And
the criminal law demands from juries this proof of their
blindness (which is fortunately impossible) that they should judge
blindfold, with no regard for the prisoner, or for the
consequences which their verdict may have upon him.
It was impossible that the advocates of the jury should fail to
see the absurdity of these principles; and they have been
compelled to slur them over, at any rate in ordinary practice.
In respect of the composition of juries, restrictions have been
introduced, by means of lists of eligible persons, selection by
lot, the optional exclusion of a certain number of jurymen by the
public prosecutor and the defence, &c. All these expedients,
however, some of which are imposed by necessity, can only insure a
general and presumptive capacity, for they have the merely
negative effect of contributing to exclude the most manifest moral
or intellectual incapacity. But the only capacity which is
necessary in a judge, which is a special and positive capacity, is
not guaranteed by these restrictions, which, after all, are a
negation of the very principle of the jury.
And even if the jury were always composed of persons of adequate
capacity, it would still be condemned by two inevitable arguments
of human psychology.
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