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| TRIAL BY JURY |
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| CHAPTER XII |
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| Limitations Imposed Upon The Majority By The Trial By Jury |
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The principal objection, that will be made to the doctrine of this
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.
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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.
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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.
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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.
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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.
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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.
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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 at 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.
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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.
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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
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| 209 |
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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.
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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.
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To ascertain whether there be such reasonable doubt, it takes twelve men by lo
t 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.
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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.
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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
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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.
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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
plaintiff's 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.
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In legislation, the people are all arranged as plaintiff's and defendants in their own
causes; (those who are in favor of a particular law, standing as plaintiff's, 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.
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| 211 |
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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.
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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.
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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.
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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
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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
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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.
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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.
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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."
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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.
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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.
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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? p>
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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. p>
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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. p>
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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.
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| 221 |
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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.
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[1] Such as restraints upon banking, upon the rates of interest, upon traffic
with foreigners, &e., &c.
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