571 lines
34 KiB
Markdown
571 lines
34 KiB
Markdown
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CHAPTER XII.
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LIMITATIONS IMPOSED UPON THE MAJORITY BY THE TRIAL BY JURY.
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The principal objection, that will be made to the doctrine of this
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essay, is, that under it, a jury would paralyze the power of the
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majority, and veto all legislation that was not in accordance with the
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will of the whole, or nearly the whole, people.
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The answer to this objection is, that the limitation, which would be
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thus imposed upon the legislative power, (whether that power be vested
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in the majority, or minority, of the people,) is the crowning merit of
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the trial by jury. It has other merits; but, though important in
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themselves, they are utterly insignificant and worthless in comparison
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with this.
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It is this power of vetoing all partial and oppressive legislation, and
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of restricting the government to the maintenance of such laws as the
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_whole_, or substantially the whole, people _are agreed in_, that makes
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the trial by jury "the palladium of liberty." Without this power it
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would never have deserved that name.
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The will, or the pretended will, of the majority, is the last lurking
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place of tyranny at the present day. The dogma, that certain individuals
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and families have a divine appointment to govern the rest of mankind, is
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fast giving place to the one that the larger number have a right to
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govern the smaller; a dogma, which may, or may not, be less oppressive
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in its practical operation, but which certainly is no less false or
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tyrannical in principle, than the one it is so rapidly supplanting.
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Obviously there is nothing in the nature of majorities, that insures
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justice at their hands. They have the same passions as minorities, and
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they have no qualities whatever that should be expected to prevent them
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from practising the same tyranny as minorities, if they think it will
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be for their interest to do so.
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There is no particle of truth in the notion that the majority have a
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_right_ to rule, or to exercise arbitrary power over, the minority,
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simply because the former are more numerous than the latter. Two men
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have no more natural right to rule one, than one has to rule two. Any
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single man, or any body of men, many or few, have a natural right to
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maintain justice for themselves, and for any others who may need their
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assistance, against the injustice of any and all other men, without
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regard to their numbers; and majorities have no right to do any more
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than this. The relative numbers of the opposing parties have nothing to
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do with the question of right. And no more tyrannical principle was ever
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avowed, than that the will of the majority ought to have the force of
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law, without regard to its justice; or, what is the same thing, that the
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will of the majority ought always to be presumed to be in accordance
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with justice. Such a doctrine is only another form of the doctrine that
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might makes right.
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When _two_ men meet _one_ upon the highway, or in the wilderness, have
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they a right to dispose of his life, liberty, or property at their
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pleasure, simply because they are the more numerous party? Or is he
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bound to submit to lose his life, liberty, or property, if they demand
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it, merely because he is the less numerous party? Or, because they are
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more numerous than he, is he bound to presume that they are governed
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only by superior wisdom, and the principles of justice, and by no
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selfish passion that can lead them to do him a wrong? Yet this is the
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principle, which it is claimed should govern men in all their civil
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relations to each other. Mankind fall in company with each other on the
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highway or in the wilderness of life, and it is claimed that the more
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numerous party, simply by virtue of their superior numbers, have the
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right arbitrarily to dispose of the life, liberty, and property of the
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minority; and that the minority are bound, by reason of their inferior
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numbers, to practise abject submission, and consent to hold their
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natural rights,--any, all, or none, as the case may be,--at the mere
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will and pleasure of the majority; as if all a man's natural rights
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expired, or were suspended by the operation of a paramount law, the
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moment he came into the presence of superior numbers.
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If such be the true nature of the relations men hold to each other in
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this world, it puts an end to all such things as crimes, unless they be
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perpetrated upon those who are equal or superior, in number, to the
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actors. All acts committed against persons _inferior_ in number to the
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aggressors, become but the exercise of rightful authority. And
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consistency with their own principles requires that all governments,
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founded on the will of the majority, should recognize this plea as a
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sufficient justification for all crimes whatsoever.
