An Essay on the Trial by Jury Part 16

Such a case is perhaps possible; but, if possible, it can occur but rarely; because, although one jury may disagree, a succession of juries are not likely to disagree--that is, _on matters of natural law, or abstract justice_.[74] If such a thing should occur, it would almost certainly be owing to the attempt of the court to mislead them. It is hardly possible that any other cause should be adequate to produce such an effect; because justice comes very near to being a self-evident principle. The mind perceives it almost intuitively. If, in addition to this, the court be uniformly on the side of justice, it is not a reasonable supposition that a succession of juries should disagree about it. If, therefore, a succession of juries do disagree on the law of any case, the presumption is, not that justice fails of being done, but that injustice is prevented--_that_ injustice, which would be done, if the opinion of the court were suffered to control the jury.

For the sake of the argument, however, it may be admitted to be possible that justice should sometimes fail of being done through the disagreements of jurors, notwithstanding all the light which judges and lawyers can throw upon the question in issue. If it be asked what provision the trial by jury makes for such cases, the answer is, _it makes none; and justice must fail of being done, from the want of its being made sufficiently intelligible_.

Under the trial by jury, justice can never be done--that is, by a judgment that shall take a party's goods, rights, or person--until that justice can be made intelligible or perceptible to the minds of _all_ the jurors; or, at least, until it obtain the voluntary a.s.sent of all--an a.s.sent, which ought not to be given until the justice itself shall have become perceptible to all.

The principles of the trial by jury, then, are these:

1. That, in criminal cases, the accused is presumed innocent.

2. That, in civil cases, possession is presumptive proof of property; or, in other words, every man is presumed to be the rightful proprietor of whatever he has in his possession.

3. That these presumptions shall be overcome, in a court of justice, only by evidence, the sufficiency of which, and by law, the justice of which, are satisfactory to the understanding and consciences of _all_ the jurors.

These are the bases on which the trial by jury places the property, liberty, and rights of every individual.

But some one will say, if these are the principles of the trial by jury, then it is plain that justice must often fail to be done. Admitting, for the sake of the argument, that this may be true, the compensation for it is, that positive _injustice_ will also often fail to be done; whereas otherwise it would be done frequently. The very precautions used to prevent _injustice_ being done, may often have the effect to prevent _justice_ being done. But are we, therefore, to take no precautions against injustice? By no means, all will agree. The question then arises--Does the trial by jury, _as here explained_, involve such extreme and unnecessary precautions against injustice, as to interpose unnecessary obstacles to the doing of justice? Men of different minds may very likely answer this question differently, according as they have more or less confidence in the wisdom and justice of legislators, the integrity and independence of judges, and the intelligence of jurors.

This much, however, may be said in favor of these precautions, viz., that the history of the past, as well as our constant present experience, prove how much injustice may, and certainly will, be done, systematically and continually, _for the want of these precautions_--that is, while the law is authoritatively made and expounded by legislators and judges. On the other hand, we have no such evidence of how much justice may fail to be done, _by reason of these precautions_--that is, by reason of the law being left to the judgments and consciences of jurors. We can determine the former point--that is, how much positive injustice is done under the first of these two systems--because the system is in full operation; but we cannot determine how much justice would fail to be done under the latter system, because we have, in modern times, had no experience of the use of the precautions themselves. In ancient times, when these precautions were _nominally_ in force, such was the tyranny of kings, and such the poverty, ignorance, and the inability of concert and resistance, on the part of the people, that the system had no full or fair operation. It, nevertheless, under all these disadvantages, impressed itself upon the understandings, and imbedded itself in the hearts, of the people, so as no other system of civil liberty has ever done.

