#83 is a long response to critics, touching on one common logical fallacy. The dispute hinges on Article 3 Section 2, which reads:

The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

 Opponents had read this to mean that the Constitution would prohibit jury trials for civil cases. It doesn’t say that. But it does specify trial by jury for crimes and it says nothing about civil trials. Opponents were worried by the silence.

There is a legal principle, “Expressio unius est exclusio alterius.” It means that to list or declare one thing is to exclude others. It is easy to understand. Imagine a child who asks her mother for a snack before dinner. If the mother says, “Yes,” then the child could reasonably eat anything that she is normally allowed to have for a snack. But if the mother says, “You can have a cookie,” the child should understand that on this occasion, nothing else but the cookie is allowed.

The opponents of the Constitution claimed that mentioning trial by jury for criminal cases also meant that trial by jury was prohibited in civil cases. They may have truly believed this argument, or they may have been raising complaints as fast as they could think of them just to sew discord. Hamilton described the opponents’ case as “subtleties almost too contemptible for refutation,” meaning they were too stupid to argue with.

But he did argue with them, and at greater length than he argued many weightier matters. Federalist #83 is one of the longer essays in the collection.

Hamilton replies that trial by jury in civil cases was already allowed (in various forms) by the states. The Constitution was silent about that, and Hamilton insists that silence should not be construed as prohibition.

“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?”

In other words, the states could already conduct trial by juries for both civil and criminal cases. The Constitution says nothing that could change that. The Constitution does give the national government a new judicial power (under the Articles, there was no national court) and specifies that it will try criminal cases by jury. Nothing to interfere with the states is expressed there, and nothing prevents the federal government from conducting trial by jury for any case, including civil cases.

You might ask why the Constitution didn’t go ahead and make the issue clear. It could easily have stated there would be jury trials in civil cases as well as criminal. This was done with the 7th Amendment in 1792, and could easily have been done in 1787. None of the records we have about the Constitutional Convention suggests there was hot debate about this matter. It is more likely that the issue was overlooked. But Hamilton doesn’t want to admit any mistakes. He insists trial by jury for civil cases was left out because the scale and scope of national affairs made a simple, single answer unwise.

[M]en not blinded by enthusiasm must be sensible that in a federal government, which is a composition of societies whose ideas and institutions in relation to the matter materially vary from each other, that difficulty must be not a little augmented. For my own part, at every new view I take of the subject, I become more convinced of the reality of the obstacles which, we are authoritatively informed, prevented the insertion of a provision on this head in the plan of the convention.

Dr. Sanford Levinson, in his remarks on #83, says that trial by jury was a much more important issue in the 1780s and 90s than today. Juries were an effective means of keeping powerful agents in their place. An officer might arrest a citizen and charge him with a severe penalty. But the right of trial by jury ensured that ordinary citizens could protect each other from overreaching authorities.

Few American citizens feel strongly about jury duty today. Serving on a jury is listed as one of the duties of a citizen. But few people are ever called and many make excuses to get out of it.

Modern courts tend to insist on strict application of the law. Jurors still play a key role today. But it is a much more limited one than when a jury could say, “We know he did the crime, but we disagree with the law so we find the defendant not guilty.”