JURY. 



287 



there is no strong reason to insist upon their being 

 sworn, although no good cause has been shown. 



There are some other provisions favourable to 

 prisoners accused of capital offences, and especially 

 of political offences, which deserve notice. In Eng- 

 land, in cases of treason, the prisoner is entitled to 

 n copy of the indictment five days before his arraign- 

 ment for trial, and a copy of the panel of jurors who 

 are summoned, and their professions and places of 

 abode, ten days before his trial, and a list of the 

 names of the witnesses to be produced against him, 

 the like lenth of time before the trial. He is also 

 entitled, at the expense of the government, to have 

 witnesses summoned in his behalf, to establish his 

 defence, and to have counsel assigned to assist him 

 in his defence. In America, in cases of treason, 

 similar provisions in substance exist, with a difference 

 only in respect to the length of time allowed for the 

 copy of the indictment, and lists of jurors and wit- 

 nesses. And in many of the states, an equally 

 humane provision exists in respect to all other 

 capital offences. By the laws of the United States 

 of America, the prisoner is entitled to have counsel 

 assigned to him, and to have his witnesses summoned 

 at the expense of the government, in all capital 

 cases. In cases of treason, a copy of the indictment 

 is required to be delivered three days before the 

 arraignment, and also a copy of the list of jurors and 

 witnesses summoned by the government, three days 

 before his trial. In other capital cases, the time is 

 two days, instead of three. The right to employ 

 counsel in defence, is also secured to all persons 

 accused of any crimes in the United States. But in 

 England, it is confined to cases of treason, and to 

 mere misdemeanours. In capital cases, not of trea- 

 son, counsel are not permitted to be employed in 

 England, except in arguing questions of law. * The 

 quaint and unsatisfactory reason given for this exclu- 

 sion is, that the judges are counsel for the prisoner, 

 a reason which, if good in any, is sufficient in all 

 cases. But there is more of speciousness than of 

 trutli in the remark ; for, though the judges ought 

 to take care that the prisoner has a fair and impar- 

 tial trial, it is impossible that they can act as counsel 

 for the prisoner exclusively ; and the importance of 

 counsel, exclusively for the prisoner, is admitted in 

 all eases of treason. Why not equally so in other 

 capital cases ? 



Such is a very general outline of the trial by jury 

 under the common law. It is deemed of immense 

 value in Britain, and among the dearest rights of the 

 people. In America, it is quite as dear, and is 

 deemed of such high importance, that the right to a 

 trial by jury, in all criminal cases, is secured by the 

 constitution of every state in the Union, and is also 

 provided for, in all civil cases at common law, where 

 the amount in controversy is of any considerable 

 value. This strong attachment to the trial by jury, 

 both in Britain and America, after the experience of 

 it for centuries, furnishes no small argument in 

 favour of its efficacy as a security of right, and a re- 

 dress of wrongs. It is perpetually spoken of as the 

 palladium of our public rights and liberties ; and in 

 all the various fluctuations of public opinion, it has 

 remained untouched and unsuspected. It is not sur- 

 prising that those, who know it only in theory, or 

 *ho at present see the administration of its powers 

 and duties in a very imperfect state in the civil law 

 countries, or who are accustomed to a jurisprudence 

 foreign to its principles, should entertain doubts of 

 its advantages, and should feel a deep sense of its 



* The rase is different in Scotland, counsel there, in all 

 riimiual cases, being not only allowed but required, and, 

 if the prisoner be puor, furnished at the public expense. 



defects. The first part of this article shows how 

 difficult it has been to transfer to France the trial by 

 jury, and to administer it with the same beneficial 

 effects as in Britain. The errors in France may have 

 resulted, in part, from the imperfect knowledge ot' 

 the courts, as well as of the juries, from the novelty 

 of this mode of trial, and their want of experience 

 in the management of it. Perhaps, too, there may 

 be something in the other institutions of France, or 

 in the temperament and character of the people, 

 which may disturb its proper operation. 



It may be useful for us, before concluding this 

 article, to review some of the grounds on which the 

 trial by jury has been hitherto vindicated, and to 

 glance at some of the defects which it is supposed to 

 involve, as well as at some of the objections to which 

 it is supposed to be liable Fas est et ab hoste doceri. 

 And, in the first place, it is not necessary to contend 

 that, as an instrument of public or private justice, it 

 is an institution absolutely perfect ; that it is incap- 

 able of abuse ; or that it never occasions error. 

 That would be to require of it what belongs to no 

 human institution whatsoever. Every work of man 

 is, by his very nature, imperfect. Every fonn of 

 government involves some inconveniences, and errors, 

 and abuses. Every effort to administer justice must 

 necessarily fall short of perfect correctness, from de- 

 fects of evidence, from the infirmity of judges, from 

 the wrong biases of human opinion, from errors in 

 reasoning, from ignorance, and passion, and preju- 

 dice, independently of all intentional wrong, or cor- 

 rupt motives, or malice, or dishonesty, or deliberate 

 baseness. The only question is, what, on the whole, 

 is the best means of administering justice, taking 

 human nature as it is, and human infirmity as it must 

 ever operate. If crimes are to be tried and punished, 

 if rights are to be enforced and wrongs redressed by 

 judicial tribunals, what is the best structure of the 

 institution for the purpose of trial and decision? 

 There seems to be but a narrow circle of means, out 

 of which the choice is to be made. Shall the tribunal 

 be composed of executive officers of the government, 

 or of judges appointed by the government for each 

 case, or of judges holding their office at the pleasure 

 of the government? Or shall the tribunal be com- 

 posed of judges holding their offices permanently, 

 and independently of the government? Or shall the 

 tribunal be composed of jurors chosen at large, pro 

 hac vice, or chosen permanently for that duty, with- 

 out any previous qualifications of legal experience, 

 learning or superior ability? And if so, by whom, 

 and in what manner, shall they be chosen? Or shall 

 the tribunal be of a mixed character, composed of 

 judges learned in the law, permanent in rank and 

 station, and of jurors selected for the occasion in an 

 impartial manner, and the trial be had before the 

 judges expounding the law, and the juries deciding 

 the facts? In cases of crimes, the object is to pro- 

 tect the innocent and to punish the guilty. Where 

 does the danger chiefly arise? In political accusa- 

 tions, the government not only is a party, but has a 

 strong motive to produce conviction. In other cases, 

 it may not have so strong a motive, but it may be 

 subject to influences of an equally fatal character. 

 If the king or other executive, or officers selected by 

 him for that purpose, pro hac vice, are to decide upon 

 the guilt or innocence of the party, according to their 

 own discretion and such proofs as are satisfactory to 

 themselves, there is no security whatsoever against 

 unjust convictions. The decision will be arbitrary, 

 and according to the will of the prince or his favour- 

 ites, or according to state policy, or perhaps public 

 prejudice, actuated by strong resentment. If the trial 

 be by judges solely appointed by the government, 

 and holding their offices permanently, there may be 



