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.[1]
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 compelledto 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
successivejuries 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 amongthemselves,
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. [2] 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 under- standing 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. Bu
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. [3]
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 it 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 labyrinhs 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 understated 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, unbiased reason, in all ages; and
nations, seldom fails to draw, in such juridical inquiries as are
not fettered and manacled by positive institutions." [4] 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. [5]
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. [6]
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
lawsthat 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.
[1] 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.
[2] 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.
[3] 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
tyrant 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 themeans to be used to
accomplish the ends in view; but the end 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.
[4] Jones on Bailments,
[5] 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.
[6] 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.