Ethics of Democracy
Chap. 5, Trial by Jury
of the people, by the people, for the people,
shall not perish from the earth.
- Speech at
Gettysburg; by Abraham Lincoln
of our time are in the habit of laying it down as a
self-evident proposition, that no people ought to be free till they are
fit to use their freedom. The maxim is worthy of the fool in the old
story who resolved not to go into the water till he had learnt to swim.
- Essay on Milton by
I will have never
No lineage counted
choppers and ploughmen
Shall constitute a
"Boston Hymn," by
Ralph Waldo Emerson
as a single one amongst your brothers has no vote to represent
him in the development of the national life, so long as there is one
left to vegetate in ignorance where others are educated, so long as a
single man, able and willing to work, languishes in poverty through
want of work to do, you have no country in the sense in which country
ought to exist - the country of all and for all.
- On the Duties
of Man by Mazzini
I charge thee, Love, set not my aim too low;
If through the cycling ages I have been
A partner in thy ignorance and sin,
So through the centuries that ebb and flow
I must, with thee, God's secrets seek to know.
Whate'er the conflict, I will help to win
Our conquest over foes without - within -
And where thou goest, beloved, I will go.
Set no dividing line between the twain
Whose aim and end are manifestly one;
Whate'er my loss, it cannot be thy gain
Wedded the light and heat that make Life's sun.
Not thine the glory and not mine the shame.
We build the world together in one Name.
'The New Eve to the
Old Adam," by - Annie L. Muzzey, in Harper's Magazine
O blood of the
people! changeless tide, through century, creed and race!
Still one as the
sweet salt sea is one, though tempered by sun and
The same in the
ocean currents, and the same in the sheltered
fountain of common hopes and kindly sympathies;
Indian and Negro,
Saxon and Celt, Teuton and Latin and Gaul-
shadow and sunshine; while the sounding unifies all!
One love, one
hope, one duty theirs! No matter the time or ken,
There never was
separate heart-beat in all the races of men!
But alien is one -
of class, not race - he has drawn the line for himself;
His roots drink
life from inhuman soil, from garbage of pomp and pelf;
His heart beats
not with the common beat, he has changed his
He deems his flesh
to be finer flesh, he boasts that his blood is blue:
aristocrat, tory - whatever his age or name,
To the people's
rights and liberties, a traitor ever the same.
The natural crowd
is a mob to him, their prayer a vulgar rhyme;
speech is sedition, and the patriot's deed a crime.
Wherever the race,
the law, the land, - whatever the time, or throne,
The tory is always
a traitor to every class but his own.
Thank God for a
land where pride is clipped, where arrogance stalks
Where law and song
and loathing of wrong are words of the common
Where the masses
honor straightforward strength, and know, when veins
That the bluest
blood is putrid blood - that the people's blood is red.
- "Crispus Attucks,"
by John Boyle O'Reilley
and plebeians, aristocrats and democrats, have alike stained
their hands with blood in the working out of the problem of politics.
But impartial history declares also that the crimes of the popular
party have in all ages been the lighter in degree, while in themselves
they have more to excuse them; and if the violent acts of
revolutionists have been held up more conspicuously for condemnation,
it has been only because the fate of noblemen and gentlemen has been
more impressive to the imagination than the fate of the peasant or the
- Froude's Caesar,
prosperity through freedom, equality, local
autonomy and respect for the commons.
The Ethics of Democracy
by Louis F. Post
Chapter 5, Trial by Jury
ONCE upon a time a boy
was kidnaped in an American city by unknown men. They blindfolded him,
put him in a carriage which they drove many miles now in one direction
and now in another to confuse him, imprisoned him in a house
subsequently discovered to be in the suburbs of his own city, and
finally extorted from his father, a very wealthy man, a large sum of
money under anonymous threats of burning out the boy's eyes with acids.
After submitting to the extortion and thereby releasing his son, the
father offered a rich reward for the conviction of the dastardly
Stimulated by that reward
the police produced a man, let us call him John Doe, whom they charged
with the crime. John Doe was identified by the boy as one of his
kidnapers - the identification being made, however, by recognition of
the prisoner's voice, for the boy had not seen either captor. In due
time the case was tried. What influenced the jury in arriving at its
verdict no outsider is competent to say. Its members are reported to
have suspected detectives of manufacturing a case to get the reward.
However that may have been, presumably they weighed all the facts
before them and decided conscientiously. At any rate no substantial
charge of incapacity or corruption was made against the jury. It
returned a verdict of "not guilty."
Now, in accordance with the
Anglo-Saxon idea of trial by jury, that verdict made a complete legal
determination of the matter. In the eye of the law the prisoner was
innocent; and whether in fact he was innocent or guilty, the judge had
no other duty to perform than to order his discharge.
