r>v-r-:. '■■ 'vSi KF 897'^' C44 > • 'V 4<%<; ■A%-^- "W^i^ J7 W^' Kf Cornell University Library KF 8972.C44 The American system of trial by jury :an 3 1924 019 441 462 CORNELL UNIVERSITY LIBRARY FROM D. H . Cham'berlain dtnrnpU Slam Btl^aai Slibtatrii Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924019441462 ^rial bfig ^nvv^ ft'NIVEIiSiTy.:! Whumhtvlmn THE GIFT OF '^"^^^/^^^n^^ if/ s^ The American System of Trial by Jury. AN ADDRESS DELIVERED BY D*! H-;" 'CHAMBERLAIN, OF NEW YORK, BEFORE THE AMERICAN SOCIAL SCIENCE ASSOCIATION, AT ITS ANNUAL CONVENTION AT SARATOGA, SEPTEMBEli 8, 1887. [Reprinted from the Proceedings of the Association, 1887.] BOSTON : PRESS OF GEO. E. CROSBV & CO., 383 WASHINGTON STREET. 1887. (^ 5 1 tr 7 TflE AMERICAN SYSTEM OF TRI^L BY JTJKY. English law — meaning by this term, the law which in general prevails in English-speaking countries and nations, — is to a degree unparalleled in other systems, ancient or modern, an historical growth. If we direct our attention to any important feature or principle of this law, we find that such feature or principle not only comes down from a remote period in the past, but that its present form and function is largely the result of the events, cus- toms, usages and general historical influences which have marked its history and illustrated its progress. There is no important branch of our present jurisprudence which does not at once demon- strate this fact. The English law of Real Property, including all its leading topics — the nature and kinds of Estates, the modes of Conveyance, the law of Title, Descent, Devise, and Inheritance, — the law of Mortgages, the vast range of rights of Persons and of Things, as they exist and affect us today, are deeply intertwined with the whole development of English society. Indeed, if I were to select the characteristic of English law and jurisprudence which seems most strongly to differentiate it from other legal S3'stems now or heretofore prevalent, I should point to its strictly historical continuity and development — its slow evolution from historic germs and forces — its genuine correspondence and har- mony with the changing or advancing demands of successive periods and times. I think it may be said that the most valuable and distinctive contribution which the present age or generation has made to the sum of human knowledge — to civilization, in a broad sense — is the method or habit of investigating and explaining phenomena of nature and life by the light of their historical origin and develop ment. I look, therefore, upon such men as Sir Henry Maine and Charles Darwin as the discoverers, in a genuine sense, of new worlds — vast, illimitable domains of knowledge and wisdom. From such studies, led bj- such guides, we have spelled out what seems to be a law of all natural existence, more sweeping in its stretch, deeper in its reach, higher and more fruitful in its results and prophecies, than any known to former generations. That law is no other than the cosmic law of development — evolution — a law which contradicts no sound learning of the past, destroys nothing valuable in old opinions and faiths, but makes rounded what before was fragmentary, explains what before was inexpli- cable, and discloses new lines and sure prophecies of advance not before dreamed of. No field of human history, it seems to me, is shown to have been more completely under the reign of this law than the field of English law. We have been truly told by the highest authority\ that " the earliest notion of law is not the enunciation of a prin- ciple, but a judgment in a particular case." By a process as logical as natural, we pass by a series of judgments in similar cases, to rules and principles of general application — reaching in this way the idea and fact of the Law. English law is in this respect scarcely- peculiar, for this rubric of growth has prevailed historically, in a large sense, in all important systems of law. English law, however, has had three chief sources, or to state it more exactlj-, it has in its development assumed three leading forms, moved along three main lines — unwritten law, written law, and statute law. I do not think it correct to ascribe our law chiefly to the process and source which we usuallj- call the common law. Our common law, in the order of time, preceded for the most part the other forms and sources of our law. As the barons at Runnymede are said to have marked their assent to Magna Cfaarta with their sword-hilts, because they could not write, so our earliest law by obvious neces- sitj' was unwritten. But our Equity law, which is mainly written law, grew by the same methods and from the same sources, — the wants of society and the gradual accumulation of particular de- cisions. Both systems or branches were equally marked, in the earlier stages, by a natural, silent, almost unnoticed growth — growth, too, at the hands of courts and judges, not of parlia- ments, legislatures, or law-givers. Statute law, or law proceeding directly from legislative authority, which is ex vi termini written lAuatin, Jurispr. 