f 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 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. T