The refusal of the jurors in the Thaw trial to come to an agreement is
certainly a somewhat amusing sequel to the frenzied and even fantastic
caution with which they were selected. Jurymen were set aside for
reasons which seem to have only the very wildest relation to the
case—reasons which we cannot conceive as giving any human being a real
bias. It may be questioned whether the exaggerated theory of
impartiality in an arbiter or juryman may not be carried so far as to
be more unjust than partiality itself. What people call impartiality
may simply mean indifference, and what people call partiality may
simply mean mental activity. It is sometimes made an objection, for
instance, to a juror that he has formed some _primâ-facie_ opinion upon
a case: if he can be forced under sharp questioning to admit that he
has formed such an opinion, he is regarded as manifestly unfit to
conduct the inquiry. Surely this is unsound. If his bias is one of
interest, of class, or creed, or notorious propaganda, then that fact
certainly proves that he is not an impartial arbiter. But the mere fact
that he did form some temporary impression from the first facts as far
as he knew them—this does not prove that he is not an impartial
arbiter—it only proves that he is not a cold-blooded fool.
If we walk down the street, taking all the jurymen who have not formed
opinions and leaving all the jurymen who have formed opinions, it seems
highly probable that we shall only succeed in taking all the stupid
jurymen and leaving all the thoughtful ones. Provided that the opinion
formed is really of this airy and abstract kind, provided that it has
no suggestion of settled motive or prejudice, we might well regard it
not merely as a promise of capacity, but literally as a promise of
justice. The man who took the trouble to deduce from the police reports
would probably be the man who would take the trouble to deduce further
and different things from the evidence. The man who had the sense to
form an opinion would be the man who would have the sense to alter it.
It is worth while to dwell for a moment on this minor aspect of the
matter because the error about impartiality and justice is by no means
confined to a criminal question. In much more serious matters it is
assumed that the agnostic is impartial; whereas the agnostic is merely
ignorant. The logical outcome of the fastidiousness about the Thaw
jurors would be that the case ought to be tried by Esquimaux, or
Hottentots, or savages from the Cannibal Islands—by some class of
people who could have no conceivable interest in the parties, and
moreover, no conceivable interest in the case. The pure and starry
perfection of impartiality would be reached by people who not only had
no opinion before they had heard the case, but who also had no opinion
after they had heard it. In the same way, there is in modern
discussions of religion and philosophy an absurd assumption that a man
is in some way just and well-poised because he has come to no
conclusion; and that a man is in some way knocked off the list of fair
judges because he has come to a conclusion. It is assumed that the
sceptic has no bias; whereas he has a very obvious bias in favour of
scepticism. I remember once arguing with an honest young atheist, who
was very much shocked at my disputing some of the assumptions which
were absolute sanctities to him (such as the quite unproved proposition
of the independence of matter and the quite improbable proposition of
its power to originate mind), and he at length fell back upon this
question, which he delivered with an honourable heat of defiance and
indignation: “Well, can you tell me any man of intellect, great in
science or philosophy, who accepted the miraculous?” I said, “With
pleasure. Descartes, Dr. Johnson, Newton, Faraday, Newman, Gladstone,
Pasteur, Browning, Brunetiere—as many more as you please.” To which
that quite admirable and idealistic young man made this astonishing
reply—“Oh, but of course they _had_ to say that; they were Christians.”
First he challenged me to find a black swan, and then he ruled out all
my swans because they were black. The fact that all these great
intellects had come to the Christian view was somehow or other a proof
either that they were not great intellects or that they had not really
come to that view. The argument thus stood in a charmingly convenient
form: “All men that count have come to my conclusion; for if they come
to your conclusion they do not count.”
It did not seem to occur to such controversialists that if Cardinal
Newman was really a man of intellect, the fact that he adhered to
dogmatic religion proved exactly as much as the fact that Professor
Huxley, another man of intellect, found that he could not adhere to
dogmatic religion; that is to say (as I cheerfully admit), it proved
precious little either way. If there is one class of men whom history
has proved especially and supremely capable of going quite wrong in all
directions, it is the class of highly intellectual men. I would always
prefer to go by the bulk of humanity; that is why I am a democrat. But
whatever be the truth about exceptional intelligence and the masses, it
is manifestly most unreasonable that intelligent men should be divided
upon the absurd modern principle of regarding every clever man who
cannot make up his mind as an impartial judge, and regarding every
clever man who can make up his mind as a servile fanatic. As it is, we
seem to regard it as a positive objection to a reasoner that he has
taken one side or the other. We regard it (in other words) as a
positive objection to a reasoner that he has contrived to reach the
object of his reasoning. We call a man a bigot or a slave of dogma
because he is a thinker who has thought thoroughly and to a definite
end. We say that the juryman is not a juryman because he has brought in
a verdict. We say that the judge is not a judge because he gives
judgment. We say that the sincere believer has no right to vote, simply
because he has voted.