Blackstone' s Commentary

v1:376

"When the Jury have delivered in their verdict, and it is recorded in Court, they are then discharged. And so ends a trial by jury. A trial which, besides the other vast advantages which we have occasionally observed in its progress, is also as expeditious and cheap as it is convenient, equitable, and certain; for a commission out of Chancery, or the civil law courts, for examining witnesses in one cause, will frequently last as long, and of course be full as expensive, as the trial of a hundred issues at nisi prius; and yet the fact cannot be determined by such Commissioners at all; no, not till the depositions are published and read at the hearing of the cause in Court.

"Upon these accounts the trial by jury over has been, and I trust ever will be, looked upon as the glory of the English law. And, if it has so great an advantage over others in regulating civil property, how much must that advantage be heightened when it is applied to criminal cases! But this we must refer to the ensuing book of these commentaries: only observing for the present, that it is the most transcendent privilege which any subject can enjoy, or wish for, that he cannot be affected either in his property, his liberty, or his person, but by the unanimous consent of twelve of his neighbours and equals. A Constitution, that I may venture to affirm has, under Providence, secured the just liberties of this nation for a long succession of ages. And, therefore, a celebrated French writer (a) who concludes, that because Rome, Sparta, and Carthage have lost their liberties, therefore those of England in time must perish, should have recollected that Rome, Sparta, and Carthage, at the time when their liberties were lost, were strangers to the trial by jury.

"Great as this eulogium may seem, it is no more than this admirable Constitution, when traced to its principles, will be found in sober reason to deserve. The impartial administration, of justice, which secures both our persons and our properties, is the great end of civil society. But if that be entirely entrusted to the Magistracy, a select body of men, and those generally selected by the Prince, or such as enjoy the highest offices in the State, their decisions, in spite of their own natural integrity, will have frequently an involuntary bias towards those of their own rank and dignity. It is not to be expected from human nature, that the few should be always attentive to the interests and good of the many. On the other hand if the power of judicature were placed at random in the hands of the multitude, their decisions would be wild and capricious, and a new rule of action would be every day established in our Courts. It is wisely, therefore, ordered, that the principles and axioms of law, which are general propositions, flowing from abstracted reason, and not accommodated to times or to men, should be deposited in the breasts of the Judges, to be occasionally applied to such facts as come properly ascertained before them. For here partiality can have little scope; the law is well known, and is the same for all ranks and degrees: it follows as a regular conclusion from the premises of fact pre-established. But in settling and adjusting a question of fact, when intrusted to any single Magistrate, partiality and injustice have an ample field to range in; either by boldly asserting that to be approved which is not so, or, more artfully, by suppressing some circumstances, stretching and warping others, and distinguishing away the remainder. Here, therefore, a competent number of sensible and upright jurymen, chosen by lot, from among those of the middle rank, will be found the best investigators of truth, and the surest guardians of public justice. For the most powerful individual in the State will be cautious of committing any flagrant invasion of another' s right, when he knows that the fact of his oppression must be examined and decided by twelve indifferent men; and that, when once the fact is ascertained the law must of course redress it. This, therefore, preserves, in the hands of the people that share which they ought to have in the administration of public justice, and prevents the encroachments of the more powerful and wealthy citizens. Every new tribunal, erected for the decision of facts, without the intervention of a jury, (whether composed of Justices of the Peace, Commissioners of the Revenue, Judges of a court of conscience, or any other standing Magistrates,) is a step towards establishing aristocracy, the most oppressive of absolute Governments. The feodal system which, for the sake of military subordination, pursued an aristocratical plan in all its arrangements of property; had been intolerable in times of peace, had it not been wisely counterpoised by that privilege so universally diffused, through every part of it, the trial by the feodal Peers. And in every country on the Continent, as the trial by the Peers has been gradually disused, so the nobles have increased in power, till the State has been torn in pieces by rival factions, and oligarchy in effect has been established, though under the shadow of regal Government, unless where the miserable commons have taken shelter under an absolute monarchy, the lighter evil of the two. And particularly it is a circumstance well worthy an Englishman' s observation, that in Sweden the trial by jury, that bulwark of Northern liberty, which continued in its full vigour, so lately as the middle of the last century, (b) is now fallen into disuse; (c) and that there, though the regal power is in no country so closely limited, yet the liberties of the commons are extinguished, and the Government is degenerated into a mere aristocracy. (d) It is, therefore, upon the whole, a duty which every man owes to his country, his friends, his posterity, and himself, to maintain to the utmost of his power, this valuable Constitution of all his rights, to restore it to its ancient dignity, if at all impaired by the different value of property, or otherwise deviated (rain its first institution; to amend it wherever it is defective; and, above all, to guard with the most jealous circumspection against the introduction of new and arbitrary methods of trial, which, under a variety of plausible pretences, may in time imperceptibly undermine this best preservative of English liberty." — BLACKSTONE' S Com, 3 d vol˙ p˙ 378, 381.

(a) Montesq, Sp˙ L˙ xi, 6. (b) Whitelocke of Parl˙ 427. (c) Mod˙ Un˙ Hist˙ xxxiii, 22. (d) Mod˙ Un˙ Hist˙ xxxiii, 17.