Front Page Titles (by Subject) A SYSTEM OF GOVERNMENT BY JURIES. A FRAGMENT. * - Prose Works vol. 1
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A SYSTEM OF GOVERNMENT BY JURIES. A FRAGMENT. * - Percy Bysshe Shelley, Prose Works vol. 1 
The Prose Works of Percy Bysshe Shelley from the original Editions. Edited, Prefaced, and Annotated by Richard Hearne Shepherd, in Two Volumes (London: Chatto & Windus, 1906).
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A SYSTEM OF GOVERNMENT BY JURIES.
GOVERNMENT, as it now subsists, is perhaps an engine at once the most expensive and inartificial that could have been devised as a remedy for the imperfections of society. Immense masses of the product of labour are committed to the discretion of certain individuals for the purpose of executing its intentions, or interpreting its meaning. These have not been consumed, but wasted, in the principal part of the past history of political society.
Government may be distributed into two parts:—First, the fundamental—that is, the permanent forms, which regulate the deliberation or the action of the whole; from which it results that a state is democratical, or aristocratical, or despotic, or a combination of all these principles.
And Secondly—the necessary or accidental—that is, those that determine, not the forms according to which the deliberation or the action of the mass of the community is to be regulated, but the opinions or moral principles which are to govern the particular instances of such action or deliberation. These may be called, with little violence to the popular acceptation of those terms, Constitution, and Law: understanding by the former, the collection of those written institutions or traditions which determine the individuals who are to exercise, in a nation, the discretionary right of peace and war, of death or imprisonment, fines and penalties, and the imposition and collection of taxes, and their application, thus vested in a king, or an hereditary senate, or in a representative assembly, or in a combination of all; and by the latter, the mode of determining those opinions, according to which the constituted authorities are to decide on any action; for law is either a collection of opinions expressed by individuals without constitutional authority, or the decision of a constitutional body of men, the opinion of some or all of whom it expresses—and no more.
To the former, or constitutional topics, this treatise has no direct reference. Law may be considered, simply—an opinion regulating political power. It may be divided into two parts—General Law, or that which relates to the external and integral concerns of a nation, and decides on the competency of a particular person or collection of persons to discretion in matters of war and peace—the assembling of the representative body—the time, place, manner, form, of holding judicial courts, and other concerns enumerated before, and in reference to which this community is considered as a whole;—and Particular Law, or that which decides upon contested claims of property, which punishes or restrains violence and fraud, which enforces compacts, and preserves to every man that degree of liberty and security, the enjoyment of which is judged not to be inconsistent with the liberty and security of another.
To the former, or what is here called general law, this treatise has no direct reference. How far law, in its general form or constitution, as it at present exists in the greater part of the nations of Europe, may be affected by inferences from the ensuing reasonings, it is foreign to the present purpose to inquire—let us confine our attention to particular law, or law strictly so termed.
The only defensible intention of law, like that of every other human institution, is very simple and clear—the good of the whole. If law is found to accomplish this object very imperfectly, that imperfection makes no part of the design with which men submit to its institution. Any reasonings which tend to throw light on a subject hitherto so dark and intricate, cannot fail, if distinctly stated, to impress mankind very deeply, because it is a question in which the life and property and liberty and reputation of every man are vitally involved.
For the sake of intelligible method, let us assume the ordinary distinctions of law, those of civil and criminal law, and of the objects of it, private and public wrongs. The author of these pages ought not to suppress his conviction, that the principles on which punishment is usually inflicted are essentially erroneous; and that, in general, ten times more is apportioned to the victims of law, than is demanded by the welfare of society, under the shape of reformation or example. He believes that, although universally disowned, the execrable passion of vengeance, exasperated by fear, exists as a chief source among the secret causes of this exercise of criminal justice. He believes also, that in questions of property, there is a vague but most effective favouritism in courts of law and among lawyers, against the poor to the advantage of the rich—against the tenant in favour of the landlord—against the creditor in favour of the debtor; thus enforcing and illustrating that celebrated maxim, against which moral science is a perpetual effort: To whom much is given, of him shall much be required; and to whom men have committed much, of him they will ask the more.
But the present purpose is, not the exposure of such mistakes as actually exist in public opinion, but an attempt to give to public opinion its legitimate dominion, and an uniform and unimpeded influence to each particular case which is its object.
When law is once understood to be no more than the recorded opinion of men, no more than the apprehensions of individuals on the reasoning of a particular case, we may expect that the sanguinary or stupid mistakes which disgrace the civil and criminal jurisprudence of civilized nations will speedily disappear. How long, under its present sanctions, do not the most exploded violations of humanity maintain their ground in courts of law, after public opinion has branded them with reprobation; sometimes even until by constantly maintaining their post under the shelter of venerable names, they out-weary the very scorn and abhorrence of mankind, or subsist unrepealed and silent, until some check, in the progress of human improvement, awakens them, and that public opinion, from which they should have received their reversal, is infected by their influence. Public opinion would never long stagnate in error, were it not fenced about and frozen over by forms and superstitions. If men were accustomed to reason, and to hear the arguments of others, upon each particular case that concerned the life, or liberty, or property, or reputation of their peers, those mistakes, which at present render these possessions so insecure to all but those who enjoy enormous wealth, never could subsist. If the administration of law ceased to appeal from the common sense, or the enlightened minds of twelve contemporary good and true men, who should be the peers of the accused, or, in cases of property, of the claimant, to the obscure records of dark and barbarous epochs, or the precedents of what venal and enslaved judges might have decreed to please their tyrants, or the opinion of any man or set of men who lived when bigotry was virtue, and passive obedience that discretion which is the better part of valour,—all those mistakes now fastened in the public opinion, would be brought at each new case to the * * * * * * * * * * * *
[* ]From The Shelley Papers, 1833.