« PoprzedniaDalej »
under the plausible pretext of improvement; the common class of citizens are too ill-informed to perform the duties of jurors-a selection is necessary. This choice must be confided to an agent of executive power, and must be made among the most eminent for education, wealth, and respectability; so that, after several successive operations of political chemistry, a shining result may be obtained, freed, indeed, from all republican dross, but without any of the
of the intrinsic value, that is found in the rugged, but inflexible integrity, and incorruptible worth of the original composition. Men, impanelled by this process, bear no resemblance but iu name, to the sturdy, honest, unlettered jurors, who derive no dignity but from the performance of their duties; and the momentary exercise of whose functions, gives no time for the work of corruption, or the effect of influence or, fear. By innovations such as these, the institution is so changed, as to leave nothing to attach the affections, or awaken the interest of the people, and it is neglected as an useless, or abandoned as a mischievous, contrivance.
In England, the panel is made up by an officer of the crown; but there are many correctives which lessen the effect of this vice. The return,, except in very special cases, is made, not with a view to any particular cause, but for the trial of all that are ; at issue; and out of a large number returned on the panel, the twelve taken for the trial, are designated by lot: in capital cases also, the extent to which challenges are allowed, is calculated to defeat
any iinproper practices; and when we add to this the general veneration for this mode of trial, the force of public opinion, guided by a spirit which it has created, and diffused, and perpetuated, we shall see the reason why the trial by jury, though by no means perfectly organized, is, in that country, justly considered as the best security for the liberties of the people ; and why, though they behold with a shameful indifference, a domineering aristoeracy, corrupting their legislative, and encroaching on their executive branches of government, they yet boast, with reason, of the independence of their judiciary, ennobled as it is with the trial by jury. We have received this invaluable inheritance from our British ancestors : let us defend, and imprové, and perpetuate it; not only that we may ourselves enjoy its advantages, but, that if this, with the prineiple of free representation in government, and that admirable contrivance for securing personal liberty, the writ of habeas corpus, should chance to be corfupted or abolished in the country from whence we : derived them, we may return the obligation we have received, by offering for adoption, to a regenerated state, those great institutions of freedom established by ancestors common to them and the face of freemen, by whose labours, experience and valour, they will have been perfected and preserved.
In France, this mode of trial was introduced during the revolution, but was afterwards found inconvenient to the exercise of the imperial power. By the code of 1808, it was so modified as to leave searcely a resemblance of its origin, it became a
select corps of sixty men, chosen by the prefect, who held his office at the will of the crown. It was reduced by successive operations (all by the king's officers) to twenty-one ; out of which the accused had the illusory privilege of excepting to nine; and the votes of the majority of the remaining twelve, combined, in no very intelligible manner, with the opinions of the bench, decided his fate. Yet even under this vicious constitution, juries have sometimes been found to interpose between executive power and its victims; and the very name (for it is, in fact, very little more) of the trial hy jury, is now under the monarchy of France, the object of royal jealousy and fear.
With these examples before us, ought we not, in framing a new code, to impress on the minds of our constituents, a sacred attachment to this institution? So venerable for its antiquity! So wise in theory! So efficient in practice! So simple in form! In substance so well-adapted to its end ! The terror of guilt, the best hope of innocence! Venerated by the friends of freedom, detested and abhorred by its foes! Can we too religiously guard this sanctuary into which liberty may retire in times (God long avert them from our country), when corruption may pervert and faction overturn, every other institution framed for its protection ? Even in such times, the nation need not despair. A rege : nerating spirit will never be extinct, while this admirable contrivance for its preservation exists : fostered in this retreat, it will gradually gather strength, and in due time will walk abroad in its
majesty over the land, arrest the progress of arbitrary power, strike off the shackles which it has imposed, and restore the blessings of freedom to a people': still conscious of their right to enjoy them.
If these reflections should chance to be seen in the other states, they will be considered as a trite repetition of acknowledged truths: here, I have some reason to apprehend they will be thought proble-' matical assertions. But whatever may be their effect, I should, with my ideas of their importance, have been guilty of a dereliction of duty, had I failed to present them. All, however, I think on the subject, more than any language at my command can express, is contained in a single felicitous sen-, tence, written by a man as eminent for learning and genius, as he is admired for the purity of his principles, and his attachment to the institutions of freedom--speaking of jurors, he calls them
“ Twelve invisible judges, whom the eye of the corrupter cannot see, and the influence of the powerful cannot reach, for they are no where to be. found, until the moment when the balance of justice, being placed in their hands, they hear, weigh, determine, pronounce, and immediately disappear, and are lost in the crowd of their fellow-citizens.”*
The other provisions of this book, either require no particular elucidation, or will receive it when the work is presented for adoption.
It may, however, be proper to notice a change which is proposed in the law of principals and ac
* Duponceau's address at the opening of the law academy at Philadelphia.
cessaries. 'As it now stands, two species of offenders are designated by this general name; distinguished by an awkward periphrase, into “accessaries before the fact,” and “ accessaries after the fact.” As there is scarcely any feature in common between the offences designated by these two denominations, I have taken away the general appellation, and called the first an accomplice, leaving the description of accessary exclusively to the second. In fact, how can the odious offence of plotting a crime, and instigating another to perform that which the contriver has not courage himself to execute; how can this be assimilated to the act of relieving a repentant and supplicant offender, who invokes our pity, and relies on our generosity? An act, which, though justice may censure, humanity cannot always condemn. The first class now includes some acts which are so much identified with those which constitute the offence, that it was thought more simple, as well as more just, to arrange them under the same head, and by destroying useless distinctions, greatly restrict the number of crimes of complicity.
Under the second head, our law now calls for the punishment of acts which, if not strictly virtues, are certainly too nearly allied to them to be designated as crimes. The ferocious legislation which first enacted this law, demands (and sometimes under the penalty of the most cruel death) the sacrifice of all the feelings of nature; of all the sentiments of humanity ; breaks the ties of gratitude and lionour :" makes obedience to the law to consist in a dereliction of every principle that gives dignity