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If it be said that the majority should be allowed to rule, not because
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they are stronger than the minority, but because their superior numbers
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furnish a _probability_ that they are in the right; one answer is, that
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the lives, liberties, and properties of men are too valuable to them,
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and the natural presumptions are too strong in their favor, to justify
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the destruction of them by their fellow-men on a mere balancing of
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probabilities, _or on any ground whatever short of certainty beyond a
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reasonable doubt_. This last is the moral rule universally recognized to
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be binding upon single individuals. And in the forum of conscience the
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same rule is equally binding upon governments, for governments are mere
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associations of individuals. This is the rule on which the trial by jury
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is based. And it is plainly the only rule that ought to induce a man to
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submit his rights to the adjudication of his fellow-men, or dissuade him
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from a forcible defence of them.
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Another answer is, that if two opposing parties could be supposed to
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have no personal interests or passions involved, to warp their
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judgments, or corrupt their motives, the fact that one of the parties
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was more numerous than the other, (a fact that leaves the comparative
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intellectual competency of the two parties entirely out of
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consideration,) might, perhaps, furnish a slight, but at best only a
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very slight, probability that such party was on the side of justice. But
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when it is considered that the parties are liable to differ in their
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intellectual capacities, and that one, or the other, or both, are
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undoubtedly under the influence of such passions as rivalry, hatred,
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avarice, and ambition,--passions that are nearly certain to pervert
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their judgments, and very likely to corrupt their motives,--all
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probabilities founded upon a mere numerical majority, in one party, or
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the other, vanish at once; and the decision of the majority becomes, to
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all practical purposes, a mere decision of chance. And to dispose of
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men's properties, liberties, and lives, by the mere process of
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enumerating such parties, is not only as palpable gambling as was ever
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practised, but it is also the most atrocious that was ever practised,
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except in matters of government. And where government is instituted on
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this principle, (as in the United States, for example,) the nation is at
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once converted into one great gambling establishment; where all the
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rights of men are the stakes; a few bold bad men throw the dice--(dice
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loaded with all the hopes, fears, interests, and passions which rage in
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the breasts of ambitious and desperate men,)--and all the people, from
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the interests they have depending, become enlisted, excited, agitated,
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and generally corrupted, by the hazards of the game.
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The trial by jury disavows the majority principle altogether; and
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proceeds upon the ground that every man should be presumed to be
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entitled to life, liberty, and such property as he has in his
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possession; and that the government should lay its hand upon none of
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them, (except for the purpose of bringing them before a tribunal for
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adjudication,) unless it be first ascertained, _beyond a reasonable
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doubt_, in every individual case, that justice requires it.
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To ascertain whether there be such reasonable doubt, it takes twelve men
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_by lot_ from the whole body of mature men. If any of these twelve are
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proved to be under the influence of any _special_ interest or passion,
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that may either pervert their judgments, or corrupt their motives, they
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are set aside as unsuitable for the performance of a duty requiring such
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absolute impartiality and integrity; and others substituted in their
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stead. When the utmost practicable impartiality is attained on the part
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of the whole twelve, they are sworn to the observance of justice; and
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their unanimous concurrence is then held to be necessary to remove that
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reasonable doubt, which, unremoved, would forbid the government to lay
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its hand on its victim.
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Such is the caution which the trial by jury both practises and
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inculcates, against the violation of justice, on the part of the
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government, towards the humblest individual, in the smallest matter
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affecting his civil rights, his property, liberty, or life. And such is
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the contrast, which the trial by jury presents, to that gambler's and
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robber's rule, that the majority have a right, by virtue of their
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superior numbers, and without regard to justice, to dispose at pleasure
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of the property and persons of all bodies of men less numerous than
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themselves.
