Essay on the Trial by Jury — Ch 5 – Part 2 – Objections Answered

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 constitutional 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 destitute, 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 labyrinhs 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 assent 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 constitutional, 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 constitutional law, is the only thing that gives any certainty at all to a very large portion of our statutory and constitutional law.

The reason is this.

The words in which statutes and constitutions 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 constitutions 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 constitutions shall be construed, as nearly as possible, consistently with natural law.

The rule assumes, what is true, that natural law is a thing certain in itself; also that it is capable of being learned.

It assumes, furthermore, that it actually is understood by the legislators and judges who make and interpret the written law.

Of necessity, therefore, it assumes 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 assumes that the people must understand the natural law, before they can understated 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 Constitution 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 constitutions could be made out of the same written instrument.

But there are, we will suppose, a thousand other words in the constitution, 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 constitutions 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 constitutions 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 identity of those conclusions which pure, unbiased reason, in all ages; and nations, seldom fails to draw, in such juridical inquiries as are not fettered and manacled by positive institutions."

[4] 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 circumstances.

[5] 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 repetitions, 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.

[6] 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 constitutes 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 mass 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 associates 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 compass, 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 quantities.

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, analogy, 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 substitute 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 substitute 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 lawsthat 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 Coke has gone so far as to assert, (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. If it still be said that juries would disagree, as to what was natural justice, and that one jury would decide one way, and another jury another; the answer is, that such a thing is hardly credible, as that twelve men, taken at random from the people at large, should unanimously decide a question of natural justice one way, and that twelve other men, selected in the same manner, should unanimously decide the same question the other way, unless they were misled by the justices.

If, however, such things should sometimes happen, from any cause whatever, the remedy is by appeal, and new trial.

[1] Judges do not even live up to that part of their own maxim, which requires jurors to try the matter of fact.

By dictating to them the laws of evidence, that is, by dictating what evidence they may hear, and what they may not hear, and also by dictating to them rules for weighing such evidence as they permit them to hear, they of necessity dictate the conclusion to which they shall arrive.

And thus the court really tries the question of fact, as well as the question of law, in every cause.

It is clearly impossible, in the nature of things, for a jury to try, a question of fact, without trying every question of law on which the fact depends.

[2] Most disagreements of juries are on matters of fact, which are admitted to be within their province.

We have little or no evidence of their disagreements on matters of natural justice.

The disagreements of courts on matters of law, afford little or no evidence that juries would also disagree on matters of law that is, of justice, because the disagreements of courts are generally on matters of legislation, and not on those principles of abstract justice, by which juries would be governed, and in regard to which the minds of men are nearly unanimous.

[3] This is the principle of all voluntary associations whatsoever.

No voluntary association was ever formed, and in the nature of things there never can be one formed, for the accomplishment of any objects except those in which all the parties to the association are agreed.

Government, therefore, must be kept within these limits, or it is no longer a voluntary association of all who contribute to its support, but a mere tyrant established by a part over the rest.

All, or nearly all, voluntary associations give to a majority, or to some other portion of the members less than the whole, the right to use some limited discretion as to themeans to be used to accomplish the ends in view; but the end themselves to be accomplished are always precisely defined, and are such as every member necessarily agrees to, else he would not voluntarily join the association.

Justice is the object of government, and those who support the government, must be agreed as to the justice to be executed by it, or they cannot rightfully unite in maintaining the government itself.

[4] Jones on Bailments, [5] Kent, describing the difficulty of construing the written law, says: "Such is the imperfection of language, and the want of technical skill in the makers of the law, that statutes often give occasion to the most perplexing and distressing doubts and discussions, arising from the ambiguity that attends them.

It requires great experience, as well as the command of a perspicuous diction, to frame a law in such clear and precise terms, as to secure it from ambiguous expressions, and from all doubts and criticisms upon its meaning " Kent, 460. The following extract from a speech of Lord Brougham, in the House of Lords, confesses the same difficulty: There was another subject, well worthy of the consideration of government during the recess, the expediency, or rather the absolute necessity, of some arrangement for the preparation of bills, not merely private, but public bills, in order that legislation might be consistent and systematic, and that the courts might not have so large a portion of their time occupied in endeavoring to construe acts of Parliament, in many cases unconstruable, and in most cases difficult to be construed."

Law Reporter, 1848, p. 525. [6] This condemnation of written laws must, of course, be understood as applying only to cases where principles and rights are involved, and not as condemning any governmental arrangements, or instrumentalities, that are consistent with natural right, and which must be agreed upon for the purpose of carrying natural law into effect.

These things may be varied, as expediency may dictate, so only that they be allowed to infringe no principle of justice.

And they must, of course, be written, because they do not exist as fixed principles, or laws in nature.