APPENDIX A.
De Tocqueville says on Jury Trial, “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 to be fully appreciated.
“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.... 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 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.... The jury serves to communicate the spirit of the judges to the minds of the citizens; and this spirit, with the habits which attend it, is the soundest preparation for free institutions.”[106] Thus, while in England we are gradually allowing the institution of the jury to fall into disuse, we are making the central executive the real master of society, and while we imagine we are advancing towards a more strongly republican character, we are in fact retrograding towards imperialism.