2023-08-03 21:50:47 +00:00
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# THE RIGHT OF JURIES TO JUDGE OF THE JUSTICE OF LAWS
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2023-08-03 22:35:42 +00:00
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\section{}
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2023-08-03 21:50:47 +00:00
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For more than six hundred years—that is, since Magna Carta, in
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1215—there has been no clearer principle of English or American
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constitutional law, than that, in criminal cases, it is not only the
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right and duty of juries to judge what are the facts, what is the law,
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and what was the moral intent of the accused; _but that it is also their
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right, and their primary and paramount duty, to judge of the justice of
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the law, and to hold all laws invalid, that are, in their opinion,
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unjust or oppressive, and all persons guiltless in violating, or
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resisting the execution of, such laws_.
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Unless such be the right and duty of jurors, it is plain that, instead
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of juries being a “palladium of liberty”—a barrier against the tyranny
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and oppression of the government—they are really mere tools in its
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hands, for carrying into execution any injustice and oppression it may
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desire to have executed.
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But for their right to judge of the law, _and the justice of the law_,
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juries would be no protection to an accused person, _even as to matters
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of fact_; for, if the government can dictate to a jury any law whatever,
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in a criminal case, it can certainly dictate to them the laws of
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evidence. That is, it can dictate what evidence is admissible, and what
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inadmissible, _and also what force or weight is to be given to the
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evidence admitted_. And if the government can thus dictate to a jury the
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laws of evidence, it can not only make it necessary for them to convict
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on a partial exhibition of the evidence rightfully pertaining to the
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case, but it can even require them to convict on any evidence whatever
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that it pleases to offer them.
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That the rights and duties of jurors must necessarily be such as are
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here claimed for them, will be evident when it is considered what the
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trial by jury is, and what is its object.
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_“The trial by jury,” then, is a “trial by the country”—that is, by the
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people—as distinguished from a trial by the government._
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It was anciently called “trial _per pais_”—that is, “trial by the
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country.” And now, in every criminal trial, the jury are told that the
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accused “has, for trial, put himself upon the _country_; which _country_
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you (the jury) are.”
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_The object of this trial “by the country” or by the people, in
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preference to a trial by the government, is to guard against every
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species of oppression by the government. In order to effect this end, it
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is indispensable that the people, or “the country,” judge of and
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determine their own liberties against the government; instead of the
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government’s judging of and determining its own powers over the people.
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How is it possible that juries can do anything to protect the liberties
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of the people against the government, if they are not allowed to
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determine what those liberties are?_
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Any government, that is its own judge of, and determines authoritatively
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for the people, what are its own powers over the people, is an absolute
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government of course. It has all the powers that it chooses to exercise.
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There is no other—or at least no more accurate—definition of a
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despotism than this.
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On the other hand, any people, that judge of, and determine
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authoritatively for the government, what are their own liberties against
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the government, of course retain all the liberties they wish to enjoy.
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_And this is freedom._ At least, it is freedom _to them_; because,
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although it may be theoretically imperfect, it, nevertheless,
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corresponds to _their_ highest notions of freedom.
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To secure this right of the people to judge of their own liberties
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against the government, the jurors are taken, (or must be, to make them
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lawful jurors,) from the body of the people, _by lot_, or by some
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process that precludes any previous knowledge, choice, or selection of
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them, on the part of the government. This is done to prevent the
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government’s constituting a jury of its own partisans or friends; in
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other words, to prevent the government’s _packing_ a jury, with a view
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to maintain its own laws, and accomplish its own purposes.
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It is supposed that, if twelve men be taken, _by lot_, from the mass of
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the people, without the possibility of any previous knowledge, choice,
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or selection of them, on the part of the government, the jury will be a
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fair epitome of “the country” at large, and not merely of the party or
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faction that sustain the measures of the government; that substantially
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all classes of opinions, prevailing among the people, will be
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represented in the jury; and especially that the opponents of the
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government, (if the government have any opponents,) will be represented
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there, as well as its friends; that the classes, who are oppressed by
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the laws of the government, (if any are thus oppressed,) will have their
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representatives in the jury, as well as those classes, who take sides
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with the oppressor—that is, with the government.
