And when it is continually asserted, in the words of
Jouffroy, that the jury is an outpost of liberty, or in those of
Carrara, that it is its necessary complement, we have to remark
that this would be true if the jury were instituted by a despotic
government; but when popular liberties have far more effectual
guarantees in the political organisation of the State, then this
quality of the jury is more apparent than real.
In fine, either the government is despotic, and then juries are
not strong enough to preserve liberty, as in England from the time
of Henry VIII. to that of James II.; or, as Mittermaier said,
``when authority is corrupt, and the judge is cowardly or
terrorised, a jury cannot assist in the defence of liberty.'' Or
else the government is liberal, and then the judges also are
independent, so that there is no need of juries, especially with
the guarantees of their independence which I have already
indicated.
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.
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