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<blockquote data-quote="Jagger" data-source="post: 444083" data-attributes="member: 16628"><p><strong>The Federalist No. 83</strong></p><p></p><p> <strong>The Judiciary Continued in Relation to Trial by Jury</strong></p><p></p><p> <strong><em>Independent Journal</em></strong></p><p><strong>Saturday, July 5, Wednesday, July 9, Saturday July 12, 1788</strong></p><p> <strong>[Alexander Hamilton]</strong></p><p></p><p> <strong>To the People of the State of New York:</strong></p><p></p><p> [SIZE=+2]T[/SIZE][SIZE=-2]HE[/SIZE] objection to the plan of the convention, which has met with most success in this State, and perhaps in several of the other States, is <em>that relative to the want of a constitutional provision</em> 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 <em>civil causes</em>, 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 <em>criminal causes</em>. To argue with respect to the latter would, however, be as vain and fruitless as to attempt the serious proof of the <em>existence</em> of <em>matter</em>, or to demonstrate any of those propositions which, by their own internal evidence, force conviction, when expressed in language adapted to convey their meaning.</p><p> With regard to civil causes, subtleties almost too contemptible for refutation have been employed to countenance the surmise that a thing which is only <em>not provided for</em>, is entirely <em>abolished</em>. Every man of discernment must at once perceive the wide difference between <em>silence</em> and <em>abolition</em>. But as the inventors of this fallacy have attempted to support it by certain <em>legal maxims</em> of interpretation, which they have perverted from their true meaning, it may not be wholly useless to explore the ground they have taken.</p><p> 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.</p><p> The <u><strong>rules of legal interpretation</strong></u> are rules of <em>common sense</em>, adopted by the courts in the construction of the laws...</p></blockquote><p></p>
[QUOTE="Jagger, post: 444083, member: 16628"] [B]The Federalist No. 83[/B] [B]The Judiciary Continued in Relation to Trial by Jury[/B] [B][I]Independent Journal[/I] Saturday, July 5, Wednesday, July 9, Saturday July 12, 1788 [Alexander Hamilton][/B] [B]To the People of the State of New York:[/B] [SIZE=+2]T[/SIZE][SIZE=-2]HE[/SIZE] objection to the plan of the convention, which has met with most success in this State, and perhaps in several of the other States, is [I]that relative to the want of a constitutional provision[/I] 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 [I]civil causes[/I], 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 [I]criminal causes[/I]. To argue with respect to the latter would, however, be as vain and fruitless as to attempt the serious proof of the [I]existence[/I] of [I]matter[/I], 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 [I]not provided for[/I], is entirely [I]abolished[/I]. Every man of discernment must at once perceive the wide difference between [I]silence[/I] and [I]abolition[/I]. But as the inventors of this fallacy have attempted to support it by certain [I]legal maxims[/I] 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 [U][B]rules of legal interpretation[/B][/U] are rules of [I]common sense[/I], adopted by the courts in the construction of the laws... [/QUOTE]
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