him, nor send upon him, but by lawful judgment of his peers, or by the law of the land;" and this promise Mr. Hallam styles "the keystone of English liberty."1 In the Declaration of Rights put forth by the first Continental Congress in 1774, it was resolved, "That the respective Colonies are entitled to the common law of England, and more especially to the great and inestimable privilege of being tried by their peers of the vicinage according to the course of that law." The Declaration of Independence charged it as a crime upon the King of England, that, in many cases, he "had deprived the colonists of the benefits of trial by jury." And the Constitution of the United States provides, that, " in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury of the state and district wherein the crime shall have been committed;" and also, that in suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved." But this much-vaunted right, the chosen defence of life and liberty against tyranny and injustice, has none of the qualities that mark life and liberty as natural and inalienable rights. The keystone of liberty it well may be; yet trial by jury is no part of man's natural liberty, the palladium of natural rights, but not itself one of those rights. What is there, for instance, in nature, to impart the sanctity of justice to the deliberation of twelve men and the unanimity of their verdict, rather than to a majority of fifteen jurors, as in Scotland? Moreover, experience has shown that juries may be biassed, bribed, intimidated, and may do the grossest injustice to the accused, or the highest injury to society and the laws. What is wanted for the safety of the innocent, and the punishment of the guilty, is knowledge, wisdom, experience, and the spirit of justice, in the administrators of the law; and hence, in the United States as well as in Great Britain, there is a growing disposition, in many cases, to dispense with a jury, and trust to arbitration, or to the decision of a judge, subject to appeal. But that is no natural right that can thus change its basis through experience or expediency: it is a contrivance for 1 Middle Ages, b. ii. cviii. the protection of individual rights through the machinery of social organization; and, since all men possess certain inalienable rights, they have also a right to the best institutions for securing those rights. As to the jury, Jefferson found in this contrivance almost a democratic participation in the judicial function of government, a sort of revival of the Teutonic Gemeinde, in which every freeman might be a judge. Yet how gladly would the average citizen escape being summoned from his business or his pleasures to fulfil his inalienable duty of hearing causes, and sitting in judgment upon the actions of his fellows! But men do not thus lightly throw away their natural rights. In truth, provisions for ruling and judging are of society, and must be ordained by each political society in its own way. In some societies, the rule will be that of superior intelligence or endowment; in some, of power; in some, of conceded privilege or custom; and, in others, the rule of the majority. Mr. Jefferson placed it in the last. "Where," he asks, "shall we find the origin of just powers, if not in the majority of the society? Will it be in the minority? or in an individual of that minority?" This is the key to the statement of the Declaration, that governments "derive their just powers from the consent of the governed." He was not thinking of a poll of equal rights, that each individual as an "inalienable" voter might "consent" to be governed thus or so, but of the community, the political society, in some method of its own, framing, commissioning, or consenting to, the government under which it should live; and, in this view of its meaning, this statement of the Declaration, like those that precede it, is also true, and of deep and far-reaching significance for governments and for mankind. It was by a vote of both houses of Parliament in 1688, setting a precedent for the Philadelphia Congress of 1776, that the throne of Great Britain was declared vacant; for 1 Yet, curiously enough, Jefferson's own doctrine of human rights in the Declaration of Independence did away with the fundamental argument upon which the jury had stood as a defence of persons and rights. So long as privileged classes exist in society, there is a savor of democratic freedom in the rule that every man shall be tried by his peers. But, in the republic, class distinctions are done away, and, as before the law, every man is the peer of every other. Hence a democracy deprives the jury of its old-time distinction as "the palladium of liberty." asmuch as King James II. "had endeavored to subvert the constitution of the kingdom by breaking the original contract between the king and the people, and had violated the fundamental laws," and moreover, "by withdrawing himself out of the kingdom, had abdicated the government." But it was only a very small majority of the same Parliament that voted to offer the crown to William, Prince of Orange; yet, to this day, Great Britain has consented to be governed by the settlement made at the close of the Revolution. An assembly hurriedly chosen and irregularly convened at Bordeaux, representing at best but a part of France, and deputed for the one business of making a peace, and ridding the capital and country of an enemy, this extemporized assembly raised an army, fought against and seized Paris, transferred the capital to Versailles, made a treaty of peace, raised a loan, paid