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 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