But this view of the two systems compares only the injustice done, and the justice omitted to be done, in the individual cases adjudged, without looking beyond them. And some persons might, on first thought, argue that, if justice failed of being done under the one system, oftener than positive injustice were done under the other, the balance was in favor of the latter system. But such a weighing of the two systems against each other gives no true idea of their comparative merits or demerits; for, possibly, in this view alone, the balance would not be very great in favor of either. To compare, or rather to contrast, the two, we must consider that, under the jury system, the failures to do justice would be only rare and exceptional cases; and would be owing either to the intrinsic difficulty of the questions, or to the fact that the parties had transacted their business in a manner unintelligible to the jury, and the effects would be confined to the individual or individuals interested in the particular suits. No permanent law would be established thereby destructive of the rights of the people in other like cases. And the people at large would continue to enjoy all their natural rights as before. But under the other system, whenever an unjust law is enacted by the legislature, and the judge imposes it upon the jury as authoritative, and they give a judgment in accordance therewith, the authority of the law is thereby established, and the whole people are thus brought under the yoke of that law; because they then understand that the law will be enforced against them in future, if they presume to exercise their rights, or refuse to comply with the exactions of the law. In this manner all unjust laws are established, and made operative against the rights of the people.

The difference, then, between the two systems is this: Under the one system, a jury, at distant intervals, would (not enforce any positive injustice, but only) fail of enforcing justice, in a dark and difficult case, or in consequence of the parties not having transacted their business in a manner intelligible to a jury; and the plaintiff would thus fail of obtaining what was rightfully due him. And there the matter would end, _for evil_, though not for good; for thenceforth parties, warned of the danger of losing their rights, would be careful to transact their business in a more clear and intelligible manner. Under the other system--the system of legislative and judicial authority--positive injustice is not only done in every suit arising under unjust laws,--that is, men's property, liberty, or lives are not only unjustly taken on those particular judgments,--but the rights of the whole people are struck down by the authority of the laws thus enforced, and a wide-sweeping tyranny at once put in operation.

But there is another ample and conclusive answer to the argument that justice would often fail to be done, if jurors were allowed to be governed by their own consciences, instead of the direction of the justices, in matters of law. That answer is this:

Legitimate government can be formed only by the voluntary a.s.sociation of all who contribute to its support. As a voluntary a.s.sociation, it can have for its objects only those things in which the members of the a.s.sociation are _all agreed_. If, therefore, there be any _justice_, in regard to which all the parties to the government _are not agreed_, the objects of the a.s.sociation do not extend to it.[75]

If any of the members wish more than this,--if they claim to have acquired a more extended knowledge of justice than is common to all, and wish to have their pretended discoveries carried into effect, in reference to themselves,--they must either form a separate a.s.sociation for that purpose, or be content to wait until they can make their views intelligible to the people at large. They cannot claim or expect that the whole people shall practise the folly of taking on trust their pretended superior knowledge, and of committing blindly into their hands all their own interests, liberties, and rights, to be disposed of on principles, the justness of which the people themselves cannot comprehend.

A government of the whole, therefore, must necessarily confine itself to the administration of such principles of law as _all_ the people, who contribute to the support of the government, can comprehend and see the justice of. And it can be confined within those limits only by allowing the jurors, who represent all the parties to the compact, to judge of the law, and the justice of the law, in all cases whatsoever. And if any justice be left undone, under these circ.u.mstances, it is a justice for which the nature of the a.s.sociation does not provide, which the a.s.sociation does not undertake to do, and which, as an a.s.sociation, it is under no obligation to do.

The people at large, the unlearned and common people, have certainly an indisputable right to a.s.sociate for the establishment and maintenance of such a government as _they themselves_ see the justice of, and feel the need of, for the promotion of their own interests, and the safety of their own rights, without at the same time surrendering all their property, liberty, and rights into the hands of men, who, under the pretence of a superior and incomprehensible knowledge of justice, may dispose of such property, liberties, and rights, in a manner to suit their own selfish and dishonest purposes.