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It is fairly presumable that such a tribunal will agree to no conviction
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except such as _substantially the whole country_ would agree to, if they
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were present, taking part in the trial. A trial by such a tribunal is,
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therefore, in effect, “a trial by the country.” In its results it
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probably comes as near to a trial by the _whole_ country, as any trial
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that it is practicable to have, without too great inconvenience and
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expense. And as unanimity is required for a conviction, it follows that
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no one can be convicted, except for the violation of such laws as
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substantially the whole country wish to have maintained. The government
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can enforce none of its laws, (by punishing offenders, through the
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verdicts of juries,) except such as substantially the whole people wish
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to have enforced. The government, therefore, consistently with the trial
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by jury, can exercise no powers over the people, (or, what is the same
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thing, over the accused person, who represents the rights of the
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people,) except such as substantially the whole people of the country
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consent that it may exercise. In such a trial, therefore, “the country,”
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or the people, judge of and determine their own liberties against the
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government, instead of the government’s judging of and determining its
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own powers over the people.
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But all this “trial by the country” would be no trial at all “by the
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country,” but only a trial by the government, if the government could
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either declare who may, and who may not, be jurors, or could dictate to
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the jury anything whatever, either of law or evidence, that is of the
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essence of the trial.
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If the government may decide who may, and who may not, be jurors, it
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will of course select only its partisans, and those friendly to its
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measures. It may not only prescribe who may, and who may not, be
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eligible to be drawn as jurors; but it may also question each person
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drawn as a juror, as to his sentiments in regard to the particular law
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involved in each trial, before suffering him to be sworn on the panel;
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and exclude him if he be found unfavorable to the maintenance of such a
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law.[^1]
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So, also, if the government may dictate to the jury _what laws they are
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to enforce_, it is no longer a “trial by the country,” but a trial by
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the government; because the jury then try the accused, not by any
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standard of their own—not by their own judgments of their rightful
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liberties—but by a standard dictated to them by the government. And the
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standard, thus dictated by the government, becomes the measure of the
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people’s liberties. If the government dictate the standard of trial, it
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of course dictates the results of the trial. And such a trial is no
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trial by the country, but only a trial by the government; and in it the
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government determines what are its own powers over the people, instead
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of the people’s determining what are their own liberties against the
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government. In short, if the jury have no right to judge of the justice
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of a law of the government, they plainly can do nothing to protect the
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people against the oppressions of the government; for there are no
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oppressions which the government may not authorize by law.
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The jury are also to judge whether the laws are rightly expounded to
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them by the court. Unless they judge on this point, they do nothing to
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protect their liberties against the oppressions that are capable of
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being practised under cover of a corrupt exposition of the laws. If the
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judiciary can authoritatively dictate to a jury any exposition of the
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law, they can dictate to them the law itself, and such laws as they
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please; because laws are, in practice, one thing or another, according
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as they are expounded.
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The jury must also judge whether there really be any such law, (be it
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good or bad,) as the accused is charged with having transgressed. Unless
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they judge on this point, the people are liable to have their liberties
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taken from them by brute force, without any law at all.
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The jury must also judge of the laws of evidence. If the government can
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dictate to a jury the laws of evidence, it can not only shut out any
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evidence it pleases, tending to vindicate the accused, but it can
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require that any evidence whatever, that it pleases to offer, be held as
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conclusive proof of any offence whatever which the government chooses to
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allege.
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It is manifest, therefore, that the jury must judge of and try the whole
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case, and every part and parcel of the case, free of any dictation or
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authority on the part of the government. They must judge of the
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existence of the law; of the true exposition of the law; _of the justice
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of the law_; and of the admissibility and weight of all the evidence
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offered; otherwise the government will have everything its own way; the
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jury will be mere puppets in the hands of the government; and the trial
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will be, in reality, a trial by the government, and not a “trial by the
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country.” By such trials the government will determine its own powers
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over the people, instead of the people’s determining their own liberties
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against the government; and it will be an entire delusion to talk, as
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for centuries we have done, of the trial by jury, as a “palladium of
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liberty,” or as any protection to the people against the oppression and
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tyranny of the government.
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The question, then, between trial by jury, as thus described, and trial
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by the government, is simply a question between liberty and despotism.
