Essay on the Trial By Jury | Page 9

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
the government, there can be no lgal 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 oppressions; in other words, to judge what laws of the
government are to be obeyed, and what may be resisted and 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 disobey its laws, and resist its oppressions, the government is
absolute, and the people, legally speaking are slaves. Like many other
slaves they may have sufficient courage and strength to keep their
masters somewhat in check; but they are nevertheless known to the law
only 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.
[4]
This right of resistance is recognized by the constitution of the United
States, as a strictly legal and constitutional 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.
In the American State constitutions also, this right of resistance to the
oppressions of the government is recognized, in various ways, as a
natural, legal, and constitutional right. In the first place, it is so
recognized by provisions establishing the trial by jury; thus requiring
that accused persons shall be tried by "the country," instead of the
government. In the second place, it is recognized by many of them, as,
for example, those of Massachusetts, Maine, Vermont, Connecticut,
Pennsylvania, Ohio, Indiana, Michigan, Kentucky, Tennessee,
Arkansas, Mississippi, Alabama, and Florida, by provisions expressly
declaring that the people shall have the right to bear arms. In many of
them also, as, for example, those of Maine, New Hampshire, Vermont,
Massachusetts, New Jersey, Pennsylvania, Delaware, Ohio, Indiana,
Illinois, Florida, Iowa, and Arkansas, by provisions, in their bills of
rights, declaring that men have a natural, inherent, and inalienable right
of "defending their lives and liberties." This, of course, means that they
have a right to defend them against any injustice on the part of the
government, and not merely on the part of private individuals; because
the object of all bills of rights is to assert the rights of individuals and
the people, as against the government, and not as against private
persons. It would be a matter of ridiculous supererogation to assert, in a
constitution of government, the natural right of men to defend their

lives and liberties against private trespassers.
Many of these bills of rights also assert the natural right of all men to
protect their property that is, to protect it against the government. It
would be unnecessary and silly indeed to assert, in a constitution of
government, the natural right of individuals to protect their property
against thieves and robbers.
The constitutions of New Hampshire and Tennessee also declare that
"The doctrine of non-resistance against arbitrary power and oppression
is absurd, slavish, and destructive of the good and happiness of
mankind."
The legal effect of these constitutional recognitions of the right of
individuals to defend their property, liberties, and lives, ' against the
government, is to legalize resistance to all injustice and oppression, of