If a government were to be established and supported _solely_ by that portion of the people who lay claim to superior knowledge, there would be some consistency in their saying that the common people should not be received as jurors, with power to judge of the justice of the laws. But so long as the whole people (or all the male adults) are presumed to be voluntary parties to the government, and voluntary contributors to its support, there is no consistency in refusing to any one of them more than to another the right to sit as juror, with full power to decide for himself whether any law that is proposed to be enforced in any particular case, be within the objects of the a.s.sociation.

The conclusion, therefore, is, that, in a government formed by voluntary a.s.sociation, or on the _theory_ of voluntary a.s.sociation, and voluntary support, (as all the North American governments are,) no law can rightfully be enforced by the a.s.sociation in its corporate capacity, against the goods, rights, or person of any individual, except it be such as _all_ the members of the a.s.sociation agree that it may enforce.

To enforce any other law, to the extent of taking a man's goods, rights, or person, would be making _some_ of the parties to the a.s.sociation accomplices in what they regard as acts of injustice. It would also be making them consent to what they regard as the destruction of their own rights. These are things which no legitimate system or theory of government can require of any of the parties to it.

The mode adopted, by the trial by jury, for ascertaining whether all the parties to the government do approve of a particular law, is to take twelve men at random from the whole people, and accept their unanimous decision as representing the opinions of the whole. Even this mode is not theoretically accurate; for theoretical accuracy would require that every man, who was a party to the government, should individually give his consent to the enforcement of every law in every separate case. But such a thing would be impossible in practice. The consent of twelve men is therefore taken instead; with the privilege of appeal, and (in case of error found by the appeal court) a new trial, to guard against possible mistakes. This system, it is a.s.sumed, will ascertain the sense of the whole people--"the country"--with sufficient accuracy for all practical purposes, and with as much accuracy as is practicable without too great inconvenience and expense.

5. Another objection that will perhaps be made to allowing jurors to judge of the law, and the justice of the law, is, that the law would be uncertain.

If, by this objection, it be meant that the law would be uncertain to the minds of the people at large, so that they would not know what the juries would sanction and what condemn, and would not therefore know practically what their own rights and liberties were under the law, the objection is thoroughly baseless and false. No system of law that was ever devised could be so entirely intelligible and certain to the minds of the people at large as this. Compared with it, the complicated systems of law that are compounded of the law of nature, of const.i.tutional grants, of innumerable and incessantly changing legislative enactments, and of countless and contradictory judicial decisions, with no uniform principle of reason or justice running through them, are among the blindest of all the mazes in which unsophisticated minds were ever bewildered and lost. The uncertainty of the law under these systems has become a proverb. So great is this uncertainty, that nearly all men, learned as well as unlearned, shun the law as their enemy, instead of resorting to it for protection. They usually go into courts of justice, so called, only as men go into battle--when there is no alternative left for them. And even then they go into them as men go into dark labyrinths and caverns--with no knowledge of their own, but trusting wholly to their guides. Yet, less fortunate than other adventurers, they can have little confidence even in their guides, for the reason that the guides themselves know little of the mazes they are threading. They know the mode and place of entrance; but what they will meet with on their way, and what will be the time, mode, place, or condition of their exit; whether they will emerge into a prison, or not; whether _wholly_ naked and dest.i.tute, or not; whether with their reputations left to them, or not; and whether in time or eternity; experienced and honest guides rarely venture to predict. Was there ever such fatuity as that of a nation of men madly bent on building up such labyrinths as these, for no other purpose than that of exposing all their rights of reputation, property, liberty, and life, to the hazards of being lost in them, instead of being content to live in the light of the open day of their own understandings?

What honest, unsophisticated man ever found himself involved in a lawsuit, that he did not desire, of all things, that his cause might be judged of on principles of natural justice, as those principles were understood by plain men like himself? He would then feel that he could foresee the result. These plain men are the men who pay the taxes, and support the government. Why should they not have such an administration of justice as they desire, and can understand?

