 12. Limitations imposed upon the majority by the trial by jury. The principal objection that will be made to the doctrine of this essay is that under it a jury would paralyze the power of the majority and veto all legislation that was not in accordance with the will of the whole, or nearly the whole, people. The answer to this objection is that the limitation which would be thus imposed upon the legislative power, whether that power be vested in the majority or minority of the people, is the crowning merit of the trial by jury. It has other merits, but, though important in themselves, they are utterly insignificant and worthless in comparison with this. It is this power of vetoing all partial and oppressive legislation and of restricting the government to the maintenance of such laws as the whole, or substantially the whole, people are agreed in, that makes the trial by jury the palladium of liberty. Without this power it would never have deserved that name. The will, or the pretended will of the majority, is the last lurking place of tyranny at the present day. The dogma that certain individuals and families have a divine appointment to govern the rest of mankind is fast giving place to the one that the larger number have a right to govern the smaller, a dogma which may, or may not, be less oppressive in its practical operation, but which certainly is no less false or tyrannical in principle than the one it is so rapidly supplanting. Obviously, there is nothing in the nature of majorities that ensures justice at their hands. They have the same passions as minorities, and they have no qualities whatever that should be expected to prevent them from practicing the same tyranny as minorities if they think it will be for their interests to do so. There is no particle of truth in the notion that the majority have a right to rule or to exercise arbitrary power over the minority simply because the former are more numerous than the latter. Two men have no more natural right to rule one than one has to rule two. Any single man or any body of men, many or few, have a natural right to maintain justice for themselves and for any others who may need their assistance against the injustice of any and all other men without regard to their numbers, and majorities have no right to do any more than this. The relative numbers of the opposing parties have nothing to do with the question of right and no more tyrannical principle was ever avowed than that the will of the majority ought to have the force of law without regard to its justice or what is the same thing that the will of the majority ought always to be presumed to be in accordance with justice. Such a doctrine is only another form of the doctrine that might makes right. When two men meet one upon the highway or in the wilderness, have they a right to dispose of his life, liberty or property at their pleasure simply because they are the more numerous party? Or is he bound to submit to lose his life, liberty or property if they demand it merely because he is the less numerous party? Or because they are more numerous than he, is he bound to presume that they are governed only by superior wisdom and the principles of justice and by no selfish passion that can lead them to do him a wrong? Yet this is a principle which it is claimed should govern men in all their civil relations to each other. Mankind falling company with each other on the highway or in the wilderness of life and it is claimed that the more numerous party simply by virtue their superior numbers have the right arbitrarily to dispose of the life, liberty and property of the minority, and that the minority are bound by reason of their inferior numbers to practice abject submission and consent to hold their natural rights, any, all or none, as the case may be, at the mere will and pleasure of the majority, as if all a man's natural rights expired or were suspended by the operation of a paramount law the moment he came into the presence of superior numbers? If such be the true nature the relations men hold to each other in this world it puts an end to all such things as crimes unless they be perpetuated upon those who are equal or superior in number to the actors. All acts committed against persons inferior in number to the aggressors become but an exercise of rightful authority and consistency with their own principles requires that all governments founded on the will of the majority should recognize this plea as a sufficient justification for all crimes whatsoever. If it be said that the majority should be allowed to rule not because they are stronger than the minority but because their superior numbers furnish a probability that they are in the right, one answer is that the lives, liberties, and properties of men are too valuable to them and the natural presumptions are too strong in their favor to justify the destruction of them by their fellow men on a mere balancing of probabilities or on any ground whatever short of certainty beyond a reasonable doubt. This last is the moral rule universally recognized to be binding upon single individuals. And in the form of conscience the same rule is equally binding upon governments for governments are mere associations of individuals. This is the rule on which the trial by jury is based and it is plainly the only rule that ought to induce a man to submit his rights to the adjudication of his fellow men or dissuade him from a forcible defense of them. Another answer is that if two opposing parties could be supposed to have no personal interests or passions involved to warp their judgments or corrupt their motives the fact that one of the parties was more numerous than the other a fact that leaves a comparative intellectual competency of the two parties entirely out of consideration might perhaps furnish a slight but at best only a very slight probability that such party was on the side of justice. But when it is considered that the parties are liable to differ in their intellectual capacities