Part 17 (1/2)

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 a.s.sociations whatsoever. No voluntary a.s.sociation 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 a.s.sociation are agreed. Government, therefore, must be kept within these limits, or it is no longer a voluntary a.s.sociation of all who contribute to its support, but a mere tyranny established by a part over the rest.

All, or nearly all, voluntary a.s.sociations 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 a.s.sociation.

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.]

CHAPTER VI.

JURIES OF THE PRESENT DAY ILLEGAL.

It may probably be safely a.s.serted that there are, at this day, no legal juries, either in England or America. And if there are no legal juries, there is, of course, no legal trial, nor ”judgment,” by jury.

In saying that there are probably no legal juries, I mean that there are probably no juries appointed in conformity with the principles of the _common law_.

The term _jury_ is a technical one, derived from the common law; and when the American const.i.tutions provide for the trial by jury, they provide for the _common law_ trial by jury; and not merely for any trial by jury that the government itself may chance to invent, and call by that name. It is the _thing_, and not merely the _name_, that is guarantied. Any legislation, therefore, that infringes any _essential principle_ of the _common law_, in the selection of jurors, is unconst.i.tutional; and the juries selected in accordance with such legislation are, of course, illegal, and their judgments void.

It will also be shown, in a subsequent chapter,[79] that since Magna Carta, the legislative power in England (whether king or parliament) has never had any const.i.tutional authority to infringe, by legislation, any essential principle of the common law in the selection of jurors. All such legislation is as much unconst.i.tutional and void, as though it abolished the trial by jury altogether. In reality it does abolish it.

What, then, are the _essential principles_ of the common law, controlling the selection of jurors?

They are two.

1. That _all_ the freemen, or adult male members of the state, shall be eligible as jurors.[80]

Any legislation which requires the selection of jurors to be made from a less number of freemen than the whole, makes the jury selected an illegal one.

If a part only of the freemen, or members of the state, are eligible as jurors, the jury no longer represent ”the country,” but only a part of ”the country.”

If the selection of jurors can be restricted to any less number of freemen than the whole, it can be restricted to a very small proportion of the whole; and thus the government be taken out of the hands of ”the country,” or the whole people, and be thrown into the hands of a few.

That, at common law, the whole body of freemen were eligible as jurors is sufficiently proved, not only by the reason of the thing, but by the following evidence: