Page:History of Greece Vol V.djvu/414

390 mSTORY OF GREECE. former andnjaintaining the latter, in imparting a sentiment of dig:* nity to small and poor men, through the discharge of a function exalted as well as useful, in calling forth the patriotic sympathies^, and exercising the mental capacities of every individual ; all these effects were produced in a still higher degree by the dikas- teries at Athens ; from their greater frequency, numbers, and spontaneity of mental action, without any professional judge, upon whom they could throw the responsibility of deciding for them.^ ' I transcribe from an eminent lawyei- of the United States, Mr. Liting ston, author of a Penal Code for the State of Louisiana (Preface, pp. 12-16), an eloqu^t panefryi'ic on trial by jary. It contains little more than the topics commonly insisted on, but it is expressed with peculiar warmth, and with the greater fulness, inasmuch as the people of Louisiana, for whom the author was writing, had no familiarity with the institution and its work- ing. The reader will obsen'e that almost everything here said in recom- mendation of the jmy might have been urged by Perikles with much truer and wider application, in enforcing bis transfer of judicial power from indi- vidual magistrates to the dikasteries. "By our constitution (L e. in Louisiana), the right of a trial by jury is se- cured to the accused, but it is not exclusively established. This, however, may be done by law, and there are so many strong reasons in its favor, that it has been thought proper to insert in the code a precise declaration that, ia all criminal prosecutions, the trial by jury is a privilege which cannot be re- nounced. Were it left entirely at the option of the accused, a desire to propitiate the favor of the judge, ignorance of his interest, or the confusion incident to his situation, might induce him to waive the advantage of a trial by his countiy, and thus by degrees accustom the people to a spectacle which they ought never to behold, — a single man determining the fact, ap- plying the law, and disposing at his will of the life, liberty, and reputation of a citizen Those who advocate the present disposition of our law say, — admitting the trial by juiy to be an advantage, the law does enough when it gives the accused the option to avail himself of its benefits ; he is the best judge whether it will be useful to him ; and it would be unjust to direct him in so important a choice. This argument is specious, but not solid. There are reasons, and some have already been stated, to show that this choice cannot be freely exercised. There is, moreover, another interest besides that of the culprit to be considered. If he be guilty, the state has an interest in his conviction : and, whether guilty or innocent, it has a high- er interest, — that the fact should be fairly canvassed before judges inac- cessible to influence, and unbiased by any false views of official duty. It has an interest in the character of its administration of justice, and a para- mount duty to perfoi-m in rendering it free from suspicion. It is not true, therefore, to say tb-:it t^ie laws do enough when they give the choice between