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The difference, in short, between the two systems, is this. The trial by
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jury protects person and property, inviolate to their possessors, from
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the hand of the law, unless _justice, beyond a reasonable doubt_,
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require them to be taken. The majority principle takes person and
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property from their possessors, at the mere arbitrary will of a
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majority, who are liable and likely to be influenced, in taking them, by
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motives of oppression, avarice, and ambition.
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If the relative numbers of opposing parties afforded sufficient evidence
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of the comparative justice of their claims, the government should carry
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the principle into its courts of justice; and instead of referring
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controversies to impartial and disinterested men,--to judges and jurors,
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sworn to do justice, and bound patiently to hear and weigh all the
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evidence and arguments that can be offered on either side,--it should
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simply _count_ the plaintiffs and defendants in each case, (where there
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were more than one of either,) and then give the case to the majority;
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after ample opportunity had been given to the plaintiffs and defendants
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to reason with, flatter, cheat, threaten, and bribe each other, by way
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of inducing them to change sides. Such a process would be just as
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rational in courts of justice, as in halls of legislation; for it is of
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no importance to a man, who has his rights taken from him, whether it be
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done by a legislative enactment, or a judicial decision.
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In legislation, the people are all arranged as plaintiffs and defendants
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in their own causes; (those who are in favor of a particular law,
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standing as plaintiffs, and those who are opposed to the same law,
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standing as defendants); and to allow these causes to be decided by
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majorities, is plainly as absurd as it would be to allow judicial
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decisions to be determined by the relative number of plaintiffs and
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defendants.
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If this mode of decision were introduced into courts of justice, we
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should see a parallel, and only a parallel, to that system of
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legislation which we witness daily. We should see large bodies of men
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conspiring to bring perfectly groundless suits, against other bodies of
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men, for large sums of money, and to carry them by sheer force of
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numbers; just as we now continually see large bodies of men conspiring
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to carry, by mere force of numbers, some scheme of legislation that
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will, directly or indirectly, take money out of other men's pockets, and
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put it into their own. And we should also see distinct bodies of men,
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parties in separate suits, combining and agreeing all to appear and be
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counted as plaintiffs or defendants in each other's suits, for the
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purpose of ekeing out the necessary majority; just as we now see
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distinct bodies of men, interested in separate schemes of ambition or
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plunder, conspiring to carry through a batch of legislative enactments,
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that shall accomplish their several purposes.
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This system of combination and conspiracy would go on, until at length
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whole states and a whole nation would become divided into two great
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litigating parties, each party composed of several smaller bodies,
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having their separate suits, but all confederating for the purpose of
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making up the necessary majority in each case. The individuals composing
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each of these two great parties, would at length become so accustomed to
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acting together, and so well acquainted with each others' schemes, and
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so mutually dependent upon each others' fidelity for success, that they
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would become organized as permanent associations; bound together by that
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kind of honor that prevails among thieves; and pledged by all their
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interests, sympathies, and animosities, to mutual fidelity, and to
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unceasing hostility to their opponents; and exerting all their arts and
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all their resources of threats, injuries, promises, and bribes, to drive
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or seduce from the other party enough to enable their own to retain or
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acquire such a majority as would be necessary to gain their own suits,
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and defeat the suits of their opponents. All the wealth and talent of
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the country would become enlisted in the service of these rival
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associations; and both would at length become so compact, so well
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organized, so powerful, and yet always so much in need of recruits,
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that a private person would be nearly or quite unable to obtain justice
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in the most paltry suit with his neighbor, except on the condition of
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joining one of these great litigating associations, who would agree to
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carry through his cause, on condition of his assisting them to carry
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through all the others, good and bad, which they had already undertaken.
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If he refused this, they would threaten to make a similar offer to his
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antagonist, and suffer their whole numbers to be counted against him.
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Now this picture is no caricature, but a true and honest likeness. And
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such a system of administering justice, would be no more false, absurd,
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or atrocious, than that system of working by majorities, which seeks to
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accomplish, by legislation, the same ends which, in the case supposed,
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would be accomplished by judicial decisions.
