procure the election of their instruments to compose the first legislature, they will be likely to be powerful or
artful enough to procure the election of the same or similar instruments to compose the second. The right of
suffrage, therefore, and even a change of legislators, guarantees no change of legislation-certainly 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 irreparably 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 entirely irresponsible than are republican legislators
during the period for which they are chosen. They can never be removed from their office, nor called to
account while in their office, nor punished after they leave office, be their tyranny what it may. Moreover, the
judicial and executive departments of the government are equally irresponsible to the people, and are only
responsible, (by impeachment, 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 in one), can determine the validity of, and
enforce, its own laws, it is, for the time being, entirely 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 can
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, prohibit all discussion of the
rightfulness of their authority; forbid the use of 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 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.*
And if there be so much as a reasonable doubt of the justice of the laws, the benefit of that doubt must be
given to the defendant, and not to the government. So that the government must keep its laws clearly within
the limits of justice, if it would ask a jury to enforce them.
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 legal 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 immunity, 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 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 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 defenseless.
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 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
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 oppressions; in other words, to judge what laws of the government are to be obeyed, and what may
be resisted and held for naught. 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.*
* – Hallam says “The relation established between a lord and his vassal by the feudal tenure, far from containing principles of
any servile and implicit obedience, permitted the compact to be dissolved in case of its violation by either party. This extended as
much to the sovereign as to inferior lords. + + If a vassal was aggrieved, and if justice was denied him, he sent a defiance, that
is, a renunciation of fealty to the king, and was entitled to enforce redress at the point of his sword. It then became a contest of
strength as between two independent potentates, and was, terminated by treaty, advantageous or otherwise, according to the
fortune of war. + + There remained the original principle, that allegiance depended conditionally upon good treatment, and that an
appeal might be lawfully made to arms against an oppressive government. Nor was this, we may be sure, left for extreme
necessity, or thought to require a long-enduring forbearance. In modern times, a king, compelled by his subjects’ sword is to
abandon any pretension, would be supposed to have ceased to reign; and the express recognition of such a right is that of
insurrection has been justly deemed inconsistent with the majority of law. But ruder ages had ruder sentiments. Force was
necessary to repel force; and men accustomed to see the king’s authority defied by a private riot, were not much shocked when it
was resisted in defence of public freedom.”
– 3 Middle Ages, 240-3
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 mush 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, 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 pail of 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 every
name and nature whatsoever, on the part of the government.
But for this 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
the 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 government, 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 advantage 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 government 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 constitutions have all become obsolete, at the moment of their adoption, for nearly or quite all purposes
except the appointment of officers, who at once become practically absolute, except so far as they are
restrained by the fear of popular resistance.
The bounds set to the power of the government, by the trial by jury, as will hereafter be shown, are these-that
the government shall never touch the property, person, or natural or civil rights of an individual, against his
consent, (except for the purpose of bringing them before a jury for trial,) unless in pursuance and execution
of a judgment, or decree, rendered by a jury in each individual case, upon such evidence, and such law, as
are satisfactory to their own understandings and consciences, irrespective of all legislation of the government.