The Founders' Blog

Paris, July 19, 1789

Dear Sir.

—The above is a catalogue1 of all the books I recollect on the subject of juries. With respect to the value of this institution I must make a general observation. We think in America that it is necessary to introduce the people into every department of government as far as they are capable of exercising it; and that this is the only way to ensure a long continued & honest administration of it’s powers. 1. They are not qualified to exercise themselves the Executive department; but they are qualified to name the person who shall exercise it. With us therefore they chuse this officer every 4. years. 2. They are not qualified to Legislate. With us therefore they only chuse the legislators. 3. They are not qualified to Judge questions of law; but they are very capable of judging questions of fact. In the form of juries therefore they determine all matters of fact, leaving to the permanent judges to decide the law resulting from those facts. But we all know, that permanent judges acquire an Esprit de corps, that being known they are liable to be tempted by bribery, that they are misled by favor, by relationship, by a spirit of party, by a devotion to the Executive or Legislative; that it is better to leave a cause to the decision of cross & pile, than to that of a judge biased to one side; and that the opinion of 12. honest jurymen gives still a better hope of right, than cross & pile does. It is left therefore to the juries, if they think the permanent judges are under any biass whatever in any cause, to take on themselves to judge the laws as well as the fact. They never exercise this power but when they suspect partiality in the judges, and by the exercise of this power they have been the firmest bulwarks of English liberty. Were I called upon to decide whether the people had best be omitted in the Legislative or Judiciary department, I would say it is better to leave them out of the Legislature. The execution of the laws is more important than the making them. However it is best to have the people in all the three departments where that is possible. I write in great haste my dear Sir, & have therefore only time to add wishes for the happiness of your country, to which a new order of things is opening & assurances of the sincere esteem with which I have the honor to be, Dear Sir, your most obedient & humble servt.

(Source: http://oll.libertyfund.org/)