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THEIR NATURE, ESSENCE AND MAINTENANCE.
An ABRIDGENT AND REARRANGEMENT
Oº
LySANDER SPOONER's "TRIAL BY JURY.”
EDITED BY
VICTOR Y.A. R.R.O.S.
BOSTON, MASS..
BEN.J. R. TUCKER, PUBLISHER
1890.
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THEIR NATURE, ESSENCE, AND MAINTENANCE,
AN ABRIDGMENT AND REARRANGEMENT
OF
Lys ANDER SpoonFR’s “TRIAL by JURy.”
EDITED BY
VICTOR YARROS.
BOSTON, MASS. :
BENJ. R. TUCKER, PUBLISHER.
1890.




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PIEEE"A.C.E.
Perhaps the argument most frequently used by conservative believers in the convenient
doctrine of leaving things as they are against those engaged in reformatory efforts of a more
or less radical nature is that the “spirit and genius of American institutions” do not admit
of the assimilation or acceptance of the proposed innovations. Were one to trust them, the
“American institutions” are something so clearly defined, finished, and powerful as to ab-
solutely render it impossible for any inconsistent and discordant element to maintain a
vigorous existence within the charmed circle which affords chances of life only to what ne-
cessarily and logically flows as a consequence from the fundamental principles supporting
the peculiar civilization of this “best government on the face of the earth.” We are asked
to look upon all that “is,” if not as unqualifiedly right and perfect, then as relatively so in
the sense of its being the unavoidable outcome of primary conditions.
This fact alone would amply justify our curiosity to learn thoroughly the essence and im-
port of these “institutions,” especially since manifold serious evils, universally considered
destructive of social equipoise and progress, seem to flourish in our midst without restraint.
But we are moved to such an enquiry by still another circumstance. Besides the easy-
going conservative who hurls the epithet “un-American” at the head of anybody contem-
plating innocent improvements of vexatious misarrangements, there is a large class of men,
earnest and determined reformers, who in working for a gigantic plan of social reorganiza-
tion make the same claim of strict fidelity to the logic and spirit of American principles, not
only as against those resisting reform as such, but also-and even with greater emphasis—
as against other schools of radical reform which oppose them not because they strive for re-
novation and change, but because their ideas of the needful and the desirable and the truly
salutary differ materially. Indeed, every school of reform boasts of exclusive understand-
ing of and jealous care for the “self-evident” maxims on which the opportunities and pos-
sibilities and prospects of this land of labor and freedom are built.
Now, what shall we believe? Whom shall we follow? Which of the conflicting opinions
is most nearly right, if any one is so? Is everything as it should be? If not, in what direc-
tion is betterment to be sought? Are State Socialists and Nationalists right: must the func-
tion of government be enlarged and extended, and will the completion of the Jeffersonian
structure consist in the triumphant adoption of the entire collectivist programme? Or is
Anarchism the true doctrine and the removal of the last and least vestige of State compul-
sion to be demanded and achieved? In a word, what is the meaning of political freedom;
whither does it lead us; with what does it inspire us?
For an answer to these important questions the reader is confidently referred to the fol-
lowing pages, which represent an abridgment and rearrangement of Lysander Spooner's re-
markable work on “Trial by Jury.” At the time of its publication Mr. Spooner had no

4. Preface.
affiliation with any reform movement, and had no special cause to plead, but was simply a
private American citizen, a jurist, and an unbiassed student of political science and history.
His discussion of the nature, essence, logic, and maintenance of political freedom is so mas-
terful, convincing, and conclusive that it cannot fail to enlighten public opinion on the sub-
ject and enable one to form a criterion by which to pass upon the various interpretations of
the “American Idea.” This work entitles Mr. Spooner to the gratitude and admiration of
all the liberty-loving and tyranny-detesting. No one who aspires intelligently to defend or
forcibly to assail political independence should neglect to consider Mr. Spooner's elucidation
of its real significance and character.
It is hoped that the present publication will serve yet another purpose. Many of those to
whose minds individualistic views appear attractive and rational hesitate to express a posi-
tive opinion in consequence of the thousand and one questions of detailand practical difficulty
which rush into their heads and to the settlement of which they do not see their way. Of
course a casuistic philosophy is an absurdity, but generalization and abstraction are not suf-
ficient. Life is too complex to be covered by a simple formula, though first principles we
must have. Mr. Spooner successfully demonstrates that the highest justice and equity can
be secured under complete freedom and that they have nothing to fear from the dissolution
of the State who are prepared to do unto others as they would be done by.
One word more. As the end sought by this republication is distinct from that of the ori-
ginal publication, I could not avoid changes and alterations. Mr. Spooner's intention was
to discredit and denounce the perversion of trial by jury and to promulgate the correct and
legitimate system by which alone free political relations could be preserved. The explana-
tion of the nature of such relations was of secondary importance. I am here, on the con-
trary, chiefly concerned with this side of the problem. This necessitated abridgment as
well as rearrangement. I was obliged to reduce to subordination that which was dominant
and to raise into prominence that which was tributary. Lest I may be criticised for taking
so unceremonious a liberty, I will anticipate my critics by requesting the reader to attri-
bute all the merits and good qualities of this edition to Mr. Spooner's ability, while laying
the responsibility for all its faults and imperfections at my door, W. Y.

FREE POLITICAL INSTITUTIONS:
TELEIR NATUERE, ESSENCE, AND MAINTENANCE-
I.
LEGITIMATE GOVERNMENT AND MAJORITY RULE.
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 ex-
cept 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 to com-
pel any one to contribute to purposes that are either useless or injurious to him-
self.

6 Free Political Institutions.
Taxation without consent is as plainly robbery when enforced against one man
as when enforced against millions. 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 num-
bers 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 every-
where and always have done, except where the Common Law principle has been
established. It is therefore a first principle, a very sine qua non of political free-
dom, that a man can be taxed only by his personal consent.
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 pro-
tection 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 un-
satisfactory, 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 else-
where or take his own risk without any insurance. And as men act in the insur-
ance of their ships and dwellings, they would act in the insurance of their lives,
liberties, and properties 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 insur-
ance 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 pro-
perty without his consent is robbery; and to assume his consent, when no actual
consent is given, makes the taking none the less robbery. If it did, the highway-
man 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 justifica-
tion. It is for himself to decide whether he desires such protection as the govern-

Free Political Institutions. 7
ment 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.
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 sepa-
rate association for mutual protection. If not sufficiently numerous for that pur-
pose, those who were conscientious would forego all governmental protection rather
than contribute to the support of a government which they deemed unjust.
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 or families have
a divine appointment to govern the rest of mankind is fast giving place to the one
that the larger number have the 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. Ob-
viously 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 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 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 pre-
sumed 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, lib-
erty, or property, if they demand it, simply 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.

8 Free Political Institutions.
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 supe-
rior 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 major-
ity; 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 govern-
ments 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 pro-
bability that they are in the right, one answer is that the lives, liberties, and pro-
perties 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 be-
yond 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.
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 up-
on 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 pro-
cess 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 mat-
ters of government. And where government is instituted on this principle (as in

Free Political Institutions. 9
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 pas-
sions which rage in the breasts of ambitious and desperate men, -and all the peo-
ple, from the interests they have depending, become enlisted, excited, agitated, and
generally corrupted by the hazards of the game.
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 disin-
terested 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 op-
portunity 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 legisla-
tion; 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 al-
low 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 eking out the necessary majority; just as we now see dis-
tinct bodies of men, interested in separate schemes of ambition or plunder, con-
spiring 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.

10 Free Political Institutions.
The individuals composing each of these two great parties would at length become
so accustomed to acting together, and so well acquainted with each other's schemes,
and so mutually dependent upon each other's fidelity for success, that they would
become organized as permanent associations, bound together by that kind of honor
which 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 de-
feat 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 decision.
Again, the doctrine that the minority ought to submit to the will of the major-
ity proceeds, not upon the principle that government is formed by voluntary asso-
ciation 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 sub-
mit 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 con-
sidered 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 con-
fesses 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

Free Political Institutions. 11
human mind could ever have been visited with an insanity wild enough to origi-
nate the idea.
If it be said that other corporations than governments surrender their affairs in-
to 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 ques-
tions of discretion as whether the note of A or 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 em-
ployed; what salaries they shall receive; and such like matters. 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 de-
voted; nor to take the stock of one member and give it to another; nor to distri-
bute the dividends among the stockholders otherwise than to each 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, in-
volving 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 per-
sonally assented.
What is also specially to be noticed, and what constitutes a vital difference be-
tween 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 corpora-
tion; 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 politi-
cal 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.
But farther. 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 major-
ity alone determine what their rights shall be. They hold everything, or nothing,
as the case may be, at the mere will of the majority.

12 Free Political Institutions.
It is indispensable to a “free government” 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 sub-
jects 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.
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 are,
therefore, wholly without rights in the government, wholly at the mercy of the
majority, unless 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 le-
gislation 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. -
But it will perhaps be said that, if the minority can defeat the will of the major-
ty, 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

Free Political Institutions. 13
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 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 accom-
plishment 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 asso-
ciate 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 pro-
pose 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 le-
gislation 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 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 pre-
sumed), without any express consent being given. This presumption of their con-
sent 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.
But, it will be asked, what motive have the majority, when they have all power
in their 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 com-
pel 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 reason 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 dif-

14 Free Political Institutions.
fused; 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 machin-
ery of force; for the oppressed party are always ready to risk their lives for pur-
poses of vengeance and the acquisition of their rights whenever there is any toler-
able 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 demand
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 re-
straints upon any traffic, bargain, or contract that was naturally lawful (such as
restraints upon banking, upon traffic with foreigners, etc.), all restraints upon nat-
ural 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 the violation of the rights of a greater or
less minority. This minority would disregard, trample upon, or resist the execu-
tion of such legislation, and then throw themselves upon a jury of the whole peo-
ple 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 lib-
erty; 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 ob-
taining advantages over, the natural rights of mankind.

