2023-08-05 22:11:55 +00:00
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\chapter{Objections Answered}
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2023-08-03 21:50:47 +00:00
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The following objections will be made to the doctrines and the evidence
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presented in the preceding chapters.
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1. That it is a _maxim_ of the law, that the judges respond to the
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question of law, and juries only to the question of fact.
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The answer to this objection is, that, since Magna Carta, judges have
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had more than six centuries in which to invent and promulgate pretended
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maxims to suit themselves; and this is one of them. Instead of
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expressing the law, it expresses nothing but the ambitious and lawless
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will of the judges themselves, and of those whose instruments they
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are.[73]
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2. It will be asked, Of what use are the justices, if the jurors judge
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both of law and fact?
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The answer is, that they are of use, 1. To assist and enlighten the
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jurors, if they can, by their advice and information; such advice and
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information to be received only for what they may chance to be worth in
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the estimation of the jurors. 2. To do anything that may be necessary in
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regard to granting appeals and new trials.
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3. It is said that it would be absurd that twelve ignorant men should
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have power to judge of the law, while justices learned in the law should
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be compelled to sit by and see the law decided erroneously.
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One answer to this objection is, that the powers of juries are not
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granted to them on the supposition that they know the law better than
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the justices; but on the ground that the justices are untrustworthy,
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that they are exposed to bribes, are themselves fond of power and
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authority, and are also the dependent and subservient creatures of the
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legislature; and that to allow them to dictate the law, would not only
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expose the rights of parties to be sold for money, but would be
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equivalent to surrendering all the property, liberty, and rights of the
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people, unreservedly into the hands of arbitrary power, (the
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legislature,) to be disposed of at its pleasure. The powers of juries,
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therefore, not only place a curb upon the powers of legislators and
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judges, but imply also an imputation upon their integrity and
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trustworthiness; and _these_ are the reasons why legislators and judges
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have formerly entertained the intensest hatred of juries, and, so fast
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as they could do it without alarming the people for their liberties,
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have, by indirection, denied, undermined, and practically destroyed
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their power. And it is only since all the real power of juries has been
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destroyed, and they have become mere tools in the hands of legislators
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and judges, that they have become favorites with them.
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Legislators and judges are necessarily exposed to all the temptations of
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money, fame, and power, to induce them to disregard justice between
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parties, and sell the rights, and violate the liberties of the people.
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Jurors, on the other hand, are exposed to none of these temptations.
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They are not liable to bribery, for they are unknown to the parties
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until they come into the jury-box. They can rarely gain either fame,
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power, or money, by giving erroneous decisions. Their offices are
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temporary, and they know that when they shall have executed them, they
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must return to the people, to hold all their own rights in life subject
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to the liability of such judgments, by their successors, as they
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themselves have given an example for. The laws of human nature do not
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permit the supposition that twelve men, taken by lot from the mass of
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the people, and acting under such circumstances, will _all_ prove
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dishonest. It is a supposable case that they may not be sufficiently
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enlightened to know and do their whole duty, in all cases whatsoever;
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but that they should _all_ prove _dishonest_, is not within the range
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of probability. A jury, therefore, insures to us--what no other court
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does--that first and indispensable requisite in a judicial tribunal,
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integrity.
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4. It is alleged that if juries are allowed to judge of the law, _they
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decide the law absolutely; that their decision must necessarily stand,
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be it right or wrong_; and that this power of absolute decision would be
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dangerous in their hands, by reason of their ignorance of the law.
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One answer is, that this power, which juries have of _judging_ of the
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law, is not a power of _absolute decision in all cases_. For example, it
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is a power to declare imperatively that a man's property, liberty, or
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life, shall _not_ be taken from him; but it is not a power to declare
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imperatively that they _shall_ be taken from him.
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Magna Carta does not provide that the judgments of the peers _shall be
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executed_; but only that _no other than their judgments_ shall ever be
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executed, _so far as to take a party's goods, rights, or person,
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thereon_.
