Page:Joseph Story, Commentaries on the Constitution of the United States (1st ed, 1833, vol I).djvu/474

reasoning.^[1] Thus, it was objected to the constitution, that, having provided for the trial by jury in criminal cases, there was an implied exclusion of it in civil cases. As if there was not an essential difference between silence and abolition, between a positive adoption of it in one class of cases, and a discretionary right (it being clearly within the reach of the judicial powers confided to the Union) to adopt, or reject it in all or any other cases.^[2] One might with just as much propriety hold, that, because congress has power "to declare war," but no power is expressly given to make peace, the latter is excluded; or that, because it is declared, that "no bill of attainder, or ex post facto law shall be passed" by congress, therefore congress possess in all other cases the right to pass any laws. The truth is, that in order to ascertain, how far an affirmative or negative provision excludes, or implies others, we must look to the nature of the provision, the subject matter, the objects, and the scope of the instrument. These, and these only, can properly determine the rule of construction. There can be no doubt, that an affirmative grant of powers in many cases will imply an exclusion of all others. As, for instance, the constitution declares, that the powers of congress shall extend to certain enumerated cases. This specification of particulars evidently excludes all pretensions to a general legislative authority. Why? Because an affirmative grant of special powers would be absurd, as well as useless, if a general authority were intended.^[3] In relation, then, to such a subject as a constitution, the natural and obvious sense

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1. Cohens v. Virginia, 6 Wheat. R. 395 to 401.
2. The Federalist, No. 83.
3. The Federalist, No. 83. See Vattel, B. 2, ch. 17, § 282.