LIMITATIONS IMPOSED UPON THE MAJORITY BY THE TRIAL BY JURY.
The principal objection, that will be made to the doctrine of this
essay, is, that under it, a jury would paralyze the power of the
majority, and veto all legislation that was not in accordance with the
will of the whole, or nearly the whole, people.
The answer to this objection is, that the limitation, which would be
thus imposed upon the legislative power, (whether that power be vested
in the majority, or minority, of the people,) is the crowning merit of
the trial by jury. It has other merits; but, though important in
themselves, they are utterly insignificant and worthless in comparison
with this.
It is this power of vetoing all partial and oppressive legislation, and
of restricting the government to the maintenance of such laws as the
_whole_, or substantially the whole, people _are agreed in_, that makes
the trial by jury "the palladium of liberty." Without this power it
would never have deserved that name.
The will, or the pretended will, of the majority, is the last lurking
place of tyranny at the present day. The dogma, that certain individuals
and families have a divine appointment to govern the rest of mankind, is
fast giving place to the one that the larger number have a right to
govern the smaller; a dogma, which may, or may not, be less oppressive
in its practical operation, but which certainly is no less false or
tyrannical in principle, than the one it is so rapidly supplanting.
Obviously there is nothing in the nature of majorities, that insures
justice at their hands. They have the same passions as minorities, and
they have no qualities whatever that should be expected to prevent them
from practising the same tyranny as minorities, if they think it will
be for their interest to do so.
There is no particle of truth in the notion that the majority have a
_right_ to rule, or to exercise arbitrary power over, the minority,
simply because the former are more numerous than the latter. Two men
have no more natural right to rule one, than one has to rule two. Any
single man, or any body of men, many or few, have a natural right to
maintain justice for themselves, and for any others who may need their
assistance, against the injustice of any and all other men, without
regard to their numbers; and majorities have no right to do any more
than this. The relative numbers of the opposing parties have nothing to
do with the question of right. And no more tyrannical principle was ever
avowed, than that the will of the majority ought to have the force of
law, without regard to its justice; or, what is the same thing, that the
will of the majority ought always to be presumed to be in accordance
with justice. Such a doctrine is only another form of the doctrine that
might makes right.
When _two_ men meet _one_ upon the highway, or in the wilderness, have
they a right to dispose of his life, liberty, or property at their
pleasure, simply because they are the more numerous party? Or is he
bound to submit to lose his life, liberty, or property, if they demand
it, merely because he is the less numerous party? Or, because they are
more numerous than he, is he bound to presume that they are governed
only by superior wisdom, and the principles of justice, and by no
selfish passion that can lead them to do him a wrong? Yet this is the
principle, which it is claimed should govern men in all their civil
relations to each other. Mankind fall in company with each other on the
highway or in the wilderness of life, and it is claimed that the more
numerous party, simply by virtue of their superior numbers, have the
right arbitrarily to dispose of the life, liberty, and property of the
minority; and that the minority are bound, by reason of their inferior
numbers, to practise abject submission, and consent to hold their
natural rights,--any, all, or none, as the case may be,--at the mere
will and pleasure of the majority; as if all a man's natural rights
expired, or were suspended by the operation of a paramount law, the
moment he came into the presence of superior numbers.
If such be the true nature of the relations men hold to each other in
this world, it puts an end to all such things as crimes, unless they be
perpetrated upon those who are equal or superior, in number, to the
actors. All acts committed against persons _inferior_ in number to the
aggressors, become but the exercise of rightful authority. And
consistency with their own principles requires that all governments,
founded on the will of the majority, should recognize this plea as a
sufficient justification for all crimes whatsoever.
If it be said that the majority should be allowed to rule, not because
they are stronger than the minority, but because their superior numbers
furnish a _probability_ that they are in the right; one answer is, that
the lives, liberties, and properties of men are too valuable to them,
and the natural presumptions are too strong in their favor, to justify
the destruction of them by their fellow-men on a mere balancing of
probabilities, _or on any ground whatever short of certainty beyond a
reasonable doubt_. This last is the moral rule universally recognized to
be binding upon single individuals. And in the forum of conscience the
same rule is equally binding upon governments, for governments are mere
associations of individuals. This is the rule on which the trial by jury
is based. And it is plainly the only rule that ought to induce a man to
submit his rights to the adjudication of his fellow-men, or dissuade him
from a forcible defence of them.