Free Political Institutions. 15
II.
TRIAL BY JURY AS A PALLADIUM OF LIBERTY.
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 it 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 en-
forcement of laws partial, unequal, and unjust in their operation?
That is the great question. And the trial by jury answers it.
“The trial by jury” is a trial by the country—that is, by the people—as distin-
guished from a trial by the government.
It was anciently called trial per pais, - that is, trial by the country. And now
in every criminal trial the jury are told that the accused “has, for trial, put him-
self upon the country, which country you (the jury) are.”
The object of this trial by the country, or by the people, in preference to a trial
by the government, is to guard against every species of oppression by the govern-
ment. In order to effect this end, it is indispensable that the people, or the coun-
try, judge of and determine their own liberties against the government, instead of
the government's judging of and determining its own powers over the people.
How is it possible that juries can do anything to protect the liberties of the peo-
ple against the government, if they are not allowed to determine what those lib-
erties are?
Any government that is its own judge of, and determines authoritatively for the
people, what are its own powers over the people, is an absolute government. It
has all the powers that it chooses to exercise. There is no other, or, at least, no
more accurate, definition of a despotism than this.
On the other hand, any people that judge of, and determine authoritatively for
the government, what are their own liberties against the government, of course re-
tain all the liberties they wish to enjoy. And this is freedom. At least, it is free-

16 Free Political Institutions.
dom. to them; because, although it may be theoretically imperfect, it nevertheless
corresponds to their highest notions of freedom.
To secure this right of the people to judge of their own liberties against the
government, the jurors must be taken from the body of the people, by lot, or by
some process that precludes any previous knowledge, choice, or selection of them,
on the part of the government. This is done to prevent the government's consti-
tuting a jury of its own partisans or friends; in other words, to prevent the gov-
ernment's packing a jury with a view to maintain its own laws and accomplish its
own purposes.
It is supposed that, if twelve men be taken by lot from the mass of the people,
without the possibility of any previous knowledge, choice, or selection of them on
the part of the government, the jury will be a fair epitome of the country at large,
and not merely of the party or faction that sustain the measures of the govern-
ment; that substantially all classes of opinions prevailing among the people will
be represented in the jury; and especially that the opponents of the government
(if the government have any opponents) will be represented there as well as its
friends; that the classes who are oppressed by the laws of the government (if any
are thus oppressed) will have their representatives in the jury as well as those who
take side with the oppressor—that is, with the government.
It is fairly presumable that such a tribunal will agree to no conviction except
such as substantially the whole country would agree to, if they were present tak-
ing part in the trial. A trial by such a tribunal is therefore in effect a trial by
the country. In its results it probably comes as near to a trial by the whole coun-
try as any trial that it is practicable to have without too great inconvenience and
expense. And as unanimity is required for a conviction, it follows that no one
can be convicted except for the violation of such laws as substantially the whole
country wish to have maintained. The government can enforce none of its laws
(by punishing offenders through the verdict of juries) except such as substantially
the whole people wish to have enforced. The government, therefore, consistently
with the trial by jury, can exercise no powers over the people (or—what is the
same thing—over the accused person, who represents the rights of the people) ex-
cept such as substantially the whole people of the country consent that it may
exercise. In such a trial, the country, or the people, judge of and determine their
own liberties against the government, instead of the government's judging of and
determining its own powers over the people.
But all this “trial by the country” would be no trial at all by the country, but
only a trial by the government, if the government could either declare who may
and who may not be jurors, or could dictate to the jury anything whatever, either
of law or evidence, that is of the essence of the trial.
If the government may decide who may and who may not be jurors, it will of
course select only its partisans and those friendly to its measures. It may not

Free Political Institutions. 17
only prescribe who may and who may not be eligible to be drawn as jurors, but it
may also question each person drawn as a juror as to his sentiments in regard to
the particular law involved in each trial before suffering him to be sworn on the
panel, and exclude him if he be found unfavorable to the maintenance of such a
law.
So, also, if the government may dictate to the jury what laws they are to en-
force, it is no longer a trial by the country, but a trial by the government; because
the jury then try the accused, not by any standard of their own, but by a standard
dictated to them by the government. And the standard thus dictated by the gov-
ernment becomes the measure of the people's liberties. If the government dictate
the standard of trial, it of course dictates the results of the trial. And such a
trial is a trial by the government. In short, if the jury have no right to judge of
the justice of a law of the government, they plainly can do nothing to protect the
people against the oppressions of the government; for there are no oppressions
which the government may not authorize by law.
The jury are also to judge whether the laws are rightly expounded to them by
the court. Unless they judge on this point, they do nothing to protect their lib-
erties against the oppressions that are capable of being practised under cover of a
corrupt exposition of the laws. If the judiciary can authoritatively dictate to the
jury any exposition of the law, they can dictate to them the law itself, and such
laws as they please; because laws are in practice one thing or another according
as they are expounded.
The jury must also judge whether there really be any such law as the accused
is charged with having transgressed.
The jury must also judge of the laws of evidence. If the government can dic-
tate to a jury the laws of evidence, it can not only shut out any evidence it pleases,
tending to vindicate the accused, but it can require that any evidence whatever
that it chooses to offer be held as conclusive proof of any offence whatever which
the government chooses to allege.
It is manifest, therefore, that the jury must judge of and try the whole case, and
every part and parcel of the case, free of any dictation or authority on the part of
the government. They must judge of the existence of the law; of the true expo-
sition of the law; of the justice of the law; and of the admissibility and weight
of all the evidence offered: otherwise the government will have everything its own
way, the jury will be mere puppets in its hands, and the trial will be in reality a
trial by the government, and not a trial by the country. By such trials the gov-
ernment will determine its own powers over the people, instead of the people's de-
termining their liberties against the government; and it will be an entire delusion
to talk, as for centuries we have done, of the trial by jury as a “palladium of lib-
erty,” or as any protection to the people against the oppression and tyranny of the
government. -

18 Free Political Institutions.
Unless such be the right and duty of jurors, it is plain that, instead of juries
being a palladium of liberty, a barrier against the tyranny of the government,
they are really mere tools in its hands for carrying into execution any injustice
and oppression it may desire to have executed.
But for their right to judge of the law, and the justice of the law, juries would
be no protection to an accused person, even as to matters of fact; for, if the gov-
ernment can dictate to a jury any law whatever in a criminal case, it can certainly
dictate to them the laws of evidence. That is, it can dictate what evidence is ad-
missible and what inadmissible, and also what force or weight is to be given to the
evidence admitted. And if the government can thus dictate to a jury the laws of
evidence, it can not only make it necessary for them to convict on a partial exhi-
bition of the evidence rightfully pertaining to the case, but it can even require
them to convict on any evidence that it pleases to offer them.
The question, then, between trial by jury as thus described, and trial by the gov-
ernment, is simply a question between liberty and despotism. The authority to
judge what are the powers of the government and what the liberties of the people
must necessarily be vested in one or the other of the parties themselves, because
there is no third party to whom it can be entrusted. If the authority be vested in
the government, the government is absolute, and the people have no liberties ex-
cept such as the government sees fit to indulge them with. If, on the other hand,
that authority be vested in the people, then the people have all liberties except
such as the whole people choose to disclaim; and the government can exercise no
power except such as the whole people consent that it may exercise.
The force and justice of the preceding argument cannot be evaded by saying
that the government is chosen by the people; that, in theory, it represents the
people; that it is designed to do the will of the people; that its members are all
sworn to observe the fundamental or constitutional law instituted by the people;
that its acts are therefore entitled to be considered the acts of the people; and
that to allow a jury representing the people to invalidate the acts of the govern-
ment would therefore be arraying the people against themselves.
There are two answers to such an argument.
One answer is that in a representative government there is no absurdity or con-
tradiction, nor any arraying of the people against themselves, in requiring that the
statutes or enactments of the government shall pass the ordeal of any number of
separate tribunals before it shall be determined that they are to have the force of
laws. Our American institutions have provided five of these separate tribunals,
to wit, representatives, senate, executive, jury, and judges; and have made it ne-
cessary that each enactment shall pass the ordeal of any number of separate tri-
bunals before its authority can be established by the punishment of those who
transgress it. And there is no more absurdity or inconsistency in making a jury
one of these several tribunals and giving it a veto upon the laws than there is in

Free Political Institutions. 19
giving a veto to each of these other tribunals. The people are no more arrayed
against themselves when a jury puts its veto upon a statute which the other tri-
bunals have sanctioned than they are when the same veto is exercised by the exe-
cutive or the judges.
But another answer is that the government, and all the departments of the gov-
ernment, are merely the servants and agents of the people, not invested with arbi-
trary or absolute authority to bind the people, but required to submit all their
enactments to the judgment of a tribunal more fairly representing the whole peo-
ple before they carry them into execution. If the government were not thus re-
quired to submit their enactments to the judgment of the country; if, in other
words, the people had reserved to themselves no veto upon the acts of the govern-
ment, then the government, instead of being a mere servant and agent of the peo-
ple, would be an absolute despot over the people. It would have all power in its
own hands, because the power to punish carries all other powers with it. A power
that can of itself, and by its own authority, punish disobedience, can compelobe-
dience and submission, and is above all responsibility for the character of its laws.
In short, it is a despotism.
And it is of no consequence to inquire how a government came by this power to
punish, whether by prescription, by inheritance, by usurpation, or by delegation
from the people. If it have now but got it, the government is absolute.
It is plain, therefore, that, if the people have invested the government with
power to make laws that are absolutely binding, and to punish transgressors, they
have surrendered their liberties unreservedly into the hands of the government.
It is of no avail to say in answer to this view of the case that in thus surrender-
ing their liberties the people took an oath from the government that it would exer-
cise its power within certain constitutional limits; for when did oaths ever restrain
a government that was otherwise unrestrained? Or when did a government fail
to determine that all its acts were within the constitutional and authorized limits
of its power, if it were permitted to determine that question for itself?
Neither is it of any avail to say that, if the government abuse its power and en-
act unjust and oppressive laws, the government may be changed by the influence
of discussion and the exercise of the right of suffrage. Discussion can do nothing
to prevent the enactment, or procure the repeal, of unjust laws, unless it be under-
stood that the discussion is to be followed by resistance. Tyrants care nothing
for discussions that are to end only in discussion. Such discussion as does not in-
terfere with the enforcement of their laws is but idle wind to them. Suffrage is
equally powerless and unreliable. It can be exercised only periodically, and the
tyranny must at least be borne until the time for suffrage comes. Besides, when
the suffrage is exercised, it gives no guaranty for the repeal of existing laws that
are oppressive and no security against the enactment of new ones that are equally
so. The second body of legislators are likely and liable to be just as tyrannical as

