On these political advantages of the jury, however, a few remarks may be made.
In the first place, the concession to popular sovereignty is reduced to very small proportions by the limitations of the jury list, and of the functions of the jury, which legislation in every country is compelled to impose.
The essential characteristic distinguishing the jury from the judge is especially marked by the origin of their authority; for the jury is a judge simply because he is a citizen, whilst the magistrate is a judge only by popular election or appointment by the head of the State. So that any one who has entered on his civil and political rights, and is of the necessary age, ought, according to the spirit of the institution, to administer justice on every civil or criminal question, whatever its importance, and not only in giving the final verdict, but also in conducting the trial. Yet not only is the ancient trial by popular assemblies impossible in the great States of our day, but also faith in the omniscience of the people has not availed to prevent all kinds of limitations in the principle of the jury. Thus the political principle of the jury is such that it cannot be realised without misapprehension, limitation, and depreciation.
In fact, even in England, where the jury can of its own motion declare in the verdict its opinions, strictures, and suggestions of reform, as arising out of the trial, it is always subject to the guidance of the judge, and it is not employed in the less serious and most numerous cases, on which the whole decision is left to magistrates, who apparently are not to be trusted to decide upon crimes of a graver kind.
And as for the other political advantages of the jury, experience shows us that the jury is often more injurious than serviceable to liberty.
In the first place, in continental States the jury is but an institution artificially grafted, by a stroke of the pen, on the organism of the law, and has no vital connection or common roots with this and other social organisms, as it has in England. Also the example of classical antiquity is opposed to the institution of the jury, which has been imposed upon us by eager imitation and political symmetry; for if the jury had disappeared amongst continental nations, this simply means that it did not find in the ethnic types, the manners and customs, the physical and social environments of these nations, an adequate supply of vitality, such as it has retained, for instance through so many historical changes, amongst the Anglo-Saxons.
And if sometimes the jury can withstand the abuses of government, still too frequently it does not withstand its own passions, or the influence of the social class (the bourgeoisie in our own day), to which nearly all juries belong. It is notorious, in fact, that the jury is more rigorous in regard to prisoners accused of crimes against property than in regard to those accused of crimes against the person, especially crimes instigated by personal motives such as hate, vengeance, or the like; for every juryman thinks that he himself might be a victim of the exploits of a thief, or the attacks of a murderer for the sake of gain; whereas there is less reason to fear a murder provoked by vengeance, an outrage, an embezzlement of public money, or the like. And Machiavelli said that men would rather have blood drawn from their veins than money from their pockets.
Besides, the same jury which will resist pressure from the Government does not resist popular pressure, direct or indirect, especially in view of the secrecy of their individual votes. No doubt there are noble exceptions; but society is made up of average virtues, and only upon them can it count.[17]