Another answer is, that if two opposing parties could be supposed to
have no personal interests or passions involved, to warp their
judgments, or corrupt their motives, the fact that one of the parties
was more numerous than the other, (a fact that leaves the comparative
intellectual competency of the two parties entirely out of
consideration,) might, perhaps, furnish a slight, but at best only a
very slight, probability that such party was on the side of justice. But
when it is considered that the parties are liable to differ in their
intellectual capacities, and that one, or the other, or both, are
undoubtedly under the influence of such passions as rivalry, hatred,
avarice, and ambition,--passions that are nearly certain to pervert
their judgments, and very likely to corrupt their motives,--all
probabilities founded upon a mere numerical majority, in one party, or
the other, vanish at once; and the decision of the majority becomes, to
all practical purposes, a mere decision of chance. And to dispose of
men's properties, liberties, and lives, by the mere process of
enumerating such parties, is not only as palpable gambling as was ever
practised, but it is also the most atrocious that was ever practised,
except in matters of government. And where government is instituted on
this principle, (as in the United States, for example,) the nation is at
once converted into one great gambling establishment; where all the
rights of men are the stakes; a few bold bad men throw the dice--(dice
loaded with all the hopes, fears, interests, and passions which rage in
the breasts of ambitious and desperate men,)--and all the people, from
the interests they have depending, become enlisted, excited, agitated,
and generally corrupted, by the hazards of the game.
The trial by jury disavows the majority principle altogether; and
proceeds upon the ground that every man should be presumed to be
entitled to life, liberty, and such property as he has in his
possession; and that the government should lay its hand upon none of
them, (except for the purpose of bringing them before a tribunal for
adjudication,) unless it be first ascertained, _beyond a reasonable
doubt_, in every individual case, that justice requires it.
To ascertain whether there be such reasonable doubt, it takes twelve men
_by lot_ from the whole body of mature men. If any of these twelve are
proved to be under the influence of any _special_ interest or passion,
that may either pervert their judgments, or corrupt their motives, they
are set aside as unsuitable for the performance of a duty requiring such
absolute impartiality and integrity; and others substituted in their
stead. When the utmost practicable impartiality is attained on the part
of the whole twelve, they are sworn to the observance of justice; and
their unanimous concurrence is then held to be necessary to remove that
reasonable doubt, which, unremoved, would forbid the government to lay
its hand on its victim.
Such is the caution which the trial by jury both practises and
inculcates, against the violation of justice, on the part of the
government, towards the humblest individual, in the smallest matter
affecting his civil rights, his property, liberty, or life. And such is
the contrast, which the trial by jury presents, to that gambler's and
robber's rule, that the majority have a right, by virtue of their
superior numbers, and without regard to justice, to dispose at pleasure
of the property and persons of all bodies of men less numerous than
themselves.
The difference, in short, between the two systems, is this. The trial by
jury protects person and property, inviolate to their possessors, from
the hand of the law, unless _justice, beyond a reasonable doubt_,
require them to be taken. The majority principle takes person and
property from their possessors, at the mere arbitrary will of a
majority, who are liable and likely to be influenced, in taking them, by
motives of oppression, avarice, and ambition.
If the relative numbers of opposing parties afforded sufficient evidence
of the comparative justice of their claims, the government should carry
the principle into its courts of justice; and instead of referring
controversies to impartial and disinterested men,--to judges and jurors,
sworn to do justice, and bound patiently to hear and weigh all the
evidence and arguments that can be offered on either side,--it should
simply _count_ the plaintiffs and defendants in each case, (where there
were more than one of either,) and then give the case to the majority;
after ample opportunity had been given to the plaintiffs and defendants
to reason with, flatter, cheat, threaten, and bribe each other, by way
of inducing them to change sides. Such a process would be just as
rational in courts of justice, as in halls of legislation; for it is of
no importance to a man, who has his rights taken from him, whether it be
done by a legislative enactment, or a judicial decision.