and that one or the other or both are undoubtedly under the influence of such passions as rivalry, hatred, avarice and ambition passions that are nearly certain to pervert their judgments and very likely to corrupt their motives all probabilities founded upon a mere numerical majority in one party or the other vanish at once and the decision of the majority becomes to all practical purposes a mere decision of chance and to dispose of men's properties, liberties and lives by the mere process of enumerating such parties is not only as palpable gambling as was ever practiced but it is also the most atrocious that was ever practiced except in matters of government and where government is instituted on this principle as in the United States for example the nation is at once converted into one great gambling establishment where all the rights of men are the stakes a few bold bad men throw the dice, dice loaded with all the hopes, fears, interests and passions which rage in the breasts of ambitious and desperate men and all the people from the interests they have depending become enlisted, excited, agitated and generally corrupted by the hazards of the game. The trial by Jerry disavows the majority principle altogether and proceeds upon the ground that every man should be presumed to be entitled to life, liberty and such property as he has in his possession and that the government should lay its hand upon none of them except for the purpose of bringing them before tribunal for adjudication unless it be first ascertained beyond a reasonable doubt in every individual case that justice requires it. To ascertain whether there be such reasonable doubt it takes twelve men by lot from the whole body of mature men if any of these twelve are proved to be under the influence of any special interest or passion that may either pervert their judgments or corrupt their motives they are set aside as unsuitable for the performance of a duty requiring such absolute impartiality and integrity and others substituted in their stead. When the utmost practicable impartiality is attained on the part of the whole twelve they are sworn to the observance of justice and their unanimous concurrence is then held to be necessary to remove that reasonable doubt which, unremove, would forbid the government to lay its hand on its victim. Such is the caution which the trial by Jerry both practices and inculcates against the violation of justice on the part of the government towards the humblest individual in the smallest matter affecting his civil rights, his property, liberty, or life. And such is the contrast which the trial by Jerry presents to the gamblers and robbers rule that the majority have a right by virtue their superior numbers and without regard to justice to dispose at pleasure of the property and persons of all bodies of men less numerous than themselves. The difference in short between the two systems is this. The trial by Jerry protects person and property and violates to their possessors from the hand of the law unless justice beyond a reasonable doubt requires them to be taken. The majority principle takes person and property from their possessors at the mere arbitrary will of a majority who are liable and likely to be influenced in taking them by motives of oppression, avarice, and ambition. If the relative numbers of opposing parties afford sufficient evidence of the comparative justice of their claims, the government should carry the principle into its courts of justice and instead of referring controversies to impartial and disinterested men, to judges and jurors sworn to do justice and bound patiently to hear and weigh all the evidence and arguments that can be offered on either side, it should simply count the plaintiffs and defendants on each case where there were more than one of either and then give the case to the majority after ample opportunity had been given to the plaintiffs and defendants to reason with, flatter, cheat, threaten, and bribe each other by way of inducing them to change sides. Such a process would be just as rational in courts of justice as in halls of legislation, for it is of no importance to a man who has his rights taken from him, whether it be done by a legislative enactment or a judicial decision. In legislation the people are all arranged as plaintiffs and defendants in their own causes, those who are in favor of a particular law standing as plaintiffs and those who are opposed to the same law standing as defendants. And to allow these causes to be decided by majorities is plainly as absurd as it would be to allow judicial decisions to be determined by the relative number of plaintiffs and defendants. If this mode of decision were introduced into courts of justice, we should see a parallel and only a parallel to that system of legislation which we witness daily. We should see large bodies of men conspiring to bring perfectly groundless suits against other bodies of men for large sums of money and to carry them by sheer force of numbers, just as we now continually see large bodies of men conspiring to carry by mere force of numbers, some scheme of legislation that will, directly or indirectly, take money out of other men's pockets and put it into their own. And we should also see distinct bodies of men, parties in separate suits combining in a green all to appear and be counted as plaintiffs or defendants in each other's suits for the purpose of eking out the necessary majority, just as we now see distinct bodies of men interested in separate schemes of ambition or plunder conspiring to carry through a batch of legislative enactments that shall accomplish their several purposes. This system of combination and conspiracy would go on until at length the whole states and the whole nation would become divided into two great litigating parties, each party composed of several smaller bodies having their separate suits, but all confederating for the purpose of making up the necessary majority in each case. The individuals