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. The specification of
an obligation to try all criminal causes in a particular mode, excludes
indeed the obligation or necessity of employing the same mode in civil
causes, but does not abridge the power of the legislature to exercise
that mode if it should be thought proper.
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