If, in doing that, the judge took occasion to reflect upon the wisdom
of the verdict, he offended against judicial decorum quite as much as a
juror would have done had he, during the progress of the trial, openly
criticised a ruling of the judge upon a question of law. But the judge
in this kidnaping case, unmindful of the proprieties of the place and
the occasion, forgetting that a judge alone is not the court, but that
the jury also is part of it, and that he may by disorderly conduct or
language be guilty of contempt none the less because there is no one to
punish him when he fails to hold himself in restraint - this judge,
officiously and in manifest contempt of court, addressed the following
language to the jury, an integral part of the court, which, within its
sphere of action, namely, authority to adjudge the facts in the case,
was his judicial superior and entitled to his respect:
"If John Doe had made his own choice of a jury he could not have
selected twelve men who could have served him more faithfully. If the
State had made the selection, I know of no men it could have named who
could have been less careful of its interests. The jury is discharged
without the compliments of the court, and the prisoner is likewise
released, as to this trial, I presume to continue the criminal practice
in which you have failed to check him. I do not know what motive
actuated you in reaching this decision, but I hope none of you will
ever again appear in this jury box."
That insult to the jury was worse than contempt of court. It was worse
than a breach of judicial decorum. It was a crime against democratic
government. For it was calculated, by intimidating jurors, to undermine
the independence of juries and destroy the integrity of the system of
jury trial. And the worst of it all is that this instance is only one
among many that indicate a disposition on the part of some judges to
reduce trial by jury to an empty form with only a curious historical
This disposition, or rather, this tendency, for it has really come to
that, is so dangerous to individual liberty as to demand some serious
elementary consideration of the subject of jury trial.
In their Anglo-Saxon origin juries were composed of witnesses. They
testified under oath to the innocence or guilt of the person accused,
whom they personally knew and of whose alleged offense they had either
personal or hearsay and inferential knowledge. The idea was that a
man's guilt should be adjudged by his neighbors, who might be presumed
to know all about him. And so by their testimony, formulated into a
verdict, they acquitted or convicted.
But in the course of time this idea of the jury was reversed in its
formal aspects. Instead of empanelling jurors who know most about a
case, we now select those that know least. This is so, at any rate, in
cities. In the country juries are still made up of men familiar with
the general setting of the cases they try. That difference would
naturally exist, because jurors are still drawn from the vicinity, from
the neighborhood, and in cities "the neighborhood" may be an unknown
country to its own inhabitants, whereas in the country, "neighborhood"
still has a meaning. But the theory that jurors should be familiar with
their cases and render verdicts upon their own knowledge of the facts
was long ago displaced by the theory now prevailing that juries should
decide cases, not upon the basis of their own knowledge, but in
accordance with their judgment of the testimony of witnesses who appear
In measuring the value of trial by jury it is customary to glance down
the line of this historical evolution and draw conclusions solely from
that source. But, like all sociological conclusions resting upon the
historical basis alone, these are quite unsatisfactory. Students who
adopt them assume too readily that historical evolution is righteous
evolution. When, therefore, they observe that the jury has passed from
the stage of witnesses to familiar facts, on to the stage of judges of
unfamiliar facts, and observe a growing general tendency toward
expertism, they incline to the conclusion that in the progress of
historical evolution, the jury must, and because it must therefore it
ought to, give way to judicial experts.
But this is not the true function of history. As the man who from being
a moderate drinker had become a drunkard would be a fool to conclude
that he must, and therefore ought to, go on with his historical
evolution to delirium tremens and a drunkard's grave, so society would
be guilty of the greatest folly to infer that it must, and therefore
ought to, keep on in a certain direction merely because that direction
is historical. The true function of history is not to confirm us in
evil courses; it is to warn us away from them. Though experience (and
that is all that history is) be a good teacher, it is not necessarily
either a good or an inevitable master. Society is, indeed, an organism.
By the action and reaction of individual minds, from greatest to least,
a distinct social force is generated. But this force was not set in
motion years ago in one direction irrevocably. It is not fatalistic.
The historic impulses are always subject to the influence of present
perceptions of moral right and wrong. And these, if rationally applied,
may divert or even reverse the course of history, instead of promoting
further evolution along the old pathway.
With the question of jury trial, then, the real point is not whether it
is historically evolving into a system of trial by judicial experts,
but whether the people should allow it to so evolve - that is, whether
they should regard trial by experts as right, whether they should
regard it as tending to increase or diminish individual liberty.
This making of individual liberty the test of morality, is done
advisedly. Who can conceive of any test of moral right and wrong more
fundamental than that of the relations of man to man? Immorality as
between man and man consists in the imposition of one man's will upon
another. Conversely, morality consists in practical recognition of the
complete liberty of each, limited only by the equal liberty of all.