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Again, the doctrine that the minority ought to submit to the will of the
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majority, proceeds, not upon the principle that government is formed by
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voluntary association, and for an _agreed purpose_, on the part of all
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who contribute to its support, but upon the presumption that all
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government must be practically a state of war and plunder between
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opposing parties; and that, in order to save blood, and prevent mutual
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extermination, the parties come to an agreement that they will count
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their respective numbers periodically, and the one party shall then be
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permitted quietly to rule and plunder, (restrained only by their own
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discretion,) and the other submit quietly to be ruled and plundered,
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until the time of the next enumeration.
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Such an agreement may possibly be wiser than unceasing and deadly
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conflict; it nevertheless partakes too much of the ludicrous to deserve
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to be seriously considered as an expedient for the maintenance of civil
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society. It would certainly seem that mankind might agree upon a
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cessation of hostilities, upon more rational and equitable terms than
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that of unconditional submission on the part of the less numerous body.
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Unconditional submission is usually the last act of one who confesses
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himself subdued and enslaved. How any one ever came to imagine that
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condition to be one of freedom, has never been explained. And as for the
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system being adapted to the maintenance of justice among men, it is a
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mystery that any human mind could ever have been visited with an
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insanity wild enough to originate the idea.
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If it be said that other corporations, than governments, surrender their
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affairs into the hands of the majority, the answer is, that they allow
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majorities to determine only trifling matters, that are in their nature
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mere questions of discretion, and where there is no natural presumption
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of justice or right on one side rather than the other. They _never_
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surrender to the majority the power to dispose of, or, what is
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practically the same thing, to _determine_, the _rights_ of any
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individual member. The _rights_ of every member are determined by the
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written compact, to which all the members have voluntarily agreed.
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For example. A banking corporation allows a majority to determine such
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questions of discretion as whether the note of A or of B shall be
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discounted; whether notes shall be discounted on one, two, or six days
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in the week; how many hours in a day their banking-house shall be kept
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open; how many clerks shall be employed; what salaries they shall
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receive, and such like matters, which are in their nature mere subjects
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of discretion, and where there are no natural presumptions of justice or
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right in favor of one course over the other. But no banking corporation
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allows a majority, or any other number of its members less than the
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whole, to divert the funds of the corporation to any other purpose than
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the one to which _every member_ of the corporation has legally agreed
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that they may be devoted; nor to take the stock of one member and give
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it to another; nor to distribute the dividends among the stockholders
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otherwise than to each one the proportion which he has agreed to accept,
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and all the others have agreed that he shall receive. Nor does any
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banking corporation allow a majority to impose taxes upon the members
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for the payment of the corporate expenses, except in such proportions as
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_every member_ has consented that they may be imposed. All these
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questions, involving the _rights_ of the members as against each other,
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are fixed by the articles of the association,--that is, by the agreement
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to which _every member_ has personally assented.
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What is also specially to be noticed, and what constitutes a vital
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difference between the banking corporation and the political
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corporation, or government, is, that in case of controversy among the
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members of the banking corporation, as to the _rights_ of any member,
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the question is determined, not by any number, either majority, or
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minority, of the corporation itself, _but by persons out of the
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corporation_; by twelve men acting as jurors, or by other tribunals of
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justice, of which no member of the corporation is allowed to be a part.
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But in the case of the political corporation, controversies among the
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parties to it, as to the rights of individual members, must of necessity
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be settled by members of the corporation itself, because there are no
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persons out of the corporation to whom the question can be referred.
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Since, then, all questions as to the _rights_ of the members of the
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political corporation, must be determined by members of the corporation
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itself, the trial by jury says that no man's _rights_,--neither his
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right to his life, his liberty, nor his property,--shall be determined
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by any such standard as the mere will and pleasure of majorities; but
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only by the unanimous verdict of a tribunal fairly representing the
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whole people,--that is, a tribunal of twelve men, taken, at random from
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the whole body, and ascertained to be as impartial as the nature of the
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case will admit, _and sworn to the observance of justice_. Such is the
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difference in the two kinds of corporations; and the custom of managing
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by majorities the mere discretionary matters of business corporations,
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(the majority having no power to determine the _rights_ of any member,)
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furnishes no analogy to the practice, adopted by political corporations,
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of disposing of all the _rights_ of their members by the arbitrary will
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of majorities.
