The difference, then, between the two systems is this: Under the
one system, a jury, at distant intervals, would (not enforce any
positive injustice, but only) fail of enforcing justice, in a dark
and difficult case, or in consequence of the parties not having
transacted their business in a manner intelligible to a jury; and
the plaintiff would thus fail of obtaining what was rightfully 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 careful to transact their business in a
more clear and intelligible manner. Under the other system the
system of legislative and judicial authority positive injustice
is not only done in every suit arising under unjust laws, that
is, men's property, liberty, or lives are not only unjustly taken
on those particular judgments, but the rights of the whole people
are struck down by the authority of the laws thus enforced, and a
wide-sweeping tyranny 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 objects 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 government are not agreed, the objects of the
association do not extend to it. [3]
If any of the members wish more than this, if they claim to have
acquired a more extended knowledge of justice than is common to
all, and wish to have their pretended 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 can make their views 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, liberties, and rights, to be disposed of on principles,
the justness of which the people themselves cannot comprehend.
Public-domain text, read in full here on John Shaqi.
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