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tution, and it must be regarded in this light in order to be duly appreciated.
By the jury, I mean a certain number of citizens chosen indiscriminately, and invested with a temporary right of judging. Trial by jury, as applied to the repression of crime, appears to me to introduce an eminently republican element into the government, upon the following grounds:—
The institution of the jury may be aristocratic or democratic, according to the class of society from which the jurors are selected; but it always preserves its republican character, inasmuch as it places the real direction of society in the hands of the governed, or of a portion of the governed, instead of leaving it under the authority of the government. Force is never more than a transient element of success; and after force comes the notion of right. A government which should only be able to crush its enemies upon a field of battle, would very soon be destroyed. The true sanction of political laws is to be found in penal legislation, and if that sanction be wanting, the law will sooner or later lose its cogency. He who punishes infractions of the law is therefore the real master of society. Now, the institution of the jury raises the people itself, or at least a class of citizens, to the bench of judicial authority. The institution of the jury consequently invests the people, or that class of citizens, with the direction of society.[1]
In England the jury is returned from the aristocratic portion of the nation,[2] the aristocracy makes the laws, applies the laws, and
- ↑ An important remark must however be made. Trial by jury does unquestionably invest the people with a general control over the actions of citizens, but it does not furnish means of exercising this control in all cases, or with an absolute authority. When an absolute monarch has the right of trying offences by his representatives, the fate of the prisoner is, as it were, decided beforehand. But even if the people were predisposed to convict, the composition and the non-responsibility of the jury would still afford some chances favourable to the protection of innocence.
- ↑ [In France, the qualification of the jurors is the same as the electoral qualification, namely, the payment of 200 francs per annum in direct taxes: they are chosen by lot. In England, they are returned by the sheriff; the qualifications of jurors were raised to 10l. per annum in England, and 6l. in Wales, of freehold land or copyhold, by the statute W. and M., c. 24: leaseholders for a time determinable upon life or lives, of the clear yearly value of 20l. per annum over and above the rent reserved, are qualified to serve on juries; and jurors in the courts of Westminster and city of London must be householders, and possessed of real and personal estates of the value of 100l. The qualifications, however, prescribed in different statutes, vary according to the object for which the jury is impannelled. See Blackstone's Commentaries, b. iii., c. 23.—Translator's Note.]
