to return a special

verdict even if both parties desired one.”); see also supra notes 131–34 and accompanying

text (discussing return of general verdict in Zenger trial despite instructions for special

verdict).

173

1 L

EGAL

APERS OF

OHN

DAMS

, supra note 128, at 30, quoted in Nelson, supra

note 145, at 906.

174

See Nelson, supra note 145, at 906–07 & n.76 (discussing Smith’s Lessee v.

Broughton, 1 H. & McH. 33 (Md. Provincial Ct. 1714)).

175

Special pleading was used occasionally in Massachusetts after the Revolution. See

ELSON

, supra note 127, at 73 n.42 (citing examples). With the possible exception of early

eighteenth-century Maryland, however, special pleading appears to have remained an

infrequent occurrence. See Nelson, supra note 145, at 905 (noting that mid-eighteenth-

century American courts rarely used common law devices, including special verdicts, for

controlling jury findings of law and fact).

176

In 1781 or 1782, for example, Thomas Jefferson wrote the following about Virginia:

[I]t is usual for the jurors to decide the fact, and to refer the law arising on it to

the decision of the judges. But this division of the subject lies with their discre-

tion only. And if the question relate to any point of public liberty, or if it be

one of those in which the judges may be suspected of bias, the jury undertake

to decide both law and fact.

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1036 NEW YORK UNIVERSITY LAW REVIEW [Vol. 82:997

of law and fact when he issued his jury instructions in Georgia v.

Brailsford.

177

Addressing a civil jury during a trial before the

Supreme Court, Jay informed the jurors that although issues of law

were usually determined by the court, “[Y]ou have . . . a right to take

upon yourselves to judge of both [law and fact], and to determine the

law as well as the fact in controversy.”

178

“[B]oth objects,” Jay

informed the jurors, “are lawfully, within your power of decision.”

179

A year later, Justice James Iredell confirmed that “though the jury will

generally respect the sentiments of the court on points of law, they are

not bound to deliver a verdict conformably to them.”

180

By virtue of their extensive prerogatives, eighteenth-century

American juries did more than simply apply established legal norms

to the cases that came before them. Instead, they played a substantial

role throughout this period in shaping and creating the substantive

law of their jurisdictions.

181

As a result, juries served as much a polit-

ical as a judicial function, and their verdicts were ultimately reflections

of the values, mores, and social frameworks of their respective com-

munities.

182

The difficulty for many of the nation’s political elites in

1787 was that the values and mores of America’s local communities

too often appeared to contradict the elite’s own vision for the nation’s

well-being. In fact, by 1787, many of the nation’s political leaders had

reached the conclusion that one of the greatest threats to the stability

HOMAS

EFFERSON

, N

OTES ON THE

TATE OF

IRGINIA

140 (Richmond, Virginia, J.W.

Randolph 1853), quoted in Nelson, supra note 145, at 916–17.

177

3 U.S. (3 Dall.) 1 (1794).

178

Id. at 4.

179

Id.

180

Bingham v. Cabbot, 3 U.S. (3 Dall.) 19, 33 (1795); see also Van Horne’s Lessee v.

Dorrance, 2 U.S. (2 Dall.) 304, 307, 28 F. Cas. 1012, 1013 (C.C.D. Pa. 1795) (No. 16,857)

(“In general verdicts, it frequently becomes necessary for juries to decide upon the law as

well as the facts.”).

181

See N

ELSON

, supra note 127, at 29 (stating that, with reference to prerevolutionary

Massachusetts, “the law-finding power of juries meant that the representatives of local

communities assembled as jurors generally had effective power to control the content of

the province’s substantive law”); R

ITZ

, supra note 96, at 30 (“Juries not only found the

facts, but they also had the final word as to what the law was.”); Harrington, supra note 89,

at 160 (“[T]he latter part of the eighteenth century is notable for a remarkable consensus

on the power of the jury to say not only ‘what happened’ in a particular case, but what law

might be applied.”).

182

For example, Jeffrey Abramson notes that:

Local citizens were empowered to control the actual administration of jus-

tice—thus, the jury was our best assurance that law and justice accurately

reflected the morals, values, and common sense of the people asked to obey

the law. . . . Functioning as the conscience of the community, the jury,

according to the Anti-Federalists, was as much a ‘political’ institution as it was

a judicial body . . . .

EFFREY

BRAMSON

, W

THE

URY

: T

URY

YSTEM AND THE

DEAL OF

EMOCRACY

28 (1994).

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October 2007] THE ORIGINS OF DIVERSITY JURISDICTION 1037

and prosperity of American society came from the ordinary citizens

that comprised it.

B. Direct Democracy and the Framers’ Apprehension

of State Court Juries

The Constitutional Convention of 1787 was largely an effort to

construct a form of mixed government that would address and control

the pernicious effects of “unrestrained democracy” within the indi-

vidual states.

183

America at that time had by far the broadest suffrage

rights in the world.

184

In the eyes of many Framers, the years leading

up to the Convention had demonstrated the dangers of allowing large

numbers of ordinary citizens too much control over the governance of

the new nation.

185

As one Framer subsequently articulated during a

congressional debate over the structure of the federal judiciary, the

fundamental challenge facing political elites was “[t]o save the people

from their most dangerous enemy; to save them from themselves.”

186

At the beginning of the Convention, Edmund Randolph stated to his

fellow delegates: “Our chief danger arises from the democratic parts

of our [state] constitutions. It is a maxim which I hold incontrovert-

ible, that the powers of government exercised by the people swallows

up the other branches. None of the constitutions have provided suffi-

cient checks against the democracy.”

187

The views of James Madison, arguably the single most influential

figure in the Constitution’s drafting, are particularly instructive. In a

183

See, e.g., R

AKOVE

, supra note 80, at 34 (“The time had come, Madison concluded,

not only to free the Union from its dependence on the states but to free the states from

themselves by taking steps that would undo the damage done by the excesses of republi-

canism.”); W

OOD

, supra note 80, at 411 (“Yet the pressing constitutional problem was not

really the lack of power in the state legislatures but the excess of it—popular despotism.”);

OOD

, supra note 39, at 230 (“The Constitution, the new federal government, and the

development of independent judiciaries and judicial review were certainly meant to temper

popular majoritarianism . . . .”).

184

See D

ONALD

S. L

UTZ

, T

RIGINS OF

MERICAN

ONSTITUTIONALISM

10 (1988)

(arguing that there was “nothing else in Europe to compare with the American practice of

popular sovereignty” and noting that Georgia, whose suffrage laws were stricter than any

other state’s, nonetheless enfranchised a percentage of its population four to five times as

large as that which had right to vote in England).

185

See, e.g., R

AKOVE

, supra note 80, at 50 (“[Madison’s] ideas of federalism, representa-

tion, and the separation of powers—the crucial theoretical issues that the Convention

would face—all reflected his disillusion with the failings of state legislators and citizens

alike.”); W

OOD

, supra note 80, at 404 (“The confiscation of property, the paper money

schemes, the tender laws, and the various devices suspending the ordinary means for the

recovery of debts . . . [were] laws enacted by legislatures which were probably as equally

and fairly representative of the people as any legislatures in history.”).

186

7 A

NNALS OF

ONG

. 41 (1851) (statement of Sen. Morris).

187

1 R

ECORDS OF THE

EDERAL

ONVENTION

, supra note 11, at 26–27 (May 29, 1787)

(statement of Edmund Randolph of Virginia).

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1038 NEW YORK UNIVERSITY LAW REVIEW [Vol. 82:997

letter to Thomas Jefferson, Madison summarized the concerns that

had led him to identify the necessity of the Constitutional Convention:

Wherever the real power in a Government lies, there is the danger

of oppression. In our Governments the real power lies in the

majority of the Community, and the invasion of private rights is

cheifly [sic] to be apprehended, not from acts of Government con-

trary to the sense of its constituents, but from acts in which the

Government is the mere instrument of the major number of the

constituents.

188

When the Framers referred to the dangers of popular sover-

eignty, they often cited the states’ paper money legislation.

189

Paper

money legislation, in turn, was intimately tied to the most cited justifi-

cation for the need for diversity jurisdiction, i.e., the inability of credi-

tors to collect the full value of their debts in state court. These

perceived failings of the state courts and legislatures were inextricably

bound together because both were viewed as manifestations of the

same underlying problem, i.e., the propensity of ordinary Americans

to misuse their political power.

In fact, the mass of ordinary citizens who elected the state legisla-

tures and pressured them to pass paper money legislation constituted

the same body of citizens who directly made law when sitting as jurors

in the state courts. The greatest danger to liberty, Madison warned,

was “not found in either the executive or legislative departments of

government, but in the body of the people, operating by the majority

against the minority.”

190

It was this same “body of the people,” how-

ever, who composed the state court juries. “Juries are constantly and

frequently drawn from the body of the people,” the anti-Federalist

“Federal Farmer” noted, “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 [sic] in the judicial department.”

191

188

Letter from James Madison to Thomas Jefferson (Oct. 17, 1788), in 11 P

APERS OF

AMES

ADISON

, supra note 71, at 295, 298. Similarly, Madison wrote:

It is of great importance in a republic, not only to guard the society against the

oppression of its rulers; but to guard one part of the society against the injus-

tice of the other part. Different interests necessarily exist in different classes of

citizens. If a majority be united by a common interest, the rights of the

minority will be insecure.

EDERALIST

. 51 (James Madison), supra note 34, at 317–18.

189

See supra notes 80–86 and accompanying text (describing various attacks on paper

money legislation by Hamilton, Madison, and others).

190

James Madison, Speech to the House of Representatives (June 8, 1789), in 12

APERS OF

AMES

ADISON

, supra note 71, at 197, 204.

191

Letter from the Federal Farmer (Jan. 18, 1788), reprinted in 2 T

OMPLETE

NTI

EDERALIST

315, 320 (Herbert J. Storing ed., 1981).

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October 2007] THE ORIGINS OF DIVERSITY JURISDICTION 1039

For Anti-Federalists such as the Federal Farmer, the fact that the

“body of the people” was in control of the various state judiciaries was

laudable. For Constitutional Convention delegates such as Madison,

who were led to Philadelphia in large part by a belief that the unre-

strained exercise of democracy in the states had driven the nation into

crisis, the fact that the state judiciaries were controlled by the mass of

ordinary citizens was a cause for apprehension.

In Madison’s own terminology, injustice at the hands of a judi-

ciary controlled by ordinary citizens was analogous to injustice at the

hands of a popularly elected legislature. Madison stated in The

Federalist No. 10:

No man is allowed to be a judge in his own cause; because his

interest would certainly bias his judgment, and, not improbably, cor-

rupt his integrity. With equal, nay with greater reason, a body of

men, are unfit to be both judges and parties, at the same time; yet

what are many of the most important acts of legislation, but so

many judicial determinations, not indeed concerning the rights of

single persons, but concerning the rights of large bodies of

citizens . . . ?

192

Madison’s reflections in The Federalist No. 10 are telling. According

to Madison’s logic, American juries’ decisions on matters of private

litigation, when aggregated, were the functional equivalent of

legislation.

193

In fact, for Framers such as Madison, juries probably were a more

troublesome manifestation of majoritarian rule than were legislatures.

At least in theory, the propensity of ordinary citizens for misrule

could be muted in the legislature by representatives drawn from the

“better sort” of society.

194

Madison preferred a republican form of

democracy because he believed the mitigating effects of representa-

tion were instrumental in preventing the general mass of citizens from

concentrating power and wielding it irresponsibly:

From this view of the subject, it may be concluded, that a pure

Democracy, by which I mean a Society consisting of a small number

of citizens, who assemble and administer the Government in person,

can admit of no cure for the mischiefs of faction. A common pas-

sion or interest will, in almost every case, be felt by a majority of the

192

EDERALIST

. 10 (James Madison), supra note 34, at 53.

193

Cf. W

OOD

, supra note 39, at 244 (“By classical republican standards such participa-

tion [of ordinary citizens in the deliberations and decisions of government] would imply

the participation of private ‘interests’ in government, with the participants becoming

judges of their own interests.”).

194

Cf. L

UTZ

, supra note 184, at 84 (“In a republic . . . an elected group of men ‘refined’

the public views.”); id. (“Representatives were more likely to be wise, patriotic, and lovers

of justice.”).

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1040 NEW YORK UNIVERSITY LAW REVIEW [Vol. 82:997

whole; a communication and concert results from the form of

Government itself; and there is nothing to check the inducements to

sacrifice the weaker party, or an obnoxious individual. Hence it is

that such Democracies have ever been spectacles of turbulence and

contention; have ever been found incompatible with personal

security, or the rights of property . . . .

195

The eighteenth-century jury strongly resembled Madison’s

description of the paradigm of bad government. As a “[s]ociety[ ]

consisting of a small number of citizens[ ] who assemble and admin-

ister the Government in person,” eighteenth-century juries drawn

from local communities had the power to resolve individual legal dis-

putes according to the dictates of their own “common passion or

interest.” In the aggregate, therefore, state court juries had a greater

power and propensity for majoritarian misrule than the state legisla-

tures that Madison so heavily criticized before, during, and after the

Constitutional Convention.

196

For the Framers, the inability of foreign and domestic creditors to

recover their debts in state courts offered a tangible example of the

injustice and shortsightedness of the majoritarian hegemony of state

court juries.

197

The difficulties foreign creditors encountered in state

courts threatened to disrupt America’s foreign trade relations and

imperil the nation’s economic growth by drying up future sources of

credit.

198

Repayment of American debts to British citizens had been

one of the key obstacles to the negotiation of peace between Britain

and the United States at the Revolutionary War’s end.

199

As part of

195

EDERALIST

. 10 (James Madison), supra note 34, at 54–55.

196

See Harrington, supra note 89, at 168 (“The jury’s power to find law as well as fact

seemed less attractive to those who also worried about the power increasingly held by

populist elements in state governments. Political elites . . . began to seek some means by

which juries might be restrained . . . .”); see also W

OOD

, supra note 39, at 244 (“It was one

thing for ordinary people to take part in a mob or to vote; for them to participate in the

deliberations and decisions of government was quite another.”).

197

The difficulties creditors experienced in state courts prior to the adoption of the

Constitution were not derived solely from the actions of juries, but virtually all of the

creditors’ difficulties were derived in one way or another from the political pressures

applied by the mass of Americans who composed the debtor constituencies. See supra

notes 99–107 and accompanying text (discussing various manifestations of Americans’ hos-

tility towards creditors).

198

See, e.g., Harrington, supra note 104, at 397 (arguing that political leaders of time

were “concerned that unrestrained juries would have the potential over time to damage

the reputation and credit of the United States abroad”); see also 2 D

OCUMENTARY

IS-

TORY OF THE

ATIFICATION

, supra note 12, at 518–20 (statement of James Wilson in the

Pennsylvania ratifying convention) (arguing in favor of diversity jurisdiction because favor-

itism toward debtors in state courts threatened to “destroy the very sources of credit” and

imperil efforts to “extend our manufacturers and our commerce”).

199

British merchants were owed large prewar debts, particularly by Southern planters,

and the debts had been impossible to collect during the war. During the Revolutionary

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October 2007] THE ORIGINS OF DIVERSITY JURISDICTION 1041

the 1783 Treaty of Paris, the United States had agreed to remove all

legal impediments to the recovery of debts in the state courts.

200

British creditors nonetheless continued to experience substantial diffi-

culty collecting their debts after the war, particularly in the South, in

part as a result of state court juries.

201

Britain cited the inability of its

creditors to secure repayment in state courts as justification for its

decision not to adhere to some of the treaty’s other terms.

202

Some

American leaders voiced concern that Britain would use its creditors’

difficulties as a pretext for harassing American maritime commerce.

203

In Philadelphia, Madison argued that an array of lower federal

courts was necessary in order to counteract the “prejudices” of state

War, at least nine states had enacted legislation that sequestered debts or obstructed their

collection. H

ENDERSON

, supra note 70, at 72.

200

Article IV of the treaty required that “creditors on either side shall meet with no

lawful impediment” to the recovery of debts previously contracted in good faith. The

Definitive Treaty of Peace Between the United States of America and His Britannic

Majesty, U.S.-Gr. Brit. art. IV, Sept. 3, 1783, 8 Stat. 80. Similarly, Article V required that

the American Congress recommend to the individual states that they permit loyalists and

British subjects to be able to sue for the recovery of confiscated property. The Definitive

Treaty of Peace Between the United States of America and His Britannic Majesty, U.S.-

Gr. Brit., art. V, Sept. 3, 1783, 8 Stat. 80, 82.

201

According to some sources, by 1791 the outstanding American debt to British credi-

tors totaled approximately £5,000,000, eighty-three percent of which was concentrated in

five southern states: Virginia, Maryland, South Carolina, North Carolina, and Georgia.

ENDERSON

, supra note 70, at 72; see also Holt, supra note 38, at 1434 & n.35 (citing

sources placing total American debt to British sources at more than £5,000,000 by begin-

ning of Revolution).

202

Britain justified its refusal to comply with the treaty’s requirement that it surrender

its northwestern forts in Oswego, Niagara, and Detroit by noting that the United States

had failed to comply with the treaty requirements regarding British creditors. R

AKOVE

supra note 80, at 27. British occupation of these forts was of crucial significance to many

Americans. It allowed the British both to control the important water passage between the

Great Lakes and the St. Lawrence River—upon which many Americans hoped to ship

their goods—and to continue to supply and support Indian tribes that were in conflict with

Americans settling west of the Appalachians. See Holt, supra note 38, at 1444 & n.75

(describing continued British control of forts along Canadian border and subsequent con-

trol of Great Lakes-St. Lawrence water passage).

203

For example, the Virginian George Mason wrote to his governor, Patrick Henry, in

1783:

The People in this Part of the Country are made very uneasy by the Reports

we have from below, that the Assembly will make some Laws or Resolutions,

respecting British Debts, which may infringe the Articles of the Peace; under

the mistaken Idea, that Great Britain will not risque a Renewal of the War, on

account of such an Infraction of the Treaty. . . . A new Ministry, averse to the

Treaty, or even the Ministry who concluded it, might resent, and revenge an

Infringement of it in any particular State, by Reprisals upon the Ships or

Coasts of such State, or by sending two or three Frigates to intercept their

Trade, without Danger of involving themselves in a new War . . . .

Letter from George Mason to Patrick Henry (May 6, 1783), in 2 T

APERS OF

EORGE

ASON

, 1725–1792, supra note 107, at 769, 770–71.

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1042 NEW YORK UNIVERSITY LAW REVIEW [Vol. 82:997

juries and benches.

204

Oliver Ellsworth, a delegate to the

Constitutional Convention and one of the primary drafters of the

Judiciary Act of 1789, was reported to have justified the need for the

lower federal courts principally on the grounds that state court juries

“were too apt to be biassed [sic]” against foreign litigants.

205

member of the first Federal Congress, William Smith of South

Carolina, referred to “that order of people” who composed state

juries and argued that they were likely to be prejudiced against for-

eign litigants.

206

Even some Anti-Federalists frankly admitted that

they held the individuals who served on state court juries in low

regard. Aedanus Burke of South Carolina complained that his state’s

juries were “committed to poor, uninformed men, many of whom are

unacquainted with the English language.”

207

Burke was in favor of

reforms that would have increased the number of “men of capacity

and independence” in his state’s juries.

208

Framer William Pierce, delegate from Georgia to the 1787

Convention, was perhaps the most blunt in his criticisms of state court

juries. In a September 1787 letter to a friend, Pierce defended the

Convention’s decision not to guarantee the use of juries in civil cases:

I ask if the trial by jury in civil cases is really and substantially of any

security to the liberties of a people. In my idea the opinion of its

utility is founded more in prejudice than in reason. I cannot but

think that an able Judge is better qualified to decide between man

and man than any twelve men possibly can be. The trial by jury

appears to me to have been introduced originally to soften some of

the rigors of the feodal system . . . but applied to us in America . . .

[it] is useless, and I think altogether unnecessary; and, if I was not in

204

See 1 R

ECORDS OF THE

EDERAL

ONVENTION

, supra note 11, at 124 (June 5, 1787)

(statement of James Madison) (“What was to be done [without a network of lower federal

courts] after improper Verdicts in State tribunals obtained under the biassed [sic] direc-

tions of a dependent Judge, or the local prejudices of an undirected jury?”). Madison’s

reference to “undirected” juries is a bit puzzling in light of the jury’s extensive prerogatives

to render verdicts in contradiction to even the clearest directions from the bench. See

supra notes 151–82 and accompanying text. It is possible, however, that Madison chose to

couch his statements in political terms in order to avoid alienating those members of the

Convention who represented debtor constituencies and supported the institution of the

jury.

205

Letter from William Smith to Edward Rutledge (Aug. 10, 1789), in 16 D

OCUMEN-

TARY

ISTORY OF THE

IRST

EDERAL

ONGRESS

, supra note 93, at 1281, 1284.

206

16 D

OCUMENTARY

ISTORY OF THE

IRST

EDERAL

ONGRESS

, supra note 93, at

1283–84.

207

Letter from Aedanus Burke to Daniel Desaussure (May 7, 1789), in 15 D

OCUMEN-

TARY

ISTORY OF THE

IRST

EDERAL

ONGRESS

, supra note 93, at 473, 474. For an

account of Burke’s opposition to the lower federal courts, see infra note 370 and accompa-

nying text.

208

15 D

OCUMENTARY

ISTORY OF THE

IRST

EDERAL

ONGRESS

, supra note 93, at

474–75.

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October 2007] THE ORIGINS OF DIVERSITY JURISDICTION 1043

the habit of respecting some of the prejudices of very sensible men,

I should declare it ridiculous.

209

Few proponents of the Constitution could afford to refer to juries

as “useless” and “ridiculous” during the delicate period when the doc-

ument’s fate hung in the balance. The institution of the jury was sac-

rosanct to most Americans, who cherished it—often as much or more

than the ballot box—as an opportunity to directly and fundamentally

participate in their democracy.

210

If many of the Constitution’s

drafters had been known to be as hostile to the institution as Pierce,

the document’s chances for ratification would have been even more

attenuated.

Hamilton, for example, was circumspect (or at least vague) in his

public criticisms of juries. In The Federalist No. 83, he offered several

instances in which civil juries would not be desirable:

I feel a deep and deliberate conviction, that there are many cases in

which the trial by jury is an ineligible one. . . . Juries cannot be

supposed competent to investigations, that require a thorough

knowledge of the laws and usages of nations, and they will some-

times be under the influence of impressions which will not suffer

them to pay sufficient regard to those considerations of public

policy which ought to guide their enquiries. . . .

. . . .

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 continu-

ally 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.

211

Hamilton was undoubtedly being guarded in his criticisms of the

jury. Even so, his “deep and deliberate convictions” led him to state

publicly that the national interest would be better served if many cases

were not tried before juries at all.

212

In his private correspondence

during the Revolution, Hamilton was even more forthcoming. “When

the deliberative or judicial powers are vested wholly or partly in the

collective body of the people,” he wrote in a letter to Gouverneur

209

Letter from William Pierce to St. George Tucker (Sept. 28, 1787), in G

AZETTE

., Mar. 20, 1788, reprinted in 16 D

OCUMENTARY

ISTORY OF THE

ATIFICATION

, supra

note 12, at 444.

210

See R

AKOVE

, supra note 80, at 301–02 (comparing importance of jury favorably with

that of ballot).

211

EDERALIST

. 83 (Alexander Hamilton), supra note 34, at 514–519.

212

Cf. R

AKOVE

, supra note 80, at 328 (concluding that Hamilton’s argument in The

Federalist Papers “marked an important shift” in balance between bench and jury).

