This much, however, may be said in favor of these
precautions, viz., that the history of the past, as well as our
constant present experience, prove how much injustice may, and
certainly will, be done, systematically and continually, for the
want of these precautions that is, while the law is authoritatively
made and expounded by legislators and judges. On the other hand,
we have no such evidence of how much justice may fail to be done,
by reason of these precautions that is, by reason of the law being
left to the judgments and consciences of jurors. We can determine
the former point that is, how much positive injustice is done
under the first of these two systems because the system is in full
operation; but we cannot determine how much justice would
fail to be done under the latter system, because we have, in
modern times, had no experience of the use of the precautions
themselves. In ancient times, when these precautions were
nominally in force, such was the tyranny of kings, and such the
poverty, ignorance, and the inability of concert and resistance,
on the part of the people, that the system had no full or fair
operation.
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