[1]
See chapter VI. on the "Judicial Power in the United
States."
[2]
The investigation of trial by jury as a judicial
institution, and the appreciation of its effects in the United
States, together with the advantages the Americans have derived
from it, would suffice to form a book, and a book upon a very
useful and curious subject. The State of Louisiana would in
particular afford the curious phenomenon of a French and English
legislation, as well as a French and English population, which
are gradually combining with each other. See the "Digeste des
Lois de la Louisiane," in two volumes; and the "Traite sur les
Regles des Actions civiles," printed in French and English at New
Orleans in 1830.
[3]
All the English and American jurists are unanimous
upon this head. Mr. Story, judge of the Supreme Court of the
United States, speaks, in his "Treatise on the Federal
Constitution," of the advantages of trial by jury in civil cases:
-" The inestimable privilege of a trial by jury in civil cases -a privilege scarcely inferior to that in criminal cases, which is
counted by all persons to be essential to political and civil
liberty. . . ." (Story, book iii., chap. xxxviii.)
[4]
If it were our province to point out the utility of
the jury as a judicial institution in this place, much might be
said, and the following arguments might be brought forward
amongst others: -
By introducing the jury into the business of the courts you
are enabled to diminish the number of judges, which is a very
great advantage. When judges are very numerous, death is
perpetually thinning the ranks of the judicial functionaries, and
laying places vacant for newcomers. The ambition of the
magistrates is therefore continually excited, and they are
naturally made dependent upon the will of the majority, or the
individual who fills up the vacant appointments; the officers of
the court then rise like the officers of an army. This state of
things is entirely contrary to the sound administration of
justice, and to the intentions of the legislator. The office of
a judge is made inalienable in order that he may remain
independent: but of what advantage is it that his independence
should be protected if he be tempted to sacrifice it of his own
accord? When judges are very numerous many of them must
necessarily be incapable of performing their important duties,
for a great magistrate is a man of no common powers; and I am
inclined to believe that a half-enlightened tribunal is the
worst of all instruments for attaining those objects which it is
the purpose of courts of justice to accomplish. For my own part,
I had rather submit the decision of a case to ignorant jurors
directed by a skilful judge than to judges a majority of whom are
imperfectly acquainted with jurisprudence and with the laws.
[5]
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
favorable to the protection of innocence.
[6]
[This may be true to some extent of special juries,
but not of common juries. The author seems not to have been
aware that the qualifications of jurors in England vary
exceedingly.]
[9]
The Federal judges decide upon their own authority
almost all the questions most important to the country.