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But further. The doctrine that the majority have a _right_ to rule,
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proceeds upon the principle that minorities have no _rights_ in the
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government; for certainly the minority cannot be said to have any
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_rights_ in a government, so long as the majority alone determine what
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their rights shall be. They hold everything, or nothing, as the case may
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be, at the mere will of the majority.
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It is indispensable to a "_free_ government," (in the political sense of
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that term,) that the minority, the weaker party, have a veto upon the
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acts of the majority. Political liberty is liberty for the _weaker
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party_ in a nation. It is only the weaker party that lose their
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liberties, when a government becomes oppressive. The stronger party, in
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all governments, are free by virtue of their superior strength. They
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never oppress themselves.
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Legislation is the work of this stronger party; and if, in addition to
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the sole power of legislating, they have the sole power of determining
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what legislation shall be enforced, they have all power in their hands,
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and the weaker party are the subjects of an absolute government.
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Unless the weaker party have a veto, either upon the making, or the
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enforcement of laws, they have no power whatever in the government, and
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can of course have no liberties except such as the stronger party, in
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their arbitrary discretion, see fit to permit them to enjoy.
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In England and the United States, the trial by jury is the only
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institution that gives the weaker party any veto upon the power of the
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stronger. Consequently it is the only institution, that gives them any
|
||
|
effective voice in the government, or any guaranty against oppression.
|
||
|
|
||
|
Suffrage, however free, is of no avail for this purpose; because the
|
||
|
suffrage of the minority is overborne by the suffrage of the majority,
|
||
|
and is thus rendered powerless for purposes of legislation. The
|
||
|
responsibility of officers can be made of no avail, because they are
|
||
|
responsible only to the majority. The minority, therefore, are wholly
|
||
|
without rights in the government, wholly at the mercy of the majority,
|
||
|
unless, through the trial by jury, they have a veto upon such
|
||
|
legislation as they think unjust.
|
||
|
|
||
|
Government is established for the protection of the weak against the
|
||
|
strong. This is the principal, if not the sole, motive for the
|
||
|
establishment of all legitimate government. Laws, that are sufficient
|
||
|
for the protection of the weaker party, are of course sufficient for the
|
||
|
protection of the stronger party; because the strong can certainly need
|
||
|
no more protection than the weak. It is, therefore, right that the
|
||
|
weaker party should be represented in the tribunal which is finally to
|
||
|
determine what legislation may be enforced; and that no legislation
|
||
|
shall be enforced against their consent. They being presumed to be
|
||
|
competent judges of what kind of legislation makes for their safety, and
|
||
|
what for their injury, it must be presumed that any legislation, which
|
||
|
_they_ object to enforcing, tends to their oppression, and not to their
|
||
|
security.
|
||
|
|
||
|
There is still another reason why the weaker party, or the minority,
|
||
|
should have a veto upon all legislation which they disapprove. _That
|
||
|
reason is, that that is the only means by which the government can be
|
||
|
kept within the limits of the contract, compact, or constitution, by
|
||
|
which the whole people agree to establish government._ If the majority
|
||
|
were allowed to interpret the compact for themselves, and enforce it
|
||
|
according to their own interpretation, they would, of course, make it
|
||
|
authorize them to do whatever they wish to do.
|
||
|
|
||
|
The theory of free government is that it is formed by the voluntary
|
||
|
contract of the people individually with each other. This is the theory,
|
||
|
(although it is not, as it ought to be, the fact,) in all the
|
||
|
governments in the United States, as also in the government of England.
