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An Essay on the Trial By Jury

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surrender their affairs into the hands of the majority, the
answer is, that they allow majorities to determine only trifling
matters, that are in their nature mere questions of discretion,
and where there is no natural presumption of justice or right on
one side rather than the other. They never surrender to the
majority the power to dispose of; or, what is practically the
same thing, to determine, the rights of any individual member.
The rights of every member are determined by the written
compact, to which all the members have voluntarily agreed.

For example. A banking corporation allows a majority to
determine such questions of discretion as whether the note of
A or of B shall be discounted; whether notes shall be discounted
on one, two, or six days in the week; how many hours in a day
their banking-house shall be kept open; how many clerks shall
be employed; what salaries they shall receive, and such like
matters, which are in their nature mere subjects of discretion,
and where there are no natural presumptions of justice or right
in favor of one course over the other. But no banking corporation
allows a majority, or any other number of its members less than
the whole, to divert the funds of the corporation to any other
purpose than the one to which every member of the corporation
has legally agreed that they may be devoted; nor to take the stock of
one member and give it to another; nor to distribute the
dividends among the stockholders otherwise than to each one the
proportion which he has agreed to accept, and all the others have
agreed that he shall receive. Nor does any banking corporation
allow a majority to impose taxes upon the members for the
payment of the corporate expenses, except in such proportions as
every member has consented that they may be imposed. All these
questions, involving the rights of the members as against each
other, are fixed by the articles of the association, that is, by
the agreement to which every member has personally assented.

What is also specially to be noticed, and what constitutes a
vital difference between the banking corporation and the
political corporation, or government, is, that in case of
controversy among the members of the banking corporation, as to
the rights of any member, the question is determined, not by any
number, either majority, or minority, of the corporation itself,
but by persons out of the corporation; by twelve men acting as
jurors, or by other tribunals of justice, of which no member of
the corporation is allowed to be a part. But in the case of the
political corporation, controversies among the parties to it, as
to the rights of individual members, must of necessity be settled
by members of the corporation itself, because there are no
persons out of the corporation to whom the question can be
referred.

Since, then, all questions as to the rights of the members of the
political corporation, must be determined by members of the
corporation itself, the trial by jury says that no man's rights,
neither his right to his life, his liberty, nor his property,
shall be determined by any such standard as the mere will and
pleasure of majorities; but only by the unanimous verdict of a
tribunal fairly representing the whole people, that is, a
tribunal of twelve men, taken at random from the whole body, and
ascertained to be as impartial as the nature of the case will
admit, and sworn to the observance of justice. Such is the
difference in the two kinds of corporations; and the custom of
managing by majorities the mere discretionary matters of business
corporations, (the majority having no power to determine the
rights of any member,) furnishes no analogy to the practice,
adopted by political corporations, of disposing of all the rightsof
their members by the arbitrary will of majorities.

But further. The doctrine that the majority have a right to rule,
proceeds upon the principle that minorities have no rights in the
government; for certainly the minority cannot be said to have any
rights in a government, so long as the majority alone determine
what their rights shall be. They hold everything, or nothing, as
the case may be, at the mere will of the majority.

It is indispensable to a "free government," (in the political
sense of that term,) that the minority, the weaker party, have a
veto upon the acts of the majority. Political liberty is liberty
for the weaker party in a nation. It is only the weaker party
that lose their liberties, when a government becomes oppressive.
The stronger party, in all governments, are free by virtue of
their superior strength. They never oppress themselves.

Legislation is the work of this stronger party; and if, in
addition to the sole power of legislating, they have the sole
power of determining what legislation shall be enforced, they
have all power in their hands, and the weaker party are the
subjects of an absolute government.

Unless the weaker party have a veto, either upon the making, or
the enforcement of laws, they have no power whatever in the
government, and can of course have no liberties except such as
the stronger party, in their arbitrary discretion, see fit to
permit them to enjoy.

In England and the United States, the trial by jury is the only
institution that gives the weaker party any veto upon the power
of the 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 allare
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, where 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 degeneration 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, [1] 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.

[1] Such as restraints upon banking, upon the rates of interest,
upon traffic with foreigners, &e;., &c;.

APPENDIX

TAXATION

It was a principle of the Common Law, as it is of the law of
nature, and of common sense, that no man can be taxed without
his personal consent. The Common Law knew nothing of that system,
which now prevails in England, of assuming a man's own consent
to be taxed, because some pretended representative, whom he never
authorized to act for him, has taken it upon himself to consent
that he may be taxed. That is one of the many frauds on the
Common Law, and the English constitution, which have been
introduced since Magna Carta. Having finally established itself
in England, it has been stupidly and servilely copied and
submitted to in the United States.