2, 83. law, has likewise from eavly da3's moved step by step with the other forms of our law. The great statutes of Hear^' II., of Ed- ward I., of Henry VII., of Henry VIII., of Elizabeth, and of Charles II., are not only great landmarks and historical sign-posts } in the march of English law ; they are the very sources — fons et \ ■ origo — of a great part of our settled law and jurisprudence, j Lord Bacon has said, as pithily' as trnly, that each feature of our law can be traced to its source, as surely as each of the converg- { ing streams that make up a great river can be traced, by " the ! tastes and tinctures of the soil through which it has flowed." Our common law, equity law, statute law, — written and unwrit- ten law — are, each alike, growths — marked and determined alike j by the varying needs of successive periods or exigencies — in- dented, shaped, moulded, as we now see them, by the influences of a continuous, historical, natural evolution. " Not Nature's self more freely speaks in crystal or in oak," — than she has spoken and now speaks in the Law which in general characterizes the English race ; and because it is a growth, and not a fabric, because it is, like the manners and culture of the race, the slow result of development from within, spontaneous and self-selected, not imposed or contrived by an authority or influ- ence from without, our English system of law stands today before the world, in the almost unanimous judgment of the competent, as the most adequate embodiment and expression of the sense, as well of the method, of Civil Justice ; that " Justice " which Sir i James Mackintosh has told us,-' "is, after all, the permanent 5 interest of all men, the only security of all Commonwealths ;" and of which Cicero said," Hoc verissimum est, sine summa justitia • '•^'fimpublicam geri nullo modo posse. ^f^nve. been led to this rapid summation of the characteristic sc^ rces and methods of English law, on this occasion, because I %5i sit to examine one important feature of its legal policy, one ''^signal method of its legal administration, one remarkable instru- ment of I'^e enforcement 'of its civil justice ; and in the discharge of this duty, it is my purpose to examine our System of Trial by Jury, not as a theory nor an ideal, but as a fact, — to inquire not so much how it harmonizes with a priori conceptions or scientifi- iMisc. Essays, 43. '_ JDeEepub.lib. II. 6 callj'-tlevised models, but rather what in fact it is, what it accom- plishes, how it suits, has suited and seems likelj- to suit, the wants, sentiments, prejudices, habits ; in a word, the genius of the Ki)g- lish race. In making such an examination of any notable institution of our legal system, nothing is more necessar3- than an ever-present conscionsness of the fact to which reference has now been made — that our law and our legal institutions, almost withoift exception, come to us hoary with age, the slow moderated growths and accre- tions of many generations, and of several centuries ; that if we can boast of freedom and enlightenment beyond other nations, they are ours, because ours is "A land of settled government, A land of old and just renown, Where freedom broadens slowly down, From precedent to precedent." In his profound and brilliant chapter on the " Modern History of the Laws of Nature," Sir Henry Maine has said : — ^ " There are two special dangers to which law, and society, which is held together by law, appear to be lialile in their in- fancy. One of them is that the law may be developed too rapidly. This occurred with the Codes of the more progressive Greek com- munities, which disembarrassed themselves with astonishing facil- itj- from cumbrous forms of procedure and needless terms of art, and soon ceased to attach any superstitious value to rigid rules and prescriptions. It was not for the ultimate advantage of man- kind that they did so, though the immediate benefit conferred on their citizens maj' have been considerable. One of the pS-est qualities of national character is the capacitj' of Applying anf'i working out the law, as such, at the cost of eonstaatmiscauii^s of justice, without at the same time losing the hope or the ^-^sh that law may be conformed to a higher ideal." • 4 Referring, for illustration, to the mobility of tjie Greei mina'' and the fickleness of the Greek judicial feense, hj^icontinaes : " No durable sj'stem of jurisprudence could be produced in this way. A community which