an enormous debt, emancipated the nation, exercised sovereignty in every form, and though composed of legitimists, Orléanists, imperialists, and republicans of every grade, at last compromised upon a government compounded of a person, a name, and a constitution; and this government exercises its just powers of law and order with the acquiescence of France, "the consent of the governed." Sometimes too, where a government originates in usurpation, or where its measures at first seem arbitrary, the acquiescence of the people after the fact, their condoning the irregularity by partaking of its fruits, gives to the government a color of just power and of popular sanction. In short, every government is bound to keep constantly in view the best good of the totality of its subjects, to identify itself with the welfare of the society over which it presides, to be mindful of the wants and wishes of the political community whose organ it is, to set the people in its common-weal before and above the State in its personnel, to guard the rights of all with an impartial hand; and only so far as a government is animated by this spirit, and acts for these ends, are its powers just, or can it, in political ethics, claim the right to be. The attachment of a people to their government may be variable; their sentiment toward officers and policy may change with men and measures; their loyalty may be that of enthusiastic devotion, of calm acquiescence, or of patient endurance: but there inheres in every body politic a latent right of revolution; and, so long as the people do not revive this right, the government de facto is presumed to hold its powers with "the consent of the governed." - This right of revolution is the third point made by the Declaration of Independence; or, rather, it is the conclusion of its famous syllogism. The fact of revolution, or of repudiating an existing government, and setting up another in its stead, was that which the Declaration was framed to justify. The first proposition being that all men are created equal, and endowed by their Creator with certain inalienable rights, among which are life, liberty, and the pursuit of happiness; and the second proposition being, that, to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed, the conclusion is reached, that, "whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it, and to institute a new government, laying its foundation on such principles, and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness." Observe the unimpassioned dignity of this statement. It has been alleged that the style of the Declaration betrays the impetuosity of youth; but though, at the date of its composition, Jefferson was only thirty-two years of age, and had not quite toned down his rhetoric, yet in this passage of the document he exhibits that philosophic caution and precision which won for him in after-life the title, "the sage of Monticello." Precisely at the point where the European revolutionist of recent type would have exploded in fiery declamation, Jefferson is as calm, clear, and precise as if he were writing his scientific essay on a standard of uniform length, or that on the method of obtaining fresh water from salt. The radical change of government is to be sought only in the last resort, when government has become destructive of the fundamental rights of society, for the security of which it was established; and then it may be altered or removed only for the purpose of erecting some better structure for the safety and happiness of the people. And, as if this cautious statement of the right of revolution were not enough, further cautions are given as to the application of a right, which is somewhat analogous to the right of exploding gunpowder to arrest a conflagration: "Prudence, indeed, will dictate that governments long established should not be changed for light and transient causes; and accordingly all experience hath shown that mankind are more disposed to suffer while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same object, evinces a design to reduce them under absolute despotism, it is their right, it is their duty, to throw off such government, and to provide new guards for their future security. Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former systems of government." The abstract right of revolution I do not require to argue. This is to society what the right of self-defence is to the individual. Since government is a function of society, if, through injustice and usurpation, the government becomes an unbearable oppression, destructive of the ends for which society exists, there must rest in society, which gives being and form to the state, an ultimate right to redress itself by displacing, or otherwise changing, the falsified government in the interest of a true and righteous ordering of the state. But this right, more, perhaps, than any other, needs to be qualified and restricted in the interest of society itself. So great are the calamities of civil war, so frightful the horrors of anarchy, that the overturning of government by violence may be rightfully attempted only for the ends of justice, for the higher good. There must be in it that which appeals to the moral sense as just and right to warrant a movement that may deluge the land with blood, and send mourning into every house. This point, as we have seen, is guarded in the Declaration. of Independence, which makes the right of revolution hinge upon the safety and happiness of the people when these are in peril of destruction from the existing govern ment. |