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A judgment of the peers may be reviewed, and invalidated, and a new
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trial granted. So that practically a jury has no absolute power to take
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a party's goods, rights, or person. They have only an absolute veto upon
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their being taken by the government. The government is not bound to do
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everything that a jury may adjudge. It is only prohibited from doing
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anything--(that is, from taking a party's goods, rights, or
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person)--unless a jury have first adjudged it to be done.
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But it will, perhaps, be said, that if an erroneous judgment of one jury
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should be reaffirmed by another, on a new trial, it must _then_ be
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executed. But Magna Carta does not command even this--although it might,
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perhaps, have been reasonably safe for it to have done so--for if two
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juries unanimously affirm the same thing, after all the light and aid
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that judges and lawyers can afford them, that fact probably furnishes as
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strong a presumption in favor of the correctness of their opinion, as
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can ordinarily be obtained in favor of a judgment, by any measures of a
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practical character for the administration of justice. Still, there is
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nothing in Magna Carta that _compels_ the execution of even a second
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judgment of a jury. The only injunction of Magna Carta upon the
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government, as to what it _shall do_, on this point, is that it shall
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"do justice and right," without sale, denial, or delay. But this leaves
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the government all power of determining what is justice and right,
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except that it shall not consider anything as justice and right--so far
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as to carry it into execution against the goods, rights, or person of a
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party--unless it be something which a jury have sanctioned.
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If the government had no alternative but to execute all judgments of a
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jury indiscriminately, the power of juries would unquestionably be
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dangerous; for there is no doubt that they may sometimes give hasty and
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erroneous judgments. But when it is considered that their judgments can
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be reviewed, and new trials granted, this danger is, for all practical
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purposes, obviated.
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If it be said that juries may _successively_ give erroneous judgments,
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and that new trials cannot be granted indefinitely, the answer is, that
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so far as Magna Carta is concerned, there is nothing to prevent the
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granting of new trials indefinitely, if the judgments of juries are
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contrary to "justice and right." So that Magna Carta does not _require_
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any judgment whatever to be executed--so far as to take a party's goods,
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rights, or person, thereon--unless it be concurred in by both court and
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jury.
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Nevertheless, we may, for the sake of the argument, suppose the
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existence of a _practical_, if not _legal_, necessity, for executing
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_some_ judgment or other, in cases where juries persist in disagreeing
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with the courts. In such cases, the principle of Magna Carta
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unquestionably is, that the uniform judgments of _successive_ juries
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shall prevail over the opinion of the court. And the reason of this
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principle is obvious, viz., that it is the will of the country, and not
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the will of the court, or the government, that must determine what laws
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shall be established and enforced; that the concurrent judgments of
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successive juries, given in opposition to all the reasoning which judges
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and lawyers can offer to the contrary, must necessarily be presumed to
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be a truer exposition of the will of the country, than are the opinions
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of the judges.
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But it may be said that, unless jurors submit to the control of the
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court, in matters of law, they may disagree among themselves, and
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_never_ come to any judgment; and thus justice fail to be done.
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Such a case is perhaps possible; but, if possible, it can occur but
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rarely; because, although one jury may disagree, a succession of juries
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are not likely to disagree--that is, _on matters of natural law, or
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abstract justice_.[74] If such a thing should occur, it would almost
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certainly be owing to the attempt of the court to mislead them. It is
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hardly possible that any other cause should be adequate to produce such
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an effect; because justice comes very near to being a self-evident
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principle. The mind perceives it almost intuitively. If, in addition to
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this, the court be uniformly on the side of justice, it is not a
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reasonable supposition that a succession of juries should disagree about
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it. If, therefore, a succession of juries do disagree on the law of any
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case, the presumption is, not that justice fails of being done, but that
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injustice is prevented--_that_ injustice, which would be done, if the
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opinion of the court were suffered to control the jury.