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The authority to judge what are the powers of the government, and what
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the liberties of the people, must necessarily be vested in one or the
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other of the parties themselves—the government, or the people; because
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there is no third party to whom it can be entrusted. If the authority be
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vested in the government, the government is absolute, and the people
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have no liberties except such as the government sees fit to indulge them
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with. If, on the other hand, that authority be vested in the people,
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then the people have all liberties, (as against the government,) except
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such as substantially the whole people (through a jury) choose to
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disclaim; and the government can exercise no power except such as
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substantially the whole people (through a jury) consent that it may
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exercise.
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2023-08-03 22:35:42 +00:00
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\section{}
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2023-08-03 21:50:47 +00:00
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The force and justice of the preceding argument cannot be evaded by
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saying that the government is chosen by the people; that, in theory, it
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represents the people; that it is designed to do the will of the people;
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that its members are all sworn to observe the fundamental or
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constitutional law instituted by the people; that its acts are therefore
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entitled to be considered the acts of the people; and that to allow a
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jury, representing the people, to invalidate the acts of the government,
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would therefore be arraying the people against themselves.
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There are two answers to such an argument.
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One answer is, that, in a representative government, there is no
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absurdity or contradiction, nor any arraying of the people against
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themselves, in requiring that the statutes or enactments of the
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government shall pass the ordeal of any number of separate tribunals,
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before it shall be determined that they are to have the force of laws.
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Our American constitutions have provided five of these separate
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tribunals, to wit, representatives, senate, executive,[^2] jury, and
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judges; and have made it necessary that each enactment shall pass the
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ordeal of all these separate tribunals, before its authority can be
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established by the punishment of those who choose to transgress it. And
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there is no more absurdity or inconsistency in making a jury one of
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these several tribunals, than there is in making the representatives, or
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the senate, or the executive, or the judges, one of them. There is no
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more absurdity in giving a jury a veto upon the laws, than there is in
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giving a veto to each of these other tribunals. The people are no more
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arrayed against themselves, when a jury puts its veto upon a statute,
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which the other tribunals have sanctioned, than they are when the same
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veto is exercised by the representatives, the senate, the executive, or
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the judges.
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But another answer to the argument that the people are arrayed against
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themselves, when a jury hold an enactment of the government invalid, is,
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that the government, and all the departments of the government, _are
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merely the servants and agents of the people_; not invested with
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arbitrary or absolute authority to bind the people, but required to
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submit all their enactments to the judgment of a tribunal more fairly
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representing the whole people, before they carry them into execution, by
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punishing any individual for transgressing them. If the government were
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not thus required to submit their enactments to the judgment of “the
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country,” before executing them upon individuals—if, in other words,
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the people had reserved to themselves no veto upon the acts of the
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government, the government, instead of being a mere servant and agent of
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the people, would be an absolute despot over the people. It would have
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all power in its own hands; because the power to _punish_ carries all
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other powers with it. A power that can, of itself, and by its own
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authority, punish disobedience, can compel obedience and submission, and
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is above all responsibility for the character of its laws. In short, it
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is a despotism.
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And it is of no consequence to inquire how a government came by this
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power to punish, whether by prescription, by inheritance, by usurpation,
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or by delegation from the people? _If it have now but got it_, the
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government is absolute.
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It is plain, therefore, that if the people have invested the government
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with power to make laws that absolutely bind the people, and to punish
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the people for transgressing those laws, the people have surrendered
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their liberties unreservedly into the hands of the government.
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It is of no avail to say, in answer to this view of the case, that in
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surrendering their liberties into the hands of the government, the
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people took an oath from the government, that it would exercise its
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power within certain constitutional limits; for when did oaths ever
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restrain a government that was otherwise unrestrained? Or when did a
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government fail to determine that all its acts were within the
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constitutional and authorized limits of its power, if it were permitted
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to determine that question for itself?
