[702] Respecting the French juries, M. Cottu (Réflexions sur la Justice Criminale, p. 79) remarks:—
“Le désir ardent de bien faire dont les jurés sont généralement animés, et la crainte de s’égarer, les jette dans une obéissance passive à l’impulsion qui leur est donnée par le président de la Cour d’Assise, et si ce magistrat sait s’emparer de leur estime, alors leur confiance en lui ne connoit plus de bornes. Ils le considèrent comme l’étoile qui doit les guider dans l’obscurité qui les environne, et pleins d’un respect aveugle pour son opinion, ils n’attendent que la manifestation qu’il leur en fait pour la sanctionner par leur déclaration. Ainsi au lieu de deux juges que l’accusé devoit avoir, il n’en a bien souvent qu’un seul, qui est le président de la Cour d’Assise.”
Anselm Feuerbach (in the second part of his work, Ueber die Oeffentlichkeit und Mündlichkeit der Gerechtigkeitspflege, which contains his review of the French judicial system, Ueber die Gerichtsverfassung Frankreichs, Abt. iii, H. v, p. 477) confirms this statement from a large observation of the French courts of justice.
The habit of the French juries, in so many doubtful cases, to pronounce a verdict of guilty, by a majority of seven against five, in which case the law threw the actual condemnation upon the judges present in court, directing their votes to be counted along with those of the jury, is a remarkable proof of this aversion of the jury to the responsibility of decision; see Feuerbach, ibid. p. 481, seqq. Compare also the treatise of the same author, Betrachtungen über das Geschwornen Gericht. pp. 186-198.
[703] I transcribe from an eminent lawyer of the United States, Mr. Livingston, author of a Penal Code for the State of Louisiana (Preface, pp. 12-16), an eloquent panegyric on trial by jury. It contains little more than the topics commonly insisted on, but it is expressed with peculiar warmth, and with the greater fulness, inasmuch as the people of Louisiana, for whom the author was writing, had no familiarity with the institution and its working. The reader will observe that almost everything here said in recommendation of the jury might have been urged by Periklês with much truer and wider application, in enforcing his transfer of judicial power from individual magistrates to the dikasteries.
“By our constitution (i. e. in Louisiana), the right of a trial by jury is secured to the accused, but it is not exclusively established. This, however, may be done by law, and there are so many strong reasons in its favor, that it has been thought proper to insert in the codes a precise declaration that, in all criminal prosecutions, the trial by jury is a privilege which cannot be renounced. Were it left entirely at the option of the accused, a desire to propitiate the favor of the judge, ignorance of his interest, or the confusion incident to his situation, might induce him to waive the advantage of a trial by his country, and thus by degrees accustom the people to a spectacle which they ought never to behold,—a single man determining the fact, applying the law, and disposing at his will of the life, liberty, and reputation of a citizen.... Those who advocate the present disposition of our law say,—admitting the trial by jury to be an advantage, the law does enough when it gives the accused the option to avail himself of its benefits; he is the best judge whether it will be useful to him; and it would be unjust to direct him in so important a choice. This argument is specious, but not solid. There are reasons, and some have already been stated, to show that this choice cannot be freely exercised. There is, moreover, another interest besides that of the culprit to be considered. If he be guilty, the state has an interest in his conviction: and, whether guilty or innocent, it has a higher interest,—that the fact should be fairly canvassed before judges inaccessible to influence, and unbiased by any false views of official duty. It has an interest in the character of its administration of justice, and a paramount duty to perform in rendering it free from suspicion. It is not true, therefore, to say that the laws do enough when they give the choice between a fair and impartial trial, and one that is liable to the greatest objections. They must do more; they must restrict that choice, so as not to suffer an ill-advised individual to degrade them into instruments of ruin, though it should be voluntarily inflicted; or of death, though that death should be suicide.
“Another advantage of rendering this mode of trial obligatory is, that it diffuses the most valuable information among every rank of citizens; it is a school, of which every jury that is impanelled is a separate class, where the dictates of the laws, and the consequences of disobedience to them, are practically taught. The frequent exercise of these important functions, moreover, gives a sense of dignity and self-respect, not only becoming to the character of a free citizen, but which adds to his private happiness. Neither party-spirit, nor intrigue, nor power, can deprive him of this share in the administration of justice, though they can humble the pride of every other office and vacate every other place. Every time he is called on to act in this capacity, he must feel that though placed in the humblest station, he is yet the guardian of the life, the liberty, and the reputation of his fellow-citizens against injustice and oppression; and that while his plain understanding has been found the best refuge for innocence, his incorruptible integrity is pronounced a sure pledge that guilt will not escape. A state whose most obscure citizens are thus individually elevated to perform these august functions; who are alternately the defenders of the injured, the dread of the guilty, the vigilant guardians of the constitution; without whose consent no punishment can be inflicted, no disgrace incurred; who can by their voice arrest the blow of oppression, and direct the hand of justice where to strike,—such a state can never sink into slavery, or easily submit to oppression. Corrupt rulers may pervert the constitution: ambitious demagogues may violate its precepts: foreign influence may control its operations; but while the people enjoy the trial by jury, taken by lot from among themselves, they cannot cease to be free. The information it spreads, the sense of dignity and independence it inspires, the courage it creates, will always give them an energy of resistance that can grapple with encroachments, and a renovating spirit that will make arbitrary power despair. The enemies of freedom know this: they know how admirable a vehicle it is, to convey the contagion of those liberal principles which attack the vitals of their power, and they therefore guard against its introduction with more care than they would take to avoid pestilential disease. In countries where it already exists, they insidiously endeavor to innovate, because they dare not openly destroy: changes inconsistent with the spirit of the institution are introduced, under the plausible pretext of improvement: the common class of citizens are too ill-informed to perform the functions of jurors,—a selection is necessary. This choice must be confided to an agent of executive power, and must be made among the most eminent for education, wealth, and respectability; so that, after several successful 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 incorruptible 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, contrivance.”
Consistently with this earnest admiration of jury-trial, Mr. Livingston, by the provisions of his code, limits very 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 quicken their attention, and it will be only when they disagree in their recollection, that recourse will be had to the notes of the judge.” Mr. Livingston goes on to add, that the judges, from their old habits, acquired as practising advocates, are scarcely ever neutral,—almost always take a side, and generally 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 M. Charles Comte, in his translation of Sir Richard Phillips’s Treatise on Juries, enlarged with many valuable reflections on the different shape which the jury-system has assumed in England and France. (Des Pouvoirs et des Obligations des Jurys, traduit de l’Anglois, par Charles Comte, 2d ed. Paris, 1828, with preliminary Considérations sur le Pouvoir Judiciaire, pp. 100, seqq.)
The length of this note forbids my citing anything farther either from the eulogistic observations of Sir Richard Phillips or from those of M. Comte: but they would be found, like those of Mr. Livingston, even more applicable to the dikasteries of Athens than to the juries of England and America.