he would drop his balls and chase them across the square,

In fact, even in England, where the jury can of its own motion declare in the verdict its opinions, strictures, and suggestions of reform, as arising out of the trial, it is always subject to the guidance of the judge, and it is not employed in the less serious and most numerous cases, on which the whole decision is left to magistrates, who apparently are not to be trusted to decide upon crimes of a graver kind.

And as for the other political advantages of the jury, experience shows us that the jury is often more injurious than serviceable to liberty.

In the first place, in continental States the jury is but an institution artificially grafted, by a stroke of the pen, on the organism of the law, and has no vital connection or common roots with this and other social organisms, as it has in England. Also the example of classical antiquity is opposed to the institution of the jury, which has been imposed upon us by eager imitation and political symmetry; for if the jury had disappeared amongst continental nations, this simply means that it did not find in the ethnic types, the manners and customs, the physical and social environments of these nations, an adequate supply of vitality, such as it has retained, for instance through so many historical changes, amongst the Anglo-Saxons.

And if sometimes the jury can withstand the abuses of government, still too frequently it does not withstand its own passions, or the influence of the social class (the bourgeoisie in our own day), to which nearly all juries belong. It is notorious, in fact, that the jury is more rigorous in regard to prisoners accused of crimes against property than in regard to those accused of crimes against the person, especially crimes instigated by personal motives such as hate, vengeance, or the like; for every juryman thinks that he himself might be a victim of the exploits of a thief, or the attacks of a murderer for the sake of gain; whereas there is less reason to fear a murder provoked by vengeance, an outrage, an embezzlement of public money, or the like. And Machiavelli said that men would rather have blood drawn from their veins than money from their pockets.

Besides, the same jury which will resist pressure from the Government does not resist popular pressure, direct or indirect, especially in view of the secrecy of their individual votes. No doubt there are noble exceptions; but society is made up of average virtues, and only upon them can it count.[17]

[17] In Dublin, for the trial of the murderers of Burke and Lord Frederick Cavendish, in 1883, the empanelling of the jury was very difficult, for nobody was willing to expose himself to the vengeance of the fanatics.

And when it is continually asserted, in the words of Jouffroy, that the jury is an outpost of liberty, or in those of Carrara, that it is its necessary complement, we have to remark that this would be true if the jury were instituted by a despotic government; but when popular liberties have far more effectual guarantees in the political organisation of the State, then this quality of the jury is more apparent than real.

In fine, either the government is despotic, and then juries are not strong enough to preserve liberty, as in England from the time of Henry VIII. to that of James II.; or, as Mittermaier said, ``when authority is corrupt, and the judge is cowardly or terrorised, a jury cannot assist in the defence of liberty.'' Or else the government is liberal, and then the judges also are independent, so that there is no need of juries, especially with the guarantees of their independence which I have already indicated.