Now history reminds us that the jury is never instituted by despotic governments. It was refused, for instance, in upper Italy by Napoleon in 1815, in Naples by the Bourbons in 1820, in Lombardy by Austria in 1849, and in our own day in Russia, for political crimes, though it is allowed for ordinary crimes.
Thus the jury, as a political and liberal institution, is oddly destined to be excluded when it would be serviceable, and to be useless when it is admitted. It reminds us of the destiny of the National Guard.
But, even in England, the jury is regarded as especially a legal institution; and the main qualities attributed to it in this connection are moral judgment and private conviction.
The law, we are told, has always a certain harshness and insufficiency, for it ought to provide for the future whilst grounding itself on the past, whereas it cannot foresee all possible cases. Progress is so rapid and manifold, in modern society, that penal laws cannot keep pace with it, even though they are frequently recast--as for instance in Bavaria, which in one century has had three penal codes, and in France, where an almost daily accumulation of special laws is piled upon the original text of the most ancient code in Europe.
The jury, by its moral judgment, corresponding in some degree to the equity of the ancients, is able to correct the summum jus with verdicts superior to the written law. And, in addition, the jury always follows its private conviction, the inspiration of sentiment, the voice of the conscience, pure instinct, in place of the stern and artificial maxims of the trained lawyer.
I do not deny these qualities of the jury; but I very much suspect that they are serious and dangerous vices rather than useful qualities in a legal institution.
In the first place, I believe that the distinction of powers or social functions, corresponding to the natural law of division of labour, ought not to be destroyed by the jury. The duty of the judicial power, before everything else, is to observe and apply the written law; for if we once admit the possibility that the judge (popular or trained) has to amend the law, all guarantee of liberty is lost, and the authority of the individual is unlimited. As I have said above, we allow the authority of the judge only when we have actual guarantees of his capacity and independence, and always within the limits of the general precepts of the law, and under the control of a superior disciplinary power.
But the omnipotence of the jury, liberated from all reasonable regulation, with no directing motives for its verdict, and no possibility of control, is a two-edged blade, which may sometimes improve upon the law, or at least usefully indicate to the legislator the tendencies of public opinion in regard to a particular crime. But it may also violate the law, and the liberty of the individual, and then we pay too dear for the slight advantage which the jury can confer, and which might be replaced by other manifestations of public opinion. In any case, as Bentham said, it is better to have our remedy in the law than in the subversion of the law.