If the jurors were to judge of the law, and the justice of the law, there would be something like certainty in the administration of justice, and in the popular knowledge of the law, and men would govern themselves accordingly. There would be something like certainty, because every man has himself something like definite and clear opinions, and also knows something of the opinions of his neighbors, on matters of justice. And he would know that no statute, unless it were so clearly just as to command the unanimous a.s.sent of twelve men, who should be taken at random from the whole community, could be enforced so as to take from him his reputation, property, liberty, or life. What greater certainty can men require or need, as to the laws under which they are to live? If a statute were enacted by a legislature, a man, in order to know what was its true interpretation, whether it were const.i.tutional, and whether it would be enforced, would not be under the necessity of waiting for years until some suit had arisen and been carried through all the stages of judicial proceeding, to a final decision. He would need only to use his own reason as to its meaning and its justice, and then talk with his neighbors on the same points. Unless he found them nearly unanimous in their interpretation and approbation of it, he would conclude that juries would not unite in enforcing it, and that it would consequently be a dead letter. And he would be safe in coming to this conclusion.

There would be something like certainty in the administration of justice, and in the popular knowledge of the law, for the further reason that there would be little legislation, and men's rights would be left to stand almost solely upon the law of nature, or what was once called in England "the _common law_," (before so much legislation and usurpation had become incorporated into the common law,)--in other words, upon the principles of natural justice.

Of the certainty of this law of nature, or the ancient English common law, I may be excused for repeating here what I have said on another occasion.

"Natural law, so far from being uncertain, when compared with statutory and const.i.tutional law, is the only thing that gives any certainty at all to a very large portion of our statutory and const.i.tutional law. The reason is this. The words in which statutes and const.i.tutions are written are susceptible of so many different meanings,--meanings widely different from, often directly opposite to, each other, in their bearing upon men's rights,--that, unless there were some rule of interpretation for determining which of these various and opposite meanings are the true ones, there could be no certainty at all as to the meaning of the statutes and const.i.tutions themselves. Judges could make almost anything they should please out of them. Hence the necessity of a rule of interpretation. _And this rule is, that the language of statutes and const.i.tutions shall be construed, as nearly as possible, consistently with natural law._

The rule a.s.sumes, what is true, that natural law is a thing certain in itself; also that it is capable of being learned. It a.s.sumes, furthermore, that it actually is understood by the legislators and judges who make and interpret the written law. Of necessity, therefore, it a.s.sumes further, that they (the legislators and judges) are _incompetent_ to make and interpret the _written_ law, unless they previously understand the natural law applicable to the same subject. It also a.s.sumes that the _people_ must understand the natural law, before they can understand the written law.

It is a principle perfectly familiar to lawyers, and one that must be perfectly obvious to every other man that will reflect a moment, that, as a general rule, _no one can know what the written law is, until he knows what it ought to be_; that men are liable to be constantly misled by the various and conflicting senses of the same words, unless they perceive the true legal sense in which the words _ought to be taken_. And this true legal sense is the sense that is most nearly consistent with natural law of any that the words can be made to bear, consistently with the laws of language, and appropriately to the subjects to which they are applied.

Though the words _contain_ the law, the _words_ themselves are not the law. Were the words themselves the law, each single written law would be liable to embrace many different laws, to wit, as many different laws as there were different senses, and different combinations of senses, in which each and all the words were capable of being taken.

Take, for example, the Const.i.tution of the United States. By adopting one or another sense of the single word "_free_," the whole instrument is changed. Yet the word _free_ is capable of some ten or twenty different senses. So that, by changing the sense of that single word, some ten or twenty different const.i.tutions could be made out of the same written instrument. But there are, we will suppose, a thousand other words in the const.i.tution, each of which is capable of from two to ten different senses. So that, by changing the sense of only a single word at a time, several thousands of different const.i.tutions would be made. But this is not all. Variations could also be made by changing the senses of two or more words at a time, and these variations could be run through all the changes and combinations of senses that these thousand words are capable of. We see, then, that it is no more than a literal truth, that out of that single instrument, as it now stands, without altering the location of a single word, might be formed, by construction and interpretation, more different const.i.tutions than figures can well estimate.