|
||
|
The theory assumes that each man, who is a party to the government, and
|
||
|
contributes to its support, has individually and freely consented to it.
|
||
|
Otherwise the government would have no right to tax him for its
|
||
|
support,--for taxation without consent is robbery. This theory, then,
|
||
|
necessarily supposes that this government, which is formed by the free
|
||
|
consent of all, has no powers except such as _all_ the parties to it
|
||
|
have individually agreed that it shall have; and especially that it has
|
||
|
no power to pass any _laws_, except such as _all_ the parties have
|
||
|
agreed that it may pass.
|
||
|
|
||
|
This theory supposes that there may be certain laws that will be
|
||
|
beneficial to _all_,--so beneficial that _all_ consent to be taxed for
|
||
|
their maintenance. For the maintenance of these specific laws, in which
|
||
|
all are interested, all associate. And they associate for the
|
||
|
maintenance of those laws _only_, in which _all_ are interested. It
|
||
|
would be absurd to suppose that all would associate, and consent to be
|
||
|
taxed, for purposes which were beneficial only to a part; and especially
|
||
|
for purposes that were injurious to any. A government of the whole,
|
||
|
therefore, can have no powers except such as _all_ the parties consent
|
||
|
that it may have. It can do nothing except what _all_ have consented
|
||
|
that it may do. And if any portion of the people,--no matter how large
|
||
|
their number, if it be less than the whole,--desire a government for any
|
||
|
purposes other than those that are common to all, and desired by all,
|
||
|
they must form a separate association for those purposes. They have no
|
||
|
right,--by perverting this government of the whole, to the
|
||
|
accomplishment of purposes desired only by a part,--to compel any one to
|
||
|
contribute to purposes that are either useless or injurious to himself.
|
||
|
|
||
|
Such being the principles on which the government is formed, the
|
||
|
question arises, how shall this government, when formed, be kept within
|
||
|
the limits of the contract by which it was established? How shall this
|
||
|
government, instituted by the whole people, agreed to by the whole
|
||
|
people, supported by the contributions of the whole people, be confined
|
||
|
to the accomplishment of those purposes alone, which the whole people
|
||
|
desire? How shall it be preserved from degenerating into a mere
|
||
|
government for the benefit of a part only of those who established, and
|
||
|
who support it? How shall it be prevented from even injuring a part of
|
||
|
its own members, for the aggrandizement of the rest? Its laws must be,
|
||
|
(or at least now are,) passed, and most of its other acts performed, by
|
||
|
mere agents,--agents chosen by a part of the people, and not by the
|
||
|
whole. How can these agents be restrained from seeking their own
|
||
|
interests, and the interests of those who elected them, at the expense
|
||
|
of the rights of the remainder of the people, by the passage and
|
||
|
enforcement of laws that shall be partial, unequal, and unjust in their
|
||
|
operation? That is the great question. And the trial by jury answers it.
|
||
|
And how does the trial by jury answer it? It answers it, as has already
|
||
|
been shown throughout this volume, by saying that these mere agents and
|
||
|
attorneys, who are chosen by a part only of the people, and are liable
|
||
|
to be influenced by partial and unequal purposes, shall not have
|
||
|
unlimited authority in the enactment and enforcement of laws; that they
|
||
|
shall not exercise _all_ the functions of government. It says that they
|
||
|
shall never exercise that ultimate power of compelling obedience to the
|
||
|
laws by punishing for disobedience, or of executing the laws against the
|
||
|
person or property of any man, without first getting the consent of the
|
||
|
people, through a tribunal that may fairly be presumed to represent the
|
||
|
whole, or substantially the whole, people. It says that if the power to
|
||
|
make laws, and the power also to enforce them, were committed to these
|
||
|
agents, they would have all power,--would be absolute masters of the
|
||
|
people, and could deprive them of their rights at pleasure. It says,
|
||
|
therefore, that the people themselves will hold a veto upon the
|
||
|
enforcement of any and every law, which these agents may enact, and that
|
||
|
whenever the occasion arises for them to give or withhold their
|
||
|
consent,--inasmuch as the whole people cannot assemble, or devote the
|
||
|
time and attention necessary to the investigation of each case,--twelve
|
||
|
of their number shall be taken by lot, or otherwise at random, from the
|
||
|
whole body; that they shall not be chosen by majorities, (the same
|
||
|
majorities that elected the agents who enacted the laws to be put in
|
||
|
issue,) nor by any interested or suspected party; that they shall not be
|
||
|
appointed by, or be in any way dependent upon, those who enacted the
|
||
|
law; that their opinions, whether for or against the law that is in
|
||
|
issue, shall not be inquired of beforehand; and that if these twelve men
|
||
|
give their consent to the enforcement of the law, their consent shall
|
||
|
stand for the consent of the whole.
