592 mSTORY OF GREECE. nian system. Both juror and dikast represent the average man of the time and of the neighborhood, exempt, indeed, from pecu- niary corruption or personal fear, deciding according to what he thinks justice, or to some genuine feeling of equity, mercy, religion, or patriotism, which in reference to the case before him he thinks cessful operations of political chemistry, a shining result may be obtained, freed, indeed, from all republican dross, but without any of the intrinsic value that is found in the rugged but inflexible integrity, and incoruptible worth, of the original composition. Men impanelled by this process, bear no resemblance but in name to the sturdy, honest, unlettered jurors who derive no dignity but from the performance of their duties ; and the momentary exercise of whose functions gives no time for the work of corruption or the influence of fear. By innovations such as these the institution is so changed as to leave nothing to attach the affections or awaken the interest of the people, and it is neglected as an useless, or abandoned as a mischievous, con- trivance." Consistently with this earnest admiration of jury-trial, Mr. Livingston, by the provisions of his code, limits veiy materially the interference of the presiding judge, thus bringing back the jurors more nearly to a similarity with the Athenian dikasts (p. 85) : "I restrict the charge of the judge to an opinion of the law, and to the repetition of the evidence, only when required by any one of the jury. The practice of repeating all the testimony from notes, always (from the nature of things) imperfectly, not seldom inaccurately, and sometimes carelessly taken, — has a double disadvantage : it makes the jurors, who rely more on the judge's notes than on their own memory, inattentive to the evidence : and it gives them an imperfect copy of that which the nature of the trial by jury requires that they should record in their own minds. Forced to rely upon themselves, the necessity will quick- en their attention, and it will be only when they disagree in their recollec- tion, that recourse will be had to the notes of the judge." Mr. Livingston goes on to add, that the judges, fnpm their old habits, acquired as practising advocates, are scarcely ever neutral, — almost always take a side, and gen- erally against the prisoners on trial. The same considerations as those which Mr. Livingston here sets forth to demonstrate the value of jury-trial, are also insisted upon by SL Charles Comte, in his translation of Sir Eichard Phillips's Treatise on Juries, en- larged with many valuable reflections on the different shape which the jury- system has assumed in England and France. (Des Pouvoirs et des Obliga- tions dcs Jury, traduit de I'Anglois, par Charles Comte, 2d ed. Paris, 1828, with preliminary Conside'rations sur le Pouvoir Judiciaire, pp. 100, seqq.) The length of this note forbids my citing anything farther either from the eulogistic observations of Sir Eichard Phillips or from those of M. Comte : but they would be found, like those of Mr. Livingston, even more applica- ble to the dikasteries of Athens than to the juries of England and America