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1044 NEW YORK UNIVERSITY LAW REVIEW [Vol. 82:997

Morris in 1777, “you must expect error, confusion and instability.”

213

While many Framers may have had the discretion to avoid publicly

criticizing the jury as an institution, there is no reason to think that the

sentiments of Pierce and Hamiliton were unique.

C. Unsuccessful Efforts to Eviscerate the Jury’s Power

in Federal Court

The Constitution’s treatment of civil juries strongly suggests an

effort to transfer power in the nascent federal courts from the jury to

the bench. On several occasions, proposals at the Convention to

include a guarantee of civil juries were rejected.

214

Charles

Cotesworth Pinckney of South Carolina argued that such a provision

would be “pregnant with embarrassments.”

215

Were it not for the sub-

sequent enactment of the Seventh Amendment, the Federal Congress

would have had the power to limit, or even altogether eliminate, the

types of civil cases that would be decided by jury.

216

Similarly, the

jury’s traditional freedom to decide issues of law was left susceptible

to legislative modification or repudiation with respect to both civil and

criminal matters.

217

As we have already seen, Framer William Pierce from Georgia

and South Carolina ratifying delegate Robert Barnwell defended the

Constitution’s treatment of civil juries by challenging the propriety of

the institution’s survival in federal court.

218

Other Federalists, such as

Hamilton, claimed that it was simply impractical to guarantee the use

of civil juries because of the variety of state practices.

219

The argu-

ment that it was impractical to provide for civil juries, however, was

likely disingenuous.

220

Every state constitution at the time of the

213

Letter from Alexander Hamilton to Gouverneur Morris (May 19, 1777), in 1 T

APERS OF

LEXANDER

AMILTON

1768–1778, at 254, 254–55 (H.C. Syrett ed., 1961).

214

See, e.g., 2 R

ECORDS OF THE

EDERAL

ONVENTION

, supra note 11, at 587–88, 628

(citing two failed proposals to include guarantee of civil jury).

215

2 id. at 628.

216

U.S. C

ONST

. amend. VII.

217

By contrast, the Georgia Constitution of 1777 expressly protected the jury’s right to

decide issues of law. G

. C

ONST

. of 1777, § 41.

218

See supra text accompanying notes 110 (Barnwell) and 209 (Pierce).

219

EDERALIST

. 83 (Alexander Hamilton), supra note 34, at 511–14.

220

See, e.g., Harrington, supra note 104, at 399 (arguing that Framers’ aversion to state

court juries was “apparent from the rather disingenuous arguments used by the Framers to

defend the omission”); Landsman, supra note 140, at 598 (“Most scholars have concluded

that claims about drafting difficulties were disingenuous. Instead, there was a growing

belief that the jury should play only a modest part in the governance of post-revolutionary

America.”). For a typical example of a similar assertion by a contemporary, see A Demo-

cratic Federalist, P

. H

ERALD

, Oct. 17, 1787, reprinted in 2 D

OCUMENTARY

ISTORY OF

THE

ATIFICATION

, supra note 12, at 193, 194 (“It seems to me that [the Federalists’ posi-

tion regarding the diversity of state civil jury practices] is much more disingenuous than the

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October 2007] THE ORIGINS OF DIVERSITY JURISDICTION 1045

Convention protected civil juries.

221

In light of the fact that criminal

juries were guaranteed in the original text of the Constitution,

222

the

absence of a similar guarantee for civil juries aroused the suspicions of

the Anti-Federalists.

223

In fact, Hamilton’s argument only makes

sense if one presupposes an effort to limit the jury’s scope in the fed-

eral system.

224

Otherwise, as contemporaries such as Thomas

Jefferson pointed out, the solution could have been simply to adopt

the practices of those states that made relatively expansive use of civil

juries.

225

This omission of civil juries from the Constitution represents, at

least to one scholar, “a profound shift in the way an exceedingly pow-

erful segment of society had come to view the institution.”

226

Patrick

Henry summarized the prevailing view of Anti-Federalists when he

stated at the Virginia ratifying convention that the new federal courts

were intended to operate without civil juries at all.

227

objection itself . . . . This answer is extremely futile, because a reference might easily have

been made to the common law of England, which obtains through every State . . . .”

(emphasis omitted)).

221

See supra note 144 and accompaning text.

222

U.S. C

ONST

. art. III, § 2, cl. 3 (“The Trial of all Crimes, except in Cases of Impeach-

ment, shall be by Jury . . . .”).

223

See, e.g., Lisa Litwiller, Has the Supreme Court Sounded the Death Knell for Jury

Assessed Punitive Damages? A Critical Re-Examination of the American Jury, 36 U.S.F. L.

. 411, 419 (2002) (“The omission of the right to jury trial in civil cases became a light-

ening [sic] rod during the ratification debates that followed. . . . On one side . . . were the

Anti-Federalists who opposed [the Constitution’s] adoption, in part, because of the lack of

a civil jury guarantee.”).

224

See T

EDERALIST

. 83 (Alexander Hamilton), supra note 34, at 519 (“The

examples of innovations which contract [the jury’s] ancient limits, as well in these states as

in Great-Britain, afford a strong presumption that its former extent has been found incon-

venient; and give room to suppose that future experience may discover the propriety and

utility of other exceptions.”).

225

Jefferson wrote:

It was a hard conclusion to say because there has been no uniformity among

the states as to the cases triable by jury, because some have been so incautious

as to abandon this mode of trial, therefore the more prudent states shall be

reduced to the same level of calamity. It would have been much more just and

wise to have concluded the other way that as most of the states had judiciously

preserved this palladium, those who had wandered should be brought back to

it, and to have established general right instead of general wrong.

Letter from Thomas Jefferson to James Madison (Dec. 20, 1787), in T

APERS OF

HOMAS

EFFERSON

438, 440 (Julian P. Boyd ed., 1955).

226

Landsman, supra note 140, at 598.

227

Patrick Henry, Remarks at the Virginia Convention (June 20, 1788), in 10

OCUMENTARY

ISTORY OF THE

ATIFICATION

, supra note 12, at 1419, 1425 (“As this

Government stands, I despise and abhor it. Gentlemen demand it, though it takes away

the trial by jury in civil cases, and does worse than take it away in criminal cases. It is gone

unless you preserve it now.”).

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1046 NEW YORK UNIVERSITY LAW REVIEW [Vol. 82:997

The Constitution’s aversion to civil juries, furthermore, was not

limited to its failure to affirmatively protect their existence in the fed-

eral courts. The Constitution also included a provision that appears to

affirmatively deprive the jury of some of its most fundamental prerog-

atives. Article III of the original document provides that the “appel-

late jurisdiction” of the Supreme Court shall encompass not only the

legal determinations of jury verdicts but the factual determinations as

well.

228

This clause appears to have been intended to allow the

Supreme Court to revise jury determinations of fact coming out of

both state and federal courts, as well as perhaps to allow the Supreme

Court to operate as a trial court for the retrial of such

determinations.

229

Some Federalists initially defended this provision by arguing that

jury verdicts should be subject to reversal.

230

Sensitive to the dangers

such an argument could pose to the Constitution’s ratification, other

Federalists quickly retreated from this position and offered strained

interpretations of the language that were less threatening to jury pro-

ponents.

231

Most Anti-Federalists, however, interpreted the clause as

effectively abolishing civil jury trials. In the Pennsylvania ratification

debates, one delegate voiced the predominant Anti-Federalist inter-

pretation of the Constitution in these terms:

228

Article III provides that “the supreme Court shall have appellate Jurisdiction, both

as to Law and Fact, with such Exceptions, and under such Regulations as the Congress

shall make.” U.S. C

ONST

. art. III, § 2, cl. 2.

229

See Holt, supra note 38, at 1468 & n.175 (“It is an inescapable conclusion that the

Framers assumed that the appellate jurisdiction extended to ‘cases of . . . Civil law’ and

thus intended the Supreme Court to exercise a civil-law mode of review sitting without a

jury to revise juries’ factual determinations or damage awards.” (quoting 2 R

ECORDS OF

THE

EDERAL

ONVENTION

, supra note 11, at 431)).

230

In the Pennsylvania ratifying convention, for example, James Wilson argued:

The jurisdiction as to fact may be thought improper; but those possessed of

information on this head see that it is necessary. . . . Those gentlemen who

during the late war had their vessels retaken, know well what a poor chance

they would have had, when those vessels were taken into other states and tried

by juries, and in what situation they would have been, if the court of appeals

had not been possessed of authority to reconsider and set aside the verdict of

those juries.

James Wilson, Remarks at the Pennsylvania Convention (Dec. 7, 1787), in 2 D

OCUMEN-

TARY

ISTORY OF THE

ATIFICATION

, supra note 12, at 514, 520–21.

231

See, e.g., T

EDERALIST

. 81 (Alexander Hamilton), supra note 34, at 498–99

(“I contend . . . that the expressions, ‘appellate jurisdiction, both as to law and fact,’ do not

necessarily imply a re-examination in the supreme court of facts decided by juries in the

inferior courts.”); see also F

ORREST

ONALD

, N

OVUS

RDO

ECLORUM

: T

NTEL-

LECTUAL

RIGINS OF THE

ONSTITUTION

290 (1985) (describing Hamilton’s defense in

The Federalist No. 81 as “highly technical and not especially convincing”).

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October 2007] THE ORIGINS OF DIVERSITY JURISDICTION 1047

It was the design and intention of the Convention to divest us of the

liberty of trial by jury in civil cases; and to deprive us of the benefits

of the common law.

The word “appeal” is a civil law term; and therefore the Convention

meant to introduce the civil law.

On an appeal the judges may set aside the verdict of a jury.

232

Many Anti-Federalists saw the Constitution’s treatment of civil

juries for what it was: a renunciation of direct democracy and a mani-

festation of distrust in the ability or willingness of the mass of citizens

to wield political power responsibly. An attack upon the jury, which

was perceived by Anti-Federalists as “the democratic branch of the

judiciary power,” was tantamount to an effort to deprive citizens of

their right to self-government.

233

As one Anti-Federalist pointed out,

an abrogation of the trial by jury would deprive “the common people”

of their “true proportion of influence” in the governance of the

country.

234

Similarly, a Farmer from Maryland warned:

Why shall we rob the Commons of the only remaining power they

have been able to preserve, for their personal exercise? Have they

ever abused it?—I know it has and will be said—they have—that

they are too ignorant—that they cannot distinguish between right

and wrong—that decisions on property are submitted to chance;

232

John Smilie, Remarks at the Pennsylvania Convention (Dec. 8, 1787), in 2 D

OCU-

MENTARY

ISTORY OF THE

ATIFICATION

, supra note 12, at 525, 525; see also Holt, supra

note 38, at 1468 n.175, 1469 n.176 (quoting numerous Anti-Federalist leaders expressing

such sentiments); Letter from the Federal Farmer No. 15 (Jan. 18, 1788), in 2 T

OM-

PLETE

NTI

-F

EDERALIST

, supra note 191, at 315, 322 (“By the common law . . . there is no

appeal from the verdict of the jury, as to facts, to any judges . . . but, by the proposed

constitution, . . . the opposite principle is established. An appeal will lay in all appellate

causes from the verdict of the jury, even as to mere facts . . . .”); Luther Martin, Remarks

to the Maryland Legislature (1787), in 1 D

EBATES ON THE

DOPTION OF THE

EDERAL

ONSTITUTION

, supra note 76, at 344, 381–82 (making similar statements).

233

See H

ERBERT

J. S

TORING

, W

HAT THE

NTI

-F

EDERALISTS

ERE

19 (1981)

(“The question was not fundamentally whether the lack of adequate provision for jury trial

would weaken a traditional bulwark of individual rights (although that was also involved)

but whether it would fatally weaken the role of the people in the administration of govern-

ment.”); Essay by a Farmer No. 4 (Mar. 21, 1788), in 5 T

OMPLETE

NTI

-F

EDERALIST

supra note 191, at 36, 38 (“The trial by jury is—the democratic branch of the judiciary

power—more necessary than representatives in the legislature . . . .” (emphasis omitted)).

234

Letter from the Federal Farmer No. 4 (Oct. 12, 1787), in 2 T

OMPLETE

NTI

EDERALIST

, supra note 191, at 245, 249–50 (“It is essential . . . that common people should

have a part and share of influence, in the judicial as well as in the legislative depart-

ment. . . . The trial by jury in the judicial department . . . [has] procured for them, in this

country, their true proportion of influence . . . .”); see also Letter of Centinel, No. II,

REEMAN

’

J. (Philadelphia), Oct. 24, 1787, reprinted in 2 T

OMPLETE

NTI

EDERALIST

, supra note 191, at 143, 149 (“‘[The jury] preserves in the hands of the people,

that share which they ought to have in the administration of justice, and prevents the

encroachments of the more powerful and wealthy citizens.’” (quoting W

ILLIAM

LACKSTONE

, 3 C

OMMENTARIES

*380)).

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1048 NEW YORK UNIVERSITY LAW REVIEW [Vol. 82:997

and that the last word, commonly determines the cause:—There is

some truth in these allegations—but whence comes it—The Com-

mons are much degraded in the powers of the mind:—They were

deprived of the use of understanding, when they were robbed of the

power of employing it.—Men no longer cultivate, what is no longer

useful,—should every opportunity be taken away, of exercising

their reason, you will reduce them to that state of mental baseness,

in which they appear in nine-tenths of this globe.

235

From the perspective of many Americans, the Constitution

attempted to accomplish what the British authorities had failed to do

when confronted with recalcitrant state jurors during the

Revolutionary era. Like the British, the Framers were perceived to be

attempting to eviscerate the power of juries by expanding the equity

jurisdiction of the courts (i.e., by expanding the number of cases that

would not require a jury trial) and by shifting power from the jury to

the bench.

236

In at least seven states, the state ratifying conventions

demanded an immediate amendment to guarantee civil juries.

237

The

ultimate result was the adoption of the Seventh Amendment, which

protected at least some of the civil jury’s traditional autonomy in the

federal context.

238

Over time, the Framers’ efforts to erode the jury’s prerogatives

were vindicated. Most lawyers today find it surprising to discover that

the civil jury ever had the ability, much less the right, to adopt an

interpretation of the law that directly contradicted the bench.

239

235

Essay by a Farmer No. 4, supra note 233, at 39; see also Aristocrotis, The Govern-

ment of Nature Delineated or an Exact Picture of the New Federal Constitution (1788),

reprinted in 3 T

OMPLETE

NTI

-F

EDERALIST

, supra note 191, at 196, 204–05 (paro-

dying Federalists’ arguments against the abilities of ordinary jurors); Letter from the Fed-

eral Farmer No. 4, supra note 234, at 245, 250 (“I am very sorry that even a few of our

countrymen should consider jurors . . . as ignorant troublesome bodies, which ought not to

have any share in the concerns of government.”).

236

See supra notes 140–43 and accompanying text (discussing British attempts to limit

jury adjudication, specifically including threat to try admiralty cases without juries).

237

Landsman, supra note 140, at 600; see also Letter from the Federal Farmer No. 15,

supra note 232, at 315, 320 (“The body of the people, principally, bear [sic] the burdens of

the community; they of right ought to have a controul [sic] in its important concerns, both

in making and executing the laws, otherwise they may, in a short time, be ruined.”).

238

The adoption of the Seventh Amendment guaranteed the civil litigant’s right to a

jury trial and protected both the civil and criminal juries’ factual determinations from

intrusive appellate review. The jury’s right to decide issues of law, however, was not pro-

tected. See U.S. C

ONST

. amend. VII (“In Suits at common law, where the value in contro-

versy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact

tried by a jury shall be otherwise re-examined in any Court of the United States, than

according to the rules of the common law.”).

239

For a discussion of the gradual erosion of the civil jury’s powers after the

Constitution, see generally William E. Nelson, The Province of the Judiciary, 37 J.

ARSHALL

L. R

. 325 (2004).

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October 2007] THE ORIGINS OF DIVERSITY JURISDICTION 1049

1788, however, any hopes for the immediate evisceration of the jury’s

autonomy proved unrealistic, and many Framers appeared to realize

that the expression of such designs—even privately—could jeopardize

the Constitution’s adoption.

The Framers’ determination to neutralize the majoritarian ten-

dencies of state court juries, however, was not frustrated by the pas-

sage of the Seventh Amendment. As we shall see in the next section,

circumventing these juries did not require a wholesale attenuation of

the federal jury’s prerogatives. Instead, it merely required control

over the composition of the juries that decided cases in federal court.

It was this control over the composition of federal juries that provided

the real allure of diversity jurisdiction for the Framers and that pro-

vided a primary impetus for the creation of the lower federal courts.

III

ISTORICAL

RIGINS OF

IVERSITY

URISDICTION

AND

EDERAL

ONTROL OVER THE

OMPOSITION

EDERAL

URIES

As those who created the federal courts well understood in 1787,

with the creation of the lower federal courts flowed a concomitant

control over the composition of the juries that sat in them.

Throughout the eighteenth century, it was not an uncommon practice

for those who administered the courts to manipulate the composition

of juries for political, social, or economic ends. As we saw in the prior

section, the compositions of American juries were manipulated during

the Revolutionary War period as a means of frustrating British poli-

cies.

240

The Framers must have realized that those charged with the

operation of the early federal courts would have been in a similar

position to control the composition of federal juries. As a result, the

federal courts offered an attractive alternative to the hegemony of

state juries.

Some of the private correspondence of the drafters of the

Judiciary Act suggests that control over the composition of juries was

an essential factor in the creation of the lower federal courts. In a

letter to Richard Henry Lee, a Senator on the committee responsible

for drafting the Judiciary Act, future Supreme Court Justice Samuel

Chase argued that the selection of “the best and most capable” in

society to serve on juries in the new federal courts should be a pri-

ority. To ensure this, Chase recommended setting “oppressively high”

property qualifications for federal jury service:

240

See supra notes 130–39 and accompanying text.

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1050 NEW YORK UNIVERSITY LAW REVIEW [Vol. 82:997

[T]he first object is to secure proper Characters for Jurymen. to

effect this, take away all Exemptions, except of Clergymen. sec-

ondly. direct the Jurymen to be summoned by Rotation, to make

the Burthen equal & easy—3rdly. direct the best & most capable

only to be summoned & make the Qualification oppressively high,

say 500£ & lay heavy penalties on the Returning Officer, & make it

the Duty of the Judges to attend to the Return.

241

Caleb Strong, a Convention attendee and one of the three pri-

mary drafters of the Judiciary Act, was similarly advised by Robert

Treat Paine, attorney general of Massachusetts, regarding “the great

Question of Appointing Jurors.” Paine hesitated to speak too openly

in his letter but nonetheless expressed his desire that the “old habits”

of the general public be avoided by instituting a method of jury selec-

tion that would ensure a “hearty desire to promote the common

Cause of a well regulated Judiciary System.”

242

In the short term, this control over the composition of federal

juries meant that the Framers and their political allies would be in a

position to influence, if not dictate, the outcome of federal litigation.

The first administration was dominated by political elites who had

fought for the Constitution’s adoption. George Washington had

attended the Convention, and all four of the original cabinet positions

were occupied by a Framer at one time or another during the course

of his Administration.

243

Proponents of the Constitution controlled

241

Letter from Samuel Chase to Richard Henry Lee (July 16, 1789), in 16 D

OCUMEN-

TARY

ISTORY OF THE

IRST

EDERAL

ONGRESS

, supra note 93, at 1039, 1039. Chase

went on to make numerous other recommendations related to the courts. Id. at 1039–40.

242

Letter from Robert Treat Paine to Caleb Strong (May 18, 1789), in 15 D

OCUMEN-

TARY

ISTORY OF THE

IRST

EDERAL

ONGRESS

, supra note 93, at 587, 589. The full

passage reads:

[Y]ou will have to consider the great Question of Appointing Jurors. I suppose

a Similarity in this respect doth not take place in the Several States, & if you

make one general regulation (wch. I consider necessary) hard then will be the

task to procure a facility of Execution, for this matter laying with the Lay Gens

it will be hard to make them alter their old habits—you’ll excuse these loose

hints, & attribute them to a hearty desire to promote the common Cause of a

well regulated Judiciary System . . . .

Id.

243

Attendees of the Convention who served in cabinet positions during the Washington

administration included: Alexander Hamilton, Secretary of the Treasury from 1789–95;

Edmund Randolph, Attorney General from 1789–94 and Secretary of State from 1794–95;

and James McHenry, Secretary of War from 1796–1800. See B

IOGRAPHICAL

IRECTORY

OF THE

NITED

TATES

ONGRESS

1774–2005, H.R. D

. N

. 108-222, at 3 (2005) (listing

executive officers in Washington administration); F

RAMERS OF THE

ONSTITUTION

154–56,

171–72, 194–95 (James H. Charleton et al. eds., 1986) (providing biographical information

on attendees of Constitutional Convention). These four positions constituted the full cab-

inet until the Navy Department was created in 1798. 1 M

ARK

ROSSMAN

, E

NCYCLOPEDIA

OF THE

NITED

TATES

ABINET

vii (2000).

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October 2007] THE ORIGINS OF DIVERSITY JURISDICTION 1051

both houses of the first Federal Congress.

244

Ten of the Senate’s

twenty-six members had attended the Constitutional Convention,

while nine Framers were present in the first House of

Representatives.

245

The Judiciary Act of 1789 was principally drafted

by three senators, each of whom had attended the Constitutional

Convention.

246

Nevertheless, diversity jurisdiction was not simply a short-term

effort by a select group of individuals to obtain power. Instead, it was

an integral part of a broader effort to establish an institutional remedy

for the perceived failings of the state governments, i.e., their unre-

strained majoritarianism. The federal government, it was believed,

would be able to check or remedy the failings of the state govern-

ments because it would be composed of a “superior” class of elected

244

During the first Federal Congress, the number of senators who had supported the

Constitution’s adoption ranged from twenty to twenty-one, due to William Paterson’s res-

ignation. Birth of the Nation: The First Federal Congress 1789–1791, Members, http://

www.gwu.edu/~ffcp/exhibit/p1/members/ (last visited May 18, 2007). The remaining five to

six members of the Senate either had opposed the Constitution’s ratification or did not

have clearly articulated positions. Id. In the House of Representatives, thirty-nine of the

chamber’s sixty-five members had supported the Constitution’s ratification. Id. Of the

remaining twenty-six Representatives, twenty-five had either opposed the Constitution,

were ambivalent, or did not have clearly articulated positions. Id. The only member who

is unaccounted for in this list is Alexander White, for whom relevant biographical informa-

tion is not available. Id.

245

The ten senators were: Richard Bassett (Delaware); Pierce Butler (South Carolina);

Oliver Ellsworth (Connecticut); William Few (Georgia); William Samuel Johnson

(Connecticut); John Langdon (New Hampshire); Robert Morris (Pennsylvania); William

Paterson (New Jersey); George Read (Delaware); and Caleb Strong (Massachusetts). The

nine representatives were: Abraham Baldwin (Georgia); Daniel Carroll (Maryland);

George Clymer (Pennsylvania); Thomas Fitzsimons (Pennsylvania); Elbridge Gerry

(Massachusetts); Nicholas Gilman (New Hampshire); James Madison (Virginia); Roger

Sherman (Connecticut); and Hugh Williamson (North Carolina). Compare H.R. D

. N

108-222, at 45–46 (listing members of first Federal Congress), with National Archives and

Records Administration, America’s Founding Fathers: Delegates to the Constitutional

Convention, http://www.archives.gov/national-archives-experience/charters/constitution_

founding_fathers.html (last visited March 9, 2007) (listing delegates to the Convention).

