no better way than this of popular legislation, for organizing the ideal justice of the people into permanent forms. If there is a man of moral and political genius in the community, he can easily be made available to the public. The experiment of popular legislation has been eminently successful in America.
Then, still further, we have officers chosen by the people for a limited time, to enforce the laws when made—the executive; others to expound them—the judiciary. It is the official business of certain officers to punish the man who violates the laws. In due and prescribed form they arrest the man charged with the offence. Now, two things are desirable: one to protect society, in all its members, from injury by any one acting against its just laws; the other is, to protect the man complained of from being hurt by government when there is no law against him, or when he has not done the deed alleged, or from an unjust punishment, even if it be legal. In despotic countries little is thought of this latter; and it goes hard with a man whom the government complains of, even if there is no positive statute against the crime charged on him, or when he is innocent of the deed alleged. Nothing can screen him from the lawful punishment, though that be never so unjust. The statute and its administration are a rule without mercy. But in liberal governments a contrivance has been devised to accomplish both these purposes—the just desire of society to execute its laws; the just desire of the individual to have justice done. That is the trial by a jury of twelve men, not officers of the government, but men taken for this purpose alone from the bosom of the community, with all their human sympathies and sense of responsibility to God about them. The jury are to answer in one word, “Guilty” or “Not guilty.” But it is plain they are to determine three things: first, Did the prisoner do the deed alleged, and as alleged? next, if so, Is there a legal and constitutional statute forbidding it, and decreeing punishment therefore? and then, if so, Shall the prisoner for that deed suffer the punishment denounced by that law?
Human statutes partake of human imperfections. See the checks against sudden, passionate, or unjust legislation. We choose legislators, and divide them into two branches,