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Neither is it of any avail to say, that, if the government abuse its
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power, and enact unjust and oppressive laws, the government may be
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changed by the influence of discussion, and the exercise of the right of
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suffrage. Discussion can do nothing to prevent the enactment, or procure
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the repeal, of unjust laws, unless it be understood that the discussion
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is to be followed by resistance. Tyrants care nothing for discussions
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that are to end only in discussion. Discussions, which do not interfere
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with the enforcement of their laws, are but idle wind to them. Suffrage
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is equally powerless and unreliable. It can be exercised only
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periodically; and the tyranny must at least be borne until the time for
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suffrage comes. Besides, when the suffrage is exercised, it gives no
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guaranty for the repeal of existing laws that are oppressive, and no
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security against the enactment of new ones that are equally so. The
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second body of legislators are liable and likely to be just as
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tyrannical as the first. If it be said that the second body may be
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chosen for their integrity, the answer is, that the first were chosen
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for that very reason, and yet proved tyrants. The second will be exposed
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to the same temptations as the first, and will be just as likely to
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prove tyrannical. Who ever heard that succeeding legislatures were, on
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the whole, more honest than those that preceded them? What is there in
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the nature of men or things to make them so? If it be said that the first
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body were chosen from motives of injustice, that fact proves that there is
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a portion of society who desire to establish injustice; and if they were
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powerful or artful enough to procure the election of their instruments to
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compose the first legislature, they will be likely to be powerful or
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artful enough to procure the election of the same or similar instruments
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to compose the second. The right of suffrage, therefore, and even a change
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of legislators, guarantees no change of legislation—certainly no change
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for the better. Even if a change for the better actually comes, it comes
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too late, because it comes only after more or less injustice has been
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irreparably done.
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But, at best, the right of suffrage can be exercised only periodically;
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and between the periods the legislators are wholly irresponsible. No
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despot was ever more entirely irresponsible than are republican
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legislators during the period for which they are chosen. They can
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neither be removed from their office, nor called to account while in
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their office, nor punished after they leave their office, be their
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tyranny what it may. Moreover, the judicial and executive departments of
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the government are equally irresponsible _to the people_, and are only
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responsible, (by impeachment, and dependence for their salaries), to
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these irresponsible legislators. This dependence of the judiciary and
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executive upon the legislature is a guaranty that they will always
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sanction and execute its laws, whether just or unjust. Thus the
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legislators hold the whole power of the government in their hands, and
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are at the same time utterly irresponsible for the manner in which they
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use it.
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If, now, this government, (the three branches thus really united in
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one), can determine the validity of, and enforce, its own laws, it is,
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for the time being, entirely absolute, and wholly irresponsible to the
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people.
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But this is not all. These legislators, and this government, so
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irresponsible while in power, can perpetuate their power at pleasure, if
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they can determine what legislation is authoritative upon the people,
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and can enforce obedience to it; for they can not only declare their
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power perpetual, but they can enforce submission to all legislation that
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is necessary to secure its perpetuity. They can, for example, prohibit
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all discussion of the rightfulness of their authority; forbid the use of
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the suffrage; prevent the election of any successors; disarm, plunder,
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imprison, and even kill all who refuse submission. If, therefore, the
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government (all departments united) be absolute for a day—that is, if
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it can, for a day, enforce obedience to its own laws—it can, in that
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day, secure its power for all time—like the queen, who wished to reign
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but for a day, but in that day caused the king, her husband, to be
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slain, and usurped his throne.
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Nor will it avail to say that such acts would be unconstitutional, and
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that unconstitutional acts may be lawfully resisted; for everything a
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government pleases to do will, of course, be determined to be
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constitutional, if the government itself be permitted to determine the
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question of the constitutionality of its own acts. Those who are capable
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of tyranny, are capable of perjury to sustain it.
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The conclusion, therefore, is, that any government, that can, _for a
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|
day_, enforce its own laws, without appealing to the people, (or to a
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tribunal fairly representing the people,) for their consent, is, in
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theory, an absolute government, irresponsible to the people, and can
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perpetuate its power at pleasure.
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The trial by jury is based upon a recognition of this principle, and
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therefore forbids the government to execute any of its laws, by
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punishing violators, in any case whatever, without first getting the
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consent of “the country,” or the people, through a jury. In this way,
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the people, at all times, hold their liberties in their own hands, and
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never surrender them, even for a moment, into the hands of the
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government.
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The trial by jury, then, gives to any and every individual the liberty,
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at any time, to disregard or resist any law whatever of the government,
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if he be willing to submit to the decision of a jury, the questions,
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whether the law be intrinsically just and obligatory? and whether his
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conduct, in disregarding or resisting it, were right in itself? And any
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law, which does not, in such trial, obtain the unanimous sanction of
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twelve men, taken at random from the people, and judging according to
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the standard of justice in their own minds, free from all dictation and
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authority of the government, may be transgressed and resisted with
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impunity, by whomsoever pleases to transgress or resist it.[^3]
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The trial by jury authorizes all this, or it is a sham and a hoax,
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|
utterly worthless for protecting the people against oppression. If it do
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not authorize an individual to resist the first and least act of
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injustice or tyranny, on the part of the government, it does not
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|
authorize him to resist the last and the greatest. If it do not
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authorize individuals to nip tyranny in the bud, it does not authorize
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them to cut it down when its branches are filled with the ripe fruits of
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plunder and oppression.
