Page:Federalist, Dawson edition, 1863.djvu/721

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577
The Fœderalist.

want of a constitutional provision for the trial by jury in civil cases. The disingenuous form in which this objection is usually stated, has been repeatedly adverted to and exposed; but continues to be pursued in all the conversations and writings of the opponents of the plan. The mere silence of the Constitution in regard to civil causes, is represented as an abolition of the trial by jury; and the declamations to which it has afforded a pretext are artfully calculated to induce a persuasion, that this pretended abolition is complete and universal; extending not only to every species of civil, but even to criminal causes. To argue with respect to the latter, would, however, be as vain and fruitless, as to attempt the serious proof of the existence of matter, or to demonstrate any of those propositions, which, by their own internal evidence, force conviction, when expressed in language adapted to convey their meaning.

With regard to civil causes, subtleties almost too contemptible for refutation have been employed to countenance the surmise, that a thing, which is only not provided for, is entirely abolished. Every man of discernment must at once perceive the wide difference between silence and abolition. But as the inventors of this fallacy have attempted to support it by certain legal maxims of interpretation, which they have perverted from their true meaning, it may not be wholly useless to explore the ground they have taken.

The maxims on which they rely are of this nature: "A specification of particulars is an exclusion of generals;" or, "The expression of one thing is the exclusion of another." Hence, say they, as the Constitution has established the trial by jury in criminal cases, and is silent in respect to civil, this silence is an implied prohibition of trial by jury, in regard to the latter.

The rules of legal interpretation are rules of common sense, adopted by the Courts in the construction of the