But each written law, in order to be a law, must be taken only in some _one_ definite and distinct sense; and that definite and distinct sense must be selected from the almost infinite variety of senses which its words are capable of. How is this selection to be made? It can be only by the aid of that perception of natural law, or natural justice, which men naturally possess.

Such, then, is the comparative certainty of the natural and the written law. Nearly all the certainty there is in the latter, so far as it relates to principles, is based upon, and derived from, the still greater certainty of the former. In fact, nearly all the uncertainty of the laws under which we live,--which are a mixture of natural and written laws,--arises from the difficulty of construing, or, rather, from the facility of misconstruing, the _written_ law; while natural law has nearly or quite the same certainty as mathematics. On this point, Sir William Jones, one of the most learned judges that have ever lived, learned in Asiatic as well as European law, says,--and the fact should be kept forever in mind, as one of the most important of all truths:--"_It is pleasing to remark the similarity, or, rather, the ident.i.ty of those conclusions which pure, unbia.s.sed reason, in all ages and nations, seldom fails to draw, in such juridical inquiries as are not fettered and manacled by positive inst.i.tutions._"[76] In short, the simple fact that the written law must be interpreted by the natural, is, of itself, a sufficient confession of the superior certainty of the latter.

The written law, then, even where it can be construed consistently with the natural, introduces labor and obscurity, instead of shutting them out. And this must always be the case, because words do not create ideas, but only recall them; and the same word may recall many different ideas. For this reason, nearly all abstract principles can be seen by the single mind more clearly than they can be expressed by words to another. This is owing to the imperfection of language, and the different senses, meanings, and shades of meaning, which different individuals attach to the same words, in the same circ.u.mstances.[77]

Where the written law cannot be construed consistently with the natural, there is no reason why it should ever be enacted at all. It may, indeed, be sufficiently plain and certain to be easily understood; but its certainty and plainness are but a poor compensation for its injustice. Doubtless a law forbidding men to drink water, on pain of death, might be made so intelligible as to cut off all discussion as to its meaning; but would the intelligibleness of such a law be any equivalent for the right to drink water? The principle is the same in regard to all unjust laws.

Few persons could reasonably feel compensated for the arbitrary destruction of their rights, by having the order for their destruction made known beforehand, in terms so distinct and unequivocal as to admit of neither mistake nor evasion. Yet this is all the compensation that such laws offer.

Whether, therefore, written laws correspond with, or differ from, the natural, they are to be condemned. In the first case, they are useless repet.i.tions, introducing labor and obscurity. In the latter case, they are positive violations of men's rights.

There would be substantially the same reason in enacting mathematics by statute, that there is in enacting natural law. Whenever the natural law is sufficiently certain to all men's minds to justify its being enacted, it is sufficiently certain to need no enactment. On the other hand, until it be thus certain, there is danger of doing injustice by enacting it; it should, therefore, be left open to be discussed by anybody who may be disposed to question it, and to be judged of by the proper tribunal, the judiciary.[78]

It is not necessary that legislators should enact natural law in order that it may be known to the _people_, because that would be presuming that the legislators already understand it better than the people,--a fact of which I am not aware that they have ever heretofore given any very satisfactory evidence. The same sources of knowledge on the subject are open to the people that are open to the legislators, and the people must be presumed to know it as well as they.

The objections made to natural law, on the ground of obscurity, are wholly unfounded. It is true, it must be learned, like any other science; but it is equally true that it is very easily learned.