never hesitated to rel^ rules of writ- ten law whenever they stood in the way of an ideally perfect de- cision on the facts of a particular case, would only, if it bequeathed 'A.nc. Law, 72. any body of judicial principles to posterity, bequeath one consist- ing of the Ideas of right and wrong which happened to be preva- lent at the time. Such jurisprudence would contain no framework to which the more advanced conceptions of subsequent ages could be fitted. It would amount at best to a philosophy, marked with the imperfections of the civilizatiou under which it grew up.'" English jurisprudence consists preeminently of judicial mate- rials and " framework" to which the more advanced conceptions of successive periods and generations have continually been fitting and adjusting themselves without break in the coutinuitv of his- torical life ; for, says Palgrave,^ " by far the greatest portion of the written or statute laws of England consists of the declaration , the re-assertion, the repetition, or the re-enactment, of some older law or laws, whether customary or written, with additions or mod- ifications. The new building has been raised on the old ground- work ; the institutions of one age have always been modeled and formed from those of the preceding, and their lineal descent has never been interrupted or disturbed." No more conspicuous example of this characteristic can be pointed out than the institution of Trial by Jury. Its precise origin in our history is an inquiry more difficult than important, but its interest has been sufficient to attract the labors of learned investigators whose .conclusions are far from uniform or harmonious ; but it is clear, at least, that it did not owe its | origin to any positive law ; it was not the creature of any royal j edict nor of an3' Act of Parliament. Its forms, as well as its [ functions, arose from usages and customs which took their place silently and gradually in the life of the people. Its purely Eng- lish origin has been till recentlj- stoutly asserted by many, Black- stone calling it " a trial that hath been used time out of mind in this nation, and seems to have been coeval with the first civil gov- ernment thereof." " Many writers of authority," says Canon Stubbs,* '■ have maintained that the entire jury system is indige- nous in England, some deriving it from Celtic traditions based on the principles of Koman law, and adopted by the Anglo-Saxons and JSiormans from the people they had conquered Those who ascribe it to Norman sources do not agree as to the source ip. 73. ^Eng. Commonw, 1, 6. -Const. Hist, of Eng. I, 012. from which the Normans drew it. One scholar would derive it from the Norsemen of Scandinavia, another ascribes it to the in- fluence of the canon law ; another traces it through Gallic usages to Roman principles ; another derives it from Asia through the Crusades, and another ascribes its beginnings to the Slavonic tribes of Northern Europe." Freeman, in his "Norman Con- quest,"-' rejects the notion that it is due to a single legislator, in England or elsewhere, or that it was "• copied from this or that kindred institution, to be found in this or that German or Scandi- navian land, or brought over ready-made by Hengist or William." Disregarding all partial views, the well-established truth seems to be that forms of trial resembling in greater or less degree trial by jury are part of the primitive institutions of all nations. Thus the diJcasterion of the Greeks, the judices of the Romans, the compurgators of the Saxons, and the recognitors of the Normans, are each, in some striking particulars, archetj'pes of the trial by jury. The Greek dicasts were, however, a body of citi- zens numbering some thousands from which a smaller but indeter- minate number was chosen for the actual trial and decision of cases. The jury or body thus chosen often numbered 500. The Roman judices were doubtless derived from the Greek dicasts. The ordinary translation of judex is judge, but the idea of the Roman judex is much more nearly that of the modern juryman. 