It, nevertheless, under all these disadvantages,
impressed itself upon the understandings, and imbedded itself
in the hearts, of the people, so as no other system of civil liberty
has ever done.
But this view of the two systems compares only the injustice done,
and the justice omitted to be done, in the individual cases adjudged,
without looking beyond them. And some persons might, on
first thought, argue that, if justice failed of being done under
the one system, oftener than positive injustice were done under
the other, the balance was in favor of the latter system. But such
a weighing of the two systems against each other gives no true
idea of their comparative merits or demerits; for, possibly, in
this view alone, the balance would not be very great in favor of
either. To compare, or rather to contrast, the two, we must
consider that, under the jury system, the failures to do justice
would be only rare and exceptional cases; and would be owing
either to the intrinsic difficulty of the questions, or to the
fact that the parties had.
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