Of these nineteen individuals, only three did not sign the finished document on September

17, 1787. National Archives and Records Administration, supra. Of these three, one

(Elbridge Gerry) refused to sign the document for substantive reasons and two (Oliver

Ellsworth and Caleb Strong) approved of the document but were absent on the day of its

signing. C

ATHERINE

RINKER

OWEN

, M

IRACLE AT

HILADELPHIA

: T

TORY OF THE

ONSTITUTIONAL

ONVENTION

AY TO

EPTEMBER

1787, at 260, 262 (1966).

246

The three primary drafters were Oliver Ellsworth of Connecticut, William Paterson

of New Jersey, and Caleb Strong of Massachusetts. See 4 T

OCUMENTARY

ISTORY

OF THE

UPREME

OURT OF THE

NITED

TATES

, 1789–1800, at 22–23, 36 (Maeva Marcus

ed., 1992) [hereinafter D

OCUMENTARY

ISTORY OF THE

UPREME

OURT

] (noting that

these three sat on subcommittee charged with writing legislation and drafted Senate bill);

Warren, supra note 15, at 59–60 (describing how these three senators, especially Ellsworth,

took leading roles in committee); see also National Archives and Records Administration,

supra note 245 (listing Ellsworth, Paterson and Strong as attendees of Convention).

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1052 NEW YORK UNIVERSITY LAW REVIEW [Vol. 82:997

and appointed officials.

247

In the words of James Madison, “The aim

of every political Constitution is, or ought to be first to obtain for

rulers, men who possess most wisdom to discern, and most virtue to

pursue the common good of the society.”

248

The elevation of “the

better sort” into positions of power was thought to be necessary in

order to “refine and enlarge the public views, by passing them through

the medium of a chosen body of citizens, whose wisdom [could] best

discern the true interest of their country, and whose patriotism and

love of justice, [would] be least likely to sacrifice it to temporary or

partial considerations.”

249

Federal elected officials were expected to be superior to their

state counterparts for several reasons. First, as there would be far

fewer federal elected officials than state elected officials, a better class

of individuals was expected to emerge from the electoral filtering pro-

cess—particularly in the Senate.

250

Individuals such as James

Madison believed that the superiority of federal elected officials

would be a natural outgrowth of their being elected from much larger

geographic areas.

251

These larger districts—in the case of the

President, the nation as a whole, and in the case of senators, each state

247

See, e.g., M

ONALD

, supra note 231, at 165 (arguing that it was “crucial” to

Framers such as Madison that federal government would be made up of “‘men who pos-

sess the most attractive merit’” (quoting J

AMES

ARRINGTON

, T

OMMONWEALTH OF

CEANA

(1656), reprinted in T

OMMONWEALTH OF

CEANA AND

A S

YSTEM OF

OLITICS

23 (J.G.A. Pocock ed., Cambridge University Press 1992); T

EDERALIST

10 (James Madison), supra note 34, at 56)); W

OOD

, supra note 80, at 513 (“In short,

through the artificial contrivance of the Constitution overlying an expanded society, the

Federalists meant to restore and to prolong the traditional kind of elitist influence in

politics that social developments, especially since the Revolution, were undermining.”);

OOD

, supra note 39, at 254–55 (“In an interest-ridden society the secret of good govern-

ment was to enlarge and elevate the national government, . . . and thus screen out . . . ‘men

of factious tempers, of local prejudices, or of sinister designs’—and replace them with

classically educated gentlemen ‘whose . . . virtuous sentiments render them superior to

local prejudices.’” (quoting T

EDERALIST

. 10 (James Madison), supra note 34, at

56–57)).

248

EDERALIST

. 57 (James Madison), supra note 34, at 347.

249

EDERALIST

. 10 (James Madison), supra note 34, at 55.

250

See, e.g., L

UTZ

, supra note 184, at 85 (“Madison rehearsed the common notion that

elections filter upward men of greater virtue.”); id. at 154 (“Madison argued that represen-

tation and the extended republic can control factions. Representation filters upward men

of greater virtue, those who seek the common good rather than the partial good of any one

faction.”); W

OOD

, supra note 39, at 253 (stating that proponents of Constitution believed

federal government would be superior to state governments because members holding fed-

eral office would be more likely to be “disinterested gentry” and therefore uninvolved in

“the interest-mongering of the marketplace”); see also id. at 506–18 (describing “filtration

of talent” that Federalists expected to make federal elected officials superior to their state

counterparts).

251

See T

EDERALIST

. 57 (James Madison), supra note 34, at 350–51 (arguing

that representatives in Congress would be elected by districts of five thousand to six thou-

sand voters while representatives in lower houses of state legislatures were typically

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October 2007] THE ORIGINS OF DIVERSITY JURISDICTION 1053

as a whole—would help ensure that federal elected officials would

govern more responsibly than their state counterparts. The larger dis-

tricts would make federal officials more “disinterested” than their

state counterparts, it was believed, because the increased size would

decrease the likelihood that federal officials would come under the

influence or control of any particular constituency or faction.

252

Fur-

thermore, the increased prestige of federal office, inequities in the dis-

tricting practices of the states, and the qualification standards for

federal officeholders, also helped reassure the Framers that federal

legislators and executives would be more apt to be drawn from the

“better sort” than their state counterparts.

253

By virtue of their control over the selection of federal juries, fed-

eral officials could be expected to translate their own superiority over

state officials into a corresponding superiority of the federal courts.

Like the officials who selected and placed them in the jury box, fed-

eral jurors could be expected to be drawn from the “better sort” of

society. In the words of Samuel Chase, federal jurors were more

likely to be “the best and most capable”;

254

in the the phraseology of

James Madison, federal jurors were more likely than their state coun-

elected from districts of five hundred to six hundred voters and suggesting more “fit repre-

sentative[s]” would be elected from “so great a number”).

252

See T

EDERALIST

. 10 (James Madison), supra note 34, at 58 (“[A] rage for

paper money, for an abolition of debts, for an equal division of property, or for any other

improper or wicked project, will be less apt to pervade the whole body of the Union, than a

particular member of it . . . .”); see also L

UTZ

, supra note 184, at 84–85 (summarizing

Madison’s theory of extended republic); R

AKOVE

, supra note 80, at 46–56 (same).

253

For the qualifications to hold elected office, see U.S. C

ONST

. art. I, § 2, cl. 2, which

establishes twenty-five years of age, seven years of U.S. citizenship, and inhabitancy in the

electing state as the requirements for election to the House of Representatives; id. at art. I,

§ 3, cl. 3, which establishes thirty years of age, nine years of U.S. citizenship, and inhabi-

tancy in the electing state as the requirements for election to the Senate; id. at art. II, § 1,

cl. 4, which establishes birthright U.S. citizenship, thirty-five years of age, and fourteen

years of residency in the United States as the requirements for election to the presidency.

In some states, those areas that were most likely to contain and elect the “better sort” were

underrepresented in those states’ districting schemes. In Pennsylvania, for example,

Federalists believed that the city of Philadelphia had the highest concentration of well-

educated and wealthy individuals who could be trusted to govern responsibly. See infra

note 439. Under the scheme of representation employed by the state at the time, however,

the inhabitants of Philadelphia were substantially underrepresented in the state legislature

and in the executive council. See, e.g., T

EDERALIST

. 57 (James Madison), supra

note 34, at 352 (noting that though Philadelphia contained “between fifty and sixty thou-

sand souls. . . . [i]t form[ed] however but one county” and therefore elected only one

member to council and state legislature).

254

Letter from Samuel Chase to Richard Henry Lee (July 16, 1789), in 16 D

OCUMEN-

TARY

ISTORY OF THE

IRST

EDERAL

ONGRESS

, supra note 93, at 1039, 1039.

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1054 NEW YORK UNIVERSITY LAW REVIEW [Vol. 82:997

terparts to possess the “wisdom to discern, and the . . . virtue to

pursue the common good . . . .”

255

What is more, the superiority of the federal courts would not be

limited to a single issue, group of cases, or time period. Instead, the

Framers had reason to believe that the composition of federal juries,

controlled and regulated as they were by federal officials, would

continue to be superior to their state counterparts long after the

Framers themselves had ceased to play any role in government and

long after the controversies of their day had been superseded by new

and unforeseen developments.

256

A. Control over the Composition of Federal Juries by U.S. Marshals

At the time of the Convention of 1787, most states did not

employ today’s practice of empaneling jurors by lot. Instead, in the

majority of federal districts—Delaware, Kentucky, Maryland, New

Jersey, New York, Pennsylvania, Vermont, and Virginia—the sheriff

was allowed to hand-select the jury.

257

By providing Congress with

plenary power to establish the federal courts, the Framers (nineteen

of whom went on to serve in the first Federal Congress)

258

knew that

Congress would be free to employ this prevailing method of jury

selection in the federal courts. The prospect of marshal selection

255

EDERALIST

. 57 (James Madison), supra note 34, at 347. Madison was refer-

ring to “rulers” when he employed this language but as discussed previously, Madison

himself argued in Federalist No. 10 that judicial determinations were (in the aggregate) the

functional equivalent of legislation. See supra notes 192–93 and accompanying text.

256

During the early years of the nation’s existence, the Framers’ faith in the superiority

of federal officials (and hence federal jurors) appeared to be validated by their own polit-

ical success and the success of their allies. See, e.g., supra notes 243–46 and accompanying

text (describing sizeable number of Constitutional Convention attendees serving in legisla-

tive and executive branches). In all likelihood, the Jeffersonians’ success in the election of

1800 (the so-called “Revolution of 1800”) shook the faith of some Framers in the superi-

ority of federal officials. Cf. Nelson, supra note 239, at 353 (“When Thomas Jefferson and

his party won the election of 1800, it became clear to the Federalists that they could not

protect fixed and fundamental principles of law and justice . . . through control of the

executive and legislative branches of the national government.”). One can only speculate

about the effect of Andrew Jackson’s presidency had more Framers lived to see it (only

Madison did). Such observations, however, are beyond the scope of this Article. The

argument here is that the lower federal courts were originally written into the text of the

Constitution (at least with respect to diversity jurisdiction) because the Framers believed

that the federal officials’ control over the composition of federal juries would make the

federal courts perpetually superior to the state courts. Whether their faith in federal offi-

cials was always or ultimately vindicated does not alter this analysis of the Framers’ orig-

inal purpose in drafting the Constitution’s text in 1787.

257

See 4 D

OCUMENTARY

ISTORY OF THE

UPREME

OURT

, supra note 246, at 271

(explaining that states that did not choose jurors by lot allowed sheriff to summon anyone

he pleased).

258

See supra note 245 and accompanying text.

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October 2007] THE ORIGINS OF DIVERSITY JURISDICTION 1055

alone, therefore, assured the Framers as early as 1787 that federal offi-

cials would likely posses total control over the composition of federal

juries.

As Alexander Hamilton himself pointed out in The Federalist No.

83, this method of jury selection provided an easy mechanism for the

manipulation of jury compositions:

The sheriff who is the summoner of ordinary juries, and the clerks

of courts who have nomination of special juries, are themselves

standing officers, and acting individually, may be supposed more

accessible to the touch of corruption than the judges, who are a col-

lective body. It is not difficult to see that it would be in the power

of those officers to select jurors who would serve the purpose of the

party as well as a corrupted bench. In the next place, it may fairly

be supposed that there would be less difficulty in gaining some of

the jurors promiscuously taken from the public mass, than in

gaining men who had been chosen by the government for their pro-

bity and good character.

259

For Framers such as Hamilton who gathered in Philadelphia in 1787,

this method of jury selection promised to ensure that federal cases

would be decided by individuals of “the better sort” rather than by

juries who were drawn, as in the state courts, “promiscuously from the

public mass.”

In its initial draft of the Judiciary Act, the Federalist-dominated

Senate proposed that jurors in all federal courts be hand-selected by

federal marshals.

260

Caleb Strong, a Framer, was responsible for

drafting the initial version of the provision.

261

The Senate version was

resisted in the House of Representatives, however, where the Anti-

Federalists were in the minority but enjoyed greater numbers.

262

Instead of allowing the marshals to hand-select jurors in every federal

court, the House Committee proposed that federal juries be selected

according to the practices of the forum state.

263

A minority of states

at the time—Connecticut, Georgia, Massachusetts, New Hampshire,

and South Carolina—selected jurors by lot.

264

259

EDERALIST

. 83 (Alexander Hamilton), supra note 34, at 510–11.

260

Judiciary Act of 1789, § 27 (1789) (as presented to Senate prior to enactment),

reprinted in 4 D

OCUMENTARY

ISTORY OF THE

UPREME

OURT

, supra note 246, at 93, 93;

see also G

OEBEL

, supra note 10, at 490 (“[Under the original Senate Bill], [t]he jury list was

to be made up by the marshal. . . . [This] left open the possibility of manipulation by the

marshal.”).

261

4 D

OCUMENTARY

ISTORY OF THE

UPREME

OURT

, supra note 246, at 36 & n.98.

262

See id. at 91 (“Section 29, concerning the selection and composition of juries, was

one of the most hotly debated sections in both the Senate and the House.”).

263

See G

OEBEL

, supra note 10, at 506 (summarizing House Committee proposal that

state law should govern formation of federal juries).

264

4 D

OCUMENTARY

ISTORY OF THE

UPREME

OURT

, supra note 246, at 271.

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1056 NEW YORK UNIVERSITY LAW REVIEW [Vol. 82:997

The Senate, nevertheless, rejected the House proposal, and the

debate over juror selection continued after most other provisions of

the Judiciary Act had been finalized.

265

One of the drafters of the

Judiciary Act, Framer Oliver Ellsworth, privately expressed concern

that federal juries might be too “ignorant” were they to be selected by

lot.

266

In the end, the Senate and House agreed to a provision that

allowed for the selection of jurors “by lot or otherwise in each State

respectively, according to the mode of forming Juries therein now

practiced, so far as the laws of the same shall render such designations

practicable by the Courts or Marshals of the United States.”

267

The

compromise favored the Federalists. The inclusion of the “as practi-

cable” qualifier provided the marshals with a possible means of

evading lot selection altogether.

268

The addition of the phrase “now

practiced,” furthermore, appeared to “freeze” the federal courts to

the state practices in use as of 1789, thereby committing key federal

districts such as New York and Virginia to marshal selection even in

the event that those states’ legislatures subsequently moved to lot

selection.

269

The ultimate result of the Judiciary Act was that the majority of

federal districts, including particularly key districts such as

Pennsylvania, New York, and Virginia, employed a system in which

the federal marshals were free to choose whomever they pleased to sit

on the jury.

270

The Framers’ confidence in the marshals’ ability to discern and

select the “better sort” as federal jurors was validated by the types of

individuals who chose to serve as federal marshals during the early

decades of the federal courts’ existence. Unlike today, where the

position of federal marshal is relatively obscure, the earliest federal

marshals tended to be highly prominent political figures. In fact, the

265

See id. at 35 (describing legislative history of Judiciary Act).

266

Letter from William Smith to Edward Rutledge (Aug. 10, 1789), in 16 D

OCUMEN-

TARY

ISTORY OF THE

IRST

EDERAL

ONGRESS

, supra note 93, at 1281, 1284 (“The

mode of drawing Jurors shod. be according to the customs & Laws of the sevl. States: Mr.

Elsworth seemed to have no objections to that, but remarked that a very ignorant Jury

might be drawn by Ballot.”).

267

Judiciary Act of 1789, ch. 20, § 29, 1 Stat. 73, 88 (codified as amended in scattered

sections of 28 U.S.C.).

268

See infra note 310.

269

OEBEL

, supra note 10, at 507 (stating that statutory language “rescued” federal jury

selection “from the whims of future state legislation”); id. at 659 (stating that Thomas

Jefferson “conceived that the words ‘now practised’ in section 29 of the Judiciary Act froze

the practice as of 1789”).

270

See 4 D

OCUMENTARY

ISTORY OF THE

UPREME

OURT

, supra note 246, at 271

(noting states that followed this practice). The one limitation was that federal jurors had to

satisfy any property qualifications for jury service in the courts in the forum state. § 29, 1

Stat. at 88.

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October 2007] THE ORIGINS OF DIVERSITY JURISDICTION 1057

marshals were usually as prominent, if not more so, than the federal

judges under whom they served. Of the thirty-three marshals

appointed by Washington during his eight years in office, for example,

five were former state judges, six had previously been state legislators,

three had served in the Confederation Congress, and three would sub-

sequently go on to serve in the United States House of

Representatives.

271

Five of the marshals had been members of state

ratifying conventions, and one had been a presidential elector in

1788.

272

Several occupied elected political office concurrently with

their service as marshal.

273

A more detailed examination of the biographies of just a few fed-

eral marshals will help reinforce the point about the prestige of their

office. Delaware’s first federal marshal, Allan McLane, was a former

state judge and delegate to the state’s constitutional ratifying conven-

tion. While serving as marshal, McLane was simultaneously Speaker

of the Delaware legislature.

274

Jonathan Jackson, the marshal for the

district of Massachusetts from 1789 until 1791, had served in the

Massachusetts House of Representatives, the Massachusetts Senate,

and the Continental Congress before becoming marshal.

275

He was a

merchant by trade and a close ally of Alexander Hamilton.

276

John Brooks, Jackson’s successor as marshal in Massachusetts

from 1791 to 1792, was a prominent Federalist who had helped to

quell Shays’s Rebellion as a commander of the Massachusetts

militia.

277

He was a member of the Massachusetts ratifying conven-

tion and, like Jackson, served in the state legislature as both a repre-

sentative and senator.

278

From 1817 to 1822, he was the Governor of

Massachusetts.

279

271

See H

ENDERSON

, supra note 70, at 33 (listing qualifications of marshals).

272

Id. Many of the marshals had served with distinction during the Revolution; at least

twenty-five of the thirty-three marshals appointed during Washington’s tenure had been

Revolutionary officers. Id. at 34.

273

See, e.g., infra notes 274–97 and accompanying text.

274

See H

ENDERSON

, supra note 70, at 30, 33 (discussing McLane).

275

ARQUIS

—W

’

, I

., W

HO IN

MERICA

: H

ISTORICAL

OLUME

, 1607–1896, at 274 (1963) (discussing Jackson’s background).

276

Id.; see also C

ARL

E. P

RINCE

, T

EDERALISTS AND THE

RIGINS OF THE

U.S.

IVIL

ERVICE

266 (1977) (noting Jackson’s close identification with Hamilton).

277

3 D

ICTIONARY OF

MERICAN

IOGRAPHY

80 (Allen Johnson ed., 1935). Brooks was

described in the Dictionary of American Biography as a “staunch Federalist” who “sympa-

thized with the maritime rather than the manufacturing interests of Massachusetts.” Id.

278

Id. He had also served during the Revolution and was President of the Society of

Cincinnati and the Massachusetts Medical Society. Id.

279

Id. The period of Brooks’s administration was referred to as the “Indian Summer of

Federalism” in Massachusetts. Id.

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1058 NEW YORK UNIVERSITY LAW REVIEW [Vol. 82:997

Clement Biddle, marshal of Pennsylvania from 1789 until 1793,

was a personal friend of Washington and served as a judge on the

Pennsylvania Court of Common Pleas before becoming marshal.

280

Nathaniel Rogers, marshal for New Hampshire, was a former

state judge, legislator, and delegate to his state’s constitutional rati-

fying convention.

281

Lewis Richard Morris, who served as marshal in Vermont from

1791 to 1801, was a member of one of the nation’s most prominent

political families.

282

He attended the Vermont convention that rati-

fied the Constitution in 1791.

283

While marshal, Morris concurrently

served as the Speaker of the state assembly for two years.

284

Without

relinquishing his position as marshal, he then went on to serve in the

U.S. House of Representatives as a Federalist from 1797 until 1803.

285

Washington’s other appointees were also politically prominent

individuals, and virtually all were Federalists.

286

Under John Adams,

as politics in the country became more polarized between Federalists

and Republicans, the marshal appointments became even more

overtly political. Adams’s appointments showed a “consistent atten-

tion to Federalist beliefs.”

287

When Nathaniel Rogers resigned in

1798 to accept the position of Supervisor of the Revenue for the dis-

280

2 id. at 239–40.

281

ENDERSON

, supra note 70, at 33.

282

See M

ARQUIS

—W

’

, I

., supra note 275, at 368 (discussing Morris’s back-

ground). Morris was from an aristocratic and politically prominent New York family. His

father, Richard Morris, was Chief Justice of the New York State Supreme Court from 1779

to 1790. One of his uncles, Lewis Morris, was a signer of the Declaration of Independence

and a member of both the Continental Congress and the New York Senate. Another

uncle, Gouverneur Morris, was a drafter of the Articles of Confederation, a member of the

Continental Congress, U.S. minister to France under Washington, and a Federalist senator

from 1800 to 1803. Id.

283

Id.

284

After having been marshal, he returned to serve three terms as a Federalist represen-

tative in that body. Id.

285

Id.

286

Some of Washington’s other choices to be marshal included: Edward Carrington,

Virginia’s first marshal, a Revolutionary War figure who served in the Continental

Congress from 1785 to 1786 and in 1807 was the foreman in Aaron Burr’s treason trial,

ARQUIS

—W

’

, I

., supra note 275, at 96; Nathaniel Ramsay, appointed

Maryland’s marshal in 1790, a Revolutionary War figure, and a representative in the

Continental Congress in 1775 and from 1785 until 1787, who, in 1794, while still marshal,

was made naval officer of the Baltimore district, a position he retained until he died in

1817, 15 D

ICTIONARY OF

MERICAN

IOGRAPHY

340 (Dumas Malone ed., 1935); and

Thomas Lowrie, marshal of New Jersey, who was closely identified with Alexander

Hamilton, P

RINCE

, supra note 276, at 266. John Huger and his brother Isaac Huger were

chosen successively as marshals of South Carolina allegedly to “keep that important family

group in the Georgetown area allied to the federal cause.” See id. at 266 (quoting G

EORGE

C. R

OGERS

, J

., E

VOLUTION OF A

EDERALIST

182 (1962)).

287

ENDERSON

, supra note 70, at 92.

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October 2007] THE ORIGINS OF DIVERSITY JURISDICTION 1059

trict of New Hampshire, for example, Adams appointed Bradbury

Cilley after receiving a recommendation from the New Hampshire

congressional delegation that Cilley was “as firm a federalist as the

state affords.”

288

When a vacancy for marshal in Maine opened in

1799, Adams appointed Isaac Parker, who had just completed two

years as a Federalist member of the House of Representatives.

289

During the 1796 and 1800 elections, several marshals used their posi-

tions to help campaign for Federalist candidates.

290

Delaware marshal

Allen McLane was instrumental in producing the Federalist victory in

Delaware in 1796, and John Huger, the South Carolina marshal, cam-

paigned for Adams in 1800.

291

Henry Dearborn, who served as the first marshal in the district of

Maine, appears to have been the only marshal under any Federalist

president who went on to hold a political office as a Republican.

Dearborn served as a Republican from Massachusetts in the House of

Representatives from 1793 until 1797 and became secretary of war

during Jefferson’s administration.

292

He resigned his position to

become collector for the port of Boston, served in the War of 1812,

and finished his political career as a minister to Portugal.

293

One likely consequence of the marshals’ selection of federal

jurors was to contribute to the pro-commercial and pro-creditor orien-

tation of the new federal courts. The marshals themselves tended to

be merchants and often had strong ties to banking and commercial

interests. Allan McLane ultimately resigned his position as marshal in

1797 to take the more lucrative post of collector of the port of

Wilmington.

