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.
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