Page:Joseph Story, Commentaries on the Constitution of the United States (1st ed, 1833, vol III).djvu/641

 CH. XXXVIII.] constitution, and was either disapproved by them, or drew from them a reluctant acquiescence. It weakened the opposition by taking away one of the strongest points of attack upon the constitution. Still it is a most important and valuable amendment; and places upon the high ground of constitutional right the inestimable privilege of a trial by jury in civil cases, a privilege scarcely inferior to that in criminal cases, which is conceded by all to be essential to political and civil liberty. It is due to the excellent statesmen, who framed the constitution, to give their reasons for the omission of any provision in the constitution, securing the trial by jury in civil cases. They were not insensible to its value; but the diversity of the institutions of different states on this subject compelled them to acquiesce in leaving it entirely to the sound discretion of congress. The Federalist, No. 83, has given an elaborate paper to the subject, which is transcribed at large, as a monument of admirable reasoning and exalted patriotism.

"The objection to the plan of the convention, which has met with most success in this state, is relative to the 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 be as vain and fruitless, as to attempt 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 80