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CHAPTER V.

OBJECTIONS ANSWERED


The following objections will be made to the doctrines and the evidence
presented in the preceding chapters.

1. That it is a _maxim_ of the law, that the judges respond to the
question of law, and juries only to the question of fact.

The answer to this objection is, that, since Magna Carta, judges have
had more than six centuries in which to invent and promulgate pretended
maxims to suit themselves; and this is one of them. Instead of
expressing the law, it expresses nothing but the ambitious and lawless
will of the judges themselves, and of those whose instruments they
are.[^73]

2. It will be asked, Of what use are the justices, if the jurors judge
both of law and fact?

The answer is, that they are of use, 1. To assist and enlighten the
jurors, if they can, by their advice and information; such advice and
information to be received only for what they may chance to be worth in
the estimation of the jurors. 2. To do anything that may be necessary in
regard to granting appeals and new trials.

3. It is said that it would be absurd that twelve ignorant men should
have power to judge of the law, while justices learned in the law should
be compelled to sit by and see the law decided erroneously.

One answer to this objection is, that the powers of juries are not
granted to them on the supposition that they know the law better than
the justices; but on the ground that the justices are untrustworthy,
that they are exposed to bribes, are themselves fond of power and
authority, and are also the dependent and subservient creatures of the
legislature; and that to allow them to dictate the law, would not only
expose the rights of parties to be sold for money, but would be
equivalent to surrendering all the property, liberty, and rights of the
people, unreservedly into the hands of arbitrary power, (the
legislature,) to be disposed of at its pleasure. The powers of juries,
therefore, not only place a curb upon the powers of legislators and
judges, but imply also an imputation upon their integrity and
trustworthiness; and _these_ are the reasons why legislators and judges
have formerly entertained the intensest hatred of juries, and, so fast
as they could do it without alarming the people for their liberties,
have, by indirection, denied, undermined, and practically destroyed
their power. And it is only since all the real power of juries has been
destroyed, and they have become mere tools in the hands of legislators
and judges, that they have become favorites with them.

Legislators and judges are necessarily exposed to all the temptations of
money, fame, and power, to induce them to disregard justice between
parties, and sell the rights, and violate the liberties of the people.
Jurors, on the other hand, are exposed to none of these temptations.
They are not liable to bribery, for they are unknown to the parties
until they come into the jury-box. They can rarely gain either fame,
power, or money, by giving erroneous decisions. Their offices are
temporary, and they know that when they shall have executed them, they
must return to the people, to hold all their own rights in life subject
to the liability of such judgments, by their successors, as they
themselves have given an example for. The laws of human nature do not
permit the supposition that twelve men, taken by lot from the mass of
the people, and acting under such circumstances, will _all_ prove
dishonest. It is a supposable case that they may not be sufficiently
enlightened to know and do their whole duty, in all cases whatsoever;
but that they should _all_ prove _dishonest_, is not within the range
of probability. A jury, therefore, insures to us—what no other court
does—that first and indispensable requisite in a judicial tribunal,
integrity.

4. It is alleged that if juries are allowed to judge of the law, _they
decide the law absolutely; that their decision must necessarily stand,
be it right or wrong_; and that this power of absolute decision would be
dangerous in their hands, by reason of their ignorance of the law.

One answer is, that this power, which juries have of _judging_ of the
law, is not a power of _absolute decision in all cases_. For example, it
is a power to declare imperatively that a man’s property, liberty, or
life, shall _not_ be taken from him; but it is not a power to declare
imperatively that they _shall_ be taken from him.

Magna Carta does not provide that the judgments of the peers _shall be
executed_; but only that _no other than their judgments_ shall ever be
executed, _so far as to take a party’s goods, rights, or person,
thereon_.

A judgment of the peers may be reviewed, and invalidated, and a new
trial granted. So that practically a jury has no absolute power to take
a party’s goods, rights, or person. They have only an absolute veto upon
their being taken by the government. The government is not bound to do
everything that a jury may adjudge. It is only prohibited from doing
anything—(that is, from taking a party’s goods, rights, or
person)—unless a jury have first adjudged it to be done.

But it will, perhaps, be said, that if an erroneous judgment of one jury
should be reaffirmed by another, on a new trial, it must _then_ be
executed. But Magna Carta does not command even this—although it might,
perhaps, have been reasonably safe for it to have done so—for if two
juries unanimously affirm the same thing, after all the light and aid
that judges and lawyers can afford them, that fact probably furnishes as
strong a presumption in favor of the correctness of their opinion, as
can ordinarily be obtained in favor of a judgment, by any measures of a
practical character for the administration of justice. Still, there is
nothing in Magna Carta that _compels_ the execution of even a second
judgment of a jury. The only injunction of Magna Carta upon the
government, as to what it _shall do_, on this point, is that it shall
“do justice and right,” without sale, denial, or delay. But this leaves
the government all power of determining what is justice and right,
except that it shall not consider anything as justice and right—so far
as to carry it into execution against the goods, rights, or person of a
party—unless it be something which a jury have sanctioned.

If the government had no alternative but to execute all judgments of a
jury indiscriminately, the power of juries would unquestionably be
dangerous; for there is no doubt that they may sometimes give hasty and
erroneous judgments. But when it is considered that their judgments can
be reviewed, and new trials granted, this danger is, for all practical
purposes, obviated.