294

After his service as marshal, Jonathan Jackson went

on to become the treasurer of Massachusetts from 1802 to 1806,

inspector and supervisor of internal revenue, and president of the

Massachusetts State Bank.

295

Clement Biddle was a prosperous

merchant and importer.

296

While marshal, Nathaniel Rogers served

288

Id. at 93. Cilley was later a Federalist member of Congress from 1813 until 1817. Id.

289

Id. at 94.

290

For examples of marshals campaigning for Federalist candidates, see P

RINCE

, supra

note 276, at 265.

291

Id.

292

IOGRAPHICAL

IRECTORY OF THE

NITED

TATES

ONGRESS

1774–2005, H.R.

. N

. 108-222, at 49 (2005); M

ARQUIS

—W

’

, I

., supra note 275, at 141.

293

ARQUIS

—W

’

, I

., supra note 275, at 141. The city of Dearborn,

Michigan is named after him. Id.

294

12 D

ICTIONARY OF

MERICAN

IOGRAPHY

, supra note 277, at 112–13; H

ENDERSON

supra note 70, at 30, 33.

295

ARQUIS

—W

’

, I

., supra note 275, at 274.

296

2 D

ICTIONARY OF

MERICAN

IOGRAPHY

, supra note 277, at 239–40.

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1060 NEW YORK UNIVERSITY LAW REVIEW [Vol. 82:997

concurrently as a state commissioner responsible for settling debts

with the United States.

297

The significance of marshal selection, however, was not limited to

creditor or commercial issues. By virtue of their control over the com-

position of federal juries, the federal marshals had the power to con-

trol the resolution of all cases that were funneled into the federal

courts under the umbrella of diversity jurisdiction. The Constitutional

framework ensured that the marshals would be appointed by the two

elective branches of the federal government least susceptible to

majoritarian pressures (the executive and the Senate).

298

As the

“optimates” of the nation, i.e., the best intentioned and “most enlight-

ened” citizens, the marshals could be trusted to ensure that all of these

cases and controversies would be resolved in what the Framers consid-

ered to be the most just and responsible manner. In fact, the evidence

suggests that the marshals affirmatively used their powers to ensure

that the juries that decided cases in the lower federal courts shared

“the same manner of thinking as that of the marshals and judges

themselves.”

299

The state courts might have been dominated by juries

drawn “promiscuously . . . from the public mass,” as Hamilton phrased

it,

300

but federal cases would be decided by juries drawn attentively

and judiciously from the “better sort” of Americans.

The most glaring examples of the marshals’ manipulation of fed-

eral jury compositions to achieve political ends occurred during the

criminal prosecutions under the Sedition Act of 1798.

301

The Act

made it illegal for persons to libel or defame, in print or speech, the

297

ENDERSON

, supra note 70, at 30.

298

The Framers were careful to exclude the more democratically elected federal body—

the House of Representatives—from the federal appointment process. See U.S. C

ONST

art. II, § 2, cl. 2 (requiring President to make appointments with advice and consent of

Senate); see also L

UTZ

, supra note 184, at 91 (“The creation of a bicameral legislature,

[Madison] said, especially with an upper house composed of ‘more virtuous men,’ seemed

one way of dealing with concentrated power in a system in which the legislature tended to

be supreme.”); R

AKOVE

, supra note 80, at 53 (“Madison thus recognized that legislative

excess remained the crucial problem of republican constitutionalism. His proposed institu-

tional remedies . . . [included] the creation of a true senate, safely insulated from popular

pressure, to check the lower house . . . .”).

299

3 A

LBERT

J. B

EVERIDGE

, T

IFE OF

OHN

ARSHALL

42 (1919), quoted in J

AMES

ORTON

MITH

, F

REEDOM

’

ETTERS

: T

LIEN AND

EDITION

AWS AND

MERICAN

IVIL

IBERTIES

423 n.8 (1956); see also 2 G

EORGE

ASKINS

& H

ERBERT

OHNSON

, H

ISTORY OF THE

UPREME

OURT OF THE

NITED

TATES

155 (1981) (“It was

well known that in many States the courts, and more often the United States marshals,

picked whom they pleased to serve on . . . juries. Since the marshals . . . were Federalists to

a man, they tended to select for jury service those who shared their own political views.”).

300

See supra note 259 and accompanying text.

301

Act of July 14, 1798, ch. 74, 1 Stat. 596 (expired 1801).

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October 2007] THE ORIGINS OF DIVERSITY JURISDICTION 1061

President, Congress, or government of the United States.

302

Between

1798 and 1800, fifteen indictments were handed down under the

Act.

303

During the ensuing trials, Republicans vociferously protested that

the presidentially appointed marshals were packing the juries with

Federalists in order to secure convictions.

304

In Virginia, for example,

the marshal selected a jury composed entirely of Federalists for the

sedition trial of James Callender.

305

Elsewhere, Charles B. Cochran,

the marshal of South Carolina, was described by Republicans as “a

factious and wrong-headed youngster” who “unremittingly checked

the free course of justice by his partial selection of jurymen.”

306

The

jury-packing efforts of these Federalist marshals were so successful

that one historian claimed that “the practice of the marshals in

empanelling Federalists for jury service converted the law into an

engine of the Federalist political machine.”

307

The repeated selection of Federalists to serve on federal juries

drew protests from the Republican press. Since marshals were “crea-

ture[s] of the Executive,” one commentary in the press argued, it was

inevitable that they would “pack a jury of [T]ories to try a

[R]epublican.”

308

In response to the sedition trials, Republicans in

Congress pressed for a more equitable means of jury selection.

309

302

Id. at 596–97; see also G

OEBEL

, supra note 10, at 633–35 (describing motivations of,

and congressional debate surrounding, Act of July 14, 1798, ch. 74, 1 Stat. 596).

303

OEBEL

, supra note 10, at 637 n.107.

304

See, e.g., 4 D

OCUMENTARY

ISTORY OF THE

UPREME

OURT

, supra note 246, at

271 (“[D]uring the sedition trials of Matthew Lyon, Thomas Cooper, and James Callender,

marshals were persistently pilloried for rigging juries.”).

305

A review of the jury lists appeared to “prove[ ] positively that the trial jury was

Federalist to a man.” S

MITH

, supra note 299, at 348, 423; see also P

RINCE

, supra note 276,

at 264 (“[M]arshals rigged juries during the wave of sedition trials in 1798–99. David M.

Randolph, United States marshal for Virginia, . . . certainly cooperated with the presiding

judges in the Callender trial in empaneling a wholly Federalist jury.”).

306

RINCE

, supra note 276, at 264, 354 n.34 (quoting Letters from Charles Goodwin

(Apr. 30, 1801) and Ephraim Ramsey (May 1, 1801) to Thomas Jefferson).

307

ANNING

J. D

AUER

, T

DAMS

EDERALISTS

165 (1953); see also Frank M.

Anderson, The Enforcement of the Alien and Sedition Laws, in A

. H

ISTORICAL

’

NNUAL

EPORT FOR

1912, at 113, 125–26 (1914) (“[The juries in Sedition Act trials] were

composed predominantly, if not exclusively, of Federalists.”).

308

Montezumazin, No. III, A

URORA

(Phila.), Mar. 18, 1800, reprinted in 4 D

OCUMEN-

TARY

ISTORY OF THE

UPREME

OURT

, supra note 246, at 640, 640.

309

On January 31, 1800, the Republicans in Congress introduced a bill to curb the

freedom of the marshals to select jurors, providing a uniform system of random selection in

the federal courts. 4 D

OCUMENTARY

ISTORY OF THE

UPREME

OURT

, supra note 246,

at 271–72.

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1062 NEW YORK UNIVERSITY LAW REVIEW [Vol. 82:997

Federalist opposition in Congress, however, effectively frustrated

their efforts.

310

Ultimately, the Republicans’ concerns about the marshals’

packing of juries were alleviated, to some extent, by Thomas

Jefferson’s inauguration in March of 1801. One month before his

inauguration, on February 19, 1801, Jefferson had warned that “the

prostration of justice by [the] packing of juries cannot be passed

310

Id. at 273. That same term, however, Congress did pass a slight modification of the

existing law regarding jury selection. The statute read:

That jurors to serve in the courts of the United States shall be designated by

lot, or otherwise, in each state or district respectively, according to the mode of

forming juries to serve in the highest courts of law therein now practised; so far

as the same shall render such designation practicable by the courts and mar-

shals of the United States.

Act of May 13, 1800, ch. 61, 2 Stat. 82, 82 (codified as amended at 28 U.S.C. § 1861). Some

legal historians have concluded that this legislation amounted to no more than a clarifica-

tion of the Judiciary Act. G

OEBEL

, supra note 10, at 661 & n.184.

This author believes, however, that the law was intended to convert at least two fed-

eral courts—New York and Vermont—to a lot system of juror selection by “unfreezing”

the connection between state and federal practice that had been established in the

Judiciary Act of 1789 and by bringing it into line with the state practices as of May 1800.

President Jefferson, for example, appeared to express just such a belief in his correspon-

dence from the day the bill passed the Senate: “Our Jury bill in Senate will pass so as

merely to accommodate N. York & Vermont.” See G

OEBEL

, supra note 10, at 661 n.183

(quoting Letter from Thomas Jefferson to Edward Livingston (Apr. 30, 1800), in 7 T

RITINGS OF

HOMAS

EFFERSON

443, 444 (Paul Leicester Ford ed., 1896)). In the interim

between 1789 and 1800, for example, the state of New York had changed to a system of

selecting jurors by lot. See, e.g., Act of Apr. 3, 1798, ch. 75, 1798 N.Y. Laws 247, 247.

Despite Jefferson’s confidence, the law did not immediately have the intended effect

in New York federal court. The “as practicable” clause apparently left sufficient room for

maneuvering, and marshals continued to hand-select jury panels for the district of New

York until 1814. See C.C.D.N.Y. Minutes (1800–1813). Beginning with the jury pools of

1814, procedures in New York’s federal courts were finally brought in line with the state’s

practice of random jury selection. The only apparent explanation for this sudden change

was the arrival of a new district judge, William Van Ness, who, on September 7, 1818,

ordered the marshal to:

repair to the office of the clerk of the City and County of New York with the

clerk of this court which clerk shall in the presence of the said clerk of the said

city and county and of the Marshal shall proceed to draw out of the Box kept

by the clerk of the said city and county and containing the names of the jurors

of the said city and county seventy two slips of paper, and their persons whose

names are contained in such slips of paper which shall be drawn as aforesaid

shall be the persons who shall be summoned by the Marshal to serve as jurors

at the next term of this court. And the clerk of this court shall immediately

make out and certify under his hand a panel of the names of such jurors so

drawn out with their respective places of abode, and additions, and deliver the

same to the Marshal.

C.C.D.N.Y. Minutes (Sept. 7, 1813), at 25–27.

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October 2007] THE ORIGINS OF DIVERSITY JURISDICTION 1063

over.”

311

Upon entering office, Jefferson immediately replaced six of

the incumbent marshals.

312

B. Juror Selection in the New York Circuit Court

In order to analyze how federal juries differed from their state

counterparts, the author conducted a detailed empirical study of the

jurors who served in the New York federal court between 1791 and

1808. The results confirm that the marshals repeatedly selected the

same individuals for jury service. The results also support the conclu-

sion that the individuals repeatedly selected were Federalists who

tended to share the same political and economic motivations as the

marshals who selected them.

As in other federal courts, New York’s early federal marshals

were “men of the better sort.” Washington’s first choice as marshal of

New York, William Stephens Smith,

313

was a war hero who was

Washington’s aide during the war, married John Adams’s daughter in

1786, and in 1813 won a seat in the U.S. House of Representatives as a

Federalist.

314

Matthew Clarkson, marshal of New York from 1791 to

1792, served in the Revolutionary War, was a state legislator in both

the New York Assembly and Senate in the 1780s and 1790s, and was a

Federalist candidate for the U.S. Senate in 1802.

315

Aquila Giles,

Clarkson’s successor, was a Federalist who used his office to campaign

311

ASKINS

& J

OHNSON

, supra note 299, at 161. As one historian has summarized it:

“Of all the incumbent Federalist officeholders whose official fates Thomas Jefferson

pondered before his inauguration, he reacted most vehemently to the incumbent mar-

shals.” P

RINCE

, supra note 276, at 263.

312

RINCE

, supra note 276, at 263. These marshals were: John Hall of Pennsylvania,

Samuel Bradford of Massachusetts, Robert Hamilton of Delaware, Jabez Fitch of Vermont,

David M. Randolph of Virginia, and Isaac Parker of Maine. Id. Only one marshal who

was set for replacement, Bradbury Cilley of New Hampshire, managed to lobby success-

fully for his retention of the position. Id. In light of the central role played by the marshals

and how politicized their selection had become during the Adams Administration, it is

surprising that Jefferson did not immediately replace more than six. See R

ICHARD

LLIS

, T

EFFERSONIAN

RISIS

: C

OURTS AND

OLITICS IN THE

OUNG

EPUBLIC

(1971) (“Jefferson decided that all Federalist attorneys and marshals . . . were to be dis-

missed and replaced by Republicans.”). Jefferson’s temperance probably represented an

effort to reconcile the Federalists with the mainstream of American politics. See id. at 32

(“Formulating a policy toward incumbent officeholders proved to be [Jefferson’s] most

difficult problem in the months immediately following his inauguration. Many

Republicans demanded a general removal of the opposition, while the moderates advised

against a policy of sweeping removals in order to further reconciliation.”).

313

ENDERSON

, supra note 70, at 28–29.

314

See 17 D

ICTIONARY OF

MERICAN

IOGRAPHY

, supra note 277, at 368–69;

ARQUIS

—W

’

, I

., supra note 275, at 494. He was also one of the founders of

the Society of the Cincinnati, a prestigious and exclusive society of army officers, and

served as the organization’s president. Id.

315

4 D

ICTIONARY OF

MERICAN

IOGRAPHY

, supra note 277, at 166.

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1064 NEW YORK UNIVERSITY LAW REVIEW [Vol. 82:997

for the Federalist candidates in the 1800 elections.

316

Moreover, the

New York marshals had strong ties to the mercantile community.

Smith was the son of a wealthy merchant and resigned his position as

marshal of New York to become supervisor of the revenue and sur-

veyor of the port of New York, successively.

317

Clarkson came from a

prominent New York mercantile family and was president of the Bank

of New York from 1804 until 1825.

318

For the period from 1790 until 1814, which includes every year of

this author’s study, the federal marshals in New York were free to

hand-select jury panels in whatever manner they chose.

319

Examina-

tion of the minute records indicates that the early federal marshals in

New York repeatedly favored the same individuals for jury service.

From 1790 until 1808, the court impaneled a total of 1108 distinct indi-

viduals to fill 1829 seats as grand and petit jurors.

320

The minute

records indicate that 402 (36%)

321

of these jurors were impaneled on

multiple occasions.

322

There were approximately 6700 adult white

males in Manhattan in 1790.

323

To be eligible for jury duty, however,

one also needed £60 of unencumbered property.

324

This represented a

significant amount of wealth during that time and would have reduced

316

RINCE

, supra note 276, at 265 & n.37.

317

ARQUIS

—W

’

, I

., supra note 275, at 494; 17 D

ICTIONARY OF

MERICAN

IOGRAPHY

, supra note 277, at 368–69.

318

4 D

ICTIONARY OF

MERICAN

IOGRAPHY

, supra note 277, at 166.

319

The federal marshal had unfettered discretion to select jurors by virtue of an analo-

gous state law that granted that right to the sheriff. The statute explicitly provided that the

sheriff was to select a panel “without the direction” of the judges. Act of Apr. 19, 1786, ch.

41, 1786 N.Y. Laws 273, 276.

320

This assertion is based on two assumptions. The first is that there was a one-to-one

correspondence between names and jurors. It is possible, of course, that two jurors could

have shared the same name. This would have resulted in an undercount in the total

number of jurors and an overcount in the number of repeat jurors. The second assumption

is that the clerk’s spelling was consistent from panel to panel. In light of the variations in

spelling that were common during this era, however, it is quite possible that the same juror

was mistaken to be two jurors because his name was spelled differently in the records. This

limitation in the methodology likely resulted in an overcount of the total number of jurors

and an undercount in the number of repeat jurors. For a more complete explanation of the

author’s approach to spelling variations, see infra App. Part B.

321

This assessment is also based on the two assumptions noted in the preceding

footnote.

322

For the author’s study, juror appearances were tabulated by session. Frequently a

petit juror would serve on more than one jury within a single session, but these were not

counted as repeat appearances.

323

URROWS

& W

ALLACE

, supra note 131, at 330.

324

1786 N.Y. Laws at 275. In most areas of the state, the sixty pounds of property was

required to be in the form of land. Id. (“[E]very of them . . . shall . . . have . . . a freehold in

lands messuages or tenements, or of rents in fee or for life, of the value of sixty pounds,

free of all reprizes debts demands or incumbrances whatsoever . . . .”). For the residents of

New York, Albany, and Hudson, however, the property could be in the form of personal

property. Id. (“[I]n the cities of New York Albany or Hudson a freehold of the value

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October 2007] THE ORIGINS OF DIVERSITY JURISDICTION 1065

the pool to somewhere between 1348 and 2000 eligible persons.

325

The result was that the property qualifications in place at the time

ensured that the federal jurors would represent the wealthiest five

percent of New York City in 1790 and the wealthiest twenty-five per-

cent of the adult white male population in 1790.

326

We should therefore not be surprised that the court impaneled

some jurors more than once during the eighteen-year period. How-

ever, the marshals hand-selected preferred jurors on so many repeat

occasions that the number of jurors who served “only” two or three

times was actually lower than the number that would have been

expected were the jurors selected at random.

327

The clearest evidence of favoritism is revealed when one looks at

the number of jurors who served four or more times during this eigh-

teen-year period. Seventy-six jurors were impaneled on four or more

occasions. Of these, forty-three were impaneled four times, seventeen

were impaneled five times, five were impaneled six times, six were

impaneled seven times, three were impaneled eight times, and two

aforesaid, or a personal estate of the like value free from all reprises debts, demands or

incumbrances whatsoever.”).

325

According to reports in contemporary newspapers, there were 1209 residents of

Manhattan with freeholds of £100 or more, and another 1221 residents of Manhattan with

freeholds of between £20 and £100. T

HOMAS

E.V. S

MITH

, T

ITY OF

ORK IN THE

EAR OF

ASHINGTON

’

NAUGURATION

1789, at 7 (Chatham Press 1972) (1889).

Assuming a uniform distribution of freeholds valued between twenty and one-hundred

pounds, the number of Manhattan residents with freeholds of sixty pounds or more would

have been approximately 1820—midway between 1209 and 2430. It is possible that this

figure slightly undercounts the number of potential jurors in Manhattan, however, because

of the relaxation of the state requirement that Manhattan residents possess their property

in the form of land. See supra note 324. Assuming there could have been as many as 180

individuals who owned sufficient personal property to qualify for jury service, an upper

bound of 2000 potential jurors is assumed for the purposes of the statistical analysis

presented in this section. According to another source, furthermore, the number of

Manhattan residents with £20 freeholds was approximately 1800. B

URROWS

& W

ALLACE

supra note 131, at 330. Assuming the same distribution, this figure would have put the

total number of eligible jurors with £60 freeholds at approximately 1348. It is possible that

these figures slightly undercount the number of potential jurors in Manhattan, as well,

because of the relaxation of the state requirement that Manhattan residents possess their

property in the form of land. See supra note 324. For the purposes of the statistical anal-

ysis presented in this section, an upper bound of 2000 potential jurors will therefore be

assumed. The result is that the total number of Manhattan residents who were eligible for

jury service was likely between 1348 and 2000; taking the average, the jury-eligible popula-

tion will be assumed at 1674.

326

Virtually all of the jurors in New York were residents of Manhattan. See infra notes

380–85 and accompanying text. According to the 1790 census, there were 33,131 inhabi-

tants of New York City at the time. See B

UREAU OF THE

ENSUS

, D

’

TOF

OMMERCE

ABOR

, F

IRST

ENSUS OF THE

NITED

TATES

1790: N

ORK

9 (1908).

327

Given a pool of 1674 jurors, we would expect that 365 would be selected exactly

twice and that 122 would be selected exactly thrice. In fact, only 226 were selected exactly

twice and only 100 exactly three times.

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1066 NEW YORK UNIVERSITY LAW REVIEW [Vol. 82:997

jurors appeared in nine separate grand or petit jury panels. An

average of every three years, a litigant could expect to see each of the

following individuals sitting on either a grand or petit jury: James

Arden, Gilbert Aspinwall, William Bayard, Levinus Clarkson, James

Constable, Abijah Hammond, Isaac Heyer, John Hone, Joshua Jones,

Charles Ludlow, Moses Rogers, Peter Schermerhorn, Edmund

Seaman, John Shaw, Samuel Tooker, and Henry White. A litigant in

federal court would expect to see two of these individuals, Joshua

Jones and Edmund Seaman, as often as every other year.

This distribution of jurors would appear to be imbalanced

towards those jurors whom the marshals most favored and, indeed,

statistical analysis bears this suspicion out. While seventy-six jurors

appeared four or more times, only thirty would have been expected to

have done so. This result could therefore be expected to occur less

than one-tenth of one percent of the time in a random selection.

Thirty-three jurors were impaneled five or more times; five would

have been expected. The chance of such a result occurring randomly

is essentially zero; so, too, is the chance of having had sixteen jurors

appear six or more times, whereas only one could have been expected

to have done so.

Among this list of those who served most repeatedly were the

directors of the city’s leading banking, insurance, and waterworks

entities.

328

The Aspinwall, Bayard, Hone, and Schermerhorn families

were among the wealthiest and most prestigious families in New

York.

329

A search of the local directories from this period reveals that

all or virtually all of these repeat jurors were merchants of one kind or

another.

330

Peter Schermerhorn was one of the most well-known

328

Charles Ludlow was a director of the New York branch of the United States Bank

from 1803 to 1804. 1803 L

ONGWORTH

’

MERICAN

LMANAC

, N

ORK

EGISTER

AND

ITY

IRECTORY

53 (1803) [hereinafter L

ONGWORTH

’

MERICAN

LMANAC

]; 1804

ONGWORTH

’

MERICAN

LMANAC

, supra, at 50. John Hone was a director of the

Merchants’ Bank in 1804. Id. Moses Rogers was a member of the Chamber of Commerce

and a prominent merchant dating back to the Revolution. S

IDNEY

I. P

OMERANTZ

, N

ORK

: A

MERICAN

ITY

90 (1965). “Ed” Seaman was a director of the New York

Insurance Company in 1800. James Arden was a director of the Manhattan Company (a

waterworks) in 1804. 1804 L

ONGWORTH

’

MERICAN

LMANAC

, supra, at 50.

329

See B

URROWS

& W

ALLACE

, supra note 131, at 229 (Bayard), 455 (Hone), 457

(Aspinwall), 713 (Schermerhorn).

330

A search through the 1791 to 1801 editions of Longworth’s American Almanac, New

York Register, and City Directory reveals that all but two of these jurors were listed as

“merchants” for at least one of the years during this period. One of the two who were not

so listed, Peter Schermerhorn, was one of the most well-known merchants in the city, 1796

ONGWORTH

’

MERICAN

LMANAC

, supra note 328, at 284, while the other, Samuel

Tooker, had no listing. Cf. id. at 308 (failing to list Tooker where he otherwise would have

been listed).

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October 2007] THE ORIGINS OF DIVERSITY JURISDICTION 1067

shipping merchants in the city.