|
||
|
|
||
|
This is the mode, which the trial by jury provides, for keeping the
|
||
|
government within the limits designed by the whole people, who have
|
||
|
associated for its establishment. And it is the only mode, provided
|
||
|
either by the English or American constitutions, for the accomplishment
|
||
|
of that object.
|
||
|
|
||
|
But it will, perhaps, be said that if the minority can defeat the will
|
||
|
of the majority, then the minority _rule_ the majority. But this is not
|
||
|
true in any unjust sense. The minority enact no laws of their own. They
|
||
|
simply refuse their assent to such laws of the majority as they do not
|
||
|
approve. The minority assume no authority over the majority; they simply
|
||
|
defend themselves. They do not interfere with the right of the majority
|
||
|
to seek their own happiness in their own way, so long as they (the
|
||
|
majority) do not interfere with the minority. They claim simply not to
|
||
|
be oppressed, and not to be compelled to assist in doing anything which
|
||
|
they do not approve. They say to the majority, "We will unite with you,
|
||
|
if you desire it, for the accomplishment of all those purposes, in
|
||
|
which we have a common interest with you. You can certainly expect us to
|
||
|
do nothing more. If you do not choose to associate with us on those
|
||
|
terms, there must be two separate associations. You must associate for
|
||
|
the accomplishment of your purposes; we for the accomplishment of ours."
|
||
|
|
||
|
In this case, the minority assume no authority over the majority; they
|
||
|
simply refuse to surrender their own liberties into the hands of the
|
||
|
majority. They propose a union; but decline submission. The majority are
|
||
|
still at liberty to refuse the connection, and to seek their own
|
||
|
happiness in their own way, except that they cannot be gratified in
|
||
|
their desire to become absolute masters of the minority.
|
||
|
|
||
|
But, it may be asked, how can the minority be trusted to enforce even
|
||
|
such legislation as is equal and just? The answer is, that they are as
|
||
|
reliable for that purpose as are the majority; they are as much presumed
|
||
|
to have associated, and are as likely to have associated, for that
|
||
|
object, as are the majority; and they have as much interest in such
|
||
|
legislation as have the majority. They have even more interest in it;
|
||
|
for, being the weaker party, they must rely on it for their
|
||
|
security,--having no other security on which they can rely. Hence their
|
||
|
consent to the establishment of government, and to the _taxation_
|
||
|
required for its support, is _presumed_, (although it ought not to be
|
||
|
presumed,) without any express consent being given. This presumption of
|
||
|
their consent to be taxed for the maintenance of laws, would be absurd,
|
||
|
if they could not themselves be trusted to act in good faith in
|
||
|
enforcing those laws. And hence they cannot be presumed to have
|
||
|
consented to be taxed for the maintenance of any laws, except such as
|
||
|
they are themselves ready to aid in enforcing. It is therefore unjust to
|
||
|
tax them, unless they are eligible to seats in a jury, with power to
|
||
|
judge of the justice of the laws. Taxing them for the support of the
|
||
|
laws, on the assumption that they are in favor of the laws, and at the
|
||
|
same time refusing them the right, as jurors, to judge of the justice of
|
||
|
the laws, on the assumption that they are opposed to the laws, are flat
|
||
|
contradictions.
