Fix footnote bodies
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@ -678,77 +678,77 @@ 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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[^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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[^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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[^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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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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[^76]: Jones on Bailments, 133.
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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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[^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 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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[^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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