An Essay on the Trial By Jury

e to the doctrines and the evidence

hat, 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 the

se are the justices, if the ju

information; such advice and information to be received only for what they may chance to be worth in the es

ld have power to judge of the law, while justices learned in the la

ts 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

, 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

ly; that their decision must necessarily stand, be it right or wrong; and that this power of

in all cases. For example, it is a power to declare imperatively that a man's property, liberty, or life, s

executed; but only that no other than their judgments shall ever be ex

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 a

hat 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 t

estionably be dangerous; for there is no doubt that they may sometimes give hasty and erroneous judgments. But when it is co

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

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 establishe

the court, in matters of law, they may disagree amongthemselves,

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 suppositi

f 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 jur

until that justice can be made intelligible or perceptible to the minds of all the jurors; or, at least, until it obtain the

the trial by jur

cases, the accused

property; or, in other words, every man is presumed to be

by evidence, the sufficiency of which, and by law, the justice of which,

al by jury places the property, libe

ely 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 deter

, 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

f 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 judicia

often fail to be done, if jurors were allowed to be governed by their own conscience

n, it can have for its objects only those things in which the members of the association are all agreed. If, therefore, there be any

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 taki

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 lef

f, 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

s, 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

city, 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

oretical 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

allowing jurors to judge of the law, and the justi

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 th

ciples 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

o 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

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 o

o 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 t

ors 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

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

ingle written law would be liable to embrace many different laws, to wit, as many different laws as there were di

re, 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 variation

ates 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

te 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 w

ertain 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 deat

ary destruction of their rights, by having the order for their destruction made known beforehand, in terms so distin

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 enactme

tors 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

ery 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 g

sts 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 case

al 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 diffi

hings, and cannot be removed. Legislation, instead of removing, only increases them; This it does by innovating upon natural

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 f

that unless the legislature make the laws, the laws will not be known. The whole object of the

ones, as to the certainty of natural law, and the uniformity

(and Lord Bacon nearly seconds him in observing,) that 'he never knew two questions arise merely upon common

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 unanimo

hey 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 qu

e. 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

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

t to use some limited discretion as to themeans to be used to accomplish the ends in view; but the end themselves to be accomplished

ernment, must be agreed as to the justice to be executed by it, or

es on B

difficulty of construin

distressing doubts and discussions, arising from the ambiguity that attends them. It requires great experience, as well as the command of a perspicuous dictio

t from a speech of L

confesses the

eparation 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

ts, 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 expedi