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Those who deny the right of a jury to protect an individual in resisting
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an unjust law of the government, deny him all _legal_ defence
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whatsoever against oppression. The right of revolution, which tyrants,
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|
in mockery, accord to mankind, is no _legal_ right _under_ a government;
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|
it is only a _natural_ right to overturn a government. The government
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itself never acknowledges this right. And the right is practically
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established only when and because the government no longer exists to
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call it in question. The right, therefore, can be exercised with
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impunity, only when it is exercised victoriously. All _unsuccessful_
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|
attempts at revolution, however justifiable in themselves, are punished
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as treason, if the government be permitted to judge of the treason. The
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government itself never admits the injustice of its laws, as a legal
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|
defence for those who have attempted a revolution, and failed. The right
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of revolution, therefore, is a right of no practical value, except for
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those who are stronger than the government. So long, therefore, as the
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oppressions of a government are kept within such limits as simply not to
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exasperate against it a power greater than its own, the right of
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revolution cannot be appealed to, and is therefore inapplicable to the
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case. This affords a wide field for tyranny; and if a jury cannot _here_
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intervene, the oppressed are utterly defenceless.
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It is manifest that the only security against the tyranny of the
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government lies in forcible resistance to the execution of the
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|
injustice; because the injustice will certainly be executed, _unless it
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|
be forcibly resisted_. And if it be but suffered to be executed, it must
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then be borne; for the government never makes compensation for its own
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wrongs.
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Since, then, this forcible resistance to the injustice of the government
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|
is the only possible means of preserving liberty, it is indispensable to
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|
all _legal_ liberty that this _resistance_ should be _legalized_. It is
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|
perfectly self-evident that where there is no _legal_ right to resist
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|
the oppression of the government, there can be no _legal_ liberty. And
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|
here it is all-important to notice, that, _practically speaking_, there
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|
can be no _legal_ right to resist the oppressions of the government,
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|
unless there be some _legal_ tribunal, other than the government, and
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|
wholly independent of, and _above_, the government, to judge between the
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|
government and those who resist its oppressions; in other words, to
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|
judge what laws of the government are to be obeyed, and what may be
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resisted and held for nought. The only tribunal known to our laws, for
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|
this purpose, is a jury. If a jury have not the right to judge between
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the government and those who disobey its laws, and resist its
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|
oppressions, the government is absolute, and the people, _legally
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|
speaking_, are slaves. Like many other slaves they may have sufficient
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|
courage and strength to keep their masters somewhat in check; but they
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|
are nevertheless _known to the law_ only as slaves.
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That this right of resistance was recognized as a common law right, when
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|
the ancient and genuine trial by jury was in force, is not only proved
|
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|
|
by the nature of the trial itself, but is acknowledged by history.[^4]
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|
This right of resistance is recognized by the constitution of the United
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|
|
States, as a strictly legal and constitutional right. It is so
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|
recognized, first by the provision that “the trial of all crimes, except
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|
in cases of impeachment, shall be by jury”—that is, by the country—and
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|
not by the government; secondly, by the provision that “the right of the
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|
people to keep and bear arms shall not be infringed.” This
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|
constitutional security for “the right to keep and bear arms,” implies
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|
the right to use them—as much as a constitutional security for the
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|
right to buy and keep food would have implied the right to eat it. The
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|
constitution, therefore, takes it for granted that the people will
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|
judge of the conduct of the government, and that, as they have the
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|
right, they will also have the sense, to use arms, whenever the
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|
necessity of the case justifies it. And it is a sufficient and _legal_
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|
defence for a person accused of using arms against the government, if he
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|
can show, to the satisfaction of a jury, _or even any one of a jury_,
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|
that the law he resisted was an unjust one.