In legislation, the people are all arranged as plaintiffs and defendants
in their own causes; (those who are in favor of a particular law,
standing as plaintiffs, and those who are opposed to the same law,
standing as defendants); and to allow these causes to be decided by
majorities, is plainly as absurd as it would be to allow judicial
decisions to be determined by the relative number of plaintiffs and
defendants.
If this mode of decision were introduced into courts of justice, we
should see a parallel, and only a parallel, to that system of
legislation which we witness daily. We should see large bodies of men
conspiring to bring perfectly groundless suits, against other bodies of
men, for large sums of money, and to carry them by sheer force of
numbers; just as we now continually see large bodies of men conspiring
to carry, by mere force of numbers, some scheme of legislation that
will, directly or indirectly, take money out of other men's pockets, and
put it into their own. And we should also see distinct bodies of men,
parties in separate suits, combining and agreeing all to appear and be
counted as plaintiffs or defendants in each other's suits, for the
purpose of ekeing out the necessary majority; just as we now see
distinct bodies of men, interested in separate schemes of ambition or
plunder, conspiring to carry through a batch of legislative enactments,
that shall accomplish their several purposes.
This system of combination and conspiracy would go on, until at length
whole states and a whole nation would become divided into two great
litigating parties, each party composed of several smaller bodies,
having their separate suits, but all confederating for the purpose of
making up the necessary majority in each case. The individuals composing
each of these two great parties, would at length become so accustomed to
acting together, and so well acquainted with each others' schemes, and
so mutually dependent upon each others' fidelity for success, that they
would become organized as permanent associations; bound together by that
kind of honor that prevails among thieves; and pledged by all their
interests, sympathies, and animosities, to mutual fidelity, and to
unceasing hostility to their opponents; and exerting all their arts and
all their resources of threats, injuries, promises, and bribes, to drive
or seduce from the other party enough to enable their own to retain or
acquire such a majority as would be necessary to gain their own suits,
and defeat the suits of their opponents. All the wealth and talent of
the country would become enlisted in the service of these rival
associations; and both would at length become so compact, so well
organized, so powerful, and yet always so much in need of recruits,
that a private person would be nearly or quite unable to obtain justice
in the most paltry suit with his neighbor, except on the condition of
joining one of these great litigating associations, who would agree to
carry through his cause, on condition of his assisting them to carry
through all the others, good and bad, which they had already undertaken.
If he refused this, they would threaten to make a similar offer to his
antagonist, and suffer their whole numbers to be counted against him.
Now this picture is no caricature, but a true and honest likeness. And
such a system of administering justice, would be no more false, absurd,
or atrocious, than that system of working by majorities, which seeks to
accomplish, by legislation, the same ends which, in the case supposed,
would be accomplished by judicial decisions.
Again, the doctrine that the minority ought to submit to the will of the
majority, proceeds, not upon the principle that government is formed by
voluntary association, and for an _agreed purpose_, on the part of all
who contribute to its support, but upon the presumption that all
government must be practically a state of war and plunder between
opposing parties; and that, in order to save blood, and prevent mutual
extermination, the parties come to an agreement that they will count
their respective numbers periodically, and the one party shall then be
permitted quietly to rule and plunder, (restrained only by their own
discretion,) and the other submit quietly to be ruled and plundered,
until the time of the next enumeration.
Such an agreement may possibly be wiser than unceasing and deadly
conflict; it nevertheless partakes too much of the ludicrous to deserve
to be seriously considered as an expedient for the maintenance of civil
society. It would certainly seem that mankind might agree upon a
cessation of hostilities, upon more rational and equitable terms than
that of unconditional submission on the part of the less numerous body.
Unconditional submission is usually the last act of one who confesses
himself subdued and enslaved. How any one ever came to imagine that
condition to be one of freedom, has never been explained. And as for the
system being adapted to the maintenance of justice among men, it is a
mystery that any human mind could ever have been visited with an
insanity wild enough to originate the idea.
