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a mystery quite beyond the comprehension of the body of a
nation, and so the notion of justice will be exclusively bor-
rowed from the dicta of those who are wholly given to pre-
cedent. There was a time when it was possible to pack
juries, to overawe honest and unprejudiced ones, to direct
their decisions by a tyrannical exercise of judicial power, but
these things for the most part passed away with the passing
away of the subservience of judges themselves.
The office of a jury is to pronounce upon the fact, including,
it may be, the motives, without respect to the law or the
penalty. There are persons who think capital punishment
undesirable, but it would be wholly wrong for them to be in-
fluenced in their judgment of the fact by that opinion. If a
whole jury should have such a faith, the most they could do
would be to recommend pardon or a lowering of the sentence
on that account. In one case there is a question what is in-
cluded in the fact. In cases affecting character, such as libel
and slander, are the jury to determine only whether the
slanderous or libellous words were uttered by the person com-
plained of, or are they to judge whether the statements were
true or false ? The point here raised is of especial importance
for the liberty of the press and for the full discussion of per-
sonal character, which, if unaccompanied by malice, is often
important for the interests of society. The answer which
would be given in this country in cases of libel would be that
the truth of the charges made could be brought before the
jury in mitigation of damages, and the same rule must hold
in cases of slander.
As the jury is in a certain sense a check.on the judge, who
would be invested with a fearful power if he could have law
and fact in his hands and could obstruct the course of appeals,
so the judge has a control over the jury first by his charge,
and then by a new trial. Thus, if the jury system had no
imperfections, there would be as near an approach to honest,
intelligent justice as is possible in consistence with the fact
that ignorant persons are sometimes found on a jury and in-
competent judges on the bench.