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|
In the American _State_ constitutions also, this right of resistance to
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|
|
the oppressions of the government is recognized, in various ways, as a
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|
|
natural, legal, and constitutional right. In the first place, it is so
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|
recognized by provisions establishing the trial by jury; thus requiring
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|
that accused persons shall be tried by “the country,” instead of the
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|
government. In the second place, it is recognized by many of them, as,
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|
for example, those of Massachusetts, Maine, Vermont, Connecticut,
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|
Pennsylvania, Ohio, Indiana, Michigan, Kentucky, Tennessee, Arkansas,
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Mississippi, Alabama, and Florida, by provisions expressly declaring
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|
that the people shall have the right to bear arms. In many of them also,
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|
as, for example, those of Maine, New Hampshire, Vermont, Massachusetts,
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|
New Jersey, Pennsylvania, Delaware, Ohio, Indiana, Illinois, Florida,
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|
Iowa, and Arkansas, by provisions, in their bills of rights, declaring
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|
that men have a natural, inherent, and inalienable right of “_defending_
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|
|
their lives and liberties.” This, of course, means that they have a
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|
|
right to defend them against any injustice _on the part of the
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|
government_, and not merely on the part of private individuals; because
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|
the object of all bills of rights is to assert the rights of individuals
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|
and the people, _as against the government_, and not as against private
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|
persons. It would be a matter of ridiculous supererogation to assert, in
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|
a constitution of government, the natural right of men to defend their
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|
lives and liberties against private trespassers.
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Many of these bills of rights also assert the natural right of all men
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|
to protect their property—that is, to protect it _against the
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|
|
government_. It would be unnecessary and silly indeed to assert, in a
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|
constitution of government, the natural right of individuals to protect
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|
their property against thieves and robbers.
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The constitutions of New Hampshire and Tennessee also declare that “The
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|
doctrine of non-resistance against arbitrary power and oppression is
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|
absurd, slavish, and destructive of the good and happiness of mankind.”
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|
The legal effect of these constitutional recognitions of the right of
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|
|
individuals to defend their property, liberties, and lives, against the
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|
government, is to legalize resistance to all injustice and oppression,
|
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|
|
of every name and nature whatsoever, on the part of the government.
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But for this right of resistance, on the part of the people, all
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|
governments would become tyrannical to a degree of which few people are
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|
|
aware. Constitutions are utterly worthless to restrain the tyranny of
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|
|
governments, unless it be understood that the people will, by force,
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|
compel the government to keep within the constitutional limits.
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|
Practically speaking, no government knows any limits to its power,
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|
|
except the endurance of the people. But that the people are stronger
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|
|
than the government, and will resist in extreme cases, our governments
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|
would be little or nothing else than organized systems of plunder and
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|
oppression. All, or nearly all, the advantage there is in fixing any
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|
constitutional limits to the power of a government, is simply to give
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|
notice to the government of the point at which it will meet with
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|
resistance. If the people are then as good as their word, they may keep
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|
the government within the bounds they have set for it; otherwise it will
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|
disregard them—as is proved by the example of all our American
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|
governments, in which the constitutions have all become obsolete, at the
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|
moment of their adoption, for nearly or quite all purposes except the
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|
appointment of officers, who at once become practically absolute, except
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|
so far as they are restrained by the fear of popular resistance.
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|
The bounds set to the power of the government, by the trial by jury, as
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|
|
will hereafter be shown, are these—that the government shall never
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|
touch the property, person, or natural or civil rights of an individual,
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|
against his consent, (except for the purpose of bringing them before a
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|
jury for trial,) unless in pursuance and _execution_ of a judgment, or
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|
decree, rendered by a jury in each individual case, upon such evidence,
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|
and such law, as are satisfactory to their own understandings and
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|
consciences, irrespective of all legislation of the government.
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|
2023-08-04 00:46:41 +00:00
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|
[^1]: To show that this supposition is not an extravagant one, it
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may be mentioned that courts have repeatedly questioned jurors to
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|
ascertain whether they were prejudiced _against the government_—that
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|
is, whether they were in favor of, or opposed to, such laws of the
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|
government as were to be put in issue in the then pending trial. This
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|
was done (in 1851) in the United States District Court for the District
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|
|
of Massachusetts, by Peleg Sprague, the United States district judge, in
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|
|
empanelling three several juries for the trials of Scott, Hayden, and
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|
|
Morris, charged with having aided in the rescue of a fugitive slave from
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|
|
the custody of the United States deputy marshal. This judge caused the
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|
following question to be propounded to all the jurors separately; and
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|
those who answered unfavorably for the purposes of the government, were
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|
excluded from the panel.