20 Free Political Institutions.
the first. If it be said that the second body may be chosen for their integrity, the
answer is that the first were chosen for that very reason and yet proved tyrants.
The second will be exposed to the same temptations as the first and will be just
as likely to prove tyrannical. Who ever heard that succeeding legislatures were,
on the whole, more honest than those that preceded them? What is there in the
nature of men or things to make them so? If it be said that the first body were
chosen from motives of injustice, that fact proves that there is a portion of society
who desire to establish injustice; and if they were powerful or artful enough to
procure the election of their instruments to compose the first legislature, they will
be likely to succeed equally well with the second. The right of suffrage, there-
fore, and even a change of legislators, guarantees no change of legislation,-cer-
tainly no change for the better. Even if a change for the better actually comes, it
comes too late, because it comes only after more or less injustice has been irrepar-
ably done.
But at best the right of suffrage can be exercised only periodically, and between
the periods the legislators are wholly irresponsible. No despot was ever more en-
tirely irresponsible than are republican legislators during the period for which they
are chosen. They can neither be removed from their office, nor called to account
while in their office, nor punished after they leave their office, be their tyranny
what it may. Moreover, the judicial and executive departments of the govern-
ment are equally irresponsible to the people, and are only responsible (by impeach-
ment, and dependence for their salaries) to these irresponsible legislators. This
dependence of the judiciary and executive upon the legislature is a guaranty that
they will always sanction and execute its laws, whether just or unjust. Thus the
legislators hold the whole power of the government in their hands, and are at the
same time utterly irresponsible for the manner in which they use it.
If, now, this government (the three branches thus really united into one) can
determine the validity of, and enforce, its own laws, it is, for the time being, en-
tirely absolute and wholly irresponsible to the people.
But this is not all. These legislators and this government, so irresponsible
while in power, can perpetuate their power at pleasure, if they can determine what
legislation is authoritative upon the people and enforce obedience to it; for they
can not only declare their power perpetual, but they can enforce submission to all
legislation that is necessary to secure its perpetuity. They can, for example, pro-
hibit all discussion of the rightfulness of their authority; forbid the use of the
suffrage; prevent the election of any successors; disarm, plunder, imprison, and
even kill all who refuse submission. If, therefore, the government be absolute for
a day—that is, if it can, for a day, enforce obedience to its own laws—it can, in
that day, secure its power for all time, like the queen who wished to reign for a
day, but in that day caused the king, her husband, to be slain, and usurped his
throne. -

Free Political Institutions. 21
Nor will it avail to say that such acts would be unconstitutional, and that un-
constitutional acts may be lawfully resisted; for everything a government pleases
to do will of course be determined to be constitutional, if the government itself be
permitted to determine the question of the constitutionality of its own acts. Those
who are capable of tyranny are capable of perjury to sustain it.
The conclusion therefore is that any government that can, for a day, enforce its
own laws, without appealing to the people (or to a tribunal fairly representing the
people) for their consent is, in theory, an absolute government, irresponsible to the
people, and can perpetuate its power at pleasure.
The trial by jury is based upon a recognition of this principle, and therefore
forbids the government to execute any of its laws by punishing violators, in any
case whatever, without first getting the consent of “the country,” or the people,
through a jury. In this way the people, at all times, hold their liberties in their
own hands and never surrender them, even for a moment, into the hands of the
government.
The trial by jury, then, gives to any and every individual the liberty, at any
time, to disregard or resist any law whatever of the government, if he be willing
to submit to the decision of a jury the questions whether the law be intrinsically
just and obligatory, and whether his conduct in disregarding or resisting it were
right in itself. And any law which does not in such trial obtain the unanimous
sanction of twelve men, taken at random from the people, and judging according
to the standard of justice in their own minds, free from all dictation and author-
ity of the government, may be transgressed and resisted with impunity by whom-
soever it pleases to transgress or resist it.
The trial by jury authorizes all this, or it is a sham and a hoax, utterly worth-
less for protecting the people against oppression. If it do not authorize an indi-
vidual to resist the first and least act of injustice or tyranny on the part of the
government, it does not authorize him to resist the last and the greatest. If it do
not authorize individuals to nip tyranny in the bud, it does not authorize them to
cut it down when its branches are filled with the ripe fruits of plunder and
oppression.
Those who deny the right of a jury to protect an individual in resisting an un-
just law of the government, deny him all legal defence whatsoever against oppres-
sion. The right of revolution which tyrants in mockery accord to mankind is no
legal right under a government; it is only a natural right to overturn agovernment.
The government itself never acknowledges this right. And the right is practically
established only when and because the government no longer exists to call it in
question. The right therefore can be exercised with impunity only when it is
exercised victoriously. All unsuccessful attempts at revolution, however justifi-
able in themselves, are punished as treason. The government itself never admits
the injustice of its laws as a legal defence for those who have attempted a revolu-

22 Free *olitical Institutions. -
tion and failed. The right of revolution therefore is a right of no practical value
except for those who are stronger than the government. So long, therefore, as the
oppressions of a government are kept within such limits as simply not to exaspe-
rate against it a power greater than its own, the right of revolution cannot be ap-
pealed to and is inapplicable to the case. This affords a wide field for tyranny;
and if a jury cannot intervene here, the oppressed are utterly defenceless.
It is manifest that the only security against the tyranny of the government is
in forcible resistance to the execution of the injustice; because the injustice will
certainly be executed unless forcibly resisted. And if it be but suffered to be exe-
euted, it must then be borne; for the government never makes compensation for
its own wrongs.
Since, then, this forcible resistance to the injustice of the government is the only
possible means of preserving liberty, it is indispensable to all legal liberty that
this resistance should be legalized. It is perfectly self-evident that, where there is
no legal right to resist the oppression of government, there can be no legal liberty.
And here it is all-important to notice that, practically speaking, there can be no
legal right to resist the oppressions of the government unless there be some legal
tribunal other than the government, and wholly independent of and above the
government, to judge between the government and those who resist its oppression;
in other words, to judge what laws of the government are to be obeyed and what
held for nought. The only tribunal known to our laws for this purpose is a jury.
If a jury have not the right to judge between the government and those who dis-
obey its laws, the government is absolute, and the people, legally speaking, are
slaves. Like other slaves, they may have sufficient courage and strength to keep
their masters somewhat in check; but they are nevertheless known to the law as
slaves.
That this right of resistance was recognized as a common law right when the
ancient and genuine trial by jury was in force is not only proved by the nature of
the trial itself, but is acknowledged by history.
This right of resistance is recognized by the constitution of the United States
as a strictly legal right. It is so recognized, first, by the provision that “the trial
of all crimes, except in cases of impeachment, shall be by jury”—that is, by the
country, and not by the government; secondly, by the provision that “the right
of the people to keep and bear arms shall not be infringed.” This constitutional
security for the right to keep and bear arms implies the right to use them,-as
much as a constitutional security for the right to buy and keep food would have
implied the right to eat it. The constitution, therefore, takes it for granted that the
people will judge of the conduct of the government and that, as they have the
right, they will also have the sense to use arms whenever the necessity of the case
justifies it. And it is a sufficient and legal defence for a person accused of using
arms against the government, if he can show, to the satisfaction of a jury, or even
any one of a jury, that the law he resisted was an unjust one.

Free Political Institutions. 23
.
But for the right of resistance on the part of the people, all governments would
become tyrannical to a degree of which few people are aware. Constitutions are
utterly worthless to restrain the tyranny of governments, unless it be understood
that the people will by force compel the government to keep within constitutional
limits. Practically speaking, no government knows any limits to its power except
the endurance of the people. But that the people are stronger than the govern-
ment and will resist in extreme cases, our governments would be little or nothing
else than organized systems of plunder and oppression. All, or nearly all, the ad-
vantage there is in fixing any constitutional limits to the power of a government
is simply to give notice to the government of the point at which it will meet with
resistance. If the people are then as good as their word, they may keep the gov-
ernment within the bounds they have set for it; otherwise it will disregard them,
as is proved by the example of all our American governments, in which the consti-
tutions have all become obsolete for nearly all purposes except the appointment
of officers who at once become practically absolute.
The bounds set to the power of the government by the trial by jury are these, -
that the government shall never touch the person, property, or natural or civil
rights of an individual against his consent, except for the purpose of bringing him
before a jury for trial, unless in pursuance and execution of a judgment or decree
rendered by a jury upon such evidence, and such law, as are satisfactory to their
own understandings and consciences, irrespective of all legislation of government.
III.
TRIAL BY JURY As DEFINED BY MAGNA CARTA.-AUTHORITY OF MAGNA carta
For more than six hundred years—that is, since Magna Carta in 1215—there
has been no clearer principle of English or American constitutional law than that
in criminal cases it is not only the right and duty of juries to judge what are the
facts, what is the law, and what was the moral intent of the accused, but that it is
also their right and their primary and paramount duty to judge of the justice of
the law, and to hold all laws invalid that are in their opinion unjust or oppressive,
and all persons guiltless in violating or resisting the execution of such laws.
Probably no political compact between king and people was ever entered into in
a manner to settle more authoritatively the fundamental law of a nation than was
Magna Carta. Probably no people were ever more united and resolute in demand-
ing from their king a definite and unambiguous acknowledgment of their rights
and liberties than were the English at that time. Probably no king was ever more
completely stripped of all power to maintain his throne and at the same time resist

24 Free Political Institutions.
the demands of his people than was John on the 15th day of June, 1215. Probably
no king ever consented more deliberately or explicitly to hold his throne subject
to specific and enumerated limitations upon his power than did John when he put
his seal to the Great Charter of the liberties of England. And if any political
compact between king and people was ever valid to settle the liberties of the peo-
ple or to limit the power of the crown, that compact is now to be found in Magna
Carta.
To give all the evidence of the authority of Magna Carta, it would be necessary
to give the constitutional history of England since the year 1215. The history
would show that Magna Carta, although continually violated and evaded, was still
acknowledged as law by the government, and was held up by the people as the
great standard and proof of their rights and liberties. It would show that the
judicial tribunals, whenever it suited their purposes to do so, were in the habit of
referring to Magna Carta as authority. And, what is equally to the point, it would
show that these same tribunals, the mere tools of kings and parliaments, would re-
sort to the same artifices of assumption, precedent, construction, and false inter-
pretation to evade the requirements of Magna Carta, and to emasculate it of all its
power for the preservation of liberty, that are resorted to by American courts to
accomplish the same work on our American constitutions.
Itake it for granted, therefore, that even if the authority of Magna Carta had
rested simply upon its character as a compact between king and people, it would
have been forever binding upon the king in his legislative, judicial, and executive
character; and that there was no constitutional possibility of his escaping from
its restraints, unless the people themselves should freely discharge him from them.
But the authority of Magna Carta does not rest, either wholly or mainly, upon
its character as a compact. For centuries before the charter was granted, its main
principles constituted “the law of the land,” the fundamental and constitutional
law of the realm, which the kings were sworn to maintain. And the principal
benefit of the charter was that it contained a written description and acknowledg-
ment, by the king himself, of what the constitutional law of the kingdom was
which his coronation oath bound him to observe. -
Previous to Magna Carta this constitutional law rested mainly in precedents,
customs, and memories of the people. And if the king could but make one inno-
vation upon this law without arousing resistance and being compelled to retreat
from his usurpation, he would cite that innovation as a precedent for another act
of the same kind; next, assert a custom; and finally raise a controversy as to what
the law of the land really was. The great object of the barons and people in de-
manding from the king a written description and acknowledgment of the law of
the land was to put an end to all disputes of this kind, and to put it out of the
power of the king to plead any misunderstanding of the constitutional law of the
kingdom. And the charter no doubt accomplished very much in this way. After

