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＇Footnote d： If it were our province to point out the utility of the jury as a judicial institution in this place； much might be said； and the following arguments might be brought forward amongst others： …
By introducing the jury into the business of the courts you are enabled to diminish the number of judges； which is a very great advantage。 When judges are very numerous； death is perpetually thinning the ranks of the judicial functionaries； and laying places vacant for newcomers。 The ambition of the magistrates is therefore continually excited； and they are naturally made dependent upon the will of the majority； or the individual who fills up the vacant appointments； the officers of the court then rise like the officers of an army。 This state of things is entirely contrary to the sound administration of justice； and to the intentions of the legislator。 The office of a judge is made inalienable in order that he may remain independent： but of what advantage is it that his independence should be protected if he be tempted to sacrifice it of his own accord？ When judges are very numerous many of them must necessarily be incapable of performing their important duties； for a great magistrate is a man of no common powers； and I am inclined to believe that a half…enlightened tribunal is the worst of all instruments for attaining those objects which it is the purpose of courts of justice to accomplish。 For my own part； I had rather submit the decision of a case to ignorant jurors directed by a skilful judge than to judges a majority of whom are imperfectly acquainted with jurisprudence and with the laws。＇
I turn； however； from this part of the subject。 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 appreciated。
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 following grounds：…
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。 *e
＇Footnote e： An important remark must； however； be made。 Trial by jury does unquestionably invest the people with a general control over the actions of citizens； but it does not furnish means of exercising this control in all cases； or with an absolute authority。 When an absolute monarch has the right of trying offences by his representatives； the fate of the prisoner is； as it were； decided beforehand。 But even if the people were predisposed to convict； the composition and the non…responsibility of the jury would still afford some chances favorable to the protection of innocence。＇
In England the jury is returned from the aristocratic portion of the nation； *f 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。 *g 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 directions； 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。
＇Footnote f： ＇This may be true to some extent of special juries； but not of common juries。 The author seems not to have been aware that the qualifications of jurors in England vary exceedingly。＇＇
＇Footnote g： See Appendix； Q。＇
However clear most of these truths may seem to be； they do not command universal assent； and in France； at least； the institution of trial by jury is still very imperfectly understood。 If the question arises as to the proper qualification of jurors； it is confined to a discussion of the intelligence and knowledge of the citizens who may be returned； as if the jury was merely a judicial institution。 This appears to me to be the least part of the subject。 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 of electors。 This I hold to be the point of view most worthy of the attention of the legislator； and all that remains is merely accessory。
I am so entirely convinced that the jury is pre…eminently a political institution that I still consider it in this light when it is applied in civil causes。 Laws are always unstable unless they are founded upon the manners of a nation； manners are the only durable and resisting power in a people。 When the jury is reserved for criminal offences； the people only witnesses its occasional action in certain particular cases； the ordinary course of life goes on without its interference； and it is considered as an instrument； but not as the only instrument； of obtaining justice。 This is true a fortiori when the jury is only applied to certain criminal causes。
When； on the contrary； the influence of the j