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For the sake of the argument, however, it may be admitted to be possible
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that justice should sometimes fail of being done through the
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disagreements of jurors, notwithstanding all the light which judges and
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lawyers can throw upon the question in issue. If it be asked what
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provision the trial by jury makes for such cases, the answer is, _it
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makes none; and justice must fail of being done, from the want of its
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being made sufficiently intelligible_.
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Under the trial by jury, justice can never be done--that is, by a
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judgment that shall take a party's goods, rights, or person--until that
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justice can be made intelligible or perceptible to the minds of _all_
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the jurors; or, at least, until it obtain the voluntary assent of
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all--an assent, which ought not to be given until the justice itself
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shall have become perceptible to all.
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The principles of the trial by jury, then, are these:
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1. That, in criminal cases, the accused is presumed innocent.
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2. That, in civil cases, possession is presumptive proof of property;
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or, in other words, every man is presumed to be the rightful proprietor
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of whatever he has in his possession.
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3. That these presumptions shall be overcome, in a court of justice,
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only by evidence, the sufficiency of which, and by law, the justice of
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which, are satisfactory to the understanding and consciences of _all_
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the jurors.
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These are the bases on which the trial by jury places the property,
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liberty, and rights of every individual.
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But some one will say, if these are the principles of the trial by jury,
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then it is plain that justice must often fail to be done. Admitting, for
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the sake of the argument, that this may be true, the compensation for it
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is, that positive _injustice_ will also often fail to be done; whereas
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otherwise it would be done frequently. The very precautions used to
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prevent _injustice_ being done, may often have the effect to prevent
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_justice_ being done. But are we, therefore, to take no precautions
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against injustice? By no means, all will agree. The question then
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arises--Does the trial by jury, _as here explained_, involve such
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extreme and unnecessary precautions against injustice, as to interpose
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unnecessary obstacles to the doing of justice? Men of different minds
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may very likely answer this question differently, according as they have
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more or less confidence in the wisdom and justice of legislators, the
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integrity and independence of judges, and the intelligence of jurors.
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This much, however, may be said in favor of these precautions, viz.,
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that the history of the past, as well as our constant present
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experience, prove how much injustice may, and certainly will, be done,
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systematically and continually, _for the want of these precautions_--that
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is, while the law is authoritatively made and expounded by legislators and
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judges. On the other hand, we have no such evidence of how much justice
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may fail to be done, _by reason of these precautions_--that is, by reason
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of the law being left to the judgments and consciences of jurors. We can
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determine the former point--that is, how much positive injustice is done
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under the first of these two systems--because the system is in full
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operation; but we cannot determine how much justice would fail to be
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done under the latter system, because we have, in modern times, had no
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experience of the use of the precautions themselves. In ancient times,
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when these precautions were _nominally_ in force, such was the tyranny of
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kings, and such the poverty, ignorance, and the inability of concert and
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resistance, on the part of the people, that the system had no full or fair
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operation. It, nevertheless, under all these disadvantages, impressed
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itself upon the understandings, and imbedded itself in the hearts, of the
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people, so as no other system of civil liberty has ever done.
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But this view of the two systems compares only the injustice done, and
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the justice omitted to be done, in the individual cases adjudged,
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without looking beyond them. And some persons might, on first thought,
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argue that, if justice failed of being done under the one system,
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oftener than positive injustice were done under the other, the balance
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was in favor of the latter system. But such a weighing of the two
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systems against each other gives no true idea of their comparative
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merits or demerits; for, possibly, in this view alone, the balance would
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not be very great in favor of either. To compare, or rather to contrast,
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the two, we must consider that, under the jury system, the failures to
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do justice would be only rare and exceptional cases; and would be owing
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either to the intrinsic difficulty of the questions, or to the fact that
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the parties had transacted their business in a manner unintelligible to
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the jury, and the effects would be confined to the individual or
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individuals interested in the particular suits. No permanent law would
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be established thereby destructive of the rights of the people in other
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like cases. And the people at large would continue to enjoy all their
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natural rights as before. But under the other system, whenever an unjust
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law is enacted by the legislature, and the judge imposes it upon the
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jury as authoritative, and they give a judgment in accordance therewith,
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the authority of the law is thereby established, and the whole people
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are thus brought under the yoke of that law; because they then
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understand that the law will be enforced against them in future, if they
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presume to exercise their rights, or refuse to comply with the
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exactions of the law. In this manner all unjust laws are established,
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and made operative against the rights of the people.