Free Political Institutions. 25
Magna Carta it required much more audacity, cunning, or strength on the part of
the king than it had before to invade the people's liberties with impunity. Still,
Magna Carta, like all other written constitutions, proved inadequate to the full
accomplishment of its purpose; for when did a parchment ever have power to re-
strain a government that had either cunning to evade its requirements or strength
to overcome those who attempted its defence? The work of usurpation, therefore,
though seriously checked, still went on to a great extent after Magna Carta. In-
novations upon the law of the land were still made by the government. One in-
novation was cited as a precedent; precedents made customs; and customs became
laws so far as practice was concerned; until the government, composed of the
king, the high functionaries of the church, the nobility, a House of Commons re-
presenting the “forty shilling freeholders,” and a dependent and servile judiciary,
all acting in conspiracy against the mass of the people, became practically abso-
lute, as it is at this day.
In order to judge of the object and meaning of that chapter of Magna Carta
which secures the trial by jury, it is to be borne in mind that at the time of Magna
Carta the king was, with immaterial exceptions, constitutionally the entire gov-
ernment, the sole legislative, judicial, and executive power of the nation. The
executive and judicial officers were merely his servants appointed by him and re-
movable at his pleasure. Judges were abject servants of the king. Parliament,
so far as there was a parliament, was a mere council of the king. It assembled
only at the pleasure of the king, sat only during his pleasure, and had no power
beyond that of simply advising the king. There was no House of Commons at
that time, and the people had no right to be heard, unless as petitioners.
The king was, therefore, constitutionally the government, and the only legal
limitation upon his power seems to have been simply the common law, usually
called “the law of the land,” which he was bound by oath to maintain. This law
of the land seems not to have been regarded at all by many of the kings, except
so far as they found it convenient to do so or were constrained to observe it by the
fear of arousing resistance. But as all people are slow in making resistance, op-
pression and usurpation often reached a great height; and in the case of John they
had become so intolerable as to enlist the nation almost universally against him,
and he was reduced to the necessity of complying with any terms the barons saw
fit to dictate to him.
It was under these circumstances that the Great Charter of English Liberties
was granted. The barons of England, sustained by the common people, having
the king in their power, compelled him at the price of his throne to pledge himself
that he would punish no freeman for a violation of any of his laws except with the
consent of his peers—that is, the equals—of the accused.
The question here arises whether the barons and people intended that those
peers, the jury, should be mere puppets in the hands of the king, exercising no

26 Free Political Institutions.
opinion of their own as to the intrinsic merits of the accusations they should try
or the justice of the laws they should be called on to enforce; whether those vic-
torious barons, when they had their tyrant king at their feet, gave back to him
his throne with full power to enact any tyrannical laws he might please, reserving
only to a jury the contemptible and servile privilege of ascertaining the simple
fact whether those laws had been transgressed? Was this the only restraint which
they, when they had the power, placed upon the tyranny of a king whose oppres-
sions they had risen in arms to resist? Was it to obtain such a charter as that
that the whole nation had united, as it were, like one man, against their king?
Was it on such a charter that they intended to rely for all future time for the se-
curity of their liberties? No. They were engaged in no such senseless work as
that. On the contrary, when they required him to renounceforever the power to
punish any freeman except by the consent of his peers, they intended those peers
should judge of and try the whole case on its merits, independently of all arbi-
trary legislation or judicial authority on the part of the king. In this way they
took the liberties of each individual entirely out of the hands of the king, and out
of the power of his laws, and placed them in the keeping of the people themselves.
And this it was that made the trial by jury the palladium of their liberties.
The trial by jury, be it observed, was the only real barrier interposed by them
against absolute despotism. Could this trial, then, have been such an entire farce
as it necessarily must have been, if the jury had had no power to judge of the jus-
tice of the laws the people were required to obey? Did it not rather imply that
the jury were to judge independently and fearlessly as to everything involved in
the charge, and especially as to its intrinsic justice, and thereon give their decision
whether the accused might be punished? The reason of the thing, no less than
the historical celebrity of the events as securing the liberties of the people, and the
veneration with which the trial by jury has continued to be regarded, notwith-
standing its essence and vitality have been almost entirely extracted from it in
practice, would settle the question, if other evidence had left the matter in doubt.
Besides, if his laws were to be authoritative with the jury, why should John in-
dignantly refuse, as at first he did, to grant the charter on the ground that it de-
prived him of all power and left him only the name of a king? He evidently
understood that the juries were to veto his laws and paralyze his power at discre-
tion, by forming their own opinions as to the true character of the offences they
were to try and the laws they were to be called on to enforce; and that “the king
wills and commands” was to have no weight with them contrary to their own
judgments of what was intrinsically right.
The barons and people having obtained by the charter all the liberties they had
demanded of the king, it was further provided by the charter itself that twenty-
five barons should be appointed by the barons out of their number to keep special
vigilance in the kingdom and to see that the charter was observed, with authority

Free Political Institutions. 27
to make war upon the king in case of its violation. The king also, by the charter,
sofar absolved all the people of the kingdom from their allegiance to him as to
authorize and require them to swear to obey the twenty-five barons in case they
should make war upon the king for infringement of the charter. It was then
thought by the barons and people that something substantial had been done for
the security of their liberties.
IV.
OBJECTIONS ANSWERED.
The following objections will be made to the doctrines and the evidence pre-
sented in the preceding chapters.
1. That it is a maxim of the law that the judges respond to the question of law
and juries only to the question of fact.
The answer to this objection is that since Magna Carta judges have had more
than six centuries in which to invent and promulgate pretended maxims to suit
themselves, and this is one of them. Instead of expressing the law, it expresses
nothing but the ambitious and lawless will of the judges themselves and of those
whose instruments they are.
2. It will be asked: “Of what use are the justices, if the jurors judge both of
law and fact?”
The answer is that they are of use, 1. To assist and enlighten the jurors, if
they can, by their advice and information; such advice and information to be re-
ceived only for what they may chance to be worth in the estimation of the jurors.
2. To do anything that may be necessary in regard to granting appeals and new
trials.
3. It is said that it would be absurd that twelve ignorant men should have
power to judge of the law, while justices learned in the law should be compelled to
sit by and see the law decided erroneously.
One answer to this objection is that the powers of juries are not granted to them
on the supposition that they know the law better than the justices, but on the
ground that the justices are untrustworthy, that they are exposed to bribes, are
fond of authority, and are also the dependent and subservient creatures of the le-
gislature; and that to allow them to dictate the law would not only expose the
rights of parties to be sold for money, but would be equivalent to surrendering all
the rights of the people unreservedly into the hands of the legislature to be dis-
posed of at its pleasure.
Legislators and judges are necessarily exposed to all the temptations of money,

28 Free Political Institutions. -
fame, and power to induce them to disregard justice in disputes and sell the rights,
and violate the liberties, of the people. Jurors, on the other hand, are exposed to
none of these temptations. They are not liable to bribery, for they are not known
to the parties until they come into the jury box. They can rarely gain either
fame, power, or money by giving erroneous decisions. Their offices are temporary,
and they know that, when they shall have executed them, they must return to the
people, to hold all their own rights in life subject to the liability of such judg-
ments by their successors. The laws of human nature do not permit the supposi-
tion that twelve men, taken by lot from the mass of the people and acting under
such circumstances, will all prove dishonest. It is a supposable case that they
may not be sufficiently enlightened to know and do their whole duty in all cases
whatsoever; but that they should all prove dishonest is not within the range of
probability. A jury therefore insures to us (what no other court does) the first
and indispensable requisite in a judicial tribunal, -integrity.
4. It is alleged that, if juries are allowed to judge of the law, they decide the law
absolutely; that their decision must necessarily stand, be it right or wrong; and
that this power of absolute decision would be dangerous in their hands by reason
of their ignorance of the law.
One answer is that this power which juries have of judging of the law is not a
power of absolute decision in all cases. For example, it is a power to declare im-
peratively that a man's property, liberty, or life shall not be taken from him; but
it is not a power to declare imperatively that they shall be taken from him.
Magna Carta does not provide that the judgments of the peers shall be executed,
but only that no other than their judgments shall ever be executed, so far as to
take a man's goods, rights, or person thereon.
A judgment of the peers may be reviewed and invalidated, and a new trial
granted. So that practically a jury has no absolute power to take a man's goods,
rights, or person. They have only an absolute veto upon their being taken by the
government. The government is not bound to do everything that a jury may ad-
judge. It is only prohibited from doing anything unless a jury have first adjudged
it to be done.
But it will perhaps be said that, if an erroneous judgment of one jury should
be reaffirmed by another on a new trial, it must then be executed. But Magna
Carta does not command even this (although it might perhaps have been reason-
ably safe for it to have done so, for if two juries unanimously affirm the same
thing, after all the light and aid that judges and lawyers can afford them, that
fact probably furnishes as strong a presumption in favor of the correctness of their
opinion as can ordinarily be obtained in favor of a judgment by any measures of
a practical character for the administration of justice). Still, there is nothing in
Magna Carta that compels the execution of even a second judgment of a jury.
The only injunction of Magna Carta upon the government as to what it shall do

