But it may also violate the law, and the
liberty of the individual, and then we pay too dear for the slight
advantage which the jury can confer, and which might be replaced
by other manifestations of public opinion. In any case, as
Bentham said, it is better to have our remedy in the law than in
the subversion of the law.
As for private conviction, we willingly admit that no system of
legal proof is acceptable. But it is one thing to substitute for
the legal and artificial assurance of the law the assurance of the
judge who tries the case, and quite another thing to substitute
for conviction founded on argument, and for a critical examination
of the evidence collected during the trial, the blind and simple
promptings of instinct or sentiment.
Even apart from technical notions, which we consider necessary to
the physio-psychological trial of any accused person, social
justice certainly cannot be dispensed through the momentary and
unconsidered impressions of a casual juryman. If a criminal trial
consisted
of the simple declaration that a particular
action was good or bad, no doubt the moral consciousness of the
individual would be sufficient; but since it is a question of the
value of evidence and the examination of objective and subjective
facts, moral consciousness does not suffice, and everything should
be submitted to the critical exercise of the intellect.
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