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archical constitution; many of its offspring have founded powerful republics; but wherever the English have been, they have boasted of the privilege of trial by jury.[1] They have established it, or hastened to re-establish it, in all their settlements. A judicial institution which obtains the suffrages of a great people for so long a series of ages, which is zealously renewed at every epoch of civilization, in all the climates of the earth, and under every form of human government, cannot be contrary to the spirit of justice.[2]
I turn, however, from this part of the subject. To look upon the jury as a mere judicial institution, is to confine our attention to a very narrow view of it; for, however great its influence may be upon the decisions of the law-courts, that influence is very subordinate to the powerful effects which it produces on the destinies of the community at large. The jury is above all a political insti-
- ↑ All the English and American jurists are unanimous upon this head. Mr. Story, judge of the supreme court of the United States, speaks, in his treatise on the federal constitution, of the advantages of trial by jury in civil cases: “The inestimable privilege of a trial by jury in civil cases—a privilege scarcely inferior to that in criminal cases, which is counted by all persons to be essential to political and civil liberty”..... (Story, book iii., ch. xxxviii.)
- ↑
If it were our province to point out the utility of the jury as a judicial institution
in this place, much might be said, and the following arguments might be brought
forward among others:—
By introducing the jury into the business of the courts you are enabled to diminish the number of judges; which is a very great advantage. When judges are very numerous, death is perpetually thinning the ranks of the judicial functionaries, and laying places vacant for new comers. The ambition of the magistrates is therefore continually excited, and they are naturally made dependant upon the will of the majority, or the individual who fills up vacant appointments: the officers of the courts then rise like the officers of an army. This state of things is entirely contrary to the sound administration of justice, and to the intentions of the legislator. The office of a judge is made inalienable in order that he may remain independent; but of what advantage is it that his independence is protected, if he be tempted to sacrifice it of his own accord? When judges are very numerous, many of them must necessarily be incapable of performing their important duties; for a great magistrate is a man of no common powers: and I am inclined to believe that a half-enlightened tribunal is the worst of all instruments for attaining those objects which it is the purpose of courts of justice to accomplish. For my own part, I had rather submit the decision of a case to ignorant jurors directed by a skilful judge, than to judges, a majority of whom are imperfectly acquainted with jurisprudence and with the laws.
[I venture to remind the reader, lest this note should appear somewhat redundant to an English eye, that the jury is an institution which has only been naturalized in France within the present century; that it is even now exclusively applied to those criminal causes which come before the courts of assize, or to the prosecutions of the public press; and that the judges and counsellors of the numerous local tribunals of France—forming a body of many thousand judicial functionaries—try all civil causes, appeals from criminal causes, and minor offences, without the jury.—Translator's Note.]