'The compurgators of the Saxons, on the other hand, were the accused and his friends who appeared and swore to the inno- cence of the accused or to the claim or defense of the party. But the nearest approach in its day to the modern trial by jury appears in the system of recognition by sworn inquest, introduced into England by the Normans. " That inquest," says Stubbs,^ is di- rectly derived from the Frank capitularies into which it may have been adopted from the fiscal regulations of the Theodosiau code, and thus may own some distant relationship with the Roman juris- prudence." The Norman system of recognition consisted of the submission of questions of fact, relating to fiscal and judicial busi- ness, by officers of the crown to sworn witnesses in the local courts. This system, brought in by the Norman conquerors, combined with the system of Saxon or Anglo-Saxon compurga- tors, and out of these elements arose the institution of the jury. ■Vol. V. 451. "CoDBt. Hist, ol BDg. I, 613. "Without entering here upon lesser details, it may be said that there came a time when, by an enactment of royal authority, — the Statute or Assise of Henry II., — the distinct form of the present institution appears. " In it," says Forsyth,"^ " we first find the jury in its distinct /orm, but the elements of which it was com- posed were all familiar to the jurisprudence of the time, and we shall see that as regards its definite constitution, it in- volved no idea novel to the minds of our ancestors." The assise, or grand assise, of Henry II., was a mode of trial confined to questions of the recovery of lands of which the com- plainant had been disseized, rights of advowson, and claims of vassalage. In cases of disseisin, the demandant duly appeared in Court and declared his case, concluding with the words, " And this I am ready to prove by this my freeman C, and if any mis- chance happen to him, then by another, D." The champion thus offered by the demandant was one who could, from his own knowl- edge, testify to the justice of the demand. But the tenant was not obliged to accept the combat thus offered. He might avail himself of the enactment of Henr^^ II., and choose the trial by assise, magna assisa domini regis. A writ was thereupon ad- dressed to the sheriff commanding him to summon four knights of the neighborhood where the property lay, who, after being duly sworn, were to choose twelve lawful knights, who were most cog- nizant of the facts, and who were to determine on their oaths which of the litigant parties was entitled to the land. The de- fendant was also to be summoned to hear the election of the twelve jurors by the four knights, and might except to any of them. When the twelve were duly chosen, they were summoned by writ to appear in court and testify on oath the rights of the parties. When they met to try the case, if any of the twelve were ignorant of the facts, they so declared, and others were then summoned who had knowledge of the facts, until at least twelve were found who were acquainted with the facts. But, if the jurors when chosen were not unanimous in their conclusion, others were added until twelve at least agreed on one side or the other ; and the concurrent testimony, or verdict — veredictum — of such a jury was conclusive.^ In considering what suggested or gave form to this institution iTr. by Jury, 101. ^Forsyth, Tr. by Jur., 103-105. 10 of assise — which seems to be the proper origin, or at least the earliest real archetype of the modern Trial by Jury — it is suffi- cient, perhaps, to say that it was the constant practice in the times of the early Norman kings in controversies relating to lands, to appeal to the knowledge of the neighborhood, or, in many in- stances, to summon a number of witnesses who represented the vicinage, to state on oath to whom the lands belonged. In princi- ple or theory, there was no real distinction between these Norman inquests and the recognitions by the knights of assise under Henry II., and we may safely conclude that the latter was derived from the former. In each, the verdict or deliverance was the testimony of witnesses having knowledge of the matter in dispute ; and if we substitute the determinate number of knights under the English assise for the indeterminate number of the prohi homines of the Norman inquest, we have a procedure which may fairly be said to preflguie the later trial by jury.' The assise, or trial bj- assise, is first mentioned in existing Eng- lish statutes in the Constitutions of Clarendon, A. D. 1164, wherein certain disputes between laymen and clerks were to be determined before the chief jusUciary bj- the verdict of twelve lawful men — recognitione duodecim hgalium hominum. It was one of the most valued provisions of Magna Charta, (A. D. 1215) that legal suits should no longer follow the ambula- tory royal court, but should be tried in some fixed place, and that recognitions by assise should be taken in the counties where the lands lay, for which purpose the king was to send into each county- four times a year two justiciaries, who, with the four knights, were to take the assise, that is, to summon the twelve recognitors. Glanvill, the earliest of our English judicial writers, who wrote in the reign of Henry II., and Bracton, who wrote about the middle of the 13th century, and the author of the treatise called " Fleta," written in the reign of Edward I., describe the assise and its changes. This institution not only remained on the statute book till the enactment of the Statute of 3 and 4 William IV., but as late as 1838 a trial took place before Chief Justice Tindal in the English Court of Common Pleas, where four knights girt with swords and twelve other reeognitors acted as the jury and were addressed as '•Gentlemen of the Grand Inquest" and "Recognitors of the iForsyth, Tr. by Jur., 112. 