Free Political Institutions. 29
on this point is that it shall “do justice and right.” But this leaves the govern-
ment all power of determining what is justice and right, except that it shall not
consider anything as justice and right unless it be something which a jury have
sanctioned.
If the government had no alternative but to execute all judgments of a jury in-
discriminately, the power of juries would unquestionably be dangerous; for there
is no doubt that they may sometimes give hasty and erroneous judgments. But
when it is considered that their judgments can be reviewed and new trials granted,
this danger is, for all practical purposes, obviated.
If it be said that juries may successively give erroneous judgments, and that
new trials cannot be granted indefinitely, the answer is that so far as Magna Carta
is concerned there is nothing to prevent the granting of new trials indefinitely, if
the judgments of juries are contrary to “justice and right.” It does not require
any judgment whatever to be executed unless it be concurred in by both court and
Jury.
Nevertheless, we may, for the sake of the argument, suppose the existence of a
practical, if not legal, necessity for executing some judgment or other in cases
where juries persist in disagreeing with the courts. In such cases, the principle
of Magna Carta unquestionably is that the uniform judgments of successive juries
shall prevail over the opinion of the court. And the reason of this principle is ob-
vious: it is the will of the country, and not the will of the court, or the govern.
ment, that must determine what laws shall be established and enforced; and the
concurrent judgments of successive juries given in opposition to all the reasoning
which judges and lawyers can offer to the contrary, must necessarily be presumed
to be a truer exposition of the will of the country than are the opinions of judges.
But it may be said that, unless jurors submit to the control of the court in mat-
ters of law, they may disagree among themselves and never come to any judgment;
and thus justice fail to be done.
Such a case is perhaps possible; but, if possible, it can occur but rarely, because,
although one jury may disagree, a succession of juries are not likely to disagree.
If such a thing should occur, it would almost certainly be owing to the attempt
of the court to mislead them. It is hardly possible that any other cause should
be adequate to produce such an effect, because justice comes very near to being a
self-evident principle. The mind perceives it almost intuitively. If, in addition
to this, the court be uniformly on the side of justice, it is not a reasonable suppo-
sition that a succession of juries should disagree about it. If, therefore, a succes-
sion of juries do disagree on the law of any case, the presumption is, not that
justice fails of being done, but that injustice is prevented—that injustice which
would be done if the opinion of the court were suffered to control the jury.
For the sake of the argument, however, it may be admitted to be possible that
justice should sometimes fail of being done through disagreements of jurors not-

30 Free Political Institutions.
withstanding all the light which judges and lawyers can throw upon the question
in issue. If it be asked what provision the trial by jury makes for such cases, the
answer is that it makes none. And justice must fail of being done from the want
of its being made sufficiently intelligible.
Under the trial by jury, justice can never be done until that justice can be made
intelligible or perceptible to the minds of all the jurors; or, at least, until it ob-
tain the voluntary assent of all,—an assent which ought not to be given until
the justice itself shall have become perceptible to all.
The principles of the trial by jury, then, are these:
1. That, in criminal cases, the accused is presumed innocent.
2. That, in civil cases, possession is presumptive proof of property.
3. That these presumptions shall be overcome in a court of justice only by evi-
dence the sufficiency of which, and by law the justice of which, are satisfactory to
the understanding and consciences of all the jurors.
These are the bases on which the trial by jury places the rights and liberties of
every individual.
But some one will say: “If these are the principles of the trial by jury, it is
plain that justice must often fail to be done.” Admitting, for the sake of the argu-
ment, that this may be true, the compensation for it is that positive injustice will
also often fail to be done; whereas otherwise it would be done frequently. The
very precautions used to prevent injustice being done may often have the effect to
prevent justice being done. But are we, therefore, to take no precautions against
injustice? By no means, all will agree. The question then arises: Does the trial
by jury, as here explained, involve such extreme and unnecessary precautions as
to interpose unnecessary obstacles to the doing of justice? Men of different minds
may very likely answer this question differently, according as they have more or
less confidence in the wisdom and justice of legislators, the integrity and indepen-
dence of judges, and the intelligence of jurors. This much, however, may be said
in favor of these precautions,—that the history of the past, as well as our present
experience, prove how much injustice may, and certainly will, be done continually
and systematically for the want of these precautions. On the other hand, we have
no such evidence of how much justice may fail to be done by reason of these pre-
cautions. We can determine the former point because the system is in full opera-
tion; but we cannot determine how much justice would fail to be done under the
latter system, because we have, in modern times, had no experience of the use of
the precautions themselves. In ancient times, when they were nominally in force,
such was the tyranny of kings, and such the poverty, ignorance, and the inability
of concert and resistance, on the part of the people, that the system had no full or
fair operation. Nevertheless, under all these disadvantages, it impressed itself
upon the understandings and imbedded itself in the hearts of the people so as no
other system of civil liberty has ever done.

Free Political Institutions. 31
But this view of the two systems compares only the injustice done, and the jus-
tice omitted to be done, in the individual cases adjudged, without looking beyond
them. And some persons might, on first thought, argue that, if justice failed of
being done under the one system oftener than positive injustice were done under
the other, the balance was in favor of the latter system. But such a weighing of
the two systems against each other gives no true idea of their comparative merits
or demerits; for possibly, in this view alone, the balance would not be very great
in favor of either. To compare, or rather to contrast, the two we must consider
that under the jury system the failures to do justice would be only rare and excep-
tional cases, and would be owing either to the intrinsic difficulty of the questions
or to the fact that the parties had transacted their business in a manner unintelli-
gible to the jury, and the effect would be confined to the parties interested in the
particular suits. No permanent law would be established thereby destructive of
the rights of the people in other like cases. But under the other system, whenever
an unjust law is enacted by the legislature, and the judge imposes it upon the jury
as authoritative, and they give a judgment in accordance there with, the authority
of the law is thereby established, and the whole people are thus brought under the
yoke of that law; because they then understand that the law will be enforced
against them in future, if they presume to exercise their rights or refuse to com-
ply with the exactions of the law.
The difference, then, between the two systems is this: Under the one system, a
jury, at distant intervals, would fail of enforcing justice in a dark and difficult
case, or in consequence of the parties not having transacted their business in an in-
telligible manner; and the plaintiff would thus fail of obtaining what was right-
fully due him. And there the matter would end—for evil, though not for good;
for thenceforth parties, warned of the danger of losing their rights, would be care-
ful to transact their business in a more clear manner. Under the other system,-
the system of legislative and judicial authority, -positive injustice is not only
done in every suit arising under unjustlaws, but the rights of the whole people are
struck down by the authority of the laws thus enforced, and a wide-sweeping in-
justice at once put in operation.
But there is another ample and conclusive answer to the argument that justice
would often fail to be done, if jurors were allowed to be governed by their own
consciences instead of the direction of the justices in matters of law. That answer
is this: -
Legitimate government can be formed only by the voluntary association of all
who contribute to its support. As a voluntary association, it can have for its ob-
ject only those things in which the members of the association are all agreed. If
therefore there be any justice in regard to which all the parties to the govern-
ment are not agreed, the objects of the association do not extend to it.
If any of the members wish more than this, if they claim to have acquired a

32 Free Political Institutions.
more extended knowledge of justice than is common to all, and wish to have their
discoveries carried into effect, in reference to themselves, they must either form a
separate association for that purpose or be content to wait until they make their
views more intelligible to the people at large. They cannot claim or expect that
the whole people shall practise the folly of taking on trust their pretended superior
knowledge and of committing blindly into their hands all their own interests, lib-
erties, and rights, to be disposed of on principles the justness of which the people
themselves cannot comprehend.
A government of the whole, therefore, must necessarily confine itself to the ad-
ministration of such principles of law as all the people who contribute to the sup-
port of the government can comprehend and recognize. And it can be confined
within those limits only by allowing the jurors, who represent all the parties to
the compact, to judge of the law, and of the justice of the law, in all cases whatso-
ever. And if any justice be left undone under these circumstances, it is a justice
for which the nature of the association does not provide and which the association
does not undertake to do.
The people at large, the unlearned and common people, have certainly an indis-
putable right to associate for the establishment and maintenance of such a govern-
ment as they themselves wish for the promotion of their own interests and the
safety of their own rights without at the same time surrendering all their liberty
into the hands of men who under the pretence of a superior and incomprehensible
knowledge of justice may dispose of such liberty in a manner to suit their own
dishonest purposes.
If a government were to be established and supported solely by that portion of
the people who lay claim to superior knowledge, there would be some consistency
in the saying that the common people should not be received as jurors, with power
to judge of the justice of the laws. But so long as the whole people are presumed
to be voluntary parties to the government, and voluntary contributors to its sup-
port, there is no consistency in refusing to any one of them more than to another
the right to sit as juror, with full power to decide for himself whether any law
that is proposed to be enforced in any particular case be within the objects of the
association.
The conclusion, therefore, is that in a government formed by voluntary asso-
ciation, or on the theory of voluntary association and voluntary support, no law
can rightfully be enforced by the association in its coºporate capacity against the
goods, rights, or person of individuals, except it be such as all the members of the
association agree that it may enforce. To enforce any other law, to the extent
of taking a man's goods, rights, or person, would be making some of the parties
to the association accomplices in what they regard as acts of injustice. It would
also be making them consent to what they regard as the destruction of their own
rights. These are things which no legitimate system or theory of government can

Free Political Institutions. - 33
require of any of the parties to it. They are inconsistent with the very essence of
self-government.
The mode adopted by the trial by jury for ascertaining whether all the parties
to the government do approve of a particular law is to take twelve men at random
from the whole people and accept their unanimous decision as representing the opi-
nions of the whole. Even this mode is not theoretically accurate, for theoretical
accuracy would require that every man who was a party to the government should
individually give his consent to the enforcement of the law in every separate case.
But such a thing would be impossible in practice. The consent of twelve men is
therefore taken instead, with the privilege of appeal and, in case of error found by
the appeal court, a new trial to guard against possible mistakes. This system, it
is assumed, will ascertain the sense of the whole people with sufficient accuracy
for all practical purposes and with as much accuracy as is practicable without too
great inconvenience and expense.
5. Another objection that will perhaps be made to allowing jurors to judge of
the law and the justice of the law is that the law would be uncertain.
If it is meant that the law would be uncertain to the minds of the people at
large, so that they would not know what the juries would sanction and what con-
demn, and would not therefore know practically what their own rights and lib-
erties were under the law, the objection is thoroughly baseless and false. No
system of law that was ever devised could be so entirely intelligible and certain to
the minds of the people at large as this.
Compared with it, the complicated systems of law that are compounded of the
law of nature, of constitutional grants, of innumerable and incessantly changing
legislative enactments, and of countless and contradictory judicial decisions, with
no uniform principle of reason or justice running through them, are among the
blindest of all the mazes in which unsophisticated minds were ever bewildered and
lost. The uncertainty of the law under these systems has become a proverb. So
great is this uncertainty that nearly all men, learned as well as unlearned, shun
the law as their enemy, instead of resorting to it for protection. They usually go
into courts of justice, so called, only as men go into battle—when there is no
alternative left for them. And even then they go into them as men go into dark
labyrinths and caverns—with no knowledge of their own, but trusting wholly to
their guides. Yet, less fortunate than other adventurers, they can have little
confidence even in their guides, for the reason that the guides themselves know
little of the mazes they are treading. They know the mode and place of entrance;
but what they will meet with on their way, and what will be the time, place, mode,
or condition of their exit; whether they will emerge into a prison, or not; whether
wholly naked and destitute, or not; whether with their reputations left to them,
or not; and whether in time or eternity, - experienced guides rarely venture to
predict. Was there ever such fatuity as that of a nation of men madly bent on

