Essay on the Trial By Jury | Page 8

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, prohibit 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 (all departments united) 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 but for
a day, but in that day caused the king, her husband, to be slain, and
usurped his throne.
Nor will it avail to say that such acts would be unconstitutional, and
that unconstitutional 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 authority of
the government, may be transgressed and resisted with impunity, by
whomsoever pleases to transgress or resist it.[3]
The trial by jury authorizes all this, or it is a sham and a hoax, utterly
worthless for protecting the people against oppression. If it do not
authorize an individual 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 unjust law of the government, deny him all defence whatsoever
against oppression. 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 a government. 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 justifiable in themselves, are punished as treason,
if the government be permitted to judge of the treason. The government
itself never admits the injustice of its laws, as a legal defence for those
who have attempted a revolution, and failed. The right of revolution,
therefore, is 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 exasperate
against it a power greater than its own, the right of revolution cannot be
appealed to, and is therefore inapplicable to the case. This affords a
wide field for tyranny; and, if a jury cannot here intervene, the
oppressed are utterly defenceless.
It is manifest that the only security against the tyranny of the
government lies in forcible resistance to the execution of the injustice;
because the injustice will certainly be executed, unless it be forcibly
resisted. And if it be but suffered to be executed, it must then be borne;
for the government never makes compensation for