|
||
|
|
||
|
But, it will be asked, what motive have the majority, when they have
|
||
|
all power in their own hands, to submit their will to the veto of the
|
||
|
minority?
|
||
|
|
||
|
One answer is, that they have the motive of justice. It would be
|
||
|
_unjust_ to compel the minority to contribute, by taxation, to the
|
||
|
support of any laws which they did not approve.
|
||
|
|
||
|
Another answer is, that if the stronger party wish to use their power
|
||
|
only for purposes of justice, they have no occasion to fear the veto of
|
||
|
the weaker party; for the latter have as strong motives for the
|
||
|
maintenance of _just_ government, as have the former.
|
||
|
|
||
|
Another answer is, that if the stronger party use their power
|
||
|
_unjustly_, they will hold it by an uncertain tenure, especially in a
|
||
|
community where knowledge is diffused; for knowledge will enable the
|
||
|
weaker party to make itself in time the stronger party. It also enables
|
||
|
the weaker party, even while it remains the weaker party, perpetually to
|
||
|
annoy, alarm, and injure their oppressors. Unjust power,--or rather
|
||
|
power that is _grossly_ unjust, and that is known to be so by the
|
||
|
minority,--can be sustained only at the expense of standing armies, and
|
||
|
all the other machinery of force; for the oppressed party are always
|
||
|
ready to risk their lives for purposes of vengeance, and the acquisition
|
||
|
of their rights, whenever there is any tolerable chance of success.
|
||
|
Peace, safety, and quiet for all, can be enjoyed only under laws that
|
||
|
obtain the consent of all. Hence tyrants frequently yield to the demands
|
||
|
of justice from those weaker than themselves, as a means of buying peace
|
||
|
and safety.
|
||
|
|
||
|
Still another answer is, that those who are in the majority on one law,
|
||
|
will be in the minority on another. All, therefore, need the benefit of
|
||
|
the veto, at some time or other, to protect themselves from injustice.
|
||
|
|
||
|
That the limits, within which legislation would, by this process, be
|
||
|
confined, would be exceedingly narrow, in comparison with those it at
|
||
|
present occupies, there can be no doubt. All monopolies, all special
|
||
|
privileges, all sumptuary laws, all restraints upon any traffic,
|
||
|
bargain, or contract, that was naturally lawful,[117] all restraints
|
||
|
upon men's natural rights, the whole catalogue of _mala prohibita_, and
|
||
|
all taxation to which the taxed parties had not individually, severally,
|
||
|
and freely consented, would be at an end; because all such legislation
|
||
|
implies a violation of the rights of a greater or less minority. This
|
||
|
minority would disregard, trample upon, or resist, the execution of such
|
||
|
legislation, and then throw themselves upon a jury of the whole people
|
||
|
for justification and protection. In this way all legislation would be
|
||
|
nullified, except the legislation of that general nature which
|
||
|
impartially protected the rights, and subserved the interests, of all.
|
||
|
The only legislation that could be sustained, would probably be such as
|
||
|
tended directly to the maintenance of justice and liberty; such, for
|
||
|
example, as should contribute to the enforcement of contracts, the
|
||
|
protection of property, and the prevention and punishment of acts
|
||
|
intrinsically criminal. In short, government in practice would be
|
||
|
brought to the necessity of a strict adherence to natural law, and
|
||
|
natural justice, instead of being, as it now is, a great battle, in
|
||
|
which avarice and ambition are constantly fighting for and obtaining
|
||
|
advantages over the natural rights of mankind.
|
||
|
|
||
|
[Footnote 117: Such as restraints upon banking, upon the rates of
|
||
|
interest, upon traffic with foreigners, &c., &c.]
|