Part 25 (1/2)

These thirty-two confirmations of Magna Carta, which c.o.ke speaks of as ”acts of parliament,” were merely acts of the king. The parliaments, indeed, by refusing to grant him money, except on that condition, and otherwise, had contributed to oblige him to make the confirmations; just as they had helped to oblige him by arms to grant the charter in the first place. But the confirmations themselves were nevertheless const.i.tutionally, as well as formally, the acts of the king alone.]

[Footnote 110: Under the head of ”_John._”]

[Footnote 111: _4 Blackstone_, 349-50.]

[Footnote 112: _3 Blackstone_, 379.]

[Footnote 113: _Hume_, ch. 2.]

[Footnote 114: Page 203, 5th edition, 1721.]

[Footnote 115: St. 1 _William and Mary_, ch. 6, (1688.)]

[Footnote 116: 4 _Inst._, 36.]

CHAPTER XII.

LIMITATIONS IMPOSED UPON THE MAJORITY BY THE TRIAL BY JURY.

The princ.i.p.al 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 pa.s.sions 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 a.s.sistance, 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 pa.s.sion 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 a.s.sociations 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 pa.s.sions 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 pa.s.sions as rivalry, hatred, avarice, and ambition,--pa.s.sions 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 inst.i.tuted 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 pa.s.sions which rage in the b.r.e.a.s.t.s 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 ent.i.tled 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 pa.s.sion, 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 subst.i.tuted 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.