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The difference, then, between the two systems is this: Under the one
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system, a jury, at distant intervals, would (not enforce any positive
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injustice, but only) fail of enforcing justice, in a dark and difficult
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case, or in consequence of the parties not having transacted their
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business in a manner intelligible to a jury; and the plaintiff would
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thus fail of obtaining what was rightfully due him. And there the matter
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would end, _for evil_, though not for good; for thenceforth parties,
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warned of the danger of losing their rights, would be careful to
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transact their business in a more clear and intelligible manner. Under
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the other system--the system of legislative and judicial
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authority--positive injustice is not only done in every suit arising
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under unjust laws,--that is, men's property, liberty, or lives are not
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only unjustly taken on those particular judgments,--but the rights of
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the whole people are struck down by the authority of the laws thus
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enforced, and a wide-sweeping tyranny at once put in operation.
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But there is another ample and conclusive answer to the argument that
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justice would often fail to be done, if jurors were allowed to be
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governed by their own consciences, instead of the direction of the
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justices, in matters of law. That answer is this:
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Legitimate government can be formed only by the voluntary association of
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all who contribute to its support. As a voluntary association, it can
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have for its objects only those things in which the members of the
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association are _all agreed_. If, therefore, there be any _justice_, in
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regard to which all the parties to the government _are not agreed_, the
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objects of the association do not extend to it.[75]
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If any of the members wish more than this,--if they claim to have
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acquired a more extended knowledge of justice than is common to all, and
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wish to have their pretended discoveries carried into effect, in
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reference to themselves,--they must either form a separate association
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for that purpose, or be content to wait until they can make their views
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intelligible to the people at large. They cannot claim or expect that
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the whole people shall practise the folly of taking on trust their
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pretended superior knowledge, and of committing blindly into their hands
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all their own interests, liberties, and rights, to be disposed of on
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principles, the justness of which the people themselves cannot
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comprehend.
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A government of the whole, therefore, must necessarily confine itself to
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the administration of such principles of law as _all_ the people, who
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contribute to the support of the government, can comprehend and see the
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justice of. And it can be confined within those limits only by allowing
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the jurors, who represent all the parties to the compact, to judge of
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the law, and the justice of the law, in all cases whatsoever. And if any
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justice be left undone, under these circumstances, it is a justice for
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which the nature of the association does not provide, which the
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association does not undertake to do, and which, as an association, it
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is under no obligation to do.
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The people at large, the unlearned and common people, have certainly an
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indisputable right to associate for the establishment and maintenance of
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such a government as _they themselves_ see the justice of, and feel the
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need of, for the promotion of their own interests, and the safety of
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their own rights, without at the same time surrendering all their
|
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|
|
property, liberty, and rights into the hands of men, who, under the
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|
pretence of a superior and incomprehensible knowledge of justice, may
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|
dispose of such property, liberties, and rights, in a manner to suit
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|
their own selfish and dishonest purposes.
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|
If a government were to be established and supported _solely_ by that
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|
portion of the people who lay claim to superior knowledge, there would
|
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|
|
be some consistency in their saying that the common people should not be
|
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|
|
received as jurors, with power to judge of the justice of the laws. But
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|
so long as the whole people (or all the male adults) are presumed to be
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|
voluntary parties to the government, and voluntary contributors to its
|
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|
support, there is no consistency in refusing to any one of them more
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|
|
than to another the right to sit as juror, with full power to decide for
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|
himself whether any law that is proposed to be enforced in any
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|
particular case, be within the objects of the association.
