COMMENTARIES, 8 NOVEMBER 1787

cured-that it would not have been left dependent on the arbitrary
exposition of future judges, who, when it may suit the arbitrary views
of the ruling powers will explain it away at pleasure. We may expect
Tressellians, Jeffrees's, and Mansfield's here,4 and if they should not be
native with us, they may possibly be imported.
But, if taken even on your own ground it is not so clearly tenable.
In point of legal construction, the trial by jury does seem to be taken
away in civil cases. It is a law maxim, that the expression of one part is
an exclusion of the other. In legal construction therefore, the reser-
vation of trial by jury in criminal, is an exclusion of it in civil cases.
Why else should it be mentioned at all? Either it followed of course in
both cases, or it depended on being stipulated. If the first, then the
stipulation was nugatory-if the latter, then it was in part given up.
Therefore, either we must suppose the Convention did a nugatory
thing; or that by the express mention of jury in criminal, they meant
to exclude it in civil cases. And that they did intend to exclude it, seems
the more probable, as in the appeal they have taken special care to
render the trial by jury of no effect by expressly making the court
judges both of law and fact. And though this is subjected to the future
regulation of Congress, yet it would be absurd to suppose, that the
regulation meant its annihilation. We must therefore conclude, that in
appeals the trial by jury is expressly taken away, and in original process
it is by legal implication taken away in all civil cases.
Here then I must repeat-that you ought to have stated fairly to the
people, that the trial by jury was not secured; that they might know
what, it was they were to consent to; and if knowing it, they consented,
the blame could not fall on you. Before they decide, however, I will
take leave to lay before them the opinion of that great and revered
Judge Lord Camden,5 whose authority is, I hope, at least equal to that
of Mr. Wilson.-"There is, says he, scarce any matter of challenge al-
lowed to the judge, but several to the jurors, and many of them may
be removed without any reason alledged. This seems to promise as
much impartiality as human nature will admit, and absolute perfection
is not attainable, I am afraid, either in judge or jury or any thing else.
The trial by our country, is in my opinion, the great bulwark of free-
dom, and for certain, the admiration of all foreign writers and nations.
The last writer of any distinguished note, upon the principles of gov-
ernment, the celebrated Montesquieu, is in raptures with this peculiar
perfection in the English policy. From juries running riot, if I may say
so, and acting wildly at particular seasons, I cannot conclude, like
some Scottish Doctors of our law and constitutions, that their power

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