331

William Bayard was a founding

partner of one of the leading commercial houses in New York.

332

Few

New Yorkers, if any, possessed more securities from the southern

states than Bayard, and during the first quarter of the nineteenth cen-

tury he became one of the wealthiest individuals in the entire

country.

333

After Alexander Hamilton was shot by Aaron Burr, it was

to William Bayard’s house that Hamilton was rushed and at which he

subsequently died.

334

The ease with which a marshal could dictate the outcome of a

trial by manipulating the composition of the jury was demonstrated,

ironically, by the criminal trial of New York’s first federal marshal,

William Stephens Smith. In 1806, Smith and Samuel G. Ogden, a New

York merchant, were accused of aiding the Spaniard Francesco de

Miranda in an attack on Caracas, in what is now Venezuela.

335

Smith

and Ogden claimed that their enterprise had the support of the

Republican administration of Thomas Jefferson, and the ensuing trial

became one of the federal court system’s most politically charged

trials of the early nineteenth century.

336

Perhaps out of personal friendship with Smith,

337

the marshal

John Swartwout selected a large number of politically prominent

Federalists who were hostile to the prosecution of one of their own at

the hands of the Jefferson administration. The U.S. Attorney at the

time, Nathan Sanford, complained that the marshal’s ability to pack

the jury with Federalists dashed the prosecution’s chances of success

against Smith and Ogden.

338

331

OMERANTZ

, supra note 328, at 160. Peter Schermerhorn was a director of the Bank

of New York in 1796 and the New York branch of the United States Bank from 1803 to

1804. 1796 L

ONGWORTH

’

MERICAN

LMANAC

, supra note 330, at ix; 1803

ONGWORTH

’

MERICAN

LMANAC

, supra note 328, at 53; 1804 L

ONGWORTH

’

MERICAN

LMANAC

, supra note 328, at 50.

332

See 2 D

ICTIONARY OF

MERICAN

IOGRAPHY

, supra note 277, at 72–73 (describing

partnership between Bayard and Herman Le Roy that formed “one of the leading com-

mercial house[s] in New York”).

333

URROWS

& W

ALLACE

, supra note 131, at 302 (stating that Bayard and his partner

owned $580,000 worth of securities from southern states such as South Carolina, North

Carolina, and Virginia, most of any New York firm). William Bayard went on to become

president of the Bank of America and the Chamber of Commerce for the state of New

York. 1 D

ICTIONARY OF

MERICAN

IOGRAPHY

, supra note 277, at 72–73.

334

URROWS

& W

ALLACE

, supra note 131, at 332.

335

See generally J

EFFREY

B. M

ORRIS

, F

EDERAL

USTICE IN THE

ECOND

IRCUIT

(1987) (recounting trial). Ostensibly, the purpose of the endeavor was to liberate South

America from Spain. Id.

336

Id.

337

According to one source, he was an “intimate friend of Smith.” Id. at 50.

338

In an April 14, 1806 letter to prominent New Yorker Albert Gallatin, Nathan

Sanford remarked:

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1068 NEW YORK UNIVERSITY LAW REVIEW [Vol. 82:997

Despite the overwhelming majority of Federalists on the jury, or

perhaps because the Federalists thought a public trial was in their best

interests, the grand jury issued an indictment.

339

The composition of

that term’s petit jury, however, was equally stacked against the prose-

cution, and Sanford harbored no illusions about his ability to convict

the defendants.

340

When Smith and Ogden moved to continue the

trial, Sanford elected not to oppose their motion, perhaps in the hope

that even a slightly more favorable pool of petit jurors would be

selected in the following term.

341

In a letter to Albert Gallatin, Sanford expressed his frustration

with the marshal’s ability to dictate the course of the trial:

I mean rather to state facts than to make reflections, but I may be

permitted to observe that when a question whether political in its

nature or not can be made to assume a political aspect an officer

who selects the jury at his pleasure has it in his power well nigh to

insure the result of the prosecution. By the arts which have been

practised these prosecutions have at this moment been brought to

assume a political complexion in this City at least in the view of

persons unfriendly to the administration. If this artifice can be con-

tinued or renewed at the time of trial and if the jury should then

consist of men like those who composed the last jury I should not

entertain much hope of success whatever might be the evidence

adduced in support of the prosecutions.

342

In the interim between trials, Sanford braced for another unsym-

pathetic jury

343

and his fears were realized when the trials took place

The Grand Jury and the petty jury are both selected by the Marshal at his

pleasure. Twenty one Grand Jurors were sworn. Of these four or five were

Republicans, four or five were Burrites and the residue were Federalists.

Among the two latter classes were some who as I am informed are the per-

sonal friends of Ogden and Smith. Much the greater part of these Federalists

and probably some of the Burrites are the most bitter and violent enemies of

the administration.

Letter from Nathan Sanford to Albert Gallatin (Apr. 14, 1806) (on file with New York

University Law Review).

339

Id.

340

Id.

341

Of the forty-eight petit jurors selected for the court’s April term, Sanford remarked:

“[A] few were Republicans a few were Burrites and a large majority Federalists and the

greater number of the latter of the most bitter and violent complexion.” Id.

342

Id.

343

Sanford wrote:

I have before expressed to you my opinion that the fate of these prosecutions

depends almost entirely upon the pleasure of the Marshal. The President and

yourself have been informed of the conduct of the Marshal at the last term. I

presume not to say what it may be at any future time.

Letter from Nathan Sanford to Albert Gallatin (June 9, 1806) (on file with New York

University Law Review).

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October 2007] THE ORIGINS OF DIVERSITY JURISDICTION 1069

in July of 1806. Of the forty-eight petit jurors impaneled for the trial,

Sanford stated that he could identify only six who were

Republicans.

344

The greater number of the thirty-three identifiable

Federalists, Sanford complained, were “men of the most decided and

violent character in politics.”

345

“In a word,” Sanford summarized,

“the prosecutions have been completely converted into an affair of

party politics.”

346

The juries acquitted both Ogden and Smith.

347

After the trial, Jefferson promptly removed Swartwout from his office

and appointed a new marshal.

348

Although the selection of federal jurors by marshals was the most

glaring example of how the composition of federal juries could be con-

trolled and manipulated, it was not the only way that this could be

achieved. The composition of federal juries was also dictated, as the

next section will demonstrate, through federal officials’ control over

the geography of the federal jury pools. In certain respects, this geo-

graphic control had a more pervasive and far-reaching impact on the

political, social, and economic compositions of federal juries than did

the marshals’ selection.

C. Control of the Geography of Federal Jury Pools and Its Impact

on the Political, Economic, and Social Composition

of Federal Juries

At the time of the Convention, the Framers must have been

aware that it would be within the power of those charged with the

creation and administration of the federal courts to dictate the compo-

sitions of federal juries simply by controlling the geographic area from

which jurors would be drawn. By virtue of their belief that federal

officials would, unlike their state counterparts, be drawn consistently

344

Letter from Nathan Sanford to Albert Gallatin (July 30, 1806) (on file with the New

York University Law Review). Sanford identified thirty-three Federalists, six Republicans,

and three Burrites, and he lacked “sufficient knowledge” to be able to identify the “polit-

ical attachments” of the remaining six. Id.

345

Id.

346

Id. Ironically, one juror was dismissed from the proceedings for partiality toward the

prosecution. The juror, John Fellows, was challenged for “utter[ing] expressions after he

was summoned as a Juror, hostile to the defendant.” C.C.D.N.Y. Minutes (July 25, 1806).

The court summoned three other jurors to “determine whether the said John Fellows is an

impartial Juror in this cause or not . . . .” Id. Sanford stated:

If we had attempted, during the heat of a contested election, to persuade a

great majority of these Jurors to vote for a Republican nomination in opposi-

tion to candidates of their own political sect, we should have had as much

reason to expect success, as we had in attempting to persuade them to convict

Ogden and Smith.

Letter from Nathan Sanford to Albert Gallatin, supra note 344.

347

ORRIS

, supra note 335, at 50.

348

Id. at 50 & n.65.

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1070 NEW YORK UNIVERSITY LAW REVIEW [Vol. 82:997

from society’s upper echelon, the Framers could expect that such offi-

cials would exercise their control over jury compositions to ensure

that a “superior” class of individuals would be deciding cases as the

jurors in federal court. In order to appreciate how dramatically the

geography of the federal and state jury pools differed, and the socio-

economic significance of those differences, we need to look first at the

jury selection procedures existing in the states at the time the federal

courts were contemplated and established.

1. The Traditional Jury of the Vicinage

At the time the Constitution was written, the existing common

law practice in the states required that juries be drawn from the imme-

diate vicinity, or vicinage, of the area in which the cause of action

arose. Only a local jury, it was thought, would be in a position to

judge the credibility and motives of the parties and witnesses.

349

British efforts to abrogate the vicinage principle by trying colonists in

England drew some of the most vociferous American protests during

the colonial period.

350

The principle of the vicinage jury was

enshrined in many of the new states’ founding constitutions.

351

In the civil context, similarly, having a jury of the vicinage was an

essential political right of individuals and the communities in which

they lived. If juries were drawn from too large an area, their decisions

would not adequately represent the interests and values of the local

community. Most states, accordingly, dispersed their courts

throughout their various counties.

352

A few, such as New York and

349

In criminal matters, for example, it was thought that only a local jury would be

inclined to identify with a criminal defendant and serve as a counterbalance to the govern-

ment’s interest in prosecution. Patrick Henry defined the ideal body of jurors as “[t]hose

who reside near [the defendant]—his neighbours—and who are well acquainted with his

character and situation in life.” 10 D

OCUMENTARY

ISTORY OF THE

ATIFICATION

, supra

note 12, at 1466. Only neighbors, Henry argued, would be “acquainted with [defendants’]

characters, their good or bad conduct in life, to judge of the unfortunate man who may be

thus exposed to the rigour of that Government.” Id.

350

See supra notes 140–43 and accompanying text (discussing such British efforts).

351

See William W. Blume, The Place of Trial of Criminal Cases, 43 M

ICH

. L. R

. 59,

67–78 (1944) (explaining how idea of vicinage jury was included in Massachusetts

Declaration of Rights in 1780, Maryland Constitution of 1776, New Hampshire

Constitution of 1784, Pennsylvania Constitutions of 1776 and 1790, and Georgia

Constitution of 1777). In 1776, Virginia included the right to “Trial by an impartial jury of

his Vicinage” among the rights guaranteed to a criminal defendant by the state’s

Declaration of Rights. V

. D

ECLARATION OF

IGHTS

, art. VIII (1776), quoted in

BRAMSON

, supra note 182, at 23.

352

See, e.g., M

ILLER

, supra note 103, at 24–27 (describing Virginia system in 1787 in

which judicial power was centered in each county court); see also L

AWRENCE

RIEDMAN

, A H

ISTORY OF

MERICAN

17 (Touchstone 2005) (1973) (“Judicial organi-

zation as such did not change fundamentally in the eighteenth century. . . . In most colo-

nies, the county court functioned as a general trial court.”); M

ONALD

, supra note 231, at

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October 2007] THE ORIGINS OF DIVERSITY JURISDICTION 1071

Massachusetts, followed the traditional British nisi prius practice, by

which the highest court in the state met in a central location to con-

duct administrative and legal business but would then ride circuit each

year in order to hear trials in every county of the state.

353

In states

such as New York, jurors were required by law to be summoned from

the immediate vicinity of the trial, which meant in practice that an

action being tried in a particular county would be heard before a jury

composed entirely of that county’s residents.

354

In addition, state

venue rules usually required a geographic connection between the

subject of the litigation and the site where the case was tried.

355

New

York’s venue rules, for example, required trials to take place in the

county where the cause of action “arose.”

356

289 (“[T]he United States was a nation composed of several thousand insular communities,

each of which exercised virtually absolute powers over its members through two traditional

institutions, the militias and the juries.”); R

ITZ

, supra note 96, at 44 (“In 1789 the principal

characteristic of state judicatories was their horizontal arrangement. ‘Superior’ courts as

well as ‘inferior’ court were trial courts. The important function of the superior courts was

the trial function, not the appellate-review function.”).

353

In New York, for example, the trial court of the state (the Supreme Court) was

required by statute to ride circuit at least once every year in order to hear trials in every

county. An Act for Regulating Trials of Issues, and for Returning Able and Sufficient

Jurors, ch. 41, 1786 N.Y. Laws 273, 273; see also E

LLIS

, supra note 312, at 184–85

(describing court system of Massachusetts during Confederation era as having Courts of

Common Pleas in every county and Supreme Court that rode circuit through every county

of state each year in order to retry cases on appeal); Holt, supra note 38, at 1481 n.215

(stating that both Massachusetts and New York employed nisi prius system during this

period).

354

The statute read in relevant part:

That every venire facias for the trial of any issue in any action or suit civil or

criminal, in any court of record within this State, shall be awarded of the body

of the proper county where such issue is triable, excepting in such cases in

which foreign juries shall be deemed necessary; in which cases the venire facias

shall be awarded of the body of the county from which such foreign jury are

directed to come.

1786 N.Y. Laws at 275 (1786).

355

See, e.g., N

ELSON

, supra note 127, at 188 n.34 (discussing venue rules for

Massachusetts).

356

The statute read in relevant part:

That all issues joined or hereafter to be joined in the supreme court, or any

other court . . . shall be tried in the proper counties where the lands tenements

or hereditaments in demand or question shall be situated, or the cause of

action, suit, controversy or offence shall arise or be committed, unless the

supreme court upon motion in behalf of the people of this State if they be

interested or upon motion of any plaintiff, demandant or avowant or tenant or

defendant, shall think proper to order the trial to be at the bar of the said

supreme court, which shall only be done in cases of great difficulty, or which

require great examination. But this clause shall not extend to any action

merely transitory, nor prevent the said supreme court from ordering trials by

foreign juries in all cases where it shall be proper and necessary.

1786 N.Y. Laws at 273.

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1072 NEW YORK UNIVERSITY LAW REVIEW [Vol. 82:997

As we saw in the prior section, the dominance of local juries

could make the state courts an unwelcome place for creditors pur-

suing their debts.

357

When early proponents of diversity jurisdiction

spoke of “local prejudices” in the state courts, they may well have

been referring to this phenomenon, the result of which was that local

juries, on behalf of their communities, could impose their political,

economic, and social preferences on the resolution of court actions.

2. Repudiation of the Vicinage Principle for Federal Courts

In order to circumvent the hegemony of local juries, it was essen-

tial to the Framers that the new federal court system be divorced from

the traditional common law practice of employing local juries. The

very purpose of creating an alternative federal forum—where the

compositions of federal juries would differ dramatically from their

state counterparts—would have been largely frustrated had the fed-

eral courts been required to use local juries drawn from the various

counties according to the vicinage principle. The marshals’ freedom

to empanel jurors of their own choosing, for example, would have

been severely limited had the marshals been limited to selecting jurors

exclusively from the area in which each cause of action arose.

In fact, for those who blithely assumed that the federal courts

would not abandon the traditional principle of the vicinage jury, the

very purpose of establishing the lower federal courts seemed inscru-

table. As a member of the first Federal Congress queried:

Now, if we have a [federal] supreme court, to which appeals can be

carried, and an admiralty court for deciding cases of a maritime

nature, our system will be useful and complete. Why should we sup-

pose that the administration of justice will not be continued with its

wonted impartiality. Suppose a merchant gives a bond to pay 100

dollars duty, cannot that bond be recovered as well and speedily in

the state courts as in any continental court whatever. But admitting

the judges may be partial, will not the same jury be employed? The

jurors must come from the vicinage, and in all probability the dis-

trict judges will be composed of gentlemen who preside on the

benches of the state courts. Now, in this case, it is the same to the

government, to foreigners, and to citizens.

358

Representative Livermore was soon to be disappointed, however,

because the Federalists appeared to have no intention of saddling the

federal courts with a vicinage requirement.

357

See supra notes 104–07 and accompanying text (providing examples of how juries in

New York, Pennsylvania, and Virginia were inhospitable to creditor claims).

358

Statement of Representative Samuel Livermore of New Hampshire, T

ONGRESSIONAL

EGISTER

(Aug. 29, 1789), reprinted in 11 D

OCUMENTARY

ISTORY OF

THE

IRST

EDERAL

ONGRESS

, supra note 93, at 1367.

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October 2007] THE ORIGINS OF DIVERSITY JURISDICTION 1073

The Constitution itself contains no limitations on the geography

of federal civil juries, and in the criminal context it requires only that

juries be drawn from the same state as the defendant.

359

The potential

manipulation of the geography of federal jury pools constituted a ral-

lying point for some of those opposed to the Constitution’s ratifica-

tion.

360

For a citizenry that had grown accustomed to the ability of

authorities to manipulate the composition of juries, federal control

over the geography of jury pools guaranteed federal control over the

demographic of the juries drawn from those pools. At the Virginia

ratifying convention, for example, William Grayson argued:

It may be laid down as a rule, that where the governing power pos-

sesses an unlimited controul over the venue, no man’s life is in

safety. . . . The idea which I call the true vicinage is, that a man shall

be tried by his neighbors. But the idea here is, that he may be tried

in any part of the State. . . . The jury may come from any part of the

State. They possess an absolute uncontroulable power over the

venue. The conclusion then is, that they can hang any one they

please by having a jury to suit their purpose.

361

In four states, demands were made to amend the Constitution to pro-

tect the vicinage principle for all criminal trials.

362

The mere prospect that the federal courts would not employ local

juries in civil cases led some Anti-Federalists to claim that the

Constitution had abrogated civil juries entirely. As a Democratic

Federalist argued:

[E]ven supposing that the superior court of the United States had

the authority to try facts by juries of the vicinage, it would be impos-

359

U.S. C

ONST

. art. III, § 2, cl. 3 (“The Trial of all Crimes, except in Cases of Impeach-

ment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall

have been committed . . . .”).

360

See, e.g., 10 D

OCUMENTARY

ISTORY OF THE

ATIFICATION

, supra note 12, at 1424

(“Juries from the vicinage being not secured, this right is in reality sacrificed. . . . They [the

federal government] may call any thing rebellion, and deprive you of a fair trial by an

impartial jury of your neighbors.” (quoting Patrick Henry)). For similar remarks in North

Carolina, see 4 D

EBATES ON THE

DOPTION OF THE

EDERAL

ONSTITUTION

, supra note

76, at 149–51, 154 (speeches of Joseph M’Dowall, Timothy Bloodworth, and Samuel

Spencer).

361

10 D

OCUMENTARY

ISTORY OF THE

ATIFICATION

, supra note 12, at 1449–50 (state-

ment of William Grayson).

362

Virginia and North Carolina passed twin resolutions calling for a Bill of Rights that

would have recognized “trial by an impartial jury of [the accused’s] vicinage.” Drew L.

Kershen, Vicinage, 29 O

KLA

. L. R

. 803, 816 (1976). New York called for an amendment

that would have recognized “an impartial Jury of the County where the crime was com-

mitted.” See E

DWARD

UMBAULD

, T

ILL OF

IGHTS AND

HAT

EANS

ODAY

189–90 (1957) (quoting New York resolution). Rhode Island made a similar proposal after

Congress had sent the Bill of Rights to the states for ratification. See id. at 31–32 (dis-

cussing Rhode Island’s proposal); Kershen, supra, at 817 (discussing proposals of New

York and Rhode Island).

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1074 NEW YORK UNIVERSITY LAW REVIEW [Vol. 82:997

sible for them to carry it into execution. It is well known that the

supreme courts of the different States, at stated times in every year,

go round the different counties of their respective States to try

issues of fact, which is called riding the circuits. Now, how is it pos-

sible that the supreme continental court, which we will suppose to

consist at most of five or six judges, can travel at least twice in every

year through the different counties of America, from New

Hampshire to Kentucky and from Kentucky to Georgia, to try facts

by juries of the vicinage? Common sense will not admit of such a

supposition. I am therefore right in my assertion, that trial by jury

in civil cases is by the proposed constitution entirely done away and

effectually abolished.

363

Despite the Anti-Federalists’ opposition, the Constitution was

ultimately ratified, and the struggle for control over federal juries

moved to the first Federal Congress. There, the Federalists vigorously

resisted efforts to limit the federal officials’ ability to dictate the geog-

raphy of federal jury pools in either the civil or criminal context. In

the House of Representatives, for example, a constitutional amend-

ment was proposed which would have guaranteed that all criminal

(but not civil) matters would be tried “by an impartial jury of free-

holders of the vicinage.”

364

Under this moderate proposal, Congress

would have retained complete control over the geography of civil

juries. Nonetheless, the proposal met with a determined and—

according to Madison—“inflexible” resistance from the Federalist-

controlled Senate.

365

The Federalists ultimately prevailed and the ref-

363

A Democratic Federalist, P

. H

ERALD

, Oct. 17, 1787, reprinted in 2 D

OCUMENTARY

ISTORY OF THE

ATIFICATION

, supra note 12, at 193, 195.

364

OEBEL

, supra note 10, at 437–38. An exception would have been made for crimes

committed within a county in possession of the enemy, or in which a general insurrection

had prevailed. In that case, the trial would occur “in some other place within the same

state; and if [the crime or insurrection] be committed in a place not within a State, the

indictment and trial may be at such place or places as the law may have directed.” Id. at

438.

365

Madison’s bill met this resistance as soon as it was introduced to the Senate in late

August of 1789. See id. at 449 (“Article X, in which the House had combined in antic

fashion security for trial by a jury of the vicinage, etc., and the requirement for present-

ment or indictment, was disemboweled.”). Madison described the Senate’s opposition in a

letter to the Chief Justice of Virginia, Edmund Pendleton:

[The Senate is] equally inflexible in opposing a definition of the locality of

Juries. The vicinage they contend is either too vague or too strict a term, too

vague if depending on limits to be fixed by the pleasure of the law, too strict if

limited to the County. It was proposed to insert after the word juries—“with

the accustomed requisites”—leaving the definition to be construed according

to the judgment of professional men. Even this could not be obtained.

Letter from James Madison to Edmund Pendleton (Sept. 23, 1789), in 17 D

OCUMENTARY

ISTORY OF THE

IRST

EDERAL

ONGRESS

, supra note 93, at 1603, 1603.

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October 2007] THE ORIGINS OF DIVERSITY JURISDICTION 1075

erence to the vicinage was stripped from the language of the

amendment.

366

In the debates over the Judiciary Act, the Federalists defeated

proposals which would have required the federal judges to ride circuit

through the various counties of the forum states.

367

After acrimo-

nious debate, furthermore, the Senate rejected various amendments

that would have required a geographic connection between the jurors

and the subject matter of the litigation in criminal cases.

368

Ulti-

mately, the Judiciary Act provided that jurors would be drawn, in all

cases except capital criminal trials, “from such parts of the district

from time to time as the court shall direct, so as shall be most favour-

able to an impartial trial, and so as not to incur an unnecessary

expense, or unduly to burthen the citizens of any part of the district

with such services.”

