280 



JURY. 



terpart existed in France till 1809, under the name 

 ut'jnry d'accusation. To this essential character of 

 a jury are united several properties necessary to its 

 perfection. 



Not only must citizens sit in judgment on citizens, 

 but the greatest possible equality of rank is to be 

 sought, between the judges and the party to be judg- 

 ed, in order tliat the interests of different ranks may 

 not give rise to injustice, partiality, or false decisions. 

 In England, where all ranks, below the hereditary 

 peers, are by law equal, and without exclusive pre- 

 rogatives of rank or birth, all persons not born peers 

 of the land (for they, as an intermediate part of the 

 hereditary government, between king and people, 

 have their equals, and, consequently, their jury only in 

 the house ot lords) are tried by the same jury. In the 

 ancient German courts, which, hi substance, were jur- 

 ies, the equality of birth between the judge and crimi- 

 nal was most strictly observed ; not, however so much 

 that no inferior person could be judged by a higher, 

 as that no higher could be judged by an inferior. 



The jurors cannot well be chosen otherwise than by 

 a public officer in England, by the sheriff. To guard 

 against all danger of partiality and undue influence, 

 the person arraigned lias the right of rejecting a por- 

 tion of the jurors empanneled. The right allowed to 

 Uie prosecutor is more limited. In England, the former 

 may [in capital cases] reject twenty, and in crimes of 

 high treason, thirty-five. The public prosecutor 

 cannot challenge any one without declaring cause. 



A jury, which, in most cases, must consist of men 

 of little education, cannot be guided in their conclu- 

 sions by legal rules of evidence, but only by their 

 general impressions from the whole train of circum- 

 stances ; and, on this account, its verdicts are not 

 proper subjects of revision. In England trial by 

 jury is extended even to civil cases, especially for 

 settling certain matters of fact ; for instance, of pos- 

 session, of estimating the amount of damage, &c. 



All the operations, examinations, and other pro- 

 cesses necessary in a criminal trial, are to be 

 performed in the presence of the jury. To refer 

 them for information to a protocol, or to the reports 

 of an officer, would involve difficulties, and, at all 

 events, leave them exposed to the errors which might 

 arise from the subjection of the reporting officer to 

 foreign influences, and thus defeat the essential object 

 of trial by jury. With the French constitution, the 

 trial by jury was spread on the continent, and excited, 

 in many persons high admiration. It has been 

 proved by Feuerbach, in his classical work on this 

 subject (Landshut, 1813), that, in a political view, 

 trial by jury has a value only in particular constitu- 

 tions, in which its political advantages may induce 

 us to overlook its defects, when considered merely 

 in reference to criminal jurisdiction. Political objects 

 make the trial by jury necessary in democracies. 

 Intrusted to a single magistrate, or to a perma- 

 nent authority, the criminal power would open an 

 immediate avenue to sole dominion, or to aristocracy. 

 Equally indispensable is it to a mixed constitution, 

 /ike the English ; for it would become either a pure 

 monarchy, democracy or aristocracy, if the immense 

 preponderance of the penal power should be com- 

 mitted solely to the monarch, or to one of the powers 

 counteracting and restricting him, the people or the 

 body representing the national sovereignty. On the 

 other hand, it is apparent, that in a constitution where 

 the monarch is absolute, the political advantage of a 

 jury disappears. No constitution, no personal free- 

 dom of individuals can, in such case, be defended by 

 juries, since the ruler can abolish it at any moment, 

 or, in particular cases, render it inefficacious by a 

 special commission. The most eloquent example is 

 Uiat of France in late years. The establishment, 



moreover, of trial by jury in a pure monarchy 

 already confirmed by long permanence, is not only 

 null, but superfluous, inasmuch as the ruler can gain 

 nothing more by injustice, but may lose every thing. 

 But how far does the trial by jury satisfy the demands 

 which are made of criminal jurisdiction ? How far 

 is a certain determination of guilt or innocence to be 

 expected of it ? 1. Can we believe the juryman, 

 who is accustomed to move only in the circle of com- 

 mon intercourse, can we believe him possessed of 

 sufficient sagacity to look through the most compli- 

 cated relations, which often occur in criminal trials, 

 permitting neither aversion nor predilection to influ- 

 ence his verdict ? Certainly not. But to attempt 

 to abolish the evil by means of permanent jurors, 

 who should acquire ability by practice, would be to 

 destroy the essential character of juries. Add to this, 

 that in the oral proceedings in the presence of the 

 jurors, every means is afforded for the operation of 

 sophistry, and the excitement of the passions, and that 

 the various grounds of defence or accusation, often 

 infinitely numerous, can in no wise be fairly examined 

 and compared with each other a process possible 

 only when the judge forms his opinion from written 

 documents. In every case, the last impression of a 

 jury will be the decisive one. The charge, by which, 

 after the termination of the debates, the presiding 

 judge, versed in the law, seeks to guide the delibera- 

 tions of the jury, and aid their untaught judgment, may 

 contribute, indeed, to remove this and the deficiencies 

 remarked below, but the effect of it is very incon- 

 sistent with the object of jury trials ; for it makes him, 

 in most cases, master of the judgment. One may 

 generally foretell, in England, the verdict of the jury 

 from the charge of the judge. 2. Experience con- 

 firms it, and it lies hi the nature of things, that the 

 jury regularly hesitate, even against their conviction, 

 to give a verdict of guilty, when it exposes the party 

 to a punishment, in the public opinion, more severe 

 than just. To common penetration, it is extremely 

 difficult to separate the fact from its legal conse- 

 quences. This evil is seen to be in some degree 

 necessary, especially in England, where the criminal 

 code has not kept pace with the times, and a very 

 slight theft is punished with the halter. 3. The 

 question of guilt or innocence is not one of pure fact, 

 but also a legal question, and presupposes, in every 

 case, a knowledge of criminal law. To be able to 

 say whether any one has committed a violent robbery, 

 it must first be known whether he has done the act 

 which the accuser asserts, and, secondly, whether this 

 act had those characteristics, which the laws require 

 to constitute the crime. But if, to remedy this evil, 

 the jury should be restricted to the question whether 

 a certain act had been committed or not, its object 

 would be destroyed, and the authority to which is 

 committed the decision of the point of law would be 

 left to its free will, since it might make that act any 

 crime it pleased. In England, recourse has been had 

 to the dangerous practice of allowing the jury, when 

 they find the accusation in a legal view but partially 

 founded, or regard the crime committed as less 

 heinous than the one charged, to give a verdict partly 

 of acquittal, partly of condemnation, such as guilty or 

 manslaughter, but not of murder. If the jury agrees 

 on the point of fact, but cannot remove their doubts 

 respecting its legal character, they have to leave the 

 decision to the judge. But will not the jury trust to 

 their penetration more than is just ? Does not the 

 presiding judge become absolute ? Some might, 

 indeed, be inclined to make it a decided advantage 

 of juries, that the accused is tried by judges who are 

 his equals, and from whom, it would seem, may be 

 expected a juster decision, more conformable to his 

 peculiar situation, than from others. But, in the first 



