Page:Popular Science Monthly Volume 26.djvu/307

Rh This is in cases where the decision is actually left in the hands of the jury. But, and this is another difference between the real and the ideal in the jury system, we have in a large number of cases the more extraordinary spectacle of a jury solemnly sitting though a trial for the purpose of listening to the evidence and forming their own opinion as to the guilt or innocence of the accused, and then being instructed by the court as to the verdict they shall find. It is, as every one knows, the most common of occurrences for the judge to lecture the jury upon their verdict and to refuse to receive it. That the judge should be more correct than the jury is not impossible, but then—wherefore the jury? In an English case in which the jury had brought in "guilty," Mr. Justice Maule addressed the prisoner as follows: "Prisoner at the bar, your counsel thinks you innocent; the counsel for the prosecution thinks you innocent; I think you innocent. But a jury of your own countrymen, in the exercise of such common sense as they possess, and it does not seem to be much, have found you guilty, and it remains that I should pass upon you the sentence of the law. That sentence is that you be kept in imprisonment for one day, and, as that day was yesterday, you may now go about your business." In a case the other day in San Francisco the judge made similar comments, though to the jury themselves. The real value of these two anecdotes is ordinarily overlooked. It is something beyond merely raising a laugh at the expense of the jury. The laugh is not necessarily at the expense of the jury at all. It is rather at a system which takes up the time of twelve men in hearing a case and rendering a verdict, and then takes it for granted that the one man who sits on the bench knows more about it than the whole twelve. If the "unanimous" verdict of the twelve is not equal in wisdom to that of the judge who lectures them, it is clear that they may be dispensed with, without any great loss to society.

And, if unlike its ideal, still less is the jury of to-day like its original. A glance at the history of the jury system will show this. The original notion of a jury was not as a protection to anybody. It was not established as a bulwark of popular liberty. The jurymen were witnesses rather than judges of the matter in issue. The modern jury grew by a process of slow and gradual development out of customs which were part of the life of the Anglo-Saxons and other early inhabitants of Great Britain. These customs were perfectly characteristic of a rude, unlettered people. They were perfectly natural. They were based on no recognized legal principle. They had no set purpose in view beyond the purpose of the hour. They were almost utterly devoid of judicial forms. There was no such thing known as a writ. For the hearing of a complaint a messenger was sent personally to