If it be said that other corporations, than governments, 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 _rights_ of 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 _all_ are interested. It
would be absurd to suppose that all would associate, and consent to be
taxed, for purposes which were beneficial only to a part; and especially
for purposes that were injurious to any. A government of the whole,
therefore, can have no powers except such as _all_ the parties consent
that it may have. It can do nothing except what _all_ have consented
that it may do. And if any portion of the people,--no matter how large
their number, if it be less than the whole,--desire a government for any
purposes other than those that are common to all, and desired by all,
they must form a separate association for those purposes. They have no
right,--by perverting this government of the whole, to the
accomplishment of purposes desired only by a part,--to compel any one to
contribute to purposes that are either useless or injurious to himself.
Such being the principles on which the government is formed, the
question arises, how shall this government, when formed, be kept within
the limits of the contract by which it was established? How shall this
government, instituted by the whole people, agreed to by the whole
people, supported by the contributions of the whole people, be confined
to the accomplishment of those purposes alone, which the whole people
desire? How shall it be preserved from degenerating into a mere
government for the benefit of a part only of those who established, and
who support it? How shall it be prevented from even injuring a part of
its own members, for the aggrandizement of the rest? Its laws must be,
(or at least now are,) passed, and most of its other acts performed, by
mere agents,--agents chosen by a part of the people, and not by the
whole. How can these agents be restrained from seeking their own
interests, and the interests of those who elected them, at the expense
of the rights of the remainder of the people, by the passage and
enforcement of laws that shall be partial, unequal, and unjust in their
operation? That is the great question. And the trial by jury answers it.
And how does the trial by jury answer it? It answers it, as has already
been shown throughout this volume, by saying that these mere agents and
attorneys, who are chosen by a part only of the people, and are liable
to be influenced by partial and unequal purposes, shall not have
unlimited authority in the enactment and enforcement of laws; that they
shall not exercise _all_ the functions of government. It says that they
shall never exercise that ultimate power of compelling obedience to the
laws by punishing for disobedience, or of executing the laws against the
person or property of any man, without first getting the consent of the
people, through a tribunal that may fairly be presumed to represent the
whole, or substantially the whole, people. It says that if the power to
make laws, and the power also to enforce them, were committed to these
agents, they would have all power,--would be absolute masters of the
people, and could deprive them of their rights at pleasure. It says,
therefore, that the people themselves will hold a veto upon the
enforcement of any and every law, which these agents may enact, and that
whenever the occasion arises for them to give or withhold their
consent,--inasmuch as the whole people cannot assemble, or devote the
time and attention necessary to the investigation of each case,--twelve
of their number shall be taken by lot, or otherwise at random, from the
whole body; that they shall not be chosen by majorities, (the same
majorities that elected the agents who enacted the laws to be put in
issue,) nor by any interested or suspected party; that they shall not be
appointed by, or be in any way dependent upon, those who enacted the
law; that their opinions, whether for or against the law that is in
issue, shall not be inquired of beforehand; and that if these twelve men
give their consent to the enforcement of the law, their consent shall
stand for the consent of the whole.
This is the mode, which the trial by jury provides, for keeping the
government within the limits designed by the whole people, who have
associated for its establishment. And it is the only mode, provided
either by the English or American constitutions, for the accomplishment
of that object.
But it will, perhaps, be said that if the minority can defeat the will
of the majority, then the minority _rule_ the majority. But this is not
true in any unjust sense. The minority enact no laws of their own. They
simply refuse their assent to such laws of the majority as they do not
approve. The minority assume no authority over the majority; they simply
defend themselves. They do not interfere with the right of the majority
to seek their own happiness in their own way, so long as they (the
majority) do not interfere with the minority. They claim simply not to
be oppressed, and not to be compelled to assist in doing anything which
they do not approve. They say to the majority, "We will unite with you,
if you desire it, for the accomplishment of all those purposes, in
which we have a common interest with you. You can certainly expect us to
do nothing more. If you do not choose to associate with us on those
terms, there must be two separate associations. You must associate for
the accomplishment of your purposes; we for the accomplishment of ours."
In this case, the minority assume no authority over the majority; they
simply refuse to surrender their own liberties into the hands of the
majority. They propose a union; but decline submission. The majority are
still at liberty to refuse the connection, and to seek their own
happiness in their own way, except that they cannot be gratified in
their desire to become absolute masters of the minority.