369

366

See Conference Committee Report (Sept. 24, 1789), reprinted in 4 D

OCUMENTARY

ISTORY OF THE

IRST

EDERAL

ONGRESS

, supra note 93, at 47, 47–48 (detailing

Senate’s amendment); House Resolution and Articles of Amendment (Aug. 24, 1789)

reprinted in 4 D

OCUMENTARY

ISTORY OF THE

IRST

EDERAL

ONGRESS

, supra note 93,

at 35, 38 n.15 (explaining Senate’s elimination of vicinage language). The proponents of

the vicinage principle did win a victory of sorts on September 24, 1789, when compromise

language was ultimately accepted as the Sixth Amendment. See G

OEBEL

, supra note 10, at

455 (describing compromise). “In all criminal prosecutions,” the Amendment provides,

“the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the

State and district wherein the crime shall have been committed, which district shall have

been previously ascertained by law.” U.S. C

ONST

. amend. VI. By requiring the jury to be

drawn from the “district” in which the crime had been committed, the Anti-Federalists had

hoped to restrict the geography of the jury pool to an area that was smaller than the state

in which the district was located. In the end, however, the Federalists in the first Congress

succeeded in making the judicial districts coterminous with the states. Judiciary Act of

1789, ch. 20, § 2, 1 Stat. 73, 73 (codified as amended in scattered sections of 28 U.S.C.).

During the first several decades of the courts’ existence, therefore, this language in the

Amendment was inconsequential. Over time, the Amendment grew more significant as

the states were eventually divided into multiple districts. Today, there are ninety-four fed-

eral judicial districts encompassing the fifty states, the District of Columbia, and Puerto

Rico. U.S. Courts, United States District Courts, http://www.uscourts.gov/districtcourts.

html (last visited Aug. 17, 2007).

367

See Diary of William Maclay (June 24, 1789), reprinted in 9 D

OCUMENTARY

ISTORY

OF THE

IRST

EDERAL

ONGRESS

, supra note 93, at 88 (relating debates on Judiciary

Act).

368

See 4 D

OCUMENTARY

ISTORY OF THE

UPREME

OURT

, supra note 246, at 91–92

(discussing debate over and rejection of vicinage principle). The proposed House amend-

ments would have required trials “in the county, town or district wherein the offence shall

have been committed.” Id. at 94; see also G

OEBEL

, supra note 10, at 500–01 (describing

struggle between Senate and House over proposed language); Warren, supra note 15, at

105–06 (“Section 27 of the Draft Bill (Section 29 of the Act) as to juries in criminal cases

occasioned a bitter contest, which was continued in the House, after the bill passed the

Senate.”).

369

§ 29, 1 Stat. at 88 (codified as amended in scattered sections of 28 U.S.C.). The

proponents of the vicinage requirement were successful in securing a last minute conces-

sion from the Senate regarding the trial of capital offenses. See 4 D

OCUMENTARY

IS-

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1076 NEW YORK UNIVERSITY LAW REVIEW [Vol. 82:997

As some Anti-Federalists in Congress instantly recognized, the

Judiciary Act of 1789 constituted a virtually complete repudiation of

the vicinage principle in the federal courts. The “unnecessary

expense” and “undue burden” provisions of section 29 were subjective

enough to allow for complete discretion in the selection of jurors;

nothing in the Act prohibited federal officials from drawing jurors

exclusively from whichever geographic area suited their purposes.

One Anti-Federalist congressman summarized the anticipated conse-

quences of the Federalists’ victory:

Whoever drew that clause [section 29 of the Judiciary Act], did it

artfully, and with a view of concealing the features of it: And I give

him full credit for the share his head had in it. Read the words, and

you see held out to the citizen a fair and impartial trial by jury of the

vicinage, while it insidiously strips him of this happy privilege. For

if a man be charged with treason, or other offence against the gov-

ernment, committed as far back as lake Ontario, instead of being

brought to trial in the country, or district, where he is said to have

committed the offence, as the state law directs at present, he is to be

dragged down to the city of New-York, to take his trial here, not by

a jury taken from the country at large, as at present, but this section

is so subtilly framed, that a jury may be picked, not merely within

the city, but within any particular ward of it.

370

The Anti-Federalists’ fears were prescient. As we shall see in the

next section, the federal officials’ control over the geography of fed-

eral jury pools ultimately dictated the compositions of federal juries at

least as pervasively, if not more so, than the marshals’ hand selection.

3. Control over the Composition of Federal Jury Pools

As we saw in Part III.A, the Federalist marshals had ample

freedom to pack juries in those districts which allowed for the hand-

selection of jurors (Delaware, Kentucky, Maryland, New Jersey,

Pennsylvania, Vermont, and Virginia). Even in those districts that

drew jurors by lot, the Federalist marshals could heavily influence the

outcomes of trials simply by manipulating the geographic areas from

which the juries were drawn. In Matthew Lyon’s sedition trial in

TORY OF THE

UPREME

OURT

, supra note 246, at 91–92 (describing House and Senate

versions of vicinage language). Just before it passed, section 29 of the Judiciary Act was

amended in order to provide that, “in cases punishable with death, the trial shall be had in

the county where the offence was committed, or where that cannot be done without great

inconvenience, twelve petit jurors at least, shall be summoned from thence.” § 29, 1 Stat.

at 88.

370

Statement of Representative Aedanus Burke of South Carolina, T

ONGRESSIONAL

EGISTER

(Aug. 31, 1789), reprinted in 11 D

OCUMENTARY

ISTORY OF

THE

IRST

EDERAL

ONGRESS

, supra note 93, at 1392.

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October 2007] THE ORIGINS OF DIVERSITY JURISDICTION 1077

Massachusetts, for example, the defendant alleged that the federal

marshal confined his initial venires to those towns that had the highest

concentration of Federalists.

371

There were other pervasive ways, furthermore, in which the geog-

raphy of jury pools could be used to dictate the sociopolitical composi-

tions of federal juries without such assiduous attention on the part of

the marshals. As part of their repudiation of the vicinage principle,

the Federalists had defeated Anti-Federalists’ proposals to require the

federal courts to ride circuit through the various parts of the state.

372

Instead, the Judiciary Act established that each federal court would sit

in only one or two locations in each forum state but would have juris-

diction over all diversity claims arising anywhere within that state.

373

The result, as some Anti-Federalists had foreseen, was that federal

juries drawn exclusively from a small portion of the state could be

given the power to decide cases involving parties and controversies

originating hundreds of miles away.

In fact, logistics and the exigencies of travel alone dictated that a

disproportionate share of jurors in every district would be drawn from

the area immediately surrounding the federal courthouse. Travel was

expensive and burdensome, and jurors were not adequately reim-

bursed for the time they spent getting to and from the court. Those

districts that occasionally attempted to draw jurors from beyond the

courthouse’s immediate vicinity quickly discovered that such efforts

were futile. The federal courts in Georgia, North Carolina, and

Kentucky, for example, experienced substantial difficulty in compel-

ling the appearance of jurors who were summoned from any dis-

tance.

374

These districts faced large juror default rates, and fines were

raised to draconian levels in an attempt to compel appearances.

375

the federal court in Georgia, for example, the court raised the fine for

defaulting petit jurors from four dollars to eight, then to ten, and

371

See S

MITH

, supra note 299, at 235–36, 422–23 (noting Lyon’s complaint that his trial

jurors had been chosen from towns hostile to him). Lyon called the U.S. marshal, Jabez

Fitch, a “hard hearted savage.” P

RINCE

, supra note 276, at 264.

372

See supra note 367 and accompanying text.

373

§§ 3, 12, 1 Stat. at 73–74, 79–80.

374

See H

ENDERSON

, supra note 70, at 39 (noting, with respect to Kentucky and Georgia,

that problem was intensified by “sparse settlement” in lower South and West).

375

Id. Juries were discharged for lack of sufficient numbers in April 1794 and

November 1796 in Georgia and in March 1793 in Kentucky. See id. at 39 & n.15 (quoting

C.C.D. Ga. Minutes 1790–93, at 16; C.C.D. Ga. Minutes 1793–98, at 32, 201; and D. Ky.

Orders 1789–1800, at 34).

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1078 NEW YORK UNIVERSITY LAW REVIEW [Vol. 82:997

finally, by November of 1798, to twenty dollars.

376

Fines in North

Carolina were also twenty dollars.

377

The other difficulty with summoning jurors from a larger area

was that marshals were typically paid a flat fee to return a venire and

would have found it burdensome to travel from location to location

summoning panels of jurors. Even in those instances where a court

did attempt to draw a geographically diverse body of citizens as jurors,

therefore, it was financially impractical for the marshals actually to do

so.

378

In order to ascertain the degree to which the early federal juries

were dominated by residents of the areas immediately surrounding

the courthouse, the author conducted a study of the federal court in

New York. With the exception of one session, the Circuit Court of

New York met exclusively in the city of New York during the period

of this study.

379

The court’s minute records reveal that there were

virtually no efforts by the court to draw jurors from a geographically

diverse area.

380

An empirical study of the petit jurors appearing in the

376

Id. at 39. To have a sense of the severity of such a fine, it is worth noting that the

average price for a barrel of beef in America in 1800 was $11 and the average price for a

bushel of wheat was $2.10. P

OMERANTZ

, supra note 328, at 169.

377

ENDERSON

, supra note 70, at 39.

378

The clerk of the court in Connecticut complained of the severe burdens imposed on

the marshal by the impaneling of jurors from different areas of the state. See Letter from

the Conn. Dist. Clerk to the Comptroller of the Treasury (Sept. 23, 1797), RG 217,

Miscellaneous Treasury Accounts 1790–1894, No. 9264:

I have to observe that by the laws of this State, one set of Jurors are summoned

to attend the Court as Jurors for the trial of all issues, without reference to any

particular case, and to prevent the necessity of Talesmen from bystanders, it is

a standing order of the Circuit court to summon 18 instead of 12 Jurors, these

according to the law of this state are to be drawn by lot from the Jury boxes of

those Towns named in the Venire. These towns are taken from different coun-

ties by direction of the court in rotation. As the laws of the United States

require this service to be made by the Marshall or his deputy, he must necessa-

rily travel many times several miles to the Jury box of the Town to draw the

names, and then to the respective dwellings of the Jurors so drawn, and so

from Town to Town till he obtains a Jury according to his warrant, the Towns

being designated in his warrant. . . .

. . . .

Under these circumstances it is obvious that three dollars will be no com-

pensation to the Marshal for executing a Venire according to this practice

when he may be obliged by the directions of the warrant to travel 150 miles to

execute it.

379

The court did meet once at Albany, in October of 1790, but there were no cases tried

and no jurors impaneled for that session. See C.C.D.N.Y. Minutes (Oct. 4, 1790). In antic-

ipation of the court’s one session at Albany, the court ordered a venire of grand jurors to

be summoned from the counties of Albany and Columbia. Id. (Apr. 14, 1790).

380

There was an initial, albeit very short-lived, effort to draw grand jurors from what

would become the surrounding boroughs of Manhattan. In the court minute records for its

first session on April 5, 1790, the court ordered that “a Venire be issued to the Marshall

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October 2007] THE ORIGINS OF DIVERSITY JURISDICTION 1079

New York Circuit Court between 1791 and 1808 reveals that the jury

pools of this federal court were almost entirely composed of residents

of the island of Manhattan. By cross-referencing the jury lists con-

tained in the minute records with the United States census,

381

a total

of 426 juror appearances were identified,

382

slightly more than ninety

percent of which were by jurors from Manhattan.

383

In fact, one of

commanding him to summon a Grand Jury from the Counties of New York, West Chester,

Kings, Queens, and Richmond . . . .” C.C.D.N.Y. Minutes (Apr. 5, 1790). These counties

essentially constituted what are now the five boroughs of New York City. Richmond

County encompassed Staten Island (and still does). N

ORK

: A

TLAS OF

ISTORICAL

OUNTY

OUNDARIES

157 (John H. Long ed., 1993) [hereinafter N

ORK

TLAS

Kings County encompassed current-day Brooklyn. Id. at 99. West Chester encompassed

the current-day Bronx as well as what is Westchester County today. Id. at 208. After 1895,

the Bronx was no longer included in Westchester County. Id. at 209.

It is interesting to note that the court initially made an attempt to draw the grand

jurors along some kind of proportional basis. Beginning with the October session of 1791,

the court ordered that the marshal summon twelve grand jurors from the county of New

York and three each from the counties of West Chester, Richmond, Kings, and Queens.

C.C.D.N.Y. Minutes (Oct. 6, 1791 & Sept. 6, 1792). It is unclear why these instructions

omitted any reference to petit jurors. There were extremely few trials during these first

three years of the court’s operation, so it is possible that the selection of petit jurors was

conducted in a more ad hoc manner. In any event, this limited attempt at drawing jurors

from the neighboring counties was abandoned after the September term of 1792.

381

Petit jurors appear in the minute records in two ways. Until 1801, they only appear

as jurors summoned for trial. After 1801, however, the minute records list the actual

panels that were summoned by the marshal. From these two types of records, the author

compiled lists of jurors who appeared in each session.

382

See infra App., note 383.

383

The census lists were compiled on a county-by-county basis. New York County, as it

is today, was limited to the island of Manhattan. N

ORK

TLAS

, supra note 380, at

118. The following is a chart of the appearances, listed by county:

Number of Percentage of

Jurors From Total

County County Appearances

New York 385 90%

Kings 7 2%

Queens 6 1%

Dutchess 6 1%

Albany 5 1%

Saratoga 3 1%

West Chester 2 0–1%

Orange 2 0–1%

Onondaga 2 0–1%

Richmond 1 0–1%

Herkimer 1 0–1%

Suffolk 1 0–1%

Schoharie 1 0–1%

Rockland 1 0–1%

Ulster 1 0–1%

Jefferson 1 0–1%

Columbia 1 0–1%

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1080 NEW YORK UNIVERSITY LAW REVIEW [Vol. 82:997

the most striking features of these results is the dearth of jurors even

from nearby Kings, Queens, Richmond, and West Chester counties.

The combined appearances from these counties account for less than

four percent of the total. Three of the seven Kings County jurors sat

on the same jury.

384

Due to the extremely low numbers of jurors from

even the nearby counties, it seems quite doubtful that any of the

jurors were actually drawn from the more distant counties. The pres-

ence of these counties in the data is probably the result of the method-

ological limitations of the study.

385

It seems likely, therefore, that the

actual percentage of Manhattan jurors approached ninety-seven or

ninety-eight percent, with the neighboring counties combining to

account for the remaining two or three percent.

In New York, therefore, federal juries differed dramatically from

their state counterparts with respect to their political, social, and eco-

nomic orientations. In the New York state system, the justices of the

Supreme Court rode circuit through the state and tried their cases

before local juries drawn from each of the various counties. In New

York federal court, by contrast, the juries were comprised of the

wealthiest five percent of Manhattan residents.

386

All New York state

juries outside of Albany, Hudson, and Manhattan, furthermore, were

required by state law to be male landholders with freehold estates

worth at least sixty pounds each.

387

Therefore, whereas New York

384

This jury was the only occasion in which the court attempted to take special mea-

sures to ensure an impartial jury. In a trial between James Culbertson and Thomas M.D.B.

Godet in the September session of 1795, the court ordered a jury de mediedate linguae

because the defendant was an alien. See C.C.D.N.Y. Minutes (Sept. 5, 1794; Apr. 6, 1795;

Sept. 5, 1795). The court, furthermore, ordered that the jury exclude individuals from the

city and county of New York because “the Inhabitants of the said City and County are

interested in this cause.” See id. The nature of the suit is unclear from the records, but it is

known that the mayor of New York City was summoned as a witness. Id. The minute

book lists only eleven jurors in the trial, five of whom were designated as aliens and the

remaining six of whom were presumably drawn from the surrounding counties of Kings,

Queens, West Chester, and Richmond. See id. The plaintiff was ultimately non-suited.

See id.

385

The study could not be expected to identify jurors with one hundred percent accu-

racy due to the imperfections of the census records, the inconsistency of the court clerks in

spelling, and the practical limitations of the author’s methodology. See infra App.

386

The Judiciary Act provided that federal courts were to adopt the state requirements

for impaneling jurors. Judiciary Act of 1789, ch. 20, § 29, 1 Stat. 73, 88. In New York City,

jurors were therefore required to be men between the ages of twenty-one and sixty who

had a personal estate of sixty pounds, free from all “reprises debts, demands or incum-

brances.” See supra note 324. According to the 1790 census records, only approximately

five percent of Manhattan’s residents qualified for federal jury service. See supra note 326

and accompanying text.

387

See supra note 324; An Act for Regulating Trials of Issues, and for Returning Able

and Sufficient Jurors, ch. 41, 1786 N.Y. Laws 273, 275. New York State required its jurors

to be men between the ages of twenty-one and sixty who each had “a freehold in lands

messuages or tenements, or of rents in fee or for life, of the value of sixty pounds, free of

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October 2007] THE ORIGINS OF DIVERSITY JURISDICTION 1081

state juries were composed overwhelmingly of farmers, New York fed-

eral juries were far more likely to be merchants or to have derived

their wealth from commercially related enterprises. A review of juror

data from the first decade of the federal courts’ existence suggests that

approximately eighty percent of federal jurors in New York consid-

ered themselves to be merchants.

388

The federal officials’ control over the geography of federal jury

pools had numerous repercussions for the diversity cases that were

directed into federal court. As in New York, Congress chose to locate

the vast majority of the early federal courts in the nation’s commercial

centers.

389

The fact that the federal courts drew their juries predomi-

nantly from the areas immediately surrounding the courthouse meant

that the location of the federal courts in these commercial centers was

of paramount importance to determining the compositions of federal

juries.

One of the many ramifications of Congress’s centralization of the

federal courts in the commercial centers, for example, was to convert

the federal courts into a highly favorable forum for creditors and com-

mercial litigants, just as Friendly hypothesized eighty years ago. As

we saw in the first Part of this Article, support for debtor interests and

paper money legislation was strongest in the agrarian interiors of the

nation.

390

In contrast, opposition to paper money legislation came

predominantly from the commercial centers within or close to the sea-

board.

391

Merchants in these urban commercial centers tended

all reprises debts demands or incumbrances whatsoever . . . .” Id. An exception to this

rule was made for inhabitants of the cities of New York, Hudson, and Albany, where the

requirement that the requisite property holdings be in the form of land was dropped. See

id. (“[I]n the cities of New York Albany or Hudson a freehold of the value aforesaid, or a

personal estate of the like value free from all reprises debts, demands or incumbrances

whatsoever.”).

388

The author cross-referenced all the grand and petit juror appearances for the years

1791 to 1801 with the corresponding years’ volumes of Longworth’s American Almanac,

New York Register, and City Directory. An analysis of Longworth’s American Almanac,

New York Register, and City Directory reveals that 392 jury appearances have a corre-

sponding entry or entries in the directory where a single occupation is listed for that juror.

Three hundred and thirty-three of these entries were listed as “merchants” and fifty-nine

entries had other listings. Many of these other listings included auctioneers, ship chan-

dlers, shipmasters, and other commercially related occupations.

389

For the locations of the federal circuit courts, see infra notes 408–15 and accompa-

nying text.

390

See supra notes 53–68 and accompanying text (describing paper money movement).

391

See, e.g., Holt, supra note 38, at 1430 (describing creditor/debtor relations of this

period generally as conflict between “urban merchants, speculators in land and currency,

and other relentless creditors” and “southern slaveholding planters and the overwhelm-

ingly agricultural yeomen and peasants” who made up majority of citizenry in 1780s). As

Gordon Wood explained:

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1082 NEW YORK UNIVERSITY LAW REVIEW [Vol. 82:997

strongly to oppose debtor-relief measures.

392

These merchants were

often domestic creditors themselves, and the precious “hard money”

that was circulating during this period tended to flow through their

hands.

393

In addition, the commercial cities along the coast had the

most to lose from trade interruptions or hostilities with Great Britain,

in the event Britain went through with its threatened retaliation for

the difficulties its creditors were experiencing in state courts.

394

Occasionally, the Framers themselves spoke of the creditor/

debtor controversy explicitly in terms of a struggle between mercan-

tile and agrarian factions. For instance, James Madison argued the

following to the delegates to the Constitutional Convention:

“Debtors have defrauded their creditors. The landed interest has

borne hard on the mercantile interest.”

395

Elbridge Gerry argued that

the U.S. Senate should be elected by the state legislatures because the

legislatures would be more protective of the “commercial & monied

interest” than would the people at large.

396

In The Federalist No. 35,

These calls for paper money in the 1780s were the calls of American business.

The future of America’s entrepreneurial activity and prosperity lay not with

the hundreds of well-to-do creditor merchants who dominated the overseas

trade of the several ports along the Atlantic seaboard. Rather, it lay with the

thousands upon thousands of ordinary traders, petty businessmen, and market

farmers who were deep in debt and were buying and selling with each other all

over America.

OOD

, supra note 39, at 249.

392

See, e.g., J

ENSEN

, supra note 47, at 315–26 (describing opposition of merchants to

paper money legislation in Pennsylvania, North Carolina, New York, and Rhode Island);

id. at 178 (“In this case the dominant note was sounded by American merchants and busi-

ness men who lived mostly in the seaport towns. . . . They were located at or near the seats

of government and they were in direct contact with legislatures and government officers.”);

EVINS

, supra note 46, at 527 (“Naturally, the men with capital—creditors, importers,

wholesale merchants, and professional men—were against any measure which would

depreciate their holdings and cut their investments in two.”). The exception in this regard

was South Carolina, where merchants tended to favor the issuance of paper money. See

ENSEN

, supra note 47, at 315 (“Most merchants opposed paper money, but in South

Carolina the American merchants supported it and maintained it at par value.”).

393

See J

ENSEN

, supra note 47, at 235 (“Most of the ‘hard’ money was in the hands of the

merchants who were creditors of both the governments and of individual citizens. Not

only did the creditor groups possess considerable amounts of specie, but they insisted that

debts to them be paid in specie . . . .”); see also id. at 314 (“The notes issued by the new

banks circulated mostly among merchants.”).

394

See G

OEBEL

, supra note 10, at 196–97 (“[The states] resorted to contrivances to

obstruct the collection of debts by British creditors . . . . [W]hat was most parlous of all to

the seaboard interests was the deterioration of [U.S.] foreign relations.”); supra notes

197–203 and accompanying text (discussing friction between Britain and states following

Revolutionary War caused by state courts’ discrimination against British creditors).

395

1 R

ECORDS OF THE

EDERAL

ONVENTION

, supra note 11, at 135.

396

Id. at 154. Gerry went on to point out with favor that the state legislatures some-

times refused to enact paper money legislation even though the general population was in

favor of it. Id. at 154–55.

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October 2007] THE ORIGINS OF DIVERSITY JURISDICTION 1083

Hamilton asserted that all interests in the country could ultimately be

reduced to either those of a mercantile nature or those of a “landed”

nature.

397

Shays’s Rebellion, the insurrection of disgruntled farmers

from the interior of Massachusetts, was quashed by a militia that was

drawn largely from the coastal and commercial areas of the state.

398

The result was that commercial centers such as New York City,

399

Philadelphia,

400

Boston,

401

Providence,

402

Annapolis,

403

Savannah,

404

New Haven,

405

Exeter,

406

and Portsmouth

407

became the bedrock of

opposition to paper money legislation.

397

EDERALIST

. 35 (Alexander Hamilton), supra note 34, at 199–200.

Hamilton also referred to a third group, the “learned professions,” but in his mind these

constituted not so much a separate interest in society but rather a neutral force that could

serve as an arbiter between the two dominant factions. Id. at 200.

398

See S

ZATMARY

, supra note 56, at 81 (“The militia backing government usually came

from commercially oriented areas. . . . In [the] largest display of support for government,

the troops came mostly from Boston and its immediate vicinity and included the

Massachusetts mercantile elite.”); see also R

AKOVE

, supra note 80, at 33–34 (discussing

militia composition).

399

In New York, paper money legislation was proposed in the state legislature in 1784,

1785, and 1786. The New York City Chamber of Commerce, a group composed exclusively

of merchants, denounced paper money and demanded that if it were issued it not be con-

sidered legal tender. J

ENSEN

, supra note 47, at 320–21; N

EVINS

, supra note 46, at 527 n.92.