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|
|
The conclusion, therefore, is, that, in a government formed by voluntary
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|
association, or on the _theory_ of voluntary association, and voluntary
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|
support, (as all the North American governments are,) no law can
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|
rightfully be enforced by the association in its corporate capacity,
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|
against the goods, rights, or person of any individual, except it be
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|
such as _all_ the members of the association agree that it may enforce.
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|
To enforce any other law, to the extent of taking a man's goods, rights,
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|
or person, would be making _some_ of the parties to the association
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|
|
accomplices in what they regard as acts of injustice. It would also be
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|
|
making them consent to what they regard as the destruction of their own
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|
rights. These are things which no legitimate system or theory of
|
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|
government can require of any of the parties to it.
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|
The mode adopted, by the trial by jury, for ascertaining whether all the
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|
parties to the government do approve of a particular law, is to take
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|
twelve men at random from the whole people, and accept their unanimous
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|
decision as representing the opinions of the whole. Even this mode is
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|
not theoretically accurate; for theoretical accuracy would require that
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|
every man, who was a party to the government, should individually give
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|
his consent to the enforcement of every law in every separate case. But
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|
such a thing would be impossible in practice. The consent of twelve men
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|
is therefore taken instead; with the privilege of appeal, and (in case
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|
|
of error found by the appeal court) a new trial, to guard against
|
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|
|
possible mistakes. This system, it is assumed, will ascertain the sense
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|
|
of the whole people--"the country"--with sufficient accuracy for all
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|
practical purposes, and with as much accuracy as is practicable without
|
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|
too great inconvenience and expense.
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|
5. Another objection that will perhaps be made to allowing jurors to
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|
judge of the law, and the justice of the law, is, that the law would be
|
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|
|
uncertain.
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|
If, by this objection, it be meant that the law would be uncertain to
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|
|
the minds of the people at large, so that they would not know what the
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|
|
juries would sanction and what condemn, and would not therefore know
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|
practically what their own rights and liberties were under the law, the
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|
|
objection is thoroughly baseless and false. No system of law that was
|
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|
|
ever devised could be so entirely intelligible and certain to the minds
|
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|
|
of the people at large as this. Compared with it, the complicated
|
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|
|
systems of law that are compounded of the law of nature, of
|
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|
|
constitutional grants, of innumerable and incessantly changing
|
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|
|
legislative enactments, and of countless and contradictory judicial
|
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|
|
decisions, with no uniform principle of reason or justice running
|
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|
|
through them, are among the blindest of all the mazes in which
|
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|
|
unsophisticated minds were ever bewildered and lost. The uncertainty of
|
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|
|
the law under these systems has become a proverb. So great is this
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|
|
uncertainty, that nearly all men, learned as well as unlearned, shun the
|
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|
|
law as their enemy, instead of resorting to it for protection. They
|
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|
|
usually go into courts of justice, so called, only as men go into
|
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|
|
battle--when there is no alternative left for them. And even then they
|
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|
|
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
|
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|
|
fortunate than other adventurers, they can have little confidence even
|
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|
|
in their guides, for the reason that the guides themselves know little
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|
|
of the mazes they are threading. They know the mode and place of
|
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|
|
entrance; but what they will meet with on their way, and what will be
|
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|
|
the time, mode, place, or condition of their exit; whether they will
|
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|
|
emerge into a prison, or not; whether _wholly_ naked and destitute, or
|
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|
|
not; whether with their reputations left to them, or not; and whether in
|
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|
|
time or eternity; experienced and honest guides rarely venture to
|
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|
|
predict. Was there ever such fatuity as that of a nation of men madly
|
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|
|
bent on building up such labyrinths as these, for no other purpose than
|
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|
|
that of exposing all their rights of reputation, property, liberty, and
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|
|
life, to the hazards of being lost in them, instead of being content to
|
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|
|
live in the light of the open day of their own understandings?