34 Free Political Institutions.
building up such labyrinths as these for no other purpose than that of exposing all
their reputation, property, liberty, and life to the hazards of being lost in them,
instead of being content to live in the light of the open day of their own under-
standings? -
If the jurors were to judge of the law, and the justice of law, there would be
something like certainty in the administration of justice and in the popular know-
ledge of the law, and men would govern themselves accordingly. There would be
something like certainty, because every man has himself something like definite
and clear opinions, and also knows something of the opinions of his neighbors, on
matters of justice. And he would know that no statute, unless it were so clearly
just as to command the unanimous assent of twelve men who should be taken at
random from the whole community, could be enforced against him. What greater
certainty can men require or need as to the laws under which they are to live? If
a statute were enacted by the legislature, a man, in order to know what was its
true interpretation, and whether it would be enforced, would not be under the me.
cessity of waiting for years until some suit had arisen and been carried through
all the stages of judicial proceeding to a final decision. He would need only to
use his own reason as to its meaning and its justice, and then talk with his neigh-
bors on the same points. Unless he found them nearly unanimous in their inter-
pretation and approbation of it, he would conclude that juries would not unite in
enforcing it, and that it would consequently be a dead letter. And he would be
safe in coming to this conclusion.
There would be something like certainty in the administration of justice and in
the popular knowledge of the law for the further reason that there would be little
legislation, and men's rights would be left to stand almost solely upon the law of
nature, or what was once called in England “the common law” (before so much
legislation and usurpation had become incorporated into the common law)—in
other words, upon the principles of natural justice.
W.
THE CRIMINAL INTENT.
It is a maxim of the common law that there can be no crime without a criminal
intent. And it is a perfectly clear principle, although one which judges have in a
great measure overthrown in practice, that jurors are to judge of the moral intent
of the accused person and hold him guiltless, whatever his act, unless they find
him to have acted with a criminal intent; that is, with a design to do what he
knew to be criminal.

Free Political Institutions. 35
This principle is clear because the question for a jury to determine is whether
the accused be guilty, or not guilty. Guilt is a personal quality of the actor, not
necessarily involved in the act, but depending also upon the intent or motive with
which the act was done. Consequently the jury must find that he acted from a
criminal motive before they can declare him guilty.
There is no moral justice in, nor any political necessity for, punishing a man for
any act whatever that he may have committed, if he have done it without any cri-
minal intent. There can be no moral justice in punishing for such an act, be-
cause, there having been no criminal motive, there can have been no other motive
which justice can take cognizance of as demanding or justifying punishment.
There can be no political necessity for punishing, to warn against similar acts in
future, because, if one man have injured another, however unintentionally, he is
liable, and justly liable, to a civil suit for damages; and in this suit he will be
°ompelled to make compensation for the injury, notwithstanding his innocence of
any intention to injure. He must bear the consequences of his own act, instead
of throwing them upon another. And the damages he will have to pay will be a
sufficient warning to him not to do the like act again.
If it be alleged that there are crimes against the public (as treason, for example,
* any other resistance to government) for which private persons can recover no
damages, and that there is a political necessity for punishing for such offences
*ven though the party acted conscientiously, the answer is that the government
must bear with all resistance that is not so clearly wrong as to give evidence of
criminal intent. In other words, the government, in all acts, must keep itself so
clearly within the limits of justice as that twelve men, taken at random, will all
*gree that it is in the right, or it must incur the risk of resistance without any
Power to punish it. This is the mode in which the trial by jury operates to pre-
vent the government from falling into the hands of a party or a faction, and to
keep it within such limits as all, or substantially all, the people are agreed that it
may occupy.
This necessity for a criminal intent—in other words, for guilt—as a prelimi-
*y to conviction makes it impossible that a man can be rightfully convicted for
* act that is intrinsically innocent, though forbidden by the government; because
guilt is an intrinsic quality of actions and motives, and not one that can be im:
Parted to them by arbitrary legislation. All the efforts of the government, there.
fore, to makes offences by the statute out of acts that are not criminal by nature
must necessarily be ineffectual, unless a jury will declare a man guilty for an act
that is really innocent.
The corruption of judges in their attempts to uphold the arbitrary authority of
the government by procuring the conviction of individuals for acts innocent in
themselves and forbidden only by some tyrannical statute, and the commission of
which therefore indicates no criminal intent, is very apparent.

36 Free Political Institutions.
To accomplish this object they have in modern times held it to be unnecessary
that indictments should charge, as by the common law they were required to do,
that an act was done “wickedly,” “feloniously,” “with malice aforethought,” or
in any other manner that implied a criminal intent, without which there can be
no criminality; but that it is sufficient to charge simply that it was done “con-
trary to the form of the statute in such case made and provided.” This form of
indictment proceeds plainly upon the assumption that the government is absolute,
and that it has authority to prohibit any act it pleases, however innocent in its
nature the act may be. Judges have been driven to the alternative of either sanc-
tioning this new form of indictment (which they never had any constitutional
right to sanction) or of seeing the authority of many of the statutes of the govern-
ment fall to the ground; because the acts forbidden by the statutes were so plainly
innocent in their nature that even the government itself had not the face to allege
that the commission of them implied or indicated any criminal intent.
To get rid of the necessity of showing a criminal intent, and thereby further to
enslave the people, by reducing them to the necessity of a blind, unreasoning
submission to the arbitrary will of the government, and of a surrender of all right,
on their own part, to judge what are their constitutional and natural rights and
liberties, courts have invented another idea which they have incorporated among
the pretended “maxims" upon which they act in criminal trials, —namely, that
“ignorance of the law excuses no one.” As if it were in the nature of things pos-
sible that there could be an excuse more absolute and complete! What else than
ignorance of the law is it that excuses judges themselves for all their erroneous de-
cisions? They are every day committing errors which would be crimes but for
their ignorance of the law. And yet these same judges, who claim to be learned
in the law, and who yet could not hold their offices for a day but for the allowance
which the law makes for their ignorance, are continually asserting it to be a
“maxim" that ignorance of the law excuses no one!
This preposterous doctrine that “ignorance of the law excuses no one” is as-
serted by courts because it is an indispensable one to the maintenance of absolute
power in the government. It is indispensable for this purpose because, if it be
once admitted that the people have some rights which the government cannot law-
fully take from them, then the question arises in regard to every statute of the
government whether it infringe, or not, the rights and liberties of the people. Of
this question every man must of course judge according to the light in his own
mind. And no man can be convicted unless the jury find, not only that the statute
does not infringe the rights and liberties of the people, but also that it was so
clearly consistent with the rights and liberties of the people as that the individual
himself who transgressed it knew it to be so, and therefore had no moral excuse
for transgressing it. Governments see that, if ignorance of the law were allowed
to excuse a man for any act whatever, it must excuse him for transgressing all

Free Political Institutions. 37
statutes which he himself thinks inconsistent with his rights and liberties. But
such a doctrine would of course be inconsistent with the maintenance of arbitrary
power by the government, and hence governments will not allow the plea, although
they will not confess their true reasons for disallowing it.
The only reasons (if they deserve the name of reasons) that I ever knew given
for the doctrine that ignorance of the law excuses no one are these:
1. “The reason for the maxim is that of necessity. It prevails, not that all
men know the law, but because it is an excuse which every man will make, and no
man can tell how to confute him.”
The reason impliedly admits that ignorance of the law is intrinsically an ample
and sufficient excuse for a crime, and that the excuse ought to be allowed if the
fact of ignorance could but be ascertained. But it asserts that this fact is inca-
pable of being ascertained, and that therefore there is a necessity for punishing the
ignorant and the knowing, or the innocent and the guilty, without discrimination.
This reason is worthy of the doctrine it is used to uphold: as if a plea of ig-
norance, any more than any other plea, must necessarily be believed simply be:
cause it is urged; and as if it were not a common and every-day practice of courts
and juries to determine the mental capacity of parties, as, for example, whether
they can make reasonable contracts, whether they are “of sound mind and body,”
etc. And there is obviously no more difficulty in a jury's determining whether an
accused person knew the law in a criminal case than there is in determining any
other of the questions that come up continually in regard to a man's mental capa-
city. For the question to be settled by the jury is not whether the accused person
knew the particular penalty attached to his act, but whether he knew that his act
was intrinsically criminal.
A jury, then, in judging whether an accused person knew his act to be illegal,
were bound first to use their own judgments as to whether the act were intrinsically
criminal. If their own judgments told them the act was intrinsically and clearly
criminal, they would naturally and reasonably infer that the accused also under-
stood that it was intrinsically criminal, unless it should appear that he was either
below themselves in the scale of intellect, or had had less opportunities of knowing
what acts were criminal. In short, they would judge from any and every means
they might have of judging; and if they had any reasonable doubt that he knew
his act to be criminal in itself, they would be bound to acquit him.
The second reason that has been offered for the doctrine that ignorance of the
law excuses no one is:
2. “Every person of the age of discretion, of sound mind and memory, is bound
to know the law and presumed to do so.”
But this is giving no reason at all for the doctrine, since saying that “a man is
bound to know the law” is only saying in another form that “ignorance of the
law does not excuse him.” There is no difference at all in the two ideas. To say