composing each of these two great parties would at length become so accustomed to acting together and so well acquainted with each other schemes and so mutually dependent upon each other's fidelity for success that they would become organized as permanent associations bound together by that kind of honor that prevails among thieves and pledged by all their interest, sympathies and animosities to mutual fidelity and to unceasing hostility to their opponents and exerting all their arts and all their resources of threats, injuries, promises and thrives to drive or seduce from the other party enough to enable their own to retain or acquire such a majority as would be necessary to gain their own suits and defeat the suits of their opponents. All the wealth and talent of the country would become enlisted in the service of these rival associations and both would at length become so compact, so well organized, so powerful and yet always so much in need of recruits that a private person would be nearly or quite unable to obtain justice in the most paltry suit with his neighbor, except on the condition of joining one of these great litigating associations, who would agree to carry through his cause on condition of his assisting them to carry through all the others, good and bad, which they had already undertaken. If he refused this, they would threaten to make a similar offer to his antagonist and suffer their whole numbers to be counted against him. Now this picture is no caricature but a true and honest likeness and such a system of administering justice would be no more false, absurd or atrocious than that system of working by majorities, which seeks to accomplish by legislation the same ends which, in the case supposed, would be accomplished by judicial decisions. Again, the doctrine that the minority ought to submit to the will of the majority proceeds not upon the principle that government is formed by voluntary association and for an agreed purpose on the part of all who contribute to its support, but upon the presumption that all government must be practically a state of war and plunder between opposing parties and that in order to save blood and prevent mutual extermination, the parties come to an agreement that they will count their respective numbers periodically and the one party shall then be permitted quietly to rule and plunder, restrained only by their own discretion, and the other submit quietly to be ruled and plundered until the time of the next enumeration. Such an agreement may possibly be wiser than unceasing and deadly conflict. It nevertheless protects too much of the ludicrous to deserve to be seriously considered as an expedient for the maintenance of civil society. It would certainly seem that mankind might agree upon the cessation of hostilities upon more rational and equitable terms than that of unconditional submission on the part of the less numerous body. Unconditional submission is usually the last act of one who confesses himself subdued and enslaved. How anyone ever came to imagine that condition to be one of freedom has never been explained. And as for the system being adapted to the maintenance of justice among men, it is a mystery that any human mind could ever have been visited with an insanity wild enough to originate the idea. If it be said that other corporations than governments surrender their affairs into the hands of the majority, the answer is that they allow majorities to determine only trifling matters that are in their nature mere questions of discretion and where there is no natural presumption of justice or right on one side rather than the other. They never surrendered to the majority the power to dispose of or what is practically the same thing to determine the rights of any individual member. The rights of every member are determined by the written compact to which all the members have voluntarily agreed. For example, a banking corporation allows a majority to determine such questions of discretion as whether the note of A or B shall be discounted, whether notes shall be discounted on one, two, or six days of the week, how many hours in a day their banking house shall be kept open, how many clerks shall be employed, what salaries they shall receive, and such like matters which are in their nature mere subjects of discretion and where there are no natural presumptions of justice or right in favor of one course over the other. But no banking corporation allows a majority or any other number of its members less than the whole to divert funds of the corporation to any other purpose than the one to which every member of the corporation has legally agreed that they may be devoted, nor to take the stock of one member and give it to another, nor to distribute the dividends among the stockholders otherwise than to each one the proportion which he has agreed to accept and all the others have agreed that he shall receive, nor does any banking corporation allow a majority to impose taxes upon the members for the payment of the corporate expenses except in such proportions as every member has consented that they may be imposed. All these questions involving the rights of the members as against each other are fixed by the articles of the association, that is, by the agreement to which every member has personally assented. What is also especially to be noticed and what constitutes a vital difference between the banking corporation and the political corporation or government is that in the case of controversy among the members of the banking corporation as to the rights of any member, the question is determined not by any number, either majority or minority of the corporation itself, but by persons out of the corporation, by twelve men acting as jurors or by other tribunals of justice, of which no member of the corporation is allowed to be apart, but in the case of the political corporation controversies among the parties to it as to the rights of individual members must of necessity be settled