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.
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