38 Free Political Institutions.
that ignorance of the law excuses no one because every one is bound to know the
law is only equivalent to saying that ignorance of the law excuses no one because
ignorance of the law excuses no one. It is merely reasserting the doctrine without
giving any reason at all.
And yet these reasons, which are really no reasons at all, are the only ones, so
far as I know, that have ever been offered for this absurd and brutal doctrine.
The idea suggested that “the age of discretion” determines the guilt of a person,
that there is a particular age prior to which all persons alike should be held in-
capable of knowing any crime, and subsequent to which all persons alike should
be held capable of knowing all the crimes, is another of this most ridiculous nest
of ideas. All mankind acquire their knowledge of crimes, as they do of other
things, gradually. Some they learn at an early age; others not till a later one.
One individual acquires a knowledge of crimes as he does of arithmetic, at an
earlier age than others do. And to apply the same presumption to all, on the
ground of age alone, is not only gross injustice, but gross folly. A universal pre-
sumption might with nearly or quite as much reason be founded upon weight,
or height, as upon age.
This doctrine that “ignorance of the law excuses no one” is constantly repeated
in the form that “every one is bound to know the law.” The doctrine is true in
civil matters, especially in contracts, so far as this, -that no man who has the or-
dinary capacity to make reasonable contracts can escape the consequences of his
own agreement, on the ground that he did not know the law applicable to it.
When a man makes a contract, he gives the other party rights; and he must of
necessity judge for himself, and take his own risk, as to what those rights are:
otherwise the contract would not be binding, and men could not make contracts
that would convey rights to each other. Besides, the capacity to make reasonable
contracts implies and includes a capacity to form a reasonable judgment as to the
law applicable to them. But in criminal matters, where the question is one of pun-
ishment or not; where no second party has acquired any right to have the crime
punished, unless it were committed with criminal intent, and when the criminal
intent is the only moral justification for the punishment, the principle does
not apply, and a man is bound to know the law only as well as he reasonably may.
The criminal law requires neither impossibilities nor extraordinaries of any one.
It requires only thoughtfulness and a good conscience. It requires only that a
man fairly and properly use the judgment he possesses and the means he has of
learning his duty. It requires of him only the same care to know his duty in
regard to the law that he is morally bound to use in other matters of equalim-
portance. And this care it does require of him. Any ignorance of the law there-
fore that is unnecessary, or that arises from indifference or disregard of one's duty,
is no excuse. An accused person, therefore, may be rightfully held responsible
for such a knowledge of the law as is common to men in general. And he cannot
rightfully be held responsible to a greater knowledge of the law than this.

Free Political Institutions. 39
The mass of mankind can give but little of their attention to acquiring a know-
ledge of the law. Their other duties in life forbid it. Of course they cannot
investigate abstruse or difficult questions. All that can rightfully be required of
each of them, then, is that he exercise such a candid and conscientious judgment
as it is common for mankind generally to exercise in such matters. If he have
done this, it would be monstrous to punish him criminally for his errors, -errors
not of conscience, but only of judgment. It would also be contrary to the first
principles of a free government (that is, a government formed by voluntary asso-
ciation) to punish men in such cases, because it would be absurd to suppose that
any man would voluntarily assist to establish or support a government that would
punish himself for acts which he himself did not know to be crimes. But a man
may reasonably unite with his fellow-men to maintain a government to punish
those acts which he himself considers criminal, and may reasonably acquiesce in
his own liability to be punished for such acts. As those are the only grounds on
which any one can be supposed to render any voluntary support to a government,
it follows that a government formed by voluntary association, and of course hav-
ing no powers except such as all the associates have consented that it may have,
can have no power to punish a man for acts which he did not himself know to be
criminal.
The safety of society, which is the only object of the criminal law, requires only
that those acts which are understood by mankind at large to be intrinsically cri-
minal should be punished as crimes. The remaining few (if there are any) may
safely be left to go unpunished. Nor does the safety of society require that any
individuals other than those who have sufficient mental capacity to understand
that their acts are criminal should be criminally punished. All others may safely
be left to their liability, under the civil law, to compensate for their unintentional
Wrongs.
The only real object of the absurd and atrocious doctrine that “ignorance of
the law excuses no one,” and that “every one is bound to know the criminal law,”
is to maintain an entirely arbitrary authority on the part of the government,
and to deny to the people all right to judge for themselves what their own rights
and liberties are. In other words, the whole object of the doctrine is to deny to
the people themselves all right to judge what statutes and other acts of the gov-
ernment are consistent or inconsistent with their own rights and liberties; and
thus to reduce the people to the condition of mere slaves to a despotic power, such
as the people themselves would never have voluntarily established, and the justice
of whose laws the people themselves cannot understand.
Under the true trial by jury all tyranny of this kind would be abolished. A
jury would not only judge what acts were really criminal, but they would judge
of the mental capacity of an accused person, and of his opportunities for under-
standing the true character of his conduct. In short, they would judge of his

40 Free Political Institutions.
moral intent from all the circumstances of the case, and acquit him, if they had
any reasonable doubt that he knew that he was committing a crime.
VI.
MORAL CONSIDERATIONS FOR JURORS.
The trial by jury must, if possible, be construed to be such that a man can
rightfully sit in a jury and unite with his fellows in giving judgment. But no
man can rightfully do this, unless he hold in his own hand alone a veto upon any
judgment or sentence whatever to be rendered by the jury against a defendant,
which veto he must be permitted to use according to his own discretion and con-
science, and not bound to use according to the dictation of either legislatures or
judges.
The prevalent idea that a juror may, at the mere dictation of a legislature or a
judge, and without the concurrence of his own conscience or understanding, declare
a man “guilty” and thus in effect license the government to punish him; and that
the legislature or the judge, and not himself, has in that case all the moral respon-
sibility for the correctness of the principles on which the judgment was rendered,
is one of the many gross impostures by which it could hardly have been supposed
that any same man could ever have been deluded, but which governments have
nevertheless succeeded in inducing the people at large to receive and act upon.
As a moral proposition, it is perfectly self-evident that, unless juries have all
the legal rights that have been claimed for them in the preceding chapters, – that
is, the rights of judging what the law is, whether the law be a just one, what
evidence is admissible, what weight the evidence is entitled to, whether an act
were done with a criminal intent, and the right also to limit the sentence, free of
all dictation from any quarter, -they have no moral right to sit in the trial at all,
cannot do so without making themselves accomplices in any injustice that they
may have reason to believe may result from their verdict. It is absurd to say that
they have no moral responsibility for the use that may be made of their verdict by
the government, when they have reason to suppose it will be used for purposes
of injustice.
It is, for instance, manifestly absurd to say that jurors have no moral respon-
sibility for the enforcement of an unjust law, when they consent to render a
verdict of guilty for the transgression of it, which verdict they know, or have good
reason to believe, will be used by the government as a justification for inflicting
a penalty.

Free Political Institutions. 41
It is absurd also to say that jurors have no moral responsibility for a punishment
inflicted upon a man against law, when, at the dictation of a judge as to what the
law is, they have consented to render a verdict against their own opinion of the
law.
It is absurd, too, to say that jurors have no moral responsibility for the convic-
tion and punishment of an innocent man, when they consent to render a verdict
against him on the strength of evidence, or laws of evidence, dictated to them by
the court, if any evidence or laws of evidence have been excluded, which they (the
jurors) think ought to have been admitted in his defence.
It is absurd to say that jurors have no moral responsibility for rendering a ver-
dict of “guilty” against a man for an act which he did not know to be a crime,
and in the commission of which, therefore, he could have had no criminal intent,
in obedience to the instructions of courts that “ignorance of the law (that is, of
crime) excuses no one.”
It is absurd, also, to say that jurors have no moral responsibility for any cruel
or unreasonable sentence that may be inflicted even upon a guilty man, when they
consent to render a verdict which they have reason to believe will be used by the
government as a justification for the infliction of such a sentence.
The consequence is that jurors must have the whole case in their hands, and
judge of law, evidence, and sentence, or they incur the moral responsibility of ac-
complices in any injustice which they have reason to believe will be done by the
government on the authority of their verdict.
VII.
FREE ADMINISTRATION OF JUSTICE.
The free administration of justice was a principle of the common law; and it
must necessarily be a part of every system of government which is not designed to
be an engine in the hands of the rich for the oppression of the poor.
In saying that the free administration of justice was a principle of the common
law, I mean only that parties were subjected to no costs for jurors, witnesses, writs,
or other necessaries for the trial, preliminary to the trial itself. Consequently no
one could lose the benefit of a trial, for the want of means to defray expenses.
But after the trial, the plaintiff or defendant was liable to be amerced (by the
jury, of course.) for having troubled the court with the prosecution or defence of
an unjust suit. But it is not likely that the losing party was subjected to an
amercement as a matter of course, but only in those cases where the injustice of

42 Free Political Institutions.
his case was so evident as to make him inexcusable in bringing it before the
courts.
The principle of the free administration of justice connects itself necessarily
with the trial by jury, because a jury could not rightfully give judgment against
any man, in either a civil or criminal case, if they had any reason to suppose he
had been unable to procure his witnesses.
The true trial by jury would also compel the free administration of justice from
another necessity, -namely, that of preventing private quarrels; because, unless
the government enforced a man's rights and redressed his wrongs, free of expense
to him, a jury would be bound to protect him in taking the law into his own
hands. A man has a natural right to redress his own wrongs and enforce his own
rights. If one man owe another a debt and refuse to pay it, the creditor has a
natural right to seize sufficient property of the debtor wherever he can find it to
satisfy the debt. If one man commit a trespass upon the person, property, or re-
putation of another, the injured party has a natural right either to chastise the
aggressor or to take compensation for the injury out of his property. But as the
government is an impartial party as between these individuals, it is more likely to
do exact justice between them than the injured individual himself would do. The
government, also, having more power at its command, is likely to right a man's
wrongs more peacefully than the injured party himself could do it. If, therefore,
the government will do the work of enforcing a man's rights and redressing his
wrongs promptly and free of expense to him, he is under a moral obligation to
leave the work in the hands of the government; but not otherwise. When the
government forbids him to protect himself, and deprives him of all means of ob-
taining justice, except on the condition of his employing the government to obtain
it for him and of paying it for doing the work, the government becomes itself the
protector and accomplice of the wrong-doer. If the government willforbid a man
to protect his own rights, it is bound to do it for him free of expense to him. And
so long as government refuses to do this, juries, if they knew their duties, would
protect a man in defending his own rights.
Under the prevailing system, probably one half of the community are virtually
deprived of all protection for their rights, except what the criminal law affords
them. Courts of justice, for all civil suits, are as effectually shut against them as
though it were done by bolts and bars. Being forbidden to maintain their own
rights by force, and being unable to pay the expenses of civil suits, they have
no alternative but submission to many acts of injustice against which the govern-
ment is bound either to protect them free of expense or allow them to protect
themselves.
There would be the same reason in compelling a party to pay the judge and
jury for their services that there is in compelling him to pay the witnesses or any
other necessary charges.

