Page:The Green Bag (1889–1914), Volume 15.pdf/613

 562

iJL*. :

cases end with the initial submission of the issues to the jury. There are the aggravat ing disagreements and mistrials, with the con sequent retrials, new trials granted by the for improper instructions to the jury, for dis qualification of jurors, for misconduct of or affecting the jury, for excessive or inadequate decisions touching these points? Is not all the weight of evidence, etc. Do not our law shelves groan under the weight of the printed decisions touching these points? Is not all this exasperating and expensive to litigants and burdensome to taxpayers? Some law yers who find a continuing profit in pro tracted litigation may look with complacency upon this tardiness in the final settlement of disputes, and in some cases, it is feared, even encourage it. But is not the prolonging of litigation like in kind, if not in degree, with the barratry' which originally incites it? In China, it is said, physicians are paid so long as those who intrust their health to their keeping remain well. May the time soon come when the services of a lawyer vho keeps his client out of litigation will be deemed quite as deserving of remuneration as those of the one who gets a client out suc cessfully-—never quite whole—after he is in it. "I Business men, too, are becoming more and more restive under the burden of en forced attendance upon the court as jury men. The lot of a juryman is not, of course, as hard as it once was. He is no longer con fined without meat, drink, fire or candle un til the rendition of the verdict; but his posi tion is sufficiently unenviable to make the average man of business prolific in excuses to avoid being placed in it. And, it is hard to see why in this busy, commercial age, when competition is so keen and time so precious, men should be forced to lay aside their own affairs to arbitrate the quarrels of their neighbors. Few men can, without warning, leave their business for days, some times weeks together, for jury duty, without

injury, often irreparable, to such business. Such sacrifices should not be called for except in public emergencies. Such an emer gency may be conceded in the trial of one accused of a capital crime. So long as we have upon our statute books the barbarous paradox of a legal sanction for a breach of the sixth commandment, jury trial, in some form, will doubtless be necessary; not. how ever, because the rights of the accused would be any the less secure with the judge than with a jury, but because upon no one man should be placed the responsibility of holdingthe scales of justice where the balance is the awful one of life and death. But even here, as, perhaps, in the trial of other first-degree felonies, three judges might sit instead of one, with the requirement of unanimity for conviction. Any one charged with crime who would be loath to submit his case to such a tribunal, would, it is feared, be pretty much in the plight of the Irishman awaiting trial, who to the consolatory words of a sym pathetic friend: "Cheer up. Pat, the judge will give you justice,'' responded dolefully: "Faith, an' I'm afraid he will." But if a praiseworthy, though unwar ranted, solicitude for the rights of persons accused of crime would stick at a denial of jury trial in criminal cases, a proposition for its abolishment in civil cases should not ap pear too startling for scri ms consideration. Why should not our judges decide the facts as well as the law in such cases? Will they be less painstaking and conscientious in their findings of fact than in their conclusions of law? And are they not better fitted by their training and experience to sift and marshal the ultimate facts in a complicated case than is the average jury, especially after whatever clear notions the jury may have as to such facts at the close of the testimony have be come more or less confused by the counter harangues of opposing counsel? Indeed, judges are assuming more and more the obligations of final arbiters as to the facts.