Page:The Green Bag (1889–1914), Volume 21.pdf/472

 A Case of Trial by Jury expressing his separate views on the questions for decision, which was both common and proper a century ago. No trouble arose from this en banc. But all the judges rode circuit, and sometimes all rode together, the same circuit at the same term; and all seemed to have joined in presiding at the same time not only en banc but on jury trials also, and then there was a "merry mess fitting for a king." Individuality characterized the Amer ican pioneers, lay and professional, and was not absent from the bench in these Jeffersonian times, when courts were not uncommon composed of one lawyer and two or more prominent laymen of the vicinage, called in Ohio the "Court of 1000 Judges—one judge and three cyphers." Diverse views were often held and expressed as to admissibility of evidence and were reconciled by the rule of majority. What two of the three judges decided admissible was heard by the jury, and all went well. So likewise other points raised for judicial decision were decided and set tled. But in this Superior Court no such experiments as these were tried after the evidence had all been offered, the speeches made and the vital point was reached in the trial. The jury was now to be instructed, and each member of the court felt bound to do all in his power for the administration of justice and the attainment of right according to law. Twelve good men and true from the body of the county were not left to grope their way through the dark shadow cast by a cloud of witnesses, aided by the dim flicker of a single judicial torch. Not at all. They had, rather, all the light which could be diffused from the three flambeaux of the entire court. The procedure and effect are thus

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reported in Sevier v. Hill, 2 Overton 38-9, a case involving the most com plicated questions of Tennessee land law, the intricacies of which are still a secret known only to a chosen few: "Campbell J., to the jury observed that there appeared to be a difference of opinion with the Court as to the law. Agreeably to the principles of our gov ernment, it is the province of the jury to decide the law as well as the fact, and the jury will act accordingly in this case. The grant is not legal, there being no law to authorize the consolida tion of warrants except one which ap plied to swamp lands in the lower part of North Carolina. It was decided in the case of Lytle's Lessee v. Barfield that a warrant could not be divided. The grant is not valid and the jury are the proper judges whether it is so or not. If in obtaining a grant an indi vidual does not pursue the requisites of the law, it would be useless. "Overton, J., stated to the jury that it was the province of the Court to declare what the law was; and, in civil cases particularly, the jury should receive it as delivered, in their application of it to facts, of which they were the ex clusive judges. In this case, it appears, there were not any marked lines or corners at the time of the survey. Tak ing this view of the subject alone, the claim of the plaintiff would be invalid. But it will not be so if the potential existence of those lines and corners can be reduced to a certainty by something that is certain. At the time this survey was made, it was lawful in running out lands to make some allowance for the roughness of the ground; the jury may now make the same reasonable allow ance as was then customary, and then fix the boundary of the land accord ingly. The jury ought, however, to be clearly satisfied that the defendant