The refusal of the jurors in the Thaw trial to come to an agreement is certainly a somewhat amusing sequel to the frenzied and even fantastic caution with which they were selected. Jurymen were set aside for reasons which seem to have only the very wildest relation to the case--reasons which we cannot conceive as giving any human being a real bias. It may be questioned whether the exaggerated theory of impartiality in an arbiter or juryman may not be carried so far as to be more unjust than partiality itself. What people call impartiality may simply mean indifference, and what people call partiality may simply mean mental activity. It is sometimes made an objection, for instance, to a juror that he has formed some prima-facie opinion upon a case: if he can be forced under sharp questioning to admit that he has formed such an opinion, he is regarded as manifestly unfit to conduct the inquiry. Surely this is unsound. If his bias is one of interest, of class, or creed, or notorious propaganda, then that fact certainly proves that he is not an impartial arbiter. But the mere fact that he did form some temporary impression from the first facts as far as he knew them--this does not prove that he is not an impartial arbiter--it only proves that he is not a cold-blooded fool.
If we walk down the street, taking all the jurymen who have not formed opinions and leaving all the jurymen who have formed opinions, it seems highly probable that we shall only succeed in taking all the stupid jurymen and leaving all the thoughtful ones. Provided that the opinion formed is really of this airy and abstract kind, provided that it has no suggestion of settled motive or prejudice, we might well regard it not merely as a promise of capacity, but literally as a promise of justice. The man who took the trouble to deduce from the police reports would probably be the man who would take the trouble to deduce further and different things from the evidence. The man who had the sense to form an opinion would be the man who would have the sense to alter it.
It is worth while to dwell for a moment on this minor aspect of the matter because the error about impartiality and justice is by no means confined to a criminal question. In much more serious matters it is assumed that the agnostic is impartial; whereas the agnostic is merely ignorant. The logical outcome of the fastidiousness about the Thaw jurors would be that the case ought to be tried by Esquimaux, or Hottentots, or savages from the Cannibal Islands--by some class of people who could have no conceivable interest in the parties, and moreover, no conceivable interest in the case. The pure and starry perfection of impartiality would be reached by people who not only had no opinion before they had heard the case, but who also had no opinion after they had heard it. In the same way, there is in modern discussions of religion and philosophy an absurd assumption that a man is in some way just and well-poised because he has come to no conclusion; and that a man is in some way knocked off the list of fair judges because he has come to a conclusion. It is assumed that the sceptic has no bias; whereas he has a very obvious bias in favour of scepticism. I remember once arguing with an honest young atheist, who was very much shocked at my disputing some of the assumptions which were absolute sanctities to him (such as the quite unproved proposition of the independence of matter and the quite improbable proposition of its power to originate mind), and he at length fell back upon this question, which he delivered with an honourable heat of defiance and indignation: "Well, can you tell me any man of intellect, great in science or philosophy, who accepted the miraculous?" I said, "With pleasure. Descartes, Dr. Johnson, Newton, Faraday, Newman, Gladstone, Pasteur, Browning, Brunetiere--as many more as you please." To which that quite admirable and idealistic young man made this astonishing reply--"Oh, but of course they had to say that; they were Christians." First he challenged me to find a black swan, and then he ruled out all my swans because they were black. The fact that all these great intellects had come to the Christian view was somehow or other a proof either that they were not great intellects or that they had not really come to that view. The argument thus stood in a charmingly convenient form: "All men that count have come to my conclusion; for if they come to your conclusion they do not count."
It did not seem to occur to such controversialists that if Cardinal Newman was really a man of intellect, the fact that he adhered to dogmatic religion proved exactly as much as the fact that Professor Huxley, another man of intellect, found that he could not adhere to dogmatic religion; that is to say (as I cheerfully admit), it proved precious little either way. If there is one class of men whom history has proved especially and supremely capable of going quite wrong in all directions, it is the class of highly intellectual men. I would always prefer to go by the bulk of humanity; that is why I am a democrat. But whatever be the truth about exceptional intelligence and the masses, it is manifestly most unreasonable that intelligent men should be divided upon the absurd modern principle of regarding every clever man who cannot make up his mind as an impartial judge, and regarding every clever man who can make up his mind as a servile fanatic. As it is, we seem to regard it as a positive objection to a reasoner that he has taken one side or the other. We regard it (in other words) as a positive objection to a reasoner that he has contrived to reach the object of his reasoning. We call a man a bigot or a slave of dogma because he is a thinker who has thought thoroughly and to a definite end. We say that the juryman is not a juryman because he has brought in a verdict. We say that the judge is not a judge because he gives judgment. We say that the sincere believer has no right to vote, simply because he has voted.
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