The votes in the state legislature reveal that the proposals appealed strongly to the

northern counties, which were populated by farmers, while the merchant and commercial

interests of the southern counties clustered around New York City tended overwhelmingly

to oppose the measures. “On March 18, 1785, the Assembly voted (23 to 20), that a pro-

posed issue of paper money should be legal tender for debts or taxes which had been owing

prior to its issue.” J

ACKSON

URNER

AIN

, T

NTI

-F

EDERALISTS

RITICS OF THE

ONSTITUTION

, 1781–1788, at 50 (1961) (citing J

OURNAL OF THE

SSEMBLY OF THE

TATE

ORK

98 (New York, S. Louden 1785)). The bill was voted for by all but six

delegates from the counties north of New York City, while all but one representative from

the southern counties voted against it. Id.

400

See N

EVINS

, supra note 46, at 520 (“From the mercantile interests of Philadelphia

came a protest against the paper money feature, presented after a public meeting at the

City Tavern that was fifty to one against the emission.”).

401

See S

ZATMARY

, supra note 56, at 44–55 (describing opposition of commercial inter-

ests to various paper money proposals in New England legislatures); id. at 48 (describing

Boston as commercial center of Massachusetts and arguing that location of state capital in

Boston was important factor in defeat of paper money proposals in Massachusetts).

402

See J

ENSEN

, supra note 47, at 324 (describing “violent opposition” to paper money

legislation led by delegates from Providence).

403

See N

EVINS

, supra note 46, at 532 (“Annapolis was the center of the opposition to

paper.”).

404

See id. at 524 (“Chatham County, in which lies Savannah, opposed the

emission . . . .”).

405

See M

ONALD

, supra note 63, at 25 (“New Haven was a principal base of the state

creditors faction.”).

406

See S

ZATMARY

, supra note 56, at 48 (explaining how location of legislative seats in

commercial centers such as Exeter, New Hampshire, gave political advantage to commer-

cial elites who opposed paper money).

407

See N

EVINS

, supra note 46, at 538 (“Meetings in Portsmouth and other towns

promptly resolved that the paper money plan was unwise.”).

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1084 NEW YORK UNIVERSITY LAW REVIEW [Vol. 82:997

To find convincing support for the proposition that the federal

courts were intended to be a favorable forum for creditors and com-

mercial interests, one need look no further than the locations which

were chosen for the early federal courts. Every one of the commercial

centers that formed the backbone of opposition to the paper money

movement became the location of a federal court during the first

decade of the nation’s existence. The original locations for the eight-

eenth-century federal circuit courts were:

408

Connecticut: Hartford and New Haven, alternately

Delaware: New Castle and Dover, alternately

Georgia: Savannah and Augusta, alternately

Maryland: Annapolis and Easton,

409

alternately

Massachusetts: Boston

New Hampshire: Portsmouth and Exeter, alternately

New Jersey: Trenton

New York: New York City and Albany,

410

alternately

Pennsylvania: Philadelphia and Yorktown,

411

alternately

South Carolina: Columbia and Charleston,

412

alternately

Virginia: Charlottesville and Williamsburgh,

413

alternately

North Carolina: New Bern

414

Rhode Island: Providence and Newport

Vermont: Bennington

415

Pleas by constituents for the federal courts to be centrally located

within the states, for purposes of the convenience of the litigants, went

408

For the original thirteen federal circuit courts, see Judiciary Act of 1789, ch. 20, § 2, 1

Stat. 73, 75 (codified as amended in scattered sections of 28 U.S.C.). For North Carolina,

see Act of Apr. 13, 1792, ch. 21, § 1, 1 Stat. 252, 252. For Rhode Island, see Act of June 23,

1790, ch. 21, §§ 1–3, 1 Stat. 128, 128. For Vermont, see Act of Mar. 2, 1791, ch. 12, §§ 1–3, 1

Stat. 197, 197.

409

Easton was dropped and replaced with Baltimore in 1797. See Act of Mar. 3, 1797,

ch. 27, § 1, 1 Stat. 517, 517 (stating that circuit court in Maryland would be held at

Annapolis and Baltimore).

410

Albany was dropped in 1791, after which time all sessions of the Circuit Court of

New York were held in New York City. Act of Mar. 3, 1791, ch. 22, § 2, 1 Stat. 216, 217.

411

Yorktown was dropped in 1796, after which time Philadelphia became the sole loca-

tion of the Circuit Court of Pennsylvania. Act of May 12, 1796, ch. 24, § 1, 1 Stat. 463, 463.

412

In 1797, Columbia was dropped and Charleston became the sole location for the

Circuit Court of South Carolina. § 1, 1 Stat. at 518.

413

In 1791, both Williamsburgh and Charlottesville were dropped as locations of the

Circuit Court of Virginia in favor of Richmond. § 3, 1 Stat. at 217.

414

In 1793, New Bern was replaced with Raleigh as the location of the Circuit Court of

North Carolina. Act of Mar. 2, 1793, ch. 23, § 2, 1 Stat. 335, 336.

415

In 1793, Windsor was added as an additional location for the Circuit Court of

Vermont. Id. at 335. In 1796, Bennington and Windsor were replaced by Rutland and

Windsor, sitting alternately, as the locations of the Circuit Court of Vermont. Act of May

27, 1796, ch. 34, § 1, 1 Stat. 475, 475.

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October 2007] THE ORIGINS OF DIVERSITY JURISDICTION 1085

unheeded.

416

In fact, soon after the passage of the Judiciary Act of

1789, small cities such as Albany, Yorktown, and Easton were dis-

carded as judicial locales.

417

The commercial centers of New York

City and Philadelphia replaced Albany and Yorktown, respectively,

and became the exclusive locations of their states’ federal circuit

court.

418

The commercial center of Baltimore replaced the smaller

city of Easton as one of two locations for the Maryland Circuit

Court.

419

Charleston became the sole seat for the South Carolina

Circuit Court in 1797.

420

A more precise understanding of the effects of the location of

federal courts on the resolution of creditor/debtor controversies in

federal court would require further empirical study.

421

As in New

416

See, e.g., Letter from George Phillips to Benjamin Huntington, Jonathan Sturges,

and Jonathan Trumbull (July 25, 1789), in 4 D

OCUMENTARY

ISTORY OF THE

UPREME

OURT

, supra note 246, at 477, 477–80 (presenting letter from constituent asking members

of Congress to retain more centrally located Middletown as seat of federal circuit court in

Connecticut after draft of Judiciary Act had been amended to replace Middletown with

Hartford and New Haven); Letter from Daniel Hiester to James Hamilton (Aug. 3, 1789),

in 4 D

OCUMENTARY

ISTORY OF THE

UPREME

OURT

, supra note 246, at 494, 494 (letter

from Congressman to Pennsylvania constituent regarding decision to locate federal courts

in Philadelphia and York despite more central location of Carlisle).

417

See supra notes 409–11.

418

See supra notes 410–11.

419

See supra note 409.

420

See supra note 412.

421

In particular, an empirical comparison between federal and state jury verdicts would

be instructive for the state of Virginia, where a large percentage of prewar debts were

located. See supra note 47. The capital of Virginia, Richmond, became the seat of the

federal circuit court in 1791. See supra note 413. Located in the heart of tobacco country

in the James River Valley, however, Richmond was surrounded by debtor constituencies.

ILLER

, supra note 103, at 37–38. According to research conducted by F. Thornton Miller,

the federal juries drawn in the federal circuit of Virginia routinely disallowed the collection

of wartime interest in debt actions brought by British citizens. See id. at 41 (claiming that

war interest was deducted in eighty-nine percent of British debt cases). Miller, however,

did not compare the level of success British creditors experienced in the Virginia federal

court to the treatment they received in analogous actions brought in Virginia state courts.

For example, he cites statistics that suggest that creditors failed to compel the collection of

damages in over fifty percent of the debt claims filed in the Virginia state courts between

1789 and 1792. See id. at 35–37 (providing data showing that in Prince Edward County, for

years in question, creditor plaintiffs withdrew claims in forty-five percent of cases filed,

largely in anticipation that state juries would rule unfavorably on their claims, and lost

seventeen percent of verdicts that were reached). Miller fails to cite any equivalent statis-

tics regarding the rate of success that creditors experienced recovering damages in the

Virginia federal courts. The work of other historians suggests that creditors did in fact

enjoy greater success in the federal courts of Virginia. See supra note 70 and accompa-

nying text (discussing success of British creditors in securing favorable judgments in federal

courts in Virginia and South Carolina in the 1790s). If creditors were able to compel the

recovery of damages in over fifty percent of the actions they brought in federal court, the

court’s location in Richmond and the hand-selection of jurors by the U.S. marshal would

likely have been the primary causes for the creditors’ increased success.

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1086 NEW YORK UNIVERSITY LAW REVIEW [Vol. 82:997

York, however, it is highly likely that the federal juries drawn from

commercial centers such as Boston, Hartford, New Haven,

Charleston, Philadelphia, Savannah, Annapolis, Portsmouth,

Providence, and Baltimore would have been appreciably more

favorable to commercial litigants than those juries sitting in the corre-

sponding state courts.

422

Although he could not explain why, therefore, Friendly was

indeed correct when he postulated that the federal courts were a more

sympathetic forum for creditors and commercial litigants. Friendly

was mistaken, however, when he assumed that the pro-creditor orien-

tation of the federal courts was sufficient to explain the origins of

diversity jurisdiction. The Framers were attempting to accomplish far

more than simply ensuring that creditors would be able to collect their

debts. The Framers’ interest in creating diversity jurisdiction

extended beyond any single socioeconomic issue and beyond even the

political landscape of their own day. They were attempting to circum-

vent the majoritarian dictates of local juries altogether, and to replace

them with a federal judiciary that could be trusted to decide all

manner of cases “properly” by virtue of the superior class of individ-

uals who would be selected as federal jurors. Their faith in the indi-

viduals who would decide cases as federal jurors led the Framers to

believe that the federal judiciary would be superior to its state coun-

terparts with respect to all political, social, and economic issues that

could be funneled into the federal courts (through diversity or any

other jurisdictional base that entailed a jury trial) during the life of the

nation.

Land title cases present one illustration of the ways in which the

compositions of federal juries could have affected the outcomes of liti-

gation outside the creditor/debtor context. Between 1809 and 1815,

the New York Circuit Court rendered judgments in approximately

thirty-five ejectment suits.

423

In all of these cases, diverse plaintiffs

422

It is worth noting that, due to the varying geographies of federal and state jury pools,

the compositions of federal and state juries continue to differ to some extent. See Laura G.

Dooley, The Dilution Effect: Federalization, Fair Cross-Sections, and the Concept of Com-

munity, 54 D

AUL

L. R

. 79, 80 (2004) (“‘[F]ederalization’ of so-called street crime,

notably murders and robberies, has the effect in most states of widening the ‘community’

from which jurors will be drawn from a county within a state to a federal district or division

encompassing several counties.”).

423

See C.C.D.N.Y. Judgment Roll (Sept. 26, 1809–Nov. 30, 1815) (containing judgments

for thirty-five ejectment suits). It is difficult to ascertain the precise number of suits in

which judgments were rendered during this period because of the limitations of the records

themselves. In addition to the thirty-five cases contained within the judgment rolls, for

example, minute records suggest that there may have been a few additional cases where a

judgment was reached. See, e.g., C.C.D.N.Y. Minutes (Sept. 7, 1814) (recording jury trial

in Prevost v. Peters, 19 F. Cas. 366 (C.C.D.N.Y. 1813) (No. 11,032)).

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October 2007] THE ORIGINS OF DIVERSITY JURISDICTION 1087

claimed title to the land and sought to eject a local inhabitant in an

upstate county.

424

Twenty-six of the suits were brought by the British

heirs of Donald Fisher to eject landholders in upstate Washington

County.

425

The Fisher cases arose out of the New York confiscation

laws, which had redistributed the lands of loyalists during the

Revolution.

426

Under New York law, all of these title disputes would have been

tried in the counties where the land was located had they been liti-

gated in state court.

427

One can speculate whether a British heir to a

loyalist would have been successful in dispossessing a local inhabitant

had the case been tried before a jury composed exclusively of local

farmers. The federal juries, however, were composed of Manhattan

residents who were predominantly merchants. The Fisher plaintiffs

succeeded in dispossessing the local inhabitants in every one of their

federal cases.

428

In fact, the judgment rolls reveal only one instance

during this period where the federal jury found for the defendant in

an ejectment case.

429

This impact of urban juries on the resolution of land title cases in

federal court was neither unanticipated nor unintended. In fact, Anti-

Federalists had warned against such eventualities while the ratification

424

C.C.D.N.Y. Judgment Roll (Sept. 7, 1814). The lands in dispute were located in the

counties of Broome, id. (Feb. 22, 1810); Cayuga, id. (July 20, 1814); Cortland, id. (Apr. 1,

1814, Sept. 6, 1814, Mar. 25, 1815 & May 17, 1815); Seneca, id. (Apr. 3, 1815); Tioga, id.

(Feb. 22, 1810); and Washington, see infra note 425. The plaintiffs included citizens of

Britain, id. (Sept. 26, 1809 & Feb. 22, 1810); see infra note 425 and accompanying text, as

well as the states of New Jersey, C.C.D.N.Y. Judgment Roll (Apr. 1, 1814, Sept. 6, 1814 &

Mar. 25, 1815); Connecticut, id. (July 20, 1814); and Massachusetts, id. (May 17, 1815).

425

See, e.g., C.C.D.N.Y. Judgment Roll (Nov. 26, 1811, June 30, 1812, July 10, 1812,

Aug. 19, 1812, Dec. 16, 1812 & Nov. 30, 1815) (various suits brought by British heirs of

Donald Fisher). In 1786, Washington County was located just above Albany County and

extended all the way to the northern boundary of the state. See N

ORK

TLAS

, supra

note 380, at 200. Some of our knowledge of the Fisher cases derives from an appeal taken

to the U.S. Supreme Court. See Harden v. Fisher, 14 U.S. (1 Wheat.) 300 (1816). For a

similar appeal from one of the other confiscation cases in the New York Circuit Court, see

Jackson ex dem New York v. Clarke, 16 U.S. (3 Wheat.) 1 (1818).

426

Harden, 14 U.S. at 302. Fisher’s land was confiscated under an act that provided for

the ‘“forfeiture and sale of the estates of person who ha[d] adhered to the enemies of the

state.”’ Id. (citation omitted).

427

See supra note 356 (setting out New York venue statute).

428

The Fisher plaintiffs won the suits by a combination of an initial default, C.C.D.N.Y.

Judgment Roll (Nov. 26, 1811), an early jury verdict in their favor, id. (June 30, 1812), and

a series of subsequent admissions by the defendants, id. (July 10, 1812, Aug. 19, 1812, Dec.

16, 1812 & Nov. 30, 1815). But see Harden, 14 U.S. at 304 (1816) (reversing and remanding

Fishers’ jury verdict to New York Circuit Court for further factual findings).

429

Defendant Aaron Baker of New York won a jury verdict against Connecticut plain-

tiff Robert Smith, Jr., who was claiming title to five thousand acres in Cayuga County. See

C.C.D.N.Y. Judgment Roll (July 20, 1814).

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1088 NEW YORK UNIVERSITY LAW REVIEW [Vol. 82:997

of the Constitution was still being debated. As “A Countryman” from

Massachusetts argued in January 1788:

Can you, ye wise men of Goshen, suppose or believe, that we shall

submit to give up our County Courts, and go many days journey

from home for that Justice we used to receive [at] our own doors?

Can one Judge appointed by Congress, try all the causes which will

arise under this constitution, and which the chicane of Lawyers will

throw into that jurisdiction? Where are we to have our land titles

tried? Not in our own Counties, but in the Metropolis, where the

Judge is to hold his pompous court. Do you think that we are to lay

ourselves liable to be tried upon the information of an Attorney-

General, exhibited in any part of the State, he shall choose to pack a

Jury in, and that we are to be deprived of that grand Barrier, the

Indictment by Grand Jury, merely because the gulled and ignorant

Tradesmen of—choose it, and will abuse us unless we submit to

it?

430

As with marshal selection, therefore, the Framers could have con-

fidence that the federal courts would be superior to their state coun-

terparts with respect to all political, economic, and social issues

because Congress’s control over the geography of the federal jury

pools would ensure that the “better sort” would predominate in fed-

eral juries. The locations of the federal courts facilitated the ability of

the marshals to select the “right” people to serve as jurors in those

jurisdictions that allowed for selection by hand. Even in those juris-

dictions that selected jurors by lot, Congress’s decision to locate the

federal courts in the commercial centers of the nation ensured that

federal jurors would much more closely resemble the Framers than

the ordinary citizens who dominated the state juries.

As with federal jurors, for example, the vast majority of Framers

resided in those urban commerical centers in which the federal courts

were located.

431

As with the Framers, federal juries were far more

430

A Countryman, Editorial, A

. H

ERALD

(Boston), Jan. 21, 1788, reprinted in 5 D

OCU-

MENTARY

ISTORY OF THE

ATIFICATION

, supra note 12, at 757, 758.

431

Every single delegate to the Convention of 1787 from the states of Connecticut,

South Carolina, New Hampshire, and New York, for example, had a residence in one of

the commercial centers that was ultimately chosen as a location for the federal circuit

courts in the Judiciary Act. See M

ONALD

, supra note 63, at 22–23, 25–26, 34–35 (listing

location of each delegate’s residences); see also supra text accompanying notes 408–15

(listing cities that were chosen as locations for federal courts). Seven of Pennsylvania’s

eight delegates came from Philadelphia, while the eighth came from the city’s immediate

environs. M

ONALD

, supra note 63, at 28–29. Three of Georgia’s four delegates came

from Savannah and Augusta, the locations of that state’s federal courts. Id. at 36–37. For

the residences of the other states’ delegates, see id. at 23–34. It is also important to bear in

mind that forty-three of the fifty-five delegates had served in the Continental or

Confederation Congress prior to the Convention. See F

RAMERS OF THE

ONSTITUTION

supra note 243, at 119–216 (containing short biographies of each delegate to Convention).

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October 2007] THE ORIGINS OF DIVERSITY JURISDICTION 1089

likely to support the development and maintenance of institutions

associated with a vigorous form of federal government. The commer-

cial cities of eighteenth-century America had provided the backbone

of support for the Constitution’s adoption.

432

As with the Framers, furthermore, federal jurors were more

likely to be lawyers or members of “learned professions.” Thirty-four

of the fifty-five delegates to the Convention were lawyers.

433

Hamilton, for one, expressed his belief that lawyers and professionals

were better able to discern and pursue the national interest than those

from other segments of society. “Will not the man of the learned pro-

fession,” Hamilton wrote in The Federalist No. 35, “who will feel a

neutrality to the rivalships between the different branches of industry,

be likely to prove an impartial arbiter between them, ready to pro-

mote either, so far as it shall appear to him conducive to the general

interests of the society?”

434

By locating the federal courts in major

urban centers, the architects of the federal judiciary ensured that law-

yers and other professionals would be more heavily represented in

federal juries than they were in the state juries.

435

As with the Framers, finally, those residents of the nation’s com-

mercial centers who qualified for federal jury duty were more likely to

be wealthy and college-educated.

436

The majority of those who

As a result, a substantial majority of the Framers had lived, at least part-time, in commer-

cial centers such as Philadelphia and New York. Seven of the twelve who did not serve in

the Continental/Confederation Congress had lived in their state capitals by virtue of their

participation in state government. Id.

432

RIN

RANT

IBBY

, T

EOGRAPHICAL

ISTRIBUTION OF THE

OTE OF THE

HIRTEEN

TATES ON THE

EDERAL

ONSTITUTION

, 1787–8, at 49 (Burt Franklin 1969)

(1894). In New York City, between ninety-three and ninety-six percent of the voters sup-

ported the Constitution’s adoption. See B

URROWS

& W

ALLACE

, supra note 131, at 291

(summarizing results of statewide election for New York’s ratifying convention, in which

John Jay and Nicholas Low, both pro-Constitution, received ninety-six and ninety-three

percent, respectively, of all votes cast).

433

ONALD

, supra note 231, at 220.

434

EDERALIST

. 35 (Alexander Hamilton), supra note 34, at 201.

435

In 1785, for example, just two years before the Federal Convention, there were only

ninety-two practicing attorneys in the state of Massachusetts. G

ERARD

W. G

AWALT

, T

ROMISE OF

OWER

: T

MERGENCE OF THE

EGAL

ROFESSION IN

ASSACHUSETTS

1760–1840, at 14 (1979). Based on the fact that the city of Boston had twenty-two prac-

ticing attorneys in 1784, it seems fair to say that approximately twenty-four percent of all of

the practicing attorneys in Massachusetts were located in Boston on the eve of the

Convention. Boston accounted for less than five percent of the state’s total population

during this same general time period. According to the first U.S. census in 1790, the popu-

lation of Massachusetts was 378,787 and the population of Boston was 18,320. B

UREAU OF

THE

ENSUS

, D

’

TOF

OMMERCE

& L

ABOR

, F

IRST

ENSUS OF THE

NITED

TATES

1790:

ASSACHUSETTS

8, 10 (1908).

436

For summaries of the financial backgrounds of all the delegates to the Convention,

see F

RAMERS OF THE

ONSTITUTION

, supra note 243, at 119–216; M

ONALD

, supra note

63, at 38–86. The location of the federal courts in the urban centers may have also ensured

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1090 NEW YORK UNIVERSITY LAW REVIEW [Vol. 82:997

attended the Constitutional Convention had some form of college

education.

437

In the eyes of many Framers, wealth and education

were important qualifications for the responsible exercise of political

power.

438

As the president of Dickinson College summarized, men

“of learning, leisure and easy circumstances” were far more suited

“for every part of the business of government, than the ordinary class

of people.”

439

The fact that federal juries would tend to be wealthier

and more educated than the “ordinary class of people” which domi-

nated state juries ensured that cases in the federal courts would be

decided by those who were more suited to govern.

440

that a higher concentration of federal juries would be drawn from proponents of “rational”

(as opposed to “evangelical”) Protestantism. For the religious implications of the urban/

agrarian dichotomy, see, for example, E

LLIS

, supra note 312, at 253–54, who describes a

concentration of “rationalistic” Protestant denominations such as Old Light

Congregationalists, Old Side Presbyterians, and Anglicans in urban and commercial cen-

ters along seaboard, while more evangelical Protestants such as Baptists, Methodists, New

Light Congregationalists, and New Side Presbyterians were concentrated in agrarian areas.

437

Of the fifty-five delegates who attended the Convention, at least thirty-three had

attended American or British colleges, with approximately twenty-seven of those thirty-

three receiving degrees. See F

RAMERS OF THE

ONSTITUTION

, supra note 243, at 119–216

(providing biographical sketches, including education, of each delegate). Many of those

who did not have formal college educations had nonetheless been educated through pri-

vate tutors, academies, law mentors, or self-reading. Id. Eight of those who did not attend

college, for example, were “lawyers by training.” Id.

438

See W

OOD

, supra note 39, at 247 (“[Ordinary citizens] lacked the requisite liberal,

disinterested, cosmopolitan outlook that presumably was possessed only by enlightened

and educated persons—only by gentlemen.”). Some proponents of the Constitution advo-

cated that the federal representatives in Pennsylvania be elected at-large rather than by

districts because there were “few men who have abilities and leisure and are fit objects for

choice” outside the city of Philadelphia. Id. at 260 (quoting Letter from Thomas Hartley

to Tench Coxe (Oct. 6, 1788), reprinted in 1 T

OCUMENTARY

ISTORY OF THE

IRST

EDERAL

LECTIONS

, 1788–1790, at 304 (Merrill Jensen & Robert A. Becker eds., 1976)).

