s 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 understanding 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. But 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 mu