Page:Federalist, Dawson edition, 1863.djvu/722

 laws. The true test, therefore, of a just application of them, is its conformity to the source from which they are derived. This being the case, let me ask if it is consistent with common sense to suppose, that a provision obliging the Legislative power to commit the trial of criminal causes to juries, is a privation of its right to authorize or permit that mode of trial in other cases? Is it natural to suppose, that a command to do one thing is a prohibition to the doing of another, which there was a previous power to do, and which is not incompatible with the thing commanded to be done? If such a supposition would be unnatural and unreasonable, it cannot be rational to maintain, that an injunction of the trial by jury in certain cases, is an interdiction of it in others.

A power to constitute Courts is a power to prescribe the mode of trial; and consequently, if nothing was said in the Constitution, on the subject of Juries, the Legislature would be at liberty, either to adopt that institution, or to let it alone. This discretion, in regard to criminal causes, is abridged by the express injunction of trial by jury in all such cases; but it is of course left at large in relation to civil causes, there being a total silence on this head. The specification of an obligation to try all criminal causes in a particular mode, excludes indeed the obligation or necessity of employing the same mode in civil causes, but does not abridge the power of the Legislature to exercise that mode, if it should be thought proper. The pretence, therefore, that the National Legislature would not be at full liberty to submit all the civil causes of Fœderal cognizance to the determination of juries, is a pretence destitute of all just foundation.

From these observations this conclusion results, that the trial by jury in civil cases would not be abolished; and that the use attempted to be made of the maxims which have been quoted, is contrary to reason and