by members of the corporation itself, because there are no persons out of the corporation to whom the question can be referred. Since then all questions as to the rights of the members of the political corporation must be determined by members of the corporation itself. The trial by jury says that no man's rights, neither his right to his life, his liberty, nor his property, shall be determined by any such standard as the mere will and pleasure of majorities, but only by the unanimous verdict of a tribunal, fairly representing the whole people, that is, a tribunal of twelve men, taken at random from the whole body, and ascertained to be as impartial as the nature of the case will admit, and sworn to the observance of justice. Such is the difference in the two kinds of corporations, and the custom of managing by majorities, the mere discretionary matters of business corporations, the majority having no power to determine the rights of any member furnishes no analogy to the practice adopted by political corporations of disposing of all the rights of their members by the arbitrary will of majorities. But further, the doctrine that the majority have a right to rule, proceeds upon the principle that minorities have no rights in the government, for certainly the minority cannot be said to have any rights in government so long as majority alone determine what their rights shall be. They hold everything, or nothing, as the case may be, at the mere will of the majority. It is indispensable to a free government, in the political sense of that term, that the minority, the weaker party, have a veto upon the acts of the majority. Political liberty is liberty for the weaker party in a nation. It is only the weaker party that lose their liberties when a government becomes oppressive. The stronger party in all governments are free by virtue of their superior strength. They never oppress themselves. Legislation is the work of this stronger party, and if, in addition to the sole power of legislating, they have the sole power of determining what legislation shall be enforced, they have all power in their hands, and the weaker party are subjects of an absolute government. Unless the weaker party have a veto, either upon the making or the enforcement of laws, they have no power whatever in the government, and can, of course, have no liberties except such as the stronger party in their arbitrary discretion see fit to permit them to enjoy. In England and the United States, the trial by jury is the only institution that gives the weaker party any veto upon the power of the stronger. Consequently, it is the only institution that gives them any effective voice in the government or any guarantee against oppression. Suffrage, however free, is of no avail for this purpose because the suffrage of the minority is overborn by the suffrage of the majority and is thus rendered powerless for purposes of legislation. The responsibility of officers can be made of no avail because they are responsible only to the majority. The minority, therefore, are wholly without rights in the government, wholly at the mercy of the majority, unless, through the trial by jury, they have a veto upon such legislation as they think unjust. Government is established for the protection of the weak against the strong. This is the principle, if not the sole motive, for the establishment of all legitimate government. Laws that are sufficient for the protection of the weaker party are, of course, sufficient for the protection of the stronger party because the strong can certainly need no more protection than the weak. It is, therefore, right that the weaker party should be represented in the tribunal, which is finally to determine what legislation may be enforced and that no legislation shall be enforced against their consent. They, being presumed to be competent judges of what kind of legislation makes for their safety and what for their injury, it must be presumed that any legislation which they object to enforcing tends to their oppression and not to their security. There is still another reason why the weaker party or the minority should have a veto upon all legislation which they disapprove. That reason is that that is the only means by which the government can be kept within the limits of the contract, compact or constitution by which the whole people agree to establish government. If the majority were allowed to interpret the compact for themselves and enforce it according to their own interpretation, they would, of course, make it authorize them to do whatever they wish to do. The theory of free government is that it is formed by the voluntary contract of the people individually with each other. This is the theory, although it is not, as it ought to be, the fact. In all the governments in the United States has also in the government of England. The theory assumes that each man who is a party to the government and contributes to its support has individually and freely consented to it. Otherwise the government would have no right to tax him for its support. For taxation, without consent, is robbery. This theory then necessarily supposes that this government, which is formed by the free consent of all, has no powers except such as all the parties to it have individually agreed that it shall have, and especially that it has no power to pass any laws except such as all the parties have agreed that it may pass. This theory supposes that there may be certain laws that will be beneficial to all, so beneficial that all consent to be taxed for their maintenance. For the maintenance of these specific laws in which all are interested, all associate. And they associate for the maintenance of those laws only in which all are interested. It would be absurd to suppose that all would associate and consent to be taxed for purposes which were beneficial only to a part, and especially for purposes that were injurious to any. A government of the whole, therefore, can have no powers except such as all