democracy in america-1-第82节
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hen 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。＇
I turn； however； from this part of the subject。 To look upon the jury as a mere judicial institution is to confine our attention to a very narrow view of it； for however great its influence may be upon the decisions of the law courts； that influence is very subordinate to the powerful effects which it produces on the destinies of the community at large。 The jury is above all a political institution； and it must be regarded in this light in order to be duly appreciated。
By the jury I mean a certain number of citizens chosen indiscriminately； and invested with a temporary right of judging。 Trial by jury； as applied to the repression of crime； appears to me to introduce an eminently republican element into the government upon the following grounds：…
The institution of the jury may be aristocratic or democratic； according to the class of society from which the jurors are selected； but it always preserves its republican character； inasmuch as it places the real direction of society in the hands of the governed； or of a portion of the governed； instead of leaving it under the authority of the Government。 Force is never more than a transient element of success； and after force comes the notion of right。 A government which should only be able to crush its enemies upon a field of battle would very soon be destroyed。 The true sanction of political laws is to be found in penal legislation； and if that sanction be wanting the law will sooner or later lose its cogency。 He who punishes infractions of the law is therefore the real master of society。 Now the institution of the jury raises the people itself； or at least a class of citizens； to the bench of judicial authority。 The institution of the jury consequently invests the people； or that class of citizens； with the direction of society。 *e
＇Footnote e： 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。＇
In England the jury is returned from the aristocratic portion of the nation； *f the aristocracy makes the laws； applies the laws； and punishes all infractions of the laws； everything is established upon a consistent footing； and England may with truth be said to constitute an aristocratic republic。 In the United States the same system is applied to the whole people。 Every American citizen is qualified to be an elector； a juror； and is eligible to office。 *g The system of the jury； as it is understood in America； appears to me to be as direct and as extreme a consequence of the sovereignty of the people as universal suffrage。 These institutions are two instruments of equal power； which contribute to the supremacy of the majority。 All the sovereigns who have chosen to govern by their own authority； and to direct society instead of obeying its directions； have destroyed or enfeebled the institution of the jury。 The monarchs of the House of Tudor sent to prison jurors who refused to convict； and Napoleon caused them to be returned by his agents。
＇Footnote f： ＇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。＇＇
＇Footnote g： See Appendix； Q。＇
However clear most of these truths may seem to be； they do not command universal assent； and in France； at least； the institution of trial by jury is still very imperfectly understood。 If the question arises as to the proper qualification of jurors； it is confined to a discussion of the intelligence and knowledge of the citizens who may be returned； as if the jury was merely a judicial institution。 This appears to me to be the least part of the subject。 The jury is pre…eminently a political institution； it must be regarded as one form of the sovereignty of the people； when that sovereignty is repudiated； it must be rejected； or it must be adapted to the laws by which that sovereignty is established。 The jury is that portion of the nation to which the execution of the laws is entrusted； as the Houses of Parliament constitute that part of the nation which makes the laws； and in order that society may be governed with consistency and uniformity； the list of citizens qualified to serve on juries must increase and diminish with the list of electors。 This I hold to be the point of view most worthy of the attention of the legislator； and all that remains is merely accessory。
I am so entirely convinced that the jury is pre…eminently a political institution that I still consider it in this light when it is applied in civil causes。 Laws are always unstable unless they are founded upon the manners of a nation； manners are the only durable and resisting power in a people。 When the jury is reserved for criminal offences； the people only witnesses its occasional action in certain particular cases； the ordinary course of life goes on without its interference； and it is considered as an instrument； but not as the only instrument； of obtaining justice。 This is true a fortiori when the jury is only applied to certain criminal causes。
When； on the contrary； the influence of the jury is extended to civil causes； its application is constantly palpable； it affects all the interests of the community； everyone co…operates in its work： it thus penetrates into all the usages of life； it fashions the human mind to its peculiar forms； and is gradually associated with the idea of justice itself。
The institution of the jury； if confined to criminal causes； is always in danger； but when once it is introduced into civil proceedings it defies the aggressions of time and of man。 If it had been as easy to remove the jury from the manners as from the laws of England； it would have perished under Henry VIII； and Elizabeth； and the civil jury did in reality； at that period； save the liberties of the country。 In whatever manner the jury be applied； it cannot fail to exercise a powerful influence upon the national character； but this influence is prodigiously increased when it is introduced into civil causes。 The jury； and more especially the jury in civil cases； serves to communicate the spirit of the judges to the minds of all the citizens； and this spirit； with the habits which attend it； is the soundest preparation for free institutions。 It imbues all classes with a respect for the thing judged； and with the notion of right。 If these two elements be removed； the love of independence is reduced to a mere destructive passion。 It teaches men to practice equity； every man learns to judge his neighbor as he would himself be judged； and this is especially true of the jury in civil causes； for； whilst the number of persons who have reason to apprehend a criminal prosecution is small； every one is liable to have a civil action brought against him。 The jury teaches every man not to recoil before the responsibility of his own actions； and impresses him with that manly confidence without which political virtue cannot exist。 It invests each citizen with a kind of magistracy； it makes them all feel the duties which they are bound to discharge towards society； and the part which they take in the Government。 By obliging men to turn their attention to affairs which are not exclusively their own； it rubs off that individual egotism which is the rust of society。
The jury contributes most powerfully to form the judgement and to increase the natural intelligence of a people； and this is； in my opinion； its greatest advantage。 It may be regarded as a gratuitous public school ever open； in which every juror learns to exercise his rights； enters into daily communication with the most learned and enlightened members of the upper classes； and becomes practically acquainted with the laws of his country； which are brought within the reach of his capacity by the efforts of the bar； the advice of the judge； and even by the passions of the parties。 I think that the practical intelligence and political good sense of the Americans are mainly attributable to the long use which they have made of the jury in civil causes。 I do not know whether the jury is useful to those who are in litigation； but I am certain it is highly beneficial to those who decide the litigation； and I look upon
