It makes a participation of the people in the administration of justice possible without having the is presented when an officer is accused of unofficer-like and ungentlemanly conduct. Now the question becomes: Are not these cases far more frequent than it is supposed in the countries where the trial by jury does not exist? Are not almost all complex cases, such as require in a high degree good strong common sense, the tact of practical life, together with the law, to be justly decided? Are not, perhaps, the greater part of civil cases such? The English and Americans seem to believe they are. They believe that close logical reasoning is indeed necessary in the application of the law, and they assign this to the law-officers, but they believe also that a high degree of plain good common sense, unshackled by technicalities, is necessary to decide whether, "upon the whole," "taken all in all," the individual case in hand is such as to bring it within the province of the specific law, with reference to which it is brought before the court, and they assign this part of the trial to the jury, that is to non-professional citizens. The English, and the people of some American states, do not only follow this view in the first stage of a case, but, in order to avoid the evil of letting technicalities get the better of essential justice, of letting the minds of professional lawyers, whose very duty it is to train themselves in strict, uncompromising logic, decide complicated and important cases in the last resort, they allow an appeal from all the judges to the house of lords, or to the senate. I do not mention this last fact as one to be imitated, but merely as corroborating what I have stated before. It appears to me an important fact, which ought always to be remembered when the subject of the trial by jury in general is discussed, that by the trial by jury, the Anglican race endeavors, among other things, to insure the continuous and necessary admixture of common sense, in the decision of cases; and who can deny that in all practical cases, in all controversies, in all disputes, and in all cases which require the application of general rules or principles to concrete cases, whatsoever common sense is indispensable, is that sound judgment which avoids the Nimium? Who will deny that every one is liable to have this tact and plain soundness of judgment impaired in that very line or sphere in which his calling has made it his duty to settle general principles, to find general VOL. I.-22 serious evil of courts, consisting of multitudes or mobs, or the confusion of the branches of the administration of justice, of judges and triers; It obtains the great advantage of a mean of views of facts, regarding which Aristotle said that many are more just than one, although each one were less so than the one; without incurring the disadvantages and the injustice of vague multitudes; It brings, in most cases, a degree of personal acquaintance with the parties, and frequently with the witnesses, to aid in deciding; It gives the people opportunities to ward off the inadmissible and strained demands of the government;" It is necessary for a complete accusatorial procedure; It makes the administration of justice a matter of the people, and awakens confidence; It binds the citizen with increased public spirit to the government of his commonwealth, and gives him a constant and renewed share in one of the highest rules, to defend general points? The grammarian, by profession, frequently, perhaps, generally, writes pedantically and stiffly; the religious controversialist goes to extremes; the philosopher, by profession, is apt to divide, distinguish, and classify beyond what reality warrants; the soldier, by profession, is apt to sacrifice advantages to his science. Dr. Sangrado is the caricature of the truth here maintained. The denial of the necessity of profound study and professional occupation would be as fanatical as the disregard of common sense would be supercilious and unphilosophical. Truth stands, in all spheres, emphatically in need of both. 4 The whole history of the libel down to Charles Fox's immortal bill may serve as an illustration. public affairs, the application of the abstract law to the reality of life—the administration of justice; It teaches law and liberty, order and rights, justice and government, and carries this knowledge over the land;5 It throws a great part of the responsibility upon the people, and thus elevates the citizen while it legitimately strengthens the government; It does not only elevate the judge, but makes him a popular magistrate, looked up to with confidence and favor; which is nowhere else the case in the same degree, and yet is of great importance, especially for liberty; It is the great bulwark of liberty in monarchies against the crown, and a safety-valve in republics; It alone makes it possible to decide to the satisfaction of the public those cases which must be decided, and which nevertheless do not lie within the strict limits of the positive law; 5 Lord Chancellor Cranworth said, in February, 1853, in the house of lords: Trial by "There were many other subjects to be considered. judge instead of by jury had been eminently successful in the county courts; but in attempting to extend this to cases tried in other courts, we must not lose sight of the fact that we should be taking a step towards unfitting for their duties those who are to send representatives to the other house of parliament, who are to perform municipal functions in towns, and who are to exercise a variety of those local jurisdictions which constitute in some sort in this country a system of self-government. It may be very dangerous to withdraw from them that duty of assisting in the administration of justice. Mechanics' schools may afford valuable instruction, but I doubt if there is any school that reads such practical lessons of wisdom, and tends so much to strengthen the mind, as assisting as jurymen in the administration of justice." It alone makes it possible to reconcile, in some degree, old and cruel laws, if the legislature omits to abolish them, with a spirit of humanity, which the judge could never do without undermining the ground on which alone he can have a firm footing; It is hardly possible to imagine a living, vigorous and expanding common law without it; It is with the representative system one of the greatest institutions which develop the love of the law, and without this love there can be no sovereignty of the law in the true sense; It is part and parcel of the Anglican self-government; It gives to the advocate that independent and honored position which the accusatorial process as well as liberty requires, and it is a school for those great advocates without which broad popular liberty does not exist. Mr. Hallam, speaking in his work on the Middle Ages of "the grand principle of the Saxon polity, the trial of facts by the country," says, "from this principle (except as to that preposterous relic of barbarism, the requirement of unanimity) may we never swerve-may we never be compelled in wish to swerve-by a contempt of their oaths in jurors, a disregard of the just limits of their trusts." To these latter words I shall only add, that the fact of the jury's being called by the law the country, and of the indicted person's saying that he will be tried by God and his country, are facts full of meaning, and expressive of a great part of the beauty and the ad vantages of the trial by jury. There is, however, no mysterious efficacy inherent in this or any other institution, nor any peculiar property in the name. Juries must be well organized, and must conscientiously do their duty. They become, like all other guarantees of liberty, very dangerous in the hands of the government, when nothing but the form is left, and the spirit of loyalty and of liberty is gone. A corrupt or facile jury is the most convenient thing for despotism and anarchy. The jury trial has been mentioned here as one of the guarantees of liberty, and it might not be improper to add some remarks on the question whether the unanimous verdict ought to be retained, or whether a verdict as the result of two-thirds, or a simple majority of jurors agreeing, ought to be adopted. This is an important subject, occupying the serious attention of many persons. But, however important the subject may be, and connected as I believe it to be with the very continuance of the trial by jury as a wholesome institution, and with the supremacy of the law, it is one still so much debated that a proper discussion would far exceed the limits to which this work is restricted; and the mere avowal that it is. my firm conviction, after long observation and study, that the unanimity principle ought to be given up, would be of no value. I beg, however, to add as a fact, at all events of interest to the student, that Locke was against the unanimity principle. His 6 On all these subjects connected with the jury I must refer to the Political Ethics. |