the party consent that it may have. It can do nothing except what all have consented that it may do. And if any portion of the people, no matter how large their number, if it be less than the whole, desire a government for any purposes other than those that are common to all and desired by all, they must form a separate association for those purposes. They have no right by perverting this government of the whole to the accomplishment of purposes desired only by a part, to compel anyone to contribute to purposes that are either useless or injurious to himself. Such being the principles on which the government is formed, the question arises, how shall this government when formed be kept within the limits of the contract by which it was established? How shall this government instituted by the whole people, agreed to by the whole people, supported by the contributions of the whole people be confined to the accomplishment of those purposes alone which the whole people desire? How shall it be preserved from degenerating into a mere government for the benefit of a part only of those who established and who support it? How shall it be prevented from even injuring a part of its own members for the aggrandizement of the rest? Its laws must be, or at least now are, passed, and most of its other acts are performed by mere agents, agents chosen by the part of the people and not by the whole. How can these agents be restrained from seeking their own interest and the interest of those who elected them at the expense of the rights of the remainder of the people by the passage and enforcement of laws that shall be partial, unequal and unjust in their operation? That is the great question, and the trial by Jerry answers it. And how does the trial by Jerry answer it? It answers it as has already been shown throughout this volume by saying that these mere agents and attorneys who are chosen by a part only of the people and are liable to be influenced by partial and unequal purposes shall not have unlimited authority in the enactment and enforcement of laws that they shall not exercise all the functions of government. It says that they shall never exercise that ultimate power of compelling obedience to the laws by punishing for disobedience or of executing the laws against the person or property of any man without first getting the consent of the people through a tribunal that may fairly be presumed to represent the whole or substantially the whole people. It says that if the power to make laws and the power also to enforce them were committed to these agents, they would have all power, would be absolute masters of the people, and could deprive them of their rights at pleasure. It says therefore that the people themselves will hold a veto upon the enforcement of any and every law which these agents may enact and that whenever the occasion arises for them to give or withhold their consent in as much as the whole people cannot assemble or devote the time and attention necessary to the investigation of each case, twelve of their numbers shall be taken by lot or otherwise at random from the whole body that they shall not be chosen by majorities. The same majorities that elected the agents who enacted the laws to be put in issue nor by any interested or suspected party that they shall not be appointed by or be in any way depended upon those who enacted the law that their opinions whether for or against the law that is an issue shall not be inquired of beforehand and that if these twelve men give their consent to the enforcement of the law their consent shall stand for the consent of the whole. This is the mode which the trial by Jerry provides for keeping the government within the limits designed to the whole people who have associated for its establishment and it is the only mode provided either by the English or American constitutions for the accomplishment of that object but it will perhaps be said that if the minority can defeat the will of the majority then the minority rule the majority. But this is not true in any unjust sense. The minority enact no laws of their own. They simply refuse their consent to such laws of the majority as they do not approve. The minority assume no authority over the majority. They simply defend themselves. They do not interfere with the right of the majority to seek their own happiness in their own way so long as they the majority do not interfere with the minority. They claim simply not to be oppressed and not to be compelled to assist in doing anything which they do not approve. They say to the majority we will unite with you if you desire it for the accomplishment of all those purposes in which we have a common interest with you. You can certainly expect us to do nothing more. If you do not choose to associate with us on those terms there must be two separate associations. You must associate for the accomplishment of your purposes we for the accomplishment of ours. In this case the minority assume no authority over the majority. They simply refuse to surrender their own liberties into the hands of the majority. They propose a union but decline submission. The majority are still at liberty to refuse the connection and to seek their own happiness in their own way except that they cannot be gratified in their desire to become absolute masters of the minority. But it may be asked how can the minority be trusted to enforce even such legislation as is equal and just. The answer is that they are as reliable for that purpose as are the majority. They are as much presumed to have associated and are as likely to have associated for that object as are the majority and they have as much interest in such legislation as have the majority. They have even more interest in it for being the weaker party. They must rely on it for their security having no other security on which they can rely. Hence their consent to the establishment of government and to the taxation required for its support is presumed although it ought not to be