But, it may be asked, how can the minority be trusted to enforce even
such legislation as is equal and just? The answer is, that they are as
reliable for that purpose as are the majority; they are as much presumed
to have associated, and are as likely to have associated, for that
object, as are the majority; and they have as much interest in such
legislation as have the majority. They have even more interest in it;
for, being the weaker party, they must rely on it for their
security,--having no other security on which they can rely. Hence their
consent to the establishment of government, and to the _taxation_
required for its support, is _presumed_, (although it ought not to be
presumed,) without any express consent being given. This presumption of
their consent to be taxed for the maintenance of laws, would be absurd,
if they could not themselves be trusted to act in good faith in
enforcing those laws. And hence they cannot be presumed to have
consented to be taxed for the maintenance of any laws, except such as
they are themselves ready to aid in enforcing. It is therefore unjust to
tax them, unless they are eligible to seats in a jury, with power to
judge of the justice of the laws. Taxing them for the support of the
laws, on the assumption that they are in favor of the laws, and at the
same time refusing them the right, as jurors, to judge of the justice of
the laws, on the assumption that they are opposed to the laws, are flat
contradictions.
But, it will be asked, what motive have the majority, when they have
all power in their own hands, to submit their will to the veto of the
minority?
One answer is, that they have the motive of justice. It would be
_unjust_ to compel the minority to contribute, by taxation, to the
support of any laws which they did not approve.
Another answer is, that if the stronger party wish to use their power
only for purposes of justice, they have no occasion to fear the veto of
the weaker party; for the latter have as strong motives for the
maintenance of _just_ government, as have the former.
Another answer is, that if the stronger party use their power
_unjustly_, they will hold it by an uncertain tenure, especially in a
community where knowledge is diffused; for knowledge will enable the
weaker party to make itself in time the stronger party. It also enables
the weaker party, even while it remains the weaker party, perpetually to
annoy, alarm, and injure their oppressors. Unjust power,--or rather
power that is _grossly_ unjust, and that is known to be so by the
minority,--can be sustained only at the expense of standing armies, and
all the other machinery of force; for the oppressed party are always
ready to risk their lives for purposes of vengeance, and the acquisition
of their rights, whenever there is any tolerable chance of success.
Peace, safety, and quiet for all, can be enjoyed only under laws that
obtain the consent of all. Hence tyrants frequently yield to the demands
of justice from those weaker than themselves, as a means of buying peace
and safety.
Still another answer is, that those who are in the majority on one law,
will be in the minority on another. All, therefore, need the benefit of
the veto, at some time or other, to protect themselves from injustice.
That the limits, within which legislation would, by this process, be
confined, would be exceedingly narrow, in comparison with those it at
present occupies, there can be no doubt. All monopolies, all special
privileges, all sumptuary laws, all restraints upon any traffic,
bargain, or contract, that was naturally lawful,[117] all restraints
upon men's natural rights, the whole catalogue of _mala prohibita_, and
all taxation to which the taxed parties had not individually, severally,
and freely consented, would be at an end; because all such legislation
implies a violation of the rights of a greater or less minority. This
minority would disregard, trample upon, or resist, the execution of such
legislation, and then throw themselves upon a jury of the whole people
for justification and protection. In this way all legislation would be
nullified, except the legislation of that general nature which
impartially protected the rights, and subserved the interests, of all.
The only legislation that could be sustained, would probably be such as
tended directly to the maintenance of justice and liberty; such, for
example, as should contribute to the enforcement of contracts, the
protection of property, and the prevention and punishment of acts
intrinsically criminal. In short, government in practice would be
brought to the necessity of a strict adherence to natural law, and
natural justice, instead of being, as it now is, a great battle, in
which avarice and ambition are constantly fighting for and obtaining
advantages over the natural rights of mankind.
[Footnote 117: Such as restraints upon banking, upon the rates of
interest, upon traffic with foreigners, &c., &c.]
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
enforced 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.[118]
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 designed to show more fully in the next volume, if it
should be necessary.
[Footnote 118: 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: 1. 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_ to tax 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. 2. 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.]
End of Project Gutenberg's An Essay on the Trial by Jury, by Lysander Spooner