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.
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