presumed without any express consent being given. This presumption of their consent to be taxed for the maintenance of laws would be absurd if they could not themselves be trusted to act in good faith in enforcing those laws and hence they cannot be presumed to have consented to be taxed for the maintenance of any laws except such as they are themselves ready to aid in enforcing. It is therefore unjust to tax them unless they are eligible to seats in a jury with power to judge at the justice of the laws taxing them for the support of the laws on the assumption that they are in favor of the laws and at the same time refusing them the right as jurors to judge of the justice of the laws on the assumption that they are opposed to the laws are flat contradictions. But it will be asked what motive have majority when they have all power in their own hands to submit their will to the veto of minority. One answer is that they have the motive of justice. It would be unjust to compel the minority to contribute by taxation to the support of any laws which they did not approve. Another answer is that if the stronger party wish to use their power only for purposes of justice they have no occasion to fear the veto of the weaker party for the latter have a strong motives for the maintenance of just government as have the former. Another answer is that if the stronger party use their power unjustly they will hold it by an uncertain tenure especially in a community where knowledge is diffused for knowledge will enable the weaker party to make itself in time the stronger party. It also enables the weaker party even while it remains the weaker party perpetually to annoy, alarm and injure their oppressors. Unjust power or rather power that is grossly unjust and is known to be so by the minority can be sustained only at the expense of standing armies and all the other machinery of force for the oppressed party are always ready to risk their lives for purposes of vengeance and the acquisition of their rights whenever there is any tolerable chance of success. Peace, safety and quiet for all can be enjoyed only under laws that obtain the consent of all hence tyrants frequently yield to the demands of justice from those weaker than themselves as a means of buying peace and safety. Still another answer is that those who are in the majority on one law will be in the minority on another. All therefore need the benefit of the veto at some time or other to protect themselves from injustice. That the limits within which legislation would by this process be confined would be exceedingly narrow in comparison with those it at present occupies there can be no doubt. All monopolies all such special privileges all sumptuary laws all restraints upon any traffic bargain or contract that was naturally lawful note such as restraints upon banking upon the rates of interest upon traffic foreigners etc etc. In footnote all restraints upon men's natural rights the whole catalog of malo prohibita and all taxation to which the tax parties had not individually severly and freely consented would be at an end because all such legislation implies a violation of the rights of a greater or lesser minority. This minority would disregard trample upon or resist the execution of such legislation and then throw themselves upon a jury of the whole people for justification and protection. In this way all legislation would be nullified except the legislation of that general nature which impartially protects the rights and subserve the interests of all. The only legislation that could be sustained would probably be such as tended directly to the maintenance of justice and liberty such for example as should contribute to the enforcement of contracts the protection of property and the prevention and punishment of acts intrinsically criminal. In short government and practice would be brought to the necessity of a strict adherence to natural law and natural justice instead of being as it now is a great battle in which avarice and ambition are constantly fighting for and obtaining advantages over the natural rights of mankind. End of Chapter 12. Appendix of an essay on the trial by a jury. This is a LibriVox recording. All LibriVox recordings are in the public domain. For more information or to volunteer please visit LibriVox.org. Read by Bethanne. Trial by a jury by Lysander Spooner. Appendix. Taxation. It was a principle of the common law as it is of the law of nature and of common sense that no man can be taxed without his personal consent. The common law and nothing of that system which now prevails in England of assuming a man's own consent to be taxed because some pretended representative whom he never authorized to act for him has taken it upon himself to consent that he may be taxed. That is one of the many frauds on the common law and the English Constitution which have been introduced since Magna Carta. Having finally established itself in England it has been stupidly and surveily copied and submitted to in the United States. If the trial by jury were re-established the common law principle of taxation would be re-established with it for it is not to be supposed that juries would enforce a tax upon an individual which he had never agreed to pay. Taxation without consent is as plainly robbery when enforced against one man as when enforced against millions and it is not to be imagined that juries could be blind to so self evident principle. Taking a man's money without his consent is also as much as robbery when it is done by millions of men acting in concert and calling themselves a government as when it is done by a single individual acting on his own responsibility and calling himself a highwayman. Neither the numbers engaged in the act nor the different characters they assume as a cover for the act alter the nature of the act itself. If the government can take a man's money without his consent there is no limit to the additional tyranny it may practice upon him. For with his money it