Although as illimitable in its applications as the infinite relations of men to each other, it is, nevertheless, made up of simple elementary principles, of the truth and justice of which every ordinary mind has an almost intuitive perception. _It is the science of justice_,--and almost all men have the same perceptions of what const.i.tutes justice, or of what justice requires, when they understand alike the facts from which their inferences are to be drawn. Men living in contact with each other, and having intercourse together, _cannot avoid_ learning natural law, to a very great extent, even if they would. The dealings of men with men, their separate possessions, and their individual wants, are continually forcing upon their minds the questions,--Is this act just? or is it unjust? Is this thing mine? or is it his? And these are questions of natural law; questions, which, in regard to the great ma.s.s of cases, are answered alike by the human mind everywhere.

Children learn many principles of natural law at a very early age.

For example: they learn that when one child has picked up an apple or a flower, it is his, and that his a.s.sociates must not take it from him against his will. They also learn that if he voluntarily exchange his apple or flower with a playmate, for some other article of desire, he has thereby surrendered his right to it, and must not reclaim it. These are fundamental principles of natural law, which govern most of the greatest interests of individuals and society; yet children learn them earlier than they learn that three and three are six, or five and five, ten. Talk of enacting natural law by statute, that it may be known! It would hardly be extravagant to say, that, in nine cases in ten, men learn it before they have learned the language by which we describe it. Nevertheless, numerous treatises are written on it, as on other sciences. The decisions of courts, containing their opinions upon the almost endless variety of cases that have come before them, are reported; and these reports are condensed, codified, and digested, so as to give, in a small compa.s.s, the facts, and the opinions of the courts as to the law resulting from them. And these treatises, codes, and digests are open to be read of all men.

And a man has the same excuse for being ignorant of arithmetic, or any other science, that he has for being ignorant of natural law. He can learn it as well, if he will, without its being enacted, as he could if it were.

If our governments would but themselves adhere to natural law, there would be little occasion to complain of the ignorance of the people in regard to it. The popular ignorance of law is attributable mainly to the innovations that have been made upon natural law by legislation; whereby our system has become an incongruous mixture of natural and statute law, with no uniform principle pervading it. To learn such a system,--if system it can be called, and if learned it can be,--is a matter of very similar difficulty to what it would be to learn a system of mathematics, which should consist of the mathematics of nature, interspersed with such other mathematics as might be created by legislation, in violation of all the natural principles of numbers and quant.i.ties.

But whether the difficulties of learning natural law be greater or less than here represented, they exist in the nature of things, and cannot be removed. Legislation, instead of removing, only increases them. This it does by innovating upon natural truths and principles, and introducing jargon and contradiction, in the place of order, a.n.a.logy, consistency, and uniformity.

Further than this; legislation does not even profess to remove the obscurity of natural law. That is no part of its object. It only professes to subst.i.tute something arbitrary in the place of natural law. Legislators generally have the sense to see that legislation will not make natural law any clearer than it is. Neither is it the object of legislation to establish the authority of natural law.

Legislators have the sense to see that they can add nothing to the authority of natural law, and that it will stand on its own authority, unless they overturn it.

The whole object of legislation, excepting that legislation which merely makes regulations, and provides instrumentalities for carrying other laws into effect, is to overturn natural law, and subst.i.tute for it the arbitrary will of power. In other words, the whole object of it is to destroy men's rights. At least, such is its only effect; and its designs must be inferred from its effect. Taking all the statutes in the country, there probably is not one in a hundred,--except the auxiliary ones just mentioned,--that does not violate natural law; that does not invade some right or other.

Yet the advocates of arbitrary legislation are continually practising the fraud of pretending that unless the legislature _make_ the laws, the laws will not be known. The whole object of the fraud is to secure to the government the authority of making laws that never ought to be known."

In addition to the authority already cited, of Sir William Jones, as to the certainty of natural law, and the uniformity of men's opinions in regard to it, I may add the following:

"There is that great simplicity and plainness in the Common Law, that Lord c.o.ke has gone so far as to a.s.sert, (and Lord Bacon nearly seconds him in observing,) that 'he never knew two questions arise merely upon common law; but that they were mostly owing to statutes ill-penned and overladen with provisos.'"--_3 Eunomus_, 157-8.