THE ERROR OF IMPARTIALITY

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