Assuming this liberty to be the desideratum, what relation to it does
the existing system of jury trial bear - the system, that is to say,
which makes the jury the judge in criminal cases?
In his treatise on the American Constitution, Judge Story described
trial by jury in criminal cases*
as "essential to political and civil liberty." Similar quotations from
men whose names Americans ought to honor might be made. But the opinion
of any man, however wise and good, is after all only an opinion. It is
entitled to no weight as authority. It does not decide. Such opinions,
however, are entitled to profound respect and candid consideration. It
is by weighing them in an earnest search for essential truth, rather
than by surrendering mind and conscience to the demands of historical
evolution, that civilization has been promoted.
One of the most thoughtful of these opinions is that of Alexis de
Tocqueville, the earliest foreign observer of American institutions.
His opinion derives added value from the fact that as a Frenchman his
observations of the jury system were uninfluenced by favorable
prejudice. He came to a consideration of the subject much as a
philosophical historian approaches the consideration of an obsolete
institution. Anglo-Saxons might claim too much for this palladium of
their liberties. A Frenchman of the early part of the century could
regard it with unbiased mind. And that is what De Tocqueville seems to
He considered the jury system only with reference to its political, and
not to its judicial, influences, since his general subject was not the
judicial but the political aspects of American life. And this makes his
observations still more important, for it is as a political institution
that the jury system now demands attention in consequence of the
tendency of judges to usurp its functions.
De Tocqueville said:**
"To look upon the jury as a mere judicial institution, is to confine
our attention to a very narrow view of it; for, however great its
influence may be upon the decisions of the law-courts, that influence
is very subordinate to the powerful effects which it produces on the
destinies of the community at large. The jury is above all a political
institution, and it must be regarded in this light in order to be duly
"By the jury, I mean a certain number of citizens chosen
indiscriminately, and invested with a temporary right of judging. Trial
by jury, as applied to the repression of crime, appears to me to
introduce an eminently republican element into the government, upon the
"The institution of the jury may be aristocratic or democratic,
according to the class of society from which the jurors are selected;
but it always preserves its republican character, inasmuch as it places
the real direction of society in the hands of the governed, or of a
portion of the governed, instead of leaving it under the authority of
the government. Force is never more than a transient element of
success; and after force comes the notion of right. A government which
should only be able to crush its enemies upon a field of battle, would
very soon be destroyed. The true sanction of political laws is to be
found in penal legislation, and if that sanction be wanting, the law
will sooner or later lose its cogency. He who punishes infractions of
the law, is therefore the real master of society. Now, the institution
of the jury raises the people itself, or at least a class of citizens,
to the bench of judicial authority. The institution of the jury
consequently invests the people, or that class of citizens, with the
direction of society.
"In England the jury is returned from the aristocratic portion of the
nation; the aristocracy makes the laws, applies the laws, and punishes
all infractions of the laws; everything is established upon a
consistent footing, and England may with truth be said to constitute an
aristocratic republic. In the United States the same system is applied
to the whole people. Every American citizen is qualified to be an
elector, a juror, and is eligible to office. The system of the jury, as
it is understood in America, appears to me to be as direct and as
extreme a consequence of the sovereignty of the people as universal
suffrage. These institutions are two instruments of equal power, which
contribute to the supremacy of the majority. All the sovereigns who
have chosen to govern by their own authority, and to direct society
instead of obeying its direction, have destroyed or enfeebled the
institution of the jury. The monarchs of the House of Tudor sent to
prison jurors who refused to convict, and Napoleon caused them to be
returned by his agents.... The jury is pre-eminently a political
institution; it must be regarded as one form of the sovereignty of the
people: when that sovereignty is repudiated, it must be rejected; or it
must be adapted to the laws by which that sovereignty is established.
The jury is that portion of the nation to which the execution of the
laws is entrusted, as the Houses of Parliament constitute that part of
the nation which makes the laws; and in order that society may be
governed with consistency and uniformity, the list of citizens
qualified to serve on juries must increase and diminish with the list
These comments of the great Frenchman might be very much expanded, but
nothing could be added to them. The whole argument for the jury system
as a political force is there. And it admits of no possible refutation
which does not proceed from a denial of the right and wisdom of
government by the people.