If the trial by jury were reestablished, the Common Law principle
of taxation would be reestablished with it; for it is not to be
supposed that juries would enforce a tax upon an individual which
he had never agreed to pay. Taxation without consent is as
plainly robbery, when enforcers against one man, as when
enforced against millions; and it is not to be imagined that juries
could be blind to so self-evident a principle. Taking a man's money
without his consent, is also as much robbery, when it is done by
millions of men, acting in concert, and calling themselves a
government, as when it is done by a single individual, acting on
his own responsibility, and calling himself a highwayman. Neither
the numbers engaged in the act, nor the different characters they
assume as a cover for the act, alter the nature of the act
itself.

If the government can take a man's money without his consent,
there is no limit to the additional tyranny it may practise upon
him; for, with his money, it can hire soldiers to stand over him,
keep him in subjection, plunder him at discretion, and kill him
if he resists. And governments always will do this, as they
everywhere and always have done it, except where the Common
Law principle has been established. It is therefore a first
principle, a very sine qua non of political freedom, that a man
can be taxed only by his personal consent. And the establishment
of this principle, with trial by jury, insures freedom of course;
because:1. No man would pay his money unless he had first
contracted for such a government as he was willing to support;
and,2. Unless the government then kept itself within the terms of
its contract, juries would not enforce the payment of the tax.
Besides, the agreement to be taxed would probably be entered into
but for a year at a time. If, in that year, the government proved
itself either inefficient or tyrannical, to any serious degree,
the contract would not be renewed. The dissatisfied parties, if
sufficiently numerous for a new organization, would form
themselves into a separate association for mutual protection. If
not sufficiently numerous for that purpose, those who were
conscientious would forego all governmental protection, rather
than contribute to the support of a government which they deemed
unjust.

All legitimate government is a mutual insurance company,
voluntarily agreed upon by the parties to it, for the protection
of their rights against wrong-doers. In its voluntary character
it is precisely similar to an association for mutual protection
against fire or shipwreck. Before a man will join an association
for these latter purposes, and pay the premium for being insured,
he will, if he be a man of sense, look at the articles of the
association; see what the company promises to do; what it is
likely to do; and what are the rates of insurance. If he be
satisfied on all these points, he will become a member, pay his
premium for a year, and then hold the company to its contract. If
the conduct of the company prove unsatisfactory, he will let his
policy expire at the end of the year for which he has paid; will
decline to pay any further premiums, and either seek insurance
elsewhere, or take his own risk without any insurance. And as men
act in the insurance of their ships and dwellings, they would act
in the insurance of their properties, liberties and lives, in the
political association, or government.

The political insurance company, or government, have no more
right, in nature or reason, to assume a man's consent to be
protected by them, and to be taxed for that protection, when he
has given no actual consent, than a fire or marine insurance
company have to assume a man's consent to be protected by them,
and to pay the premium, when his actual consent has never been
given. To take a man's property without his consent is robbery;
and to assume his consent, where no actual consent is given,
makes the taking none the less robbery. If it did, the highwayman
has the same right to assume a man's consent to part with his
purse, that any other man, or body of men, can have. And his
assumption would afford as much moral justification for his
robbery as does a like assumption, on the part of the government,
for taking a man's property without his consent. The government's
pretence of protecting him, as an equivalent for the taxation,
affords no justification. It is for himself to decide whether he
desires such protection as the government offers him. If he do
not desire it, or do not bargain for it, the government has no
more right than any other insurance company to impose it upon
him, or make him pay for it. Trial by the country, and no
taxation without consent, were the two pillars of English
liberty, (when England had any liberty,) and the first principles
of the Common Law. They mutually sustain each other; and
neither can stand without the other. Without both, no people have any
guaranty for their freedom; with both, no people can be otherwise
than free. [1]

[1] Trial by the country, and no taxation without consent,
mutually sustain each other, and can be sustained only by each
other, for these reasons: 1. Juries would refuse to enforce a tax
against a man who had never agreed to pay it. They would also
protect men in forcibly resisting the collection of taxes to
which they had never consented. Otherwise the jurors would
authorize the government to tax themselves without their consent,
a thing which no jury would be likely to do. In these two ways,
then, trial by the country would sustain the principle of no
taxation without consent. 2. On the other hand, the principle of
no taxation without consent would sustain the trial by the
country, because men in general would not consent to be taxed for
the support of a government under which trial by the country was
not secured. Thus these two principles mutually sustain each
other.

But, if either of these principles were broken down, the other
would fall with it, and for these reasons:If trial by the country
were broken down, the principle of no taxation without consent
would fall with it, because the government would then be able
totax the people without their consent, inasmuch as the legal
tribunals would be mere tools of the government, and would
enforce such taxation, and punish men for resisting such
taxation, as the government ordered.

On the other hand, if the principle of no taxation without
consent were broken down, trial by the country would fall with
it, because the government, if it could tax people without their
consent, would, of course, take enough of their money to enable
it to employ all the force necessary for sustaining its own
tribunals, (in the place of juries,) and carrying their decrees
into execution.

By what force, fraud, and conspiracy, on the part of kings,
nobles, and "a few wealthy freeholders," these pillars have been
prostrated in England, it is desired to show more fully in the
next volume, if it should be necessary.

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