“You surely do not disregard public opinion, Tom, or set it down as unworthy of all respect!”
“By no means; if you mean that opinion which is the result of deliberate judgment, and has a direct connection with our religion, morals, and manners. That is a public opinion to which we all ought to defer, when it is fairly made up, and has been distinctly and independently pronounced; most especially when it comes from high quarters, and not from low. But the country is full of simulated public opinion, in the first place, and it is not always easy to tell the false from the true. Yes, the country is full of what I shall call an artificial public opinion, that has been got up to effect a purpose, and to that no wise man will defer, if he can help it. Now, look at our scheme of administering justice. Twelve men taken out of the bosom of the community, by a species of lottery, are set apart to pronounce on your fortune, or mine—nay, to utter the fearful words of ‘guilty,’ or ‘not guilty.’ All the accessories[accessories] of this plan, as they exist here, make against its success. In the first place, the jurors are paid, and that just enough to induce the humblest on the list to serve, and not enough to induce the educated and intelligent. It is a day-labourer’s wages, and the day-labourer will be most likely to profit by it. Men who are content to toil for seventy-five cents a day are very willing to serve on juries for a dollar; while those whose qualifications enable them to obtain enough to pay their fines, disregard the penalty, and stay away.”
“Why is not an evil as flagrant as this remedied? I should think the whole bar would protest against it.”
“With what result? Who cares for the bar? Legislators alone can change this system, and men very different from those who are now sent must go to the legislature, before one is found, honest enough, or bold enough, to get up and tell the people they are not all fit to be trusted. No, no; this is not the way of the hour. We have a cycle in opinion to make, and it may be that when the round is fairly made, men may come back to their senses, and perceive the necessity of fencing in justice by some of the useful provisions that we are now so liberally throwing away. To tell you the truth, Ned, the state is submitting to the influence of two of the silliest motives that can govern men—ultra conservatism, and ultra progress; the one holding back, often, to preserve that which is not worth keeping; and the other ‘going ahead,’ as it is termed, merely for the sake of boasting of their onward tendencies. Neither course is in the least suited to the actual wants of society, and each is pernicious in its way.”
“It is thought, however, that when opinion thus struggles with opinion, a healthful compromise is made, in which society finds its advantage.”
“The cant of mediocrity, depend on it, Ned. In the first place, there is no compromise about it; one side or the other gains the victory; and as success is sustained by numbers, the conquerors push their advantages to the utmost. They think of their own grosser interests, their passions and prejudices, rather than of any ‘healthful compromise,’ as you term it. What compromise is there in this infernal code?”—Dunscomb was an ultra himself, in opposition to a system that has a good deal of that which is useful, diluted by more that is not quite so good—“or what in this matter of the election of judges by the people? As respects the last, for instance, had the tenure of office been made ‘good behaviour,’ there would have been something like a compromise; but, no—the conquerors took all; and what is worse, the conquerors were actually a minority of the voters, so easy is it to cow even numbers by political chicanery. In this respect, democracy is no more infallible, than any other form of government.”
“I confess, I do not see how this is shown, since the polls were free to every citizen.”
“The result fairly proves it. Less than half of the known number of the electors voted for the change. Now, it is absurd to suppose that men who really and affirmatively wished a new constitution would stay away from the polls.”
“More so, than to suppose that they who did not wish it, would stay away, too?”
“More so; and for this reason. Thousands fancied it useless to stem the current of what they fancied a popular movement, and were passive in the matter. Any man, of an extensive acquaintance, may easily count a hundred such idlers. Then a good many stood on their legal rights, and refused to vote, because the manner of producing the change was a palpable violation of a previous contract; the old constitution pointing out the manner in which the instrument could be altered, which was not the mode adopted. Then tens of thousands voted for the new constitution, who did not know anything about it. They loved change, and voted for change’s sake; and, possibly, with some vague notion that they were to be benefited by making the institutions as popular as possible.”