439

See W

OOD

, supra note 39, at 254 (“Many gentry shared the certainty of Charles

Nisbet, president of Dickinson College, ‘that men of learning, leisure and easy circum-

stances . . . if they are endowed with wisdom, virtue & humanity, are much fitter for every

part of the business of government, than the ordinary class of people.’” (quoting statement

of Charles Nisbet quoted in Saul Cornell, Aristocracy Assailed: The Ideology of

Backcountry Anti-Federalism, 76 J. A

. H

IST

. 1148, 1162 (1990))).

440

See L

UTZ

, supra note 184, at 89 (“Thus, traditional Whigs saw nothing inherently

unrepresentative in the majority of legislators being wealthy and highly educated. Having

legislators with such backgrounds was a positive advantage.”); W

OOD

, supra note 39, at

246–47 (describing belief of political elites that only “gentlemen” were truly qualified to

govern). Gordon Wood provides a contemporary example of this view that ordinary citi-

zens were incapable of governing:

However whiggish and revolutionary some gentlemen might be, they were not

prepared to accept the participation in government of carpenters, butchers,

and shoemakers. It was inconceivable to someone like William Henry Drayton

of South Carolina that gentlemen with a liberal education who had read a little

should have to consult on the difficulties of government “with men who never

were in a way to study, or to advise upon any points, but rules how to cut up a

beast in the market to the best advantage, to cobble an old shoe in the neatest

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October 2007] THE ORIGINS OF DIVERSITY JURISDICTION 1091

ONCLUSION

The origins of diversity jurisdiction warrant renewed analysis for

several reasons. Although diversity cases may constitute a relatively

small percentage of the federal docket today, they continue to funnel

millions of dollars worth of civil litigation into the federal courts every

year.

441

In many cases, the filing or removal of diversity claims in fed-

eral court can be outcome-determinative for the litigants or can radi-

cally alter the expected values of claims.

442

Future debates regarding

the propriety of retaining diversity jurisdiction should proceed unen-

cumbered by the weight of century-old misconceptions regarding the

jurisdiction’s origins.

In addition, diversity jurisdiction offers significant insight into the

historical origins of the lower federal courts. Diversity, and, to a

lesser extent, admiralty claims, dominated the caseloads of the lower

federal courts for nearly one hundred years after the founding of the

nation. Federal questions, the supposed raison d’ˆetre of the federal

courts, were not permanently entrusted to the lower federal courts

until 1875. It is quite possible, therefore, that the lower federal courts

were created in large part for the purpose of adjudicating diversity

claims.

manner, or to build a necessary house.” Drayton was willing to admit that “the

profanum vulgus” was “a species of mankind,” even that mechanics were “a

useful and necessary part of society,” but, he said, with more courage than

discretion, such men were not meant to govern. “Nature never intended that

such men should be profound politicians, or able statesmen . . . .”

Id. at 246 (quoting W

ILLIAM

ENRY

RAYTON

, T

ETTERS OF

REEMAN

30–31, 49

(Robert M. Weir ed., Univ. of S.C. Press 1977) (1771)).

441

See A

DMIN

. O

FFICE OF THE

U.S. C

OURTS

, supra note 1, at 22 (citing fact that 80,370

diversity cases were filed in U.S. District Courts in fiscal year 2006). The statutory min-

imum for each case filed is $75,000. 28 U.S.C. § 1332(a) (2000).

442

Diversity jurisdiction is often outcome-determinative for litigants by virtue of, inter

alia, substantially differing state and federal rules regarding jury practice. In federal court,

for example, jury verdicts must be unanimous unless the parties stipulate otherwise. F

R. C

. P. 48(1). In most state courts, by contrast, plaintiffs need only some level of super-

majority in order to secure a verdict. See, e.g., Shari Seidman Diamond et al., Revisiting the

Unanimity Requirement: The Behavior of the Non-Unanimous Civil Jury, 100 N

. U. L.

. 201, 203 (2006) (noting that eighteen states require unanimity for civil juries, three

states accept non-unanimous verdicts after six hours of deliberation, and all remaining

states permit civil jury verdicts by supermajorities ranging from two-thirds to five-sixths).

For these and numerous other reasons, the perceived value of a plaintiff’s claims usually

drops significantly the moment a case is transferred to federal court. See, e.g., Neal Miller,

An Empirical Study of Forum Choices in Removal Cases Under Diversity and Federal Ques-

tion Jurisdiction, 41 A

. U. L. R

. 369, 424–25 (1992) (finding that approximately eighty-

five percent of surveyed attorneys chose federal or state forum based at least in part on

expectation that forum could have impact on outcome of litigation and that plaintiffs’

attorneys generally expected higher verdict and settlement amounts for cases that

remained in state court).

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1092 NEW YORK UNIVERSITY LAW REVIEW [Vol. 82:997

Despite its implications for modern practice and its potential

importance to our historical understanding of the federal courts, there

have been no persuasive accounts of the origins of diversity to date.

All existing accounts are deficient because, ultimately, they rely too

heavily upon putative differences between the state and federal

benches. Any discussion of the origins of diversity jurisdiction, how-

ever, must begin with an appreciation for the central role played by

the jury in eighteenth-century American courts. Juries, rather than

judges, were primarily responsible for the interpretation and applica-

tion of the law during this period.

The failure to address the central role of the jury has debilitated

prior accounts of the origins of diversity jurisdiction in numerous

ways. Friendly, for example, was correct insofar as he postulated that

the early federal courts were intended to be a favorable forum for

creditors and commercial litigants. He failed to identify, however, the

very feature of the federal courts most responsible for converting

them into such a forum: their jurors. Friendly hypothesized that there

was a “vague” feeling that federal courts would be sympathetic to

creditors, but even a cursory examination of the compositions of fed-

eral juries reveals that there was nothing “vague” at all about the fed-

eral courts’ propensity to favor creditors and commercial litigants.

Equally important, the pro-creditor accounts for diversity’s ori-

gins are deficient because they are far too myopic in their depiction of

the Framers’ interests in creating diversity and the lower federal

courts. The modern commercial/creditor accounts essentially posit

that a single sociopolitical issue provides the entire explanation for the

origins of diversity jurisdiction. As important as creditor/debtor rela-

tions were at the time, it is unlikely that any single issue could alone

have been responsible for the Framers’ desire to create diversity juris-

diction. The reality is that the state courts’ propensity to favor

debtors, and the state legislatures’ enactments of paper money legisla-

tion (and other debtor-friendly measures), were perceived as mere

manifestations of a much broader and more fundamental problem

that the Framers were trying to address in 1787.

The Constitution was largely an effort by the Framers to con-

struct a federal government that could control what were perceived to

be the pernicious effects of unrestrained democracy in the states.

State juries represented perhaps the greatest danger of majoritarian

rule because they were the most direct form of democracy. Unlike

state legislatures, which enjoyed the mitigating influence of represent-

atives who were sometimes drawn from the “better sort” of society,

juries bestowed ordinary citizens with the power to adjudicate issues

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October 2007] THE ORIGINS OF DIVERSITY JURISDICTION 1093

of political and socioeconomic importance without the intervention of

the bench.

The creation of diversity jurisdiction and the lower federal courts

offered the Framers a critical opportunity to circumvent the

majoritarian hegemony of state court juries. Differences between

state and federal benches and even between state and federal laws

would have amounted to little had that hegemony not been broken.

As the Framers foresaw, however, the creation of the federal courts

provided federal officials with plenary power to control the composi-

tions of federal juries. Federal officials could (and did) wield that

power to ensure that the jurors deciding cases in the lower federal

courts would differ dramatically from their state counterparts with

respect to their political, social, and economic orientations. The

Framers’ faith that federal officials would be superior to their state

counterparts, therefore, translated into a confidence that the federal

juries selected by these officials would be drawn from the “better

sort” of society—not just for a decade or two, but for the life of the

nation. It was a desire to ensure that the most important cases in the

country be decided by these jurors, rather than a putative desire to

wrest cases away from state court judges or legislatures, that consti-

tuted the single most important force behind the creation of diversity

jurisdiction and the lower federal courts.

In summary, it appears quite evident that many of the Framers

were wary of state court juries when they gathered in Philadelphia in

1787. It is also evident that the political, economic, and social compo-

sitions of federal juries were controlled and manipulated during the

first few decades of the federal courts’ existence. The only real ques-

tion would appear to be whether we can infer a causal connection

between these two developments—i.e., whether the Framers actually

intended such a result in 1787 when they established diversity jurisdic-

tion and the federal courts. One could argue that it was mere coinci-

dence, rather than design, that federal jurors more closely resembled

the Framers than did state court jurors in terms of their wealth, occu-

pations, and levels of education; coincidence, rather than design, that

the federal juries had a more nationalistic perspective than their state

counterparts; coincidence, rather than design, that the federal juries

were more sympathetic to commercial and creditor litigants; and so

on.

For several reasons, it is difficult to believe that these two devel-

opments were simply coincidental. First, when the Framers met in

1787 it was eminently foreseeable that federal officials would manipu-

late the composition of federal juries. The manipulation of jury com-

positions was relatively common in the period leading up to the

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1094 NEW YORK UNIVERSITY LAW REVIEW [Vol. 82:997

Constitutional Convention. The Framers knew that the majority of

states allowed for the hand-selection of jurors. They must have

known, therefore, that it was within Congress’ power to adopt this

same means of juror selection in the federal courts. The presidentially

appointed marshals’ manipulation of jury compositions during the

first decades of the federal courts’ existence could not have been

unexpected. Quite the contrary, it was the single most likely scenario

to develop in the federal courts, as anyone who understood court pro-

cedures in 1787 would have recognized.

Second, the Constitution provided the first Federal Congress with

complete control over the geography of federal jury pools. It was

therefore eminently foreseeable, in 1787, that federal officials could

use that power to ensure that the “better sort” of society would decide

cases as jurors in federal courts. It was readily apparent, as the anti-

Federalist criticism during the ratification debates demonstrated, that

Congress would have the power to establish federal jury pools that

differed radically from their state counterparts, given that the

Constitution failed to provide any of the traditional limitations on the

jury’s vicinage. In light of the difficulties of travel, furthermore, the

location of the federal courts clearly would be crucial to dictating the

composition of federal juries. Merely by locating the federal courts in

the urban, commercial centers of the eastern seaboard, the Framers

knew that Congress could ensure that federal juries would much more

closely resemble the Framers than would state juries.

Finally, the role the Framers themselves played in the early

manipulation of federal juries suggests that they established diversity

jurisdiction largely because they anticipated federal officials would be

able to control the composition of federal juries. The Framers and

their political allies dominated the early Federal Congresses and the

first two presidential administrations. Almost half of the first Federal

Senate was composed of Framers. The Judiciary Act itself was prima-

rily drafted in the Senate by three Framers.

These very same individuals that drafted the Constitution in 1787

and supported its adoption during the ratification debates, therefore,

were largely responsible for the ways in which the compositions of the

federal juries were pervasively controlled during the first decades of

the federal courts’ existence. When opposition was voiced in

Congress against the hand-selection of jurors, for example, it was the

Federalists who ensured that the federal marshals would have that

power over juries in federal court. It was the Federalists who selected

and approved the marshals who dictated the composition of federal

juries. It was the Federalists, furthermore, who steered the federal

courts away from the universal state practice of employing local juries.

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October 2007] THE ORIGINS OF DIVERSITY JURISDICTION 1095

Proposals that would have established a nisi prius system, by which

the federal courts would conduct trials in the various regions of the

states, were rejected. Instead, the Judiciary Act provided that the fed-

eral circuit courts would be located in only one or two cities within

each forum state. The result was that federal juries would necessarily

be drawn overwhelmingly from those cities. It was the Federalists,

finally, who chose those commercial centers on the seaboard as the

locations for the early federal courts.

Although subsequent conduct can never provide absolute proof

of prior intentions, it is unlikely that the notion of controlling the com-

position of federal juries suddenly overtook the proponents of the

Constitution during the two-year period between 1787 and 1789. It is

far more likely, in light of the history of similar types of manipulation

and control during the preceding seventy-five years, that it was the

very prospect of such control that most motivated the Framers to

establish diversity jurisdiction and the lower federal courts when they

met in Philadelphia.

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1096 NEW YORK UNIVERSITY LAW REVIEW [Vol. 82:997

PPENDIX

: M

ETHODOLOGY

A. Geographic Identification of New York Federal Jurors

The geographic identification of jurors was accomplished by con-

sulting name indexes of the censuses. On occasion the author con-

sulted the actual census records to verify the accuracy of these tools.

On only one occasion did the author feel that an index was in error.

443

The first question was whether to count jurors or juror appear-

ances. Should the three appearances of James J. Roosevelt, for

example, be counted once in the data or three times? The author

decided to list it three times, for two reasons. First, it would more

accurately reflect the jury’s composition. The statistics are designed to

demonstrate the likelihood that a litigant would have faced a jury of

New York City residents. It was highly relevant, therefore, to ascer-

tain the geographic provenance of those jurors who tended to repeat

most often, and this data was reflected in the figures by counting

appearances separately. Second, there was the possibility that some

of the repeat names were, in fact, different jurors. The author

assumed, using common sense, that the vast majority of repeat names

represented the same juror. Nevertheless, it is possible that some of

the most common names could have represented the appearances of

two or more different jurors. Since it is impossible to know if or how

many times this happened, separate accounting of appearances was

felt to be preferable. Each appearance, therefore, was treated sepa-

rately from all other appearances.

The second decision involved choosing the proper census to

cross-reference. Censuses were taken every ten years. A decision had

to be made concerning jury appearances that occurred in between

census years. The author decided to cross-reference each juror

appearance to one census if that appearance came within two years of

the census. For example, a jury appearance occurring in 1798, 1799,

1800, 1801, or 1802 would be cross-referenced to the 1800 census. If

there was no listing in that census for that appearance, the next closest

census was consulted. For example, a juror appearing in 1802 who did

not appear in the 1800 census would be cross-referenced to the 1810

census. For jurors appearing in 1790, 1800, or 1810, the two censuses

on both ends were consulted in the event that the juror did not have a

corresponding entry in the year of his census. For appearances occur-

ring in the “off” periods—those that were more than two years from

443

In analyzing the handwriting of the actual census of 1800 (reel 23, page 660) the

author felt that the index listing of “Charles L. Common” for the 1800 census should in fact

have been listed as “Charles L. Cammon.” The author used his own reading in making the

geographic identification of the appearances for this juror.

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October 2007] THE ORIGINS OF DIVERSITY JURISDICTION 1097

any census, i.e., 1793–1797 and 1803–1807—the two censuses on either

end of the dates of appearance were consulted. For example, an

appearance in 1803 would be cross-referenced to both the 1800 and

1810 censuses.

On many occasions, there were multiple listings for a juror. In

these cases, the juror was deemed to be “unknown”—provided that

all the listings were not for the same county. For example, a juror

with four listings, three for New York and one for Albany, would be

listed as unknown. A juror with two listings both in Albany, however,

would be listed as a resident of Albany.

In those cases where two censuses were consulted, very often the

juror would appear in only one of the censuses. In these cases, the

one listing was considered to be definitive and the juror was listed as

being from that location. In cases where the two censuses contra-

dicted one another in any way, the juror was listed as “unknown.” For

example, if the 1800 census listed a juror as being from New York

County, but the 1810 census contained a New York listing and a

Albany listing, the juror was marked as “unknown,” since there was

no way to discern which of the three listings accurately corresponded

to the juror.

B. Variations in Spelling

In an effort to curtail subjectivity and to maximize the integrity of

the results, the author was scrupulous in matching names from the

census reports to the minute records and in matching jurors from one

panel to another. Identical spelling of names was required and no

exceptions were made. Two jurors were never assumed to be the

same person if one possessed the designation “Junior” and the other

did not. If a juror had a middle initial, he was never assumed to be the

same person as a juror who had an identical name but lacked that

same initial. Likewise, a juror with a middle initial was never matched

to a census listing that did not have the initial. John C. Smith was

never assumed to be “John Smith,” even if the census listed only one

version. However, a juror who appeared in one panel with a middle

initial was matched with another juror in a different panel if the

second juror had a spelled-out middle name, the first initial of which

corresponded to the middle initial of the first juror.

On two occasions, a juror whose first name was spelled out in the

minute records appeared in the census with a shortened version of the

same first name, and in each case the juror was matched with the

census listing. The Alexander Cranston who appeared in the minute

records of April 1807 was matched with the Alex Cranston of New

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1098 NEW YORK UNIVERSITY LAW REVIEW [Vol. 82:997

York County who appeared in the 1810 census. Likewise, the

Ebenezer Watson who appeared in the minute records of April 1804

was assumed to be the same Eben Watson of New York County who

appeared in the 1810 census.

Undoubtedly, the requirement that names match identically

resulted in an undercount of identifiable jurors. Spelling in the eight-

eenth century was not quite the art it is today, and both the tabulators

of the censuses and the clerks who maintained the minute records

would have inevitably spelled the same name in a variety of ways.

Sometimes individuals changed the spelling of their own names during

the course of their lives. On a number of occasions within the same

panel at the same session, for example, one juror’s name would

appear with slightly different spellings on different days. The most

common types of these variations involved a silent “e,” double conso-

nants such as “l,” “t,” or “r,” a silent “h,” the presence of a “c” before

a “k,” and the interchangeability of “e” and “ie” in the middle of a

name and “d” and “dt” at the end.

Despite the fact that the similarities between two slightly dif-

ferent names could appear compelling, particularly when only one of

the variations appeared in the census, no exceptions were made to the

complete-matching requirement.

444

If any exceptions had been

allowed, the biggest difficulty would have been in drawing a mean-

ingful line between those variations that were “slight” enough to con-

stitute the same person and those that were not. Since this would

involve subjective decisions, the author decided the integrity of the

methodology would be better served by a hard and fast rule against

exceptions.

In regard to a juror whose name was spelled differently within the

same panel in the same session, the author had to decide which ver-

sion to adopt with regard to matching the juror to other panels and to

the census. The author took the liberty, in those cases where the

name was spelled in two versions within the same panel, of adopting

the version that matched the spelling used in other panels. In light of

the very high percentage of repeat jurors, the author decided that it

was more likely than not in cases of variation that the two records

represented the same juror. If neither variation corresponded to

another juror in a different panel, then the census records were con-

sulted. If only one of the variations appeared in the census, then that

variation was adopted as the true spelling.

444

For example, one would think that the juror who was listed as “Peter H. Schenck” in

the minute records was in fact the same person who was listed in the 1810 census as “Peter

H. Schenk.” The “Frederick DePeyster” that appeared in the minute records was most

likely the same person as the “Frederick DePyster” that appeared in the census.

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October 2007] THE ORIGINS OF DIVERSITY JURISDICTION 1099

C. Juror Default

In compiling data about the jury’s geographic composition or the

number of times a juror repeated, a decision had to be made about the

relative significance of juror default. The author decided to leave

defaulters in the compilations and not to signify in the data which

jurors were defaulters and which were not.

The reason for this decision was logistical. Default was a

common occurrence and on some occasions the majority of the panel

was in default. On occasion, a juror would default from an entire ses-

sion. The more common occurrence, however, was for jurors to

attend certain days during a session and to miss others. Generally, the

clerk would list a panel on the first day of the session signifying which

jurors were present. Throughout the session, however, the clerk

would continually list the panel in the records to signify which jurors

were absent. Jurors who were listed as “defaulters” on the court’s first

day of the session would frequently appear in subsequent panels.

Likewise, jurors who were present on the court’s first day of session

would frequently be listed as defaulters in subsequent entries.

It would be a laborious process, therefore, to try to track every

juror through each session to compile a list of days in which he was

present or absent, and it would unnecessarily complicate the data. It

is not clear why jurors chose to be absent on particular days. It is

quite possible that many jurors chose to default on those days on

which there was little court business and little or no likelihood of a

trial. In light of the geographic homogeneity of the jury pool and the

relatively small number of “total” defaults, it was felt that such dis-

tinctions would prove to be unnecessarily detailed.

The assumption in this analysis is that absences, in and of them-

selves, did not influence the selection process. It is possible, however,

that a limited number of jurors repeated because of an earlier default

or excuse from service. There is no evidence that marshals kept

records about who attended, but it is within the realm of possibility

that they made notes (mental or otherwise) and that jurors who failed

to appear or who were excused from one session would be prime can-

didates for selection at immediately subsequent sessions. A few

examples seem to demonstrate this possibility. Michael Allison was

excused from service in April 1807 but subsequently appeared in the

panel for April 1808. Abraham Bussing was excused in November of

1806 but subsequently appeared in April of 1807. This appears to be

most relevant, then, for jurors who appeared only twice and for those

who were impaneled in quick succession. The author decided that the

best course would be to note those occasions where a repeat juror was

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1100 NEW YORK UNIVERSITY LAW REVIEW [Vol. 82:997

excused in an appendix list of all repeat jurors on file with the New

York University Law Review, thereby allowing the reader to speculate

for herself if and when repeat appearances were influenced in this

manner.

D. Explanations for Jurors Listed from Outside Manhattan

There are three principal explanations for why the data would

erroneously suggest the presence of a few jurors from far outside

Manhattan. First, the names may have been incorrectly entered in

either the minute records or the census reports. In light of the hap-

hazard manner in which names were spelled in both records, it is

extremely likely that this accounts for some portion of the upstate

jurors. For example, Francis Cooper of Onondaga County (who

accounted for both of that county’s appearances) could in fact have

been Frances Cooper of New York County. John Barbarie (of

Saratoga County) could in fact have been John Barbaree of New York

County. Some degree of error in the survey, furthermore, is to be

expected from undercounts in the census. Undercounts were fairly

common in the large cities because the censors tended to omit those

who were not home at the time the census was taken.

Second, some of the individuals who appeared as jurors in New

York City may have been nominal residents of other counties by

virtue of their land holdings. William Neilson, for example, is respon-

sible for both of the Orange County listings and appeared a total of

five times as a grand and petit juror during the first decade of the

nineteenth century. However, we know from Alexander Hamilton’s

papers that a William Neilson owned the Marine Insurance Company.

Undoubtedly, the professional responsibilities of this William Neilson

would have required his extended presence in New York City. Either

he lived in New York City—and the census missed him—or he made

his official home in Orange County and lived for extended periods of

time in New York City.

Third, a juror may have moved to or from New York City in

between the time that the census was taken and the time that he

appeared as a juror. According to the author’s methodology, an indi-

vidual who appeared within two years of the census was identified

without reference to the next closest census. Any individual who

moved to New York City during the first two years of the decade and

appeared as a juror in those two years would be misidentified. Simi-

larly, a juror who lived in New York City could have appeared in 1808

and subsequently have moved to Albany in 1809 to appear in the 1810

census as an Albany resident. Jacob Barker, for example, is listed as a

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October 2007] THE ORIGINS OF DIVERSITY JURISDICTION 1101

resident of Herkimer County because his 1802 appearance corre-

sponds to an 1800 listing from that county. In the 1810 census, how-

ever, he is listed as a resident of New York County. Jonathan

Lawrence, Jr., appeared as a juror in 1801 and was listed in the 1800

census as a resident of Rockland. The 1810 census, however, records

him as a New York County resident. Thomas Gardiner was listed as

an Albany resident for his 1791 appearance but has a New York

County listing in the 1800 census.