ansient 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
quali