I do not deny these qualities of the jury; but I very much suspect
that they are serious and dangerous vices rather than useful
qualities in a legal institution.
In the first place, I believe that the distinction of powers or
social functions, corresponding to the natural law of division of
labour, ought not to be destroyed by the jury. The duty of the
judicial power, before everything else, is to observe and apply
the written law; for if we once admit the possibility that the
judge (popular or trained) has to amend the law, all guarantee of
liberty is lost, and the authority of the individual is unlimited.
As I have said above, we allow the authority of the judge
only when we have actual guarantees of his capacity and
independence, and always within the limits of the general precepts
of the law, and under the control of a superior disciplinary
power.
But the omnipotence of the jury, liberated from all reasonable
regulation, with no directing motives for its verdict, and no
possibility of control, is a two-edged blade, which may sometimes
improve upon the law, or at least usefully indicate to the
legislator the tendencies of public opinion in regard to a
particular crime.
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