Page:The Green Bag (1889–1914), Volume 17.pdf/655

624 The power of the court to set aside an unjust verdict is, of course, unaffected by this amendment.

While there is more or less dissatisfaction with its practical results, I take it there is no one in this country who would advise the abolition of the jury trial, at least in criminal cases. Not that I believe the opinion of twelve laymen upon the single question of guilt or innocence under a statute is more apt to be right than that of a bench of judges, skilled in the art of fathoming motives and weighing testimony; but a jury I regard as practically a representative of the sentiment of the community upon the question of the punishment of crime, and may be depended upon to convict where the evidence satisfies it that the accused has been guilty of a crime which that sentiment pronounces dangerous to the community, and to acquit, although technical guilt be proved, where public sentiment justifies the act under the peculiar circumstances of the case. Thus, if the popular sentiment of one locality demands the punishment of homicide in all cases, when committed without legal excuse, the jury will be apt to convict. But in cases arising in another locality where public opinion condones it, when committed in fighting a duel, in a street brawl, or in lynching some unfortunate object of public execration, the jury will side with the accused. The same may be said of prosecutions for horse stealing, gambling, selling liquor, and social aberrations, which are viewed quite differently in different communities. This practical assumption of the pardoning power by juries may be illogical; but after all it is far more desirable than a trial by a bench of judges, which would undoubtedly incur the popular ill-will by judgments which failed to accord with the general sentiment of the laity. The moral of all this is that criminal courts are not intended as teachers of morality or good government, but as protectors of the community in those things which it judges necessary to its security. Trial by jury remains, and probably always will remain, the only practicable method of dispensing justice between the Commonwealth and the individual citizen. The only remedy for acquittals in defiance of the testimony must be found in the selection of better juries and the gradual elevation of society.

Perhaps the strongest argument in favor of trial by jury in civil cases is the fact that it has come down to us sanctified by the usage of many centuries, and that while it is far from being an ideal method of determining the rights of individuals as between themselves, he would be a bold man who would demand its abrogation. The principal cause of its growing unpopularity, I think, may be found in the departure of the modern American jury trial from the common law methods still pursued in England, and the exaltation of the jury at the expense of the court. The tendency of modern legislation has been to belittle the functions of the court, and to make of the jury a kind of fetish, who must not even listen to suggestions upon questions of fact. The burden of conducting the trial is taken from the court and shifted to the shoulders of counsel, who are only too glad to assume it, and "run" the cases their own way without interruption from the court. The difference between the two methods is a real and substantial one. In what may be called the common law method, the trial is one by the court assisted by the jury; while in the method pursued here, it is a trial by the jury advised and often insufficiently advised, by the court. In both, the jury is of course the ultimate tribunal.

One who has watched day by day the practical administration of justice in an English court cannot but be struck by the celerity, accuracy, and disregard of mere technicalities with which business is transacted. One is irresistibly impelled to ask himself why it is that with the reputation of Americans for doing everything from the