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> “Do you hold any opinions upon the subject of the Fugitive Slave Law,
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|
> so called, which will induce you to refuse to convict a person
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|
> indicted under it, if the facts set forth in the indictment, _and
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|
> constituting the offence_, are proved against him, and the court
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|
> direct you that the law is constitutional?”
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|
The reason of this question was, that “the Fugitive Slave Law, so
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|
called,” was so obnoxious to a large portion of the people, as to render
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|
a conviction under it hopeless, if the jurors were taken
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|
indiscriminately from among the people.
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|
A similar question was soon afterwards propounded to the persons drawn
|
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|
|
as jurors in the United States _Circuit_ Court for the District of
|
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|
|
Massachusetts, by Benjamin R. Curtis one of the Justices of the Supreme
|
|
|
|
|
Court of the United States, in empanelling a jury for the trial of the
|
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|
|
aforesaid Morris on the charge before mentioned; and those who did not
|
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|
|
answer the question favorably for the government were again excluded
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|
from the panel.
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|
It has also been an habitual practice with the Supreme Court of
|
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|
|
Massachusetts, in empanelling juries for the trial of _capital_
|
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|
|
offences, to inquire of the persons drawn as jurors whether they had any
|
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|
conscientious scruples against finding verdicts of guilty in such cases;
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|
that is, whether they had any conscientious scruples against sustaining
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|
the law prescribing death as the punishment of the crime to be tried;
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|
and to exclude from the panel all who answered in the affirmative.
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The only principle upon which these questions are asked, is this—that
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|
no man shall be allowed to serve as juror, unless he be ready to enforce
|
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|
any enactment of the government, however cruel or tyrannical it may be.
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What is such a jury good for, as a protection against the tyranny of the
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government? A jury like that is palpably nothing but a mere tool of
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oppression in the hands of the government. A trial by such a jury is
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really a trial by the government itself—and not a trial by the
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country—because it is a trial only by men specially selected by the
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government for their readiness to enforce its own tyrannical measures.
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If that be the true principle of the trial by jury, the trial is utterly
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worthless as a security to liberty. The Czar might, with perfect safety
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to his authority, introduce the trial by jury into Russia, if he could
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but be permitted to select his jurors from those who were ready to
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maintain his laws, without regard to their injustice.
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This example is sufficient to show that the very pith of the trial by
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jury, as a safeguard to liberty, consists in the jurors being taken
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indiscriminately from the whole people, and in their right to hold
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invalid all laws which they think unjust.
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[^2]: The executive has a qualified veto upon the passage of
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laws, in most of our governments, and an absolute veto, in all of them,
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upon the execution of any laws which he deems unconstitutional; because
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his oath to support the constitution (as he understands it) forbids him
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to execute any law that he deems unconstitutional.
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[^3]: And if there be so much as a reasonable _doubt_ of the
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justice of the laws, the benefit of that doubt must be given to the
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defendant, and not to the government. So that the government must keep
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its laws _clearly_ within the limits of justice, if it would ask a jury
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to enforce them.
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[^4]: _Hallam_ says, “The relation established between a lord and
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his vassal by the feudal tenure, far from containing principles of any
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servile and implicit obedience, permitted the compact to be dissolved in
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case of its violation by either party. This extended as much to the
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sovereign as to inferior lords. * * If a vassal was aggrieved, and if
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justice was denied him, he sent a defiance, that is, a renunciation of
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fealty to the king, and was entitled to enforce redress at the point of
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his sword. It then became a contest of strength as between two
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independent potentates, and was terminated by treaty, advantageous or
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otherwise, according to the fortune of war. * * There remained the
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original principle, that allegiance depended conditionally upon good
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treatment, and that an appeal might be _lawfully_ made to arms against
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an oppressive government. Nor was this, we may be sure, left for extreme
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necessity, or thought to require a long-enduring forbearance. In modern
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times, a king, compelled by his subjects’ swords to abandon any
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pretension, would be supposed to have ceased to reign; and the express
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recognition of such a right as that of insurrection has been justly
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deemed inconsistent with the majesty of law. But ruder ages had ruder
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sentiments. Force was necessary to repel force; and men accustomed to
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see the king’s authority defied by a private riot, were not much shocked
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when it was resisted in defence of public freedom.”—_3 Middle Ages_,
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240-2.
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