can hire soldiers to stand over him, keep him in subjection, plunder him at discretion and kill him if he resists. And government always will do this as they everywhere and always have done it except where common law principle has been established. It is therefore a first principle, a very sine qua non of political freedom that a man can be taxed only by his personal consent. And the establishment of this principle with trial by jury ensures freedom of course because, one, no man would pay his money unless he had first contracted for such a government as he is willing to support. And two, unless the government then kept itself within the terms of its contract, juries would not enforce the payment of the tax. Besides, the agreement to be taxed would probably be entered into but for a year at a time. If in that year the government proved itself either inefficient or tyrannical to any serious degree, the contract would not be renewed. The dissatisfied parties, if sufficiently numerous for a new organization, would form themselves into a separate association for mutual protection. If not sufficiently numerous for that purpose, those who are conscientious would forgo all governmental protection rather than contribute to the support of a government which they deemed unjust. All legitimate government is a mutual insurance company voluntarily agreed upon by the parties to it, for the protection of their rights against wrongdoers. In its voluntary character it is precisely similar to an association for mutual protection against fire or shipwreck. Before a man will join an association for these latter purposes and pay a premium for being insured, he will, if he be a man of sense, look at the articles of the association, see what the company promises to do, what it is likely to do, and what are the rates of insurance. If he be satisfied on all these points, he will become a member, pay his premium for a year, and then hold the company to its contract. If the conduct of the company prove unsatisfactory, he will let his policy expire at the end of the year for which he has paid. He will decline to pay any further premiums and either seek insurance elsewhere or take his own risk without any insurance. And as men act in the insurance of their ships and dwellings, they would act in the insurance of their properties, liberties, and lives in the political association or government. The political insurance company or government have no more right in nature or reason to assume a man's consent to be protected by them and to be taxed for that protection when he has given no actual consent than a fire or marine insurance company have to assume a man's consent to be protected by them and to pay the premium when his actual consent has never been given. To take a man's property without his consent is robbery and to assume his consent where no actual consent is given makes the taking nonetheless robbery. If it did, the high women has the same right to assume a man's consent to part with his purse that any other man or body of man can have and his assumption would afford as much moral justification for his robbery as does a like assumption on the part of the government for taking a man's property without his consent. The government's pretence of protecting him as an equivalent for the taxation affords no justification. It is for himself to decide whether he desires such protection as the government offers him. If he do not desire it or do not bargain for it, the government has no more right than any other insurance company to impose it upon him or make him pay for it. Trial by the country and no taxation without consent were the two pillars of English liberty when England had any liberty and the first principles of the common law. They mutually sustain each other and neither can stand without the other. Without both, no people have any guarantee for their freedom. With both, no people can be otherwise than free. Note, trial by the country and no taxation without consent mutually sustain each other and can be sustained only by each other for these reasons. First, juries would refuse to enforce a tax against a man who had never agreed to pay for it. They would also protect men enforceably resisting the collection of taxes to which they had never consented. Otherwise, the jurors would authorize the government to tax themselves without their consent, a thing which no jury would be likely to do. In these two ways, then, the trial by the country would sustain the principle of no taxation without consent. Second, on the other hand, the principle of no taxation without consent would sustain the trial by the country because men in general would not consent to be taxed for the support of a government under which trial by the country was not secured. Thus, these two principles mutually sustain each other. But if either of these principles were broken down, the other would fall with it and for these reasons. First, if the trial by the country were broken down, the principle of no taxation without consent would fall with it because the government would then be able to tax the people without their consent in as much as the legal tribunals would be mere tools of the government and would enforce such taxation and punish men for resisting such taxation as the government ordered. Second, on the other hand, if the principle of no taxation without consent were broken down, trial by the country would fall with it because the government, if it could tax people without their consent, would, of course, take enough of their money to enable it to employ all the force necessary for sustaining its own tribunals in the place of juries and carrying their decrees into execution. End footnote. By what force, fraud, and conspiracy on the part of kings, nobles, and a few wealthy freeholders, these pillars have been prostrated in England. It is designed to show more fully in the next volume if it should be necessary. End of appendix. End of an essay on the trial by Jerry by Lysander Spinner.