If it be said that juries may _successively_ give erroneous judgments,
and that new trials cannot be granted indefinitely, the answer is, that
so far as Magna Carta is concerned, there is nothing to prevent the
granting of new trials indefinitely, if the judgments of juries are
contrary to “justice and right.” So that Magna Carta does not _require_
any judgment whatever to be executed—so far as to take a party’s goods,
rights, or person, thereon—unless it be concurred in by both court and
jury.

Nevertheless, we may, for the sake of the argument, suppose the
existence of a _practical_, if not _legal_, necessity, for executing
_some_ judgment or other, in cases where juries persist in disagreeing
with the courts. In such cases, the principle of Magna Carta
unquestionably is, that the uniform judgments of _successive_ juries
shall prevail over the opinion of the court. And the reason of this
principle is obvious, viz., that it is the will of the country, and not
the will of the court, or the government, that must determine what laws
shall be established and enforced; that the concurrent judgments of
successive juries, given in opposition to all the reasoning which judges
and lawyers can offer to the contrary, must necessarily be presumed to
be a truer exposition of the will of the country, than are the opinions
of the judges.

But it may be said that, unless jurors submit to the control of the
court, in matters of law, they may disagree among themselves, and
_never_ come to any judgment; and thus justice fail to be done.

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

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

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

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

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

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

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

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

But some one will say, if these are the principles of the trial by jury,
then it is plain that justice must often fail to be done. Admitting, for
the sake of the argument, that this may be true, the compensation for it
is, that positive _injustice_ will also often fail to be done; whereas
otherwise it would be done frequently. The very precautions used to
prevent _injustice_ being done, may often have the effect to prevent
_justice_ being done. But are we, therefore, to take no precautions
against injustice? By no means, all will agree. The question then
arises—Does the trial by jury, _as here explained_, involve such
extreme and unnecessary precautions against injustice, as to interpose
unnecessary obstacles to the doing of justice? Men of different minds
may very likely answer this question differently, according as they have
more or less confidence in the wisdom and justice of legislators, the
integrity and independence of judges, and the intelligence of jurors.
This much, however, may be said in favor of these precautions, viz.,
that the history of the past, as well as our constant present
experience, prove how much injustice may, and certainly will, be done,
systematically and continually, _for the want of these precautions_—that
is, while the law is authoritatively made and expounded by legislators and
judges. On the other hand, we have no such evidence of how much justice
may fail to be done, _by reason of these precautions_—that is, by reason
of the law being left to the judgments and consciences of jurors. We can
determine the former point—that is, how much positive injustice is done
under the first of these two systems—because the system is in full
operation; but we cannot determine how much justice would fail to be
done under the latter system, because we have, in modern times, had no
experience of the use of the precautions themselves. In ancient times,
when these precautions were _nominally_ in force, such was the tyranny of
kings, and such the poverty, ignorance, and the inability of concert and
resistance, on the part of the people, that the system had no full or fair
operation. It, nevertheless, under all these disadvantages, impressed
itself upon the understandings, and imbedded itself in the hearts, of the
people, so as no other system of civil liberty has ever done.

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

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

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

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

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

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

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

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

The conclusion, therefore, is, that, in a government formed by voluntary
association, or on the _theory_ of voluntary association, and voluntary
support, (as all the North American governments are,) no law can
rightfully be enforced by the association in its corporate capacity,
against the goods, rights, or person of any individual, except it be
such as _all_ the members of the association agree that it may enforce.
To enforce any other law, to the extent of taking a man’s goods, rights,
or person, would be making _some_ of the parties to the association
accomplices in what they regard as acts of injustice. It would also be
making them consent to what they regard as the destruction of their own
rights. These are things which no legitimate system or theory of
government can require of any of the parties to it.

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

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

If, by this objection, it be meant that the law would be uncertain to
the minds of the people at large, so that they would not know what the
juries would sanction and what condemn, and would not therefore know
practically what their own rights and liberties were under the law, the
objection is thoroughly baseless and false. No system of law that was
ever devised could be so entirely intelligible and certain to the minds
of the people at large as this. Compared with it, the complicated
systems of law that are compounded of the law of nature, of
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 labyrinths as these, for no other purpose than
that of exposing all their rights of reputation, property, liberty, and
life, to the hazards of being lost in them, instead of being content to
live in the light of the open day of their own understandings?

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

If the jurors were to judge of the law, and the justice of the law,
there would be something like certainty in the administration of
justice, and in the popular knowledge of the law, and men would govern
themselves accordingly. There would be something like certainty, because
every man has himself something like definite and clear opinions, and
also knows something of the opinions of his neighbors, on matters of
justice. And he would know that no statute, unless it were so clearly
just as to command the unanimous 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 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
> 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 laws that never
> ought to be known.”

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

> “There is that great simplicity and plainness in the Common Law, that
> Lord 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.

[Footnote 73: 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.]

[Footnote 74: 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.]

[Footnote 75: 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 tyranny 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 the means to be used to accomplish the
ends in view; but _the ends 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.]

[Footnote 76: Jones on Bailments, 133.]

[Footnote 77: 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.]

[Footnote 78: 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.]