Part 25 (2/2)

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 a.s.sociations; 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 a.s.sociations; 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 a.s.sociations, who would agree to carry through his cause, on condition of his a.s.sisting 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 a.s.sociation, 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 a.s.sociation,--that is, by the agreement to which _every member_ has personally a.s.sented.

What is also specially to be noticed, and what const.i.tutes 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 a.n.a.logy 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 inst.i.tution that gives the weaker party any veto upon the power of the stronger. Consequently it is the only inst.i.tution, 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 princ.i.p.al, 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 const.i.tution, 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 a.s.sumes 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 pa.s.s any _laws_, except such as _all_ the parties have agreed that it may pa.s.s.

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 a.s.sociate. And they a.s.sociate for the maintenance of those laws _only_, in which _all_ are interested. It would be absurd to suppose that all would a.s.sociate, 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 a.s.sociation 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, inst.i.tuted 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,) pa.s.sed, 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 pa.s.sage 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.

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