Free Political Institutions. 43
This compelling parties to pay the expenses of civil suits is one of the many
cases in which government is false to the fundamental principles on which free
government is based. What is the object of government but to protect men's
rights? On what principle does a man pay his taxes to the government, except
on that of contributing his proportion towards the necessary cost of protecting the
rights of all? Yet, when his own rights are actually invaded, the government,
which he contributes to support, instead of fulfilling its implied contract, becomes
his enemy, and not only refuses to protect his rights (except at his own cost), but
even forbids him to do it himself.
All free government is founded on the theory of voluntary association, and on
the theory that all the parties to it voluntarily pay their taxes for its support on
the condition of receiving protection in return. But the idea that any poor man
would voluntarily pay taxes to buildup a government which will neither protect his
rights nor suffer himself to protect them by such means as may be in his power is
absurd.
Under the prevailing system, a large portion of the lawsuits determined in
courts are mere contests of purses rather than of rights. And a jury sworn to
decide causes “according to the evidence” produced are quite likely, for aught
they themselves can know, to be deciding merely the comparative length of the
parties' purses rather than the intrinsic strength of their respective rights. Jurors
ought to refuse to decide a cause at all, except upon the assurance that all the evi-
dence necessary to a full knowledge of the cause is produced. This assurance they
can seldom have, unless the government itself produces all the witnesses the parties
desire. -
In criminal cases, the atrocity of accusing a man of crime and then condemning
him unless he prove his innocence at his own charges is so evident that a jury
could rarely, if ever, be justified in convicting a man under such circumstances.
But the free administration of justice is not only indispensable to the main-
tenance of right between man and man; it would also promote simplicity and
stability in the laws. The mania for legislation would be in an important degree
restrained, if the government were compelled to pay the expenses of all the suits
that grew out of it.
The free administration of justice would diminish and nearly extinguish another
great evil, that of malicious civil suits. It is an old saying that “multilitigant in
foro, non ut aliquid lucrentur, sedut verant alios.” (Many litigate in court, not that
they may gain anything, but that they may harass others.) Many men, from
motives of revenge and oppression, are willing to spend their own money in prose-
cuting a groundless suit, if they can thereby compel their victims, who are less
able than they to bear the loss, to spend money in the defence. Under the pre-
vailing system, in which the parties pay the expenses of their suits, nothing but
money is necessary to enable any malicious man to commence and prosecute a

44 Free Political Institutions.
groundless suit to the terror, injury, and perhaps ruin, of another man. In this
way a court of justice, into which none but a conscientious plaintiff certainly
should ever be allowed to enter, becomes an arena into which any rich and revenge-
ful oppressor may drag any man poorer than himself and harass, terrify, and im-
poverish him to almost any extent. It is a scandal and an outrage that govern-
ment should suffer itself to be made an instrument in this way for the gratification
of private malice. We might nearly as well have no courts of justice as to throw
them open, as we do, for such flagitious uses. Yet the evil probably admits of no
remedy except a free administration of justice. Under a free system plaintiffs
could rarely be influenced by motives of this kind, because they could put their
victims to little or no expense, neither pending the suit (which it is the object of
the oppressor to do), nor at its termination. Besides, if the ancient common law
practice of amercing a party for troubling the court with groundless suits should
be adopted, the prosecutor himself would, in the end, be likely to be amerced by
the jury in such a manner as to make courts of justice a very unprofitable place
for a man to go to seek revenge.
In estimating the evils of this kind resulting from the present system, we are to
consider that they are not by any means confined to the actual suits in which this
kind of oppression is practised, but we are to include all those cases in which the
fear of such oppression is used as a weapon to compel men into a surrender of
their rights. -
VIII.
JURIES OF THE PRESENT DAY ILLEGAL-
It may probably be safely asserted that there are at this day no legal juries,
either in England or America. And if there are no legal juries, there is of course
no legal trial, nor “judgment,” by jury.
In saying that there are probably no legal juries, I mean that there are probably
no juries appointed in conformity with the principles of the common law.
The term jury is a technical one, derived from the common law, and when the
American constitutions provide for the trial by jury, they provide for the common
law trial by jury, and not merely for any trial by jury that the government itself
may chance to invent and call by that name. It is the thing, and not merely the
name, that is guaranteed. Any legislation, therefore, that infringes any essential
principle of the common law, in the selection of jurors, is unconstitutional, and the
juries selected in accordance with such legislation are, of course, illegal, and their
judgments void.

Free Political Institutions. 45
What, then, are the essential principles of the common law controlling the
selection of jurors?
They are two.
1. That all the freemen, or adult male members of the State, shall be eligible
as jurors.
Any legislation which requires the selection of jurors to be made from a less
number of freemen than the whole makes the jury selected an illegal one.
If a part only of the freemen, or members of the State are eligible as jurors, the
jury no longer represent “the country,” but only a part of “the country.”
If the selection of jurors can be restricted to any less number of freemen than
the whole, it can be restricted to a very small portion of the whole, and thus the
government be taken out of the hands of “the country,” or the whole people, and
be thrown into the hands of a few.
Any infringement or restriction of the common law right of the whole body of
the freemen of the kingdom to eligibility as jurors, was legally an abolition of the
trial by jury itself. The juries no longer represented “the country,” but only a
part of the country; that part, too, on whose favor the government chose to rely
for the maintenance of its power, and which it therefore saw fit to select as being
the most reliable instruments for its purposes of oppression towards the rest.
These restrictions, or indeed anyone of them, of the right of eligibility as jurors,
was, in principle, a complete abolition of the English constitution; or, at least, of
its most vital and valuable part. It was, in principle, an assertion of a right, on
the part of the government, to select the individuals who were to determine the
authority of its own laws, and the extent of its own powers. It was, therefore, in
effect, the assertion of a right, on the part of the government itself, to determine
its own powers, and the authority of its own legislation, over the people; and a
denial of all right, on the part of the people, to judge of or determine their own
liberties against the government. It was, therefore, in reality, a declaration of
entire absolutism on the part of the government. It was an act as purely despotic,
in principle, as would have been the express abolition of all juries whatsoever.
By “the law of the land,” which the kings were sworn to maintain, every free
adult male British subject was eligible to the jury box, with full power to exercise
his own judgment as to the authority and obligation of every statute of the king
which might come before him.
The principle, then, of the common law was that every freeman, or freeborn
male Englishman, of adult age, etc., was eligible to sit injuries by virtue of his
civil freedom, or his being a member of the State or body politic. But the prin-
ciple of the present English statutes is that a man shall have a right to sit injur-
ies because he owns lands in fee-simple. At the common law a man was born to
the right to sit in juries. By the present statutes he buys that right when he buys
his land. And thus this, the greatest of all political rights of an Englishman, has

46 Free Political Institutions.
become a mere article of merchandise, a thing that is bought and sold in the mar-
ket for what it will bring.
of course there can be no legality in such juries as these, but only injuries to
which every free or natural born adult male Englishman is eligible.
The second essential principle of the common law, controlling the selection of
jurors, is that, when the selection of the actual jurors comes to be made (from the
whole body of male adults), that selection shall be made in some mode that ex-
cludes the possibility of choice on the part of the government.
Of course this principle forbids the selection to be made by any officer of the
government.
There seem to have been at least three modes of selecting the jurors, at the com-
mon law. 1. By lot. 2. Two knights, or other freeholders, were appointed
(probably by the sheriff). 3. By the sheriff, bailiff, or other person, who held the
court, or rather acted as its ministerial officer. Probably the latter mode may
have been the most common, although there may be some doubt on this point.
At the common law the sheriffs, bailiffs, and other officers were chosen by the peo-
ple instead of being appointed by the king. At common law, therefore, jurors selected
by these officers were legally selected, so far as the principle now under discussion
is concerned; that is, they were not selected by any officer who was dependent on
the government.
But in the year 1315, one hundred years after Magna Carta, the choice of sher-
iffs was taken from the people, and it was enacted:
“That the sheriffs shall henceforth be assigned by the chancellor, treasurer,
barons of the exchequer, and by the justices. And in the absence of the chan-
cellor, by the treasurer, barons, and justices.”–9 Edward II., st. 2. (1315.)
These officers, who appointed the sheriffs, were themselves appointed by the
king, and held their offices during his pleasure. Their appointment of sheriffs
was, therefore, equivalent to an appointment by the king himself. And the sher-
iffs thus appointed held their offices only during the pleasure of the king, and were
of course mere tools of the king; and their selection of jurors was really a selec-
tion by the king himself. In this manner the king usurped the selection of the
jurors who were to sit in judgment upon his own laws.
Here, then, was another usurpation by which the common law trial by jury was
destroyed, so far as related to the county courts in which the sheriffs presided, and
which were the most important courts of the kingdom. From this cause alone, if
there were no other, there has not been a legal jury in a county court in England
for more than five hundred years.
In nearly or quite all the States of the United States the juries are illegal, for
one or the other of the same reasons that make the juries in England illegal.
In order that the juries in the United States may be legal—that is, in accord-
ance with the principle of the common law—it is necessary that every adult male

Free Political Institutions. 47
member of the State should have his name in the jury box, or be eligible as a
juror. Yet this is the case in hardly a single State.
There has, probably, never been a legal jury, nor a legal trial by jury, in a single
court of the United States since the adoption of the constitution.
These facts show how much reliance can be placed in written constitutions to
control the action of the government and preserve the liberties of the people.
If the real trial by jury had been preserved by the courts of the United States—
that is, if we had had legal juries, and the jurors had known their rights—it is
hardly probable that one tenth of the past legislation of Congress would ever have
been enacted, or, at least, that, if enacted, it could have been enforced.
Probably the best mode of appointing jurors would be this: Let the names of
as the adult male members of the State, in each township, be kept in a jury box
by the officers of the township; and when a court is to be held for a county or
other district, let the officers of a sufficient number of townships be required (with-
out seeing the names) to draw out a name from their boxes respectively to be re-
tturned to the court as a juror. This mode of appointment would guard against
collusion and selection; and juries so appointed would be likely to be a fair epi-
tome of “the country.”

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SYSTEM OF ECONOMICAL CONTRADICTIONS: Or The Philosophy
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Providence, showing that economic progress is achieved by the appearance of
a succession of economic forces, each of which counteracts the evils developed
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