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|
|
|
|
|
|
What honest, unsophisticated man ever found himself involved in a
|
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|
|
lawsuit, that he did not desire, of all things, that his cause might be
|
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|
|
judged of on principles of natural justice, as those principles were
|
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|
|
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
|
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|
|
support the government. Why should they not have such an administration
|
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|
|
of justice as they desire, and can understand?
|
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|
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|
|
If the jurors were to judge of the law, and the justice of the law,
|
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|
|
there would be something like certainty in the administration of
|
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|
|
justice, and in the popular knowledge of the law, and men would govern
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|
|
themselves accordingly. There would be something like certainty, because
|
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|
|
every man has himself something like definite and clear opinions, and
|
|
|
|
also knows something of the opinions of his neighbors, on matters of
|
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|
|
justice. And he would know that no statute, unless it were so clearly
|
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|
|
just as to command the unanimous assent of twelve men, who should be
|
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|
|
taken at random from the whole community, could be enforced so as to
|
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|
|
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
|
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|
|
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
|
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|
|
usurpation had become incorporated into the common law,)--in other
|
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|
|
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.
|
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|
|
|
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|
|
"Natural law, so far from being uncertain, when compared with
|
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|
|
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._
|
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|
|
|
|
|
|
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 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 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, unbiassed reason, in all ages and nations, seldom fails to
|
|
|
|
draw, in such juridical inquiries as are not fettered and manacled by
|
|
|
|
positive institutions._"[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
|
|
|
|
circumstances.[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 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.[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
|
|
|
|
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
|
|
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to the innovations that have been made upon natural law by
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legislation; whereby our system has become an incongruous mixture of
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natural and statute law, with no uniform principle pervading it. To
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learn such a system,--if system it can be called, and if learned it
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can be,--is a matter of very similar difficulty to what it would be
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to learn a system of mathematics, which should consist of the
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mathematics of nature, interspersed with such other mathematics as
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might be created by legislation, in violation of all the natural
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principles of numbers and quantities.
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But whether the difficulties of learning natural law be greater or
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less than here represented, they exist in the nature of things, and
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cannot be removed. Legislation, instead of removing, only increases
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them. This it does by innovating upon natural truths and principles,
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and introducing jargon and contradiction, in the place of order,
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analogy, consistency, and uniformity.
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Further than this; legislation does not even profess to remove the
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obscurity of natural law. That is no part of its object. It only
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professes to substitute something arbitrary in the place of natural
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law. Legislators generally have the sense to see that legislation
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will not make natural law any clearer than it is. Neither is it the
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object of legislation to establish the authority of natural law.
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Legislators have the sense to see that they can add nothing to the
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authority of natural law, and that it will stand on its own
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authority, unless they overturn it.
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The whole object of legislation, excepting that legislation which
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merely makes regulations, and provides instrumentalities for carrying
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other laws into effect, is to overturn natural law, and substitute
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for it the arbitrary will of power. In other words, the whole object
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of it is to destroy men's rights. At least, such is its only effect;
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and its designs must be inferred from its effect. Taking all the
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statutes in the country, there probably is not one in a
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hundred,--except the auxiliary ones just mentioned,--that does not
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violate natural law; that does not invade some right or other.
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Yet the advocates of arbitrary legislation are continually practising
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the fraud of pretending that unless the legislature _make_ the laws,
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the laws will not be known. The whole object of the fraud is to
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secure to the government the authority of making laws that never
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ought to be known."
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In addition to the authority already cited, of Sir William Jones, as to
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the certainty of natural law, and the uniformity of men's opinions in
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regard to it, I may add the following:
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"There is that great simplicity and plainness in the Common Law, that
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Lord Coke has gone so far as to assert, (and Lord Bacon nearly
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seconds him in observing,) that 'he never knew two questions arise
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merely upon common law; but that they were mostly owing to statutes
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ill-penned and overladen with provisos.'"--_3 Eunomus_, 157-8.