Those who oppose the system of jury trial would have accused persons
tried by judges, by experts in the law, who are skilled in unraveling
tangled evidence. And this is what such conduct as that of the judge
quoted above tends to. It is the tendency of all the rebuking of
jurymen which certain types of judges indulge in, from the judge who
officiously probes the general opinions of jurors at the beginning of
the term, and dismisses them, sometimes insolently, if he doesn't like
their point of view, to those who, like the judge already quoted,
chastise the juries that acquit prisoners whom the judge would have
convicted. Whatever may be the purpose, the manifest effect is to
intimidate jurors, thereby making them responsive to significant words
and shoulder shrugs from the bench, and constituting the judge a
thirteenth juror, with the independence, the intelligence and the
conscience of the other twelve wrapped in the folds of his silken gown.
The tendency of this reprehensible course of action is to reduce the
jury system to a barren formality, and for juries drawn from the people
to substitute an autocratic bench of experts.
There is about the idea of trial by experts something extremely
plausible. It is suggestive of getting a shoemaker to make your shoes,
a watchmaker to mend your timepiece, or a farmer to raise your grain.
Why not a judge to try your criminals?
But the analogy doesn't hold. Men learned in the law and skillful in
twisting and turning through the mazes of legal principles and
conflicting testimony are no more expert than laymen at drawing
common-sense conclusions. A New York judge who was short of a jury
panel, once drew a panel from the bystanders, all lawyers - all
experts. This was by common consent, of course, the lawyers acquiescing
for the sensation of the thing. But that jury disagreed! Decisions of
questions of fact by judges, even when there is only one judge and
consequently no disagreement, are no more satisfactory than verdicts by
juries. On the whole they may be said to be less so. And as to medical
experts, is not the community justly tired of their jarring opinions?
The truth is that there is something unbalancing about the minuteness
of expert knowledge when brought into common or general relationships.
So far as the judicial function is concerned, no better way of deciding
questions of fact has been discovered than that of trial by jury. Under
this system the expert is put in his proper place. If a mechanical
question is involved, experts inform the jury as to the mechanical
technicalities necessary for it to know. If a chemical question,
chemists perform that office. So with the whole range of technical
knowledge, including the law of the case, about which the jury is
advised by the legal experts on the bench. When thus informed and in
possession of the facts in the case, the chances are vastly greater
that a jury of twelve intelligent men will marshal those facts in a
common-sense way and reach a just conclusion than that any of the
Juries are sometimes corrupt and they sometimes make mistakes. But the
innocent prisoner has better guarantees of acquittal at the hands of a
jury, than at the hands of a judge expert in the work of "railroading"
criminals; and the guilty man has but little better chance of escape.
Though juries do make mistakes in deciding questions of fact, it is
hardly conceivable that they make as many as it appears from the law
reports that judges make in deciding questions of law; and though they
be occasionally corrupt, neither are judges always immaculate. There
are few lawyers of large experience who will not concede that as a
rule, even when juries seem to be mistaken, they get at substantial
But the judicial function of juries is not the important one. As De
Tocqueville says, the jury's function as a judge in particular cases is
subordinate to its function as a political institution. In the nature
of things in criminal cases, if the jury decides at all, it must decide
both fact and law. Legal experts may advise, but the jury must decide.
So long, therefore, as the independence of the jury can be preserved,
individual liberty cannot be quite destroyed. All other free
institutions might go, even the suffrage might be restricted to the
very rich or the highly educated, yet, if the penal law were
administered by independent juries drawn from the body of the people,
the grosser forms of tyranny would still be held in check.
That explains the tendency to minimize the function of juries. With the
jury system out of the way or become a mere form, and experts invested
with power to punish infractions of the law, our government would go on
developing into a government by experts until it had reached the
inevitable climax, government by a single expert born to his place and
specially educated to his function - the government of a czar.
Whoever will stop this tendency will be a benefactor. Some
exceptionally courageous juror may yet volunteer for that duty. If,
when a judge in some other case berates the jury after the manner of
the judge in the kidnaping case, a member of the jury will rebuke him,
that juror will have performed a most valuable public service. It
should not be done pertly, nor lightly, nor rashly; but in
self-respectful manner, seriously, earnestly, decisively, and with
confidence in his rights as a juror and consciousness of his imperative
duty as a citizen of asserting those rights.
Such a protest might call out an apology from the bench, for doubtless
many judges offend in this way thoughtlessly, and that apology would
not be without beneficial influence. At the worst, the protest could
only provoke proceedings for contempt of court, and in those
proceedings the juror's contempt in protesting against judicial outrage
would be a minor issue in comparison with the judge's contempt in
disturbing the course of justice in his court by intimidating jurors.
Unless jurors do assert themselves by insisting upon a due recognition
from the bench of their rights and dignity, the process of reducing
juries to a place in which they will perfunctorily record the decisions
of judges will go on apace; and judges, having usurped the functions of
juries, will become the real masters of society.
* Book III, Chapter XXXVIII.
** "Democracy in America" Vol. II, Chapter IV.
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