It is interesting to observe that Carrara, in spite of his public advocacy of the jury, wrote in a private letter in 1870 (published on the unveiling of his monument at Lucca):--``I expressed my opinion as to the jury in 1841, in an article published in the Annals of Tuscan Jurisprudence--namely, that criminal justice was becoming a lottery. Justice is being deprived of her scales and provided with a dice-box. This seems to me to be the capital defect of the jury. All other defects might be eliminated by a good law, but this one is inseparable from the jury. . . . Even amongst magistrates we may find the harsh and the clement; but in the main they judge according to legal argument, and one can always more or less foresee the issue of a trial. But with juries all forecast is rash and deceptive. They decide by sentiment; and what is there more vague and fickle than sentiment. . . . With juries, craft is more serviceable to an advocate than knowledge. I once had to defend a husband who had killed his wife's lover in a cafe. I challenged the bachelors on the jury, and accepted the married men. After that, I was sure of success, and I succeeded. . . . This is the real essential vice of the jury, which no legislative measure could overcome.''
Theodore Jouffroy, after listening at the University of Pisa to a lecture by Carmignani against the jury, said, ``You are defending logic, but slaying liberty.''
Apart from the question whether liberty is possible without logic, it is nevertheless a fact that there is always a prominent political character in the jury. This accounts for the more or less declamatory defences of this judicial institution, which is no favourite with the criminal sociologist.
At the end of the eighteenth century, when there was a scientific and legislative tendency towards the creation of an independent order of magistrates, the French Revolution, mistrusting the whole aristocracy and social caste, opposed this tendency, believing enthusiastically in the omnipotence and omniscience of the people, and instituted the jury. And whilst in the political order it was inspired by classical antiquity, in the order of justice it adopted this institution from England. The jury was not unknown to the Republic of Athens and Rome, but it was developed in the Middle Ages by the ``barbarians,'' as an instrument which helped the people to escape from tyranny in the administration of the law. It used to be said that the jury made a reality of popular sovereignty, and substituted the common sense and good will of the people for the cold dogmatism of the lawyers, penetrated as they were by class prejudices. From this point of view the jury was too much in accord with the general tendency of the ideas of the day not to be greedily adopted. It was another example of the close connection between philosophic ideas, political institutions, and the judicial organisation.
The jury, transported to the Continent, in spite of the improvements recorded by Bergasse in his report to the Constituent Assembly, on August 14, 1789, was a mere counterfeit of that which it was, and is, in England. But its political character is still so attractive that it has many supporters to this day, though the results of its employment in various countries are not very happy.
Yet, as the jury is a legal institution, we must consider its advantages and defects, both from the political and from the legal point of view, and accept the conclusion forced upon us by the predominance of one or the other.
From the political standpoint, it is unquestionable that the jury is a concession to popular sovereignty; for it is admitted that the power of the law not only originates with the people, but is also directly exercised by them.
The jury may also be a guarantee of civic and political liberties as against the abuses of government, which are far more easy with a small number of judges, more or less subordinate to the government.