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If it still be said that juries would disagree, as to what was natural
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justice, and that one jury would decide one way, and another jury
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another; the answer is, that such a thing is hardly credible, as that
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twelve men, taken at random from the people at large, should
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_unanimously_ decide a question of natural justice one way, and that
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twelve other men, selected in the same manner, should _unanimously_
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decide the same question the other way, _unless they were misled by the
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justices_. If, however, such things should sometimes happen, from any
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cause whatever, the remedy is by appeal, and new trial.
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[Footnote 73: Judges do not even live up to that part of their own
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maxim, which requires jurors to try the matter of fact. By dictating to
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them the laws of evidence,--that is, by dictating what evidence they may
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hear, and what they may not hear, and also by dictating to them rules
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for weighing such evidence as they permit them to hear,--they of
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necessity dictate the conclusion to which they shall arrive. And thus
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the court really tries the question of fact, as well as the question of
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law, in every cause. It is clearly impossible, in the nature of things,
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for a jury to try a question of fact, without trying every question of
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law on which the fact depends.]
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[Footnote 74: Most disagreements of juries are on matters of fact, which
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are admitted to be within their province. We have little or no evidence
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of their disagreements on matters of natural justice. The disagreements
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of _courts_ on matters of law, afford little or no evidence that juries
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would also disagree on matters of law--that is, _of justice_; because
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the disagreements of courts are generally on matters of _legislation_,
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and not on those principles of abstract justice, by which juries would
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be governed, and in regard to which the minds of men are nearly
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unanimous.]
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[Footnote 75: This is the principle of all voluntary associations
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whatsoever. No voluntary association was ever formed, and in the nature
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of things there never can be one formed, for the accomplishment of any
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objects except those in which all the parties to the association are
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agreed. Government, therefore, must be kept within these limits, or it
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is no longer a voluntary association of all who contribute to its
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support, but a mere tyranny established by a part over the rest.
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All, or nearly all, voluntary associations give to a majority, or to
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some other portion of the members less than the whole, the right to use
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some _limited_ discretion as to the means to be used to accomplish the
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ends in view; but _the ends themselves to be accomplished_ are always
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precisely defined, and are such as every member necessarily agrees to,
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else he would not voluntarily join the association.
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Justice is the object of government, and those who support the
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government, must be agreed as to the justice to be executed by it, or
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they cannot rightfully unite in maintaining the government itself.]
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[Footnote 76: Jones on Bailments, 133.]
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[Footnote 77: Kent, describing the difficulty of construing the written
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law, says:
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"Such is the imperfection of language, and the want of technical skill
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in the makers of the law, that statutes often give occasion to the most
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perplexing and distressing doubts and discussions, arising from the
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ambiguity that attends them. It requires great experience, as well as
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the command of a perspicuous diction, to frame a law in such clear and
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precise terms, as to secure it from ambiguous expressions, and from all
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doubts and criticisms upon its meaning."--_Kent_, 460.
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The following extract from a speech of Lord Brougham, in the House of
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Lords, confesses the same difficulty:
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"There was another subject, well worthy of the consideration of
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government during the recess,--the expediency, _or rather the absolute
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necessity_, of some arrangement for the preparation of bills, not merely
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private, but public bills, _in order that legislation might be
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consistent and systematic, and that the courts might not have so large a
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portion of their time occupied in endeavoring to construe acts of
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Parliament, in many cases unconstruable, and in most cases difficult to
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be construed_."--_Law Reporter_, 1848, p. 525.]
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[Footnote 78: This condemnation of written laws must, of course, be
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understood as applying only to cases where principles and rights are
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involved, and not as condemning any governmental arrangements, or
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instrumentalities, that are consistent with natural right, and which
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must be agreed upon for the purpose of carrying natural law into effect.
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These things may be varied, as expediency may dictate, so only that they
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be allowed to infringe no principle of justice. And they must, of
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course, be written, because they do not exist as fixed principles, or
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laws in nature.]
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