11 Grand Assise."' {Davies v. Lowndes, 6 Bingham's Keports, New Cases, p. 161) . While the Assise of Henry II. was in vogue, a procedure came into use, known as the jurata, of which mention is first made in Glanvill. Forsyth holds that this procedure and name arose from the mode adopted in Anglo-Saxon times, of referring disputes con- cerning lands to the knowledge of the comitatus or county, or as afterwards in Anglo-Norman times, of allowing the neighborhood to be represented by a certain number of probi et legates homines, who stated on oath on whose side the right lay. These latter were the jurata patriae, or often simply patria, as representing the whole country whose decision their verdict was deemed to be. The dis- tinction between the assisa and the jurata seems to have been that the assisa had a technical meaning and applied only to eases which involved the recovery of land or realty, or the fact of.villenage, the verdict of the recognitors being confined to the question of the rightful seisin of the land, or the civil status of the individual. Other issues arising in the course of the trial of such issues could not be determined by the recognitors as such. Hence the assise, for the purpose of deciding these issues, was turned into what was called the jurata — a fact expressed by the phrases assisa vertitur in juratam, or cadit assisa et vertitur in juratam, — and the issue was said to be decided per assisam in modum juralce. Whether the same recognitors acted as the jurata is perhaps not clear, but Forsyth, agreeing with Eeeves, in Hist. Eng. Law, Vol. I., Ch. 6, thinks the recognitors of the assise and the jurata patriae were in such cases one and the same body, but it is certain that in both the assise and the jurata, the verdict or deliverance was neither more nor less than the result of the testimony of the jurors, delivered to the Court as the warrant and basis of its judg- ment. The end of the 13th century, therefore, saw the first establish- ment in England of an institution or procedure for the judicial settlement of civil controversies, which may be described thus : THE SELECTION UKDER THE AUTHORITY AND COMMAND OF THE KING's WKIT, OF A FIXED NUMBER OR BODY OF FREEMEN FROM THE VICINAGE OF THE SUBJECT OF THE DISPUTE, WHOSE TESTIMONY FROM PERSONAL KNOWLEDGE OF THE FACTS, WHEN RESULTING IN A UNANIMOUS CON- iForsyth, Tr. by Jur., 115, 12 CLUSION, WAS RECEIVED AS CONCLUSIVE OF THE FACTS, AND BECAME THE BASIS OF THE JUDGMENT OF THE COURT THEREON. The striking and radical contrast between this institution and our present trial by jury will not escape attention ; namely, that the jurors of the 13th century were only sworn witnesses; and it becomes a most interesting inquiry how, when and why, English jurors ceased to be witnesses and gave their verdict upon the evi- dence laid before them. It seems clear that the practice of introducing evidence before the jury as the ground of their verdict began in the case of deeds to which persons were named as witnesses. In such cases the witnesses to the execution and delivery of the deed made their declaration to the fact, though it is thought by some writers that in the earliest stages of the jury this diflSculty was met by sum- moning the witnesses to the deed as members of the assise or jurata. They thus became part of the jury by reason of their special knowledge of the facts, but the separation of witnesses from jurors was well-established in the reign of Edward III., as appears by the Year Books of that period.' Moreover, contemporaneously with the assise and the jurata, another mode of trial had obtained place, called trial per sectam, the secta being the sect or body of supporters or witnesses whom either party to a controversy might vouch in on his own behalf and who had personal knowledge of the transaction in question. This proceeding is not mentioned by Glanvill, but there is abundant evidence that, like the witnesses to deeds, the secia gradually came to give their evidence before the jury, so that as early as the lltli year of Henry IV., (Year Book, 2 Henry IV.,) we find the judges declaring that " the jury, after they are sworn, ought not to see or take with them any other evidence than that which was offered in open court.'' "This effected a change,'' says Spence, in his '' Equitable Jurisdiction,"^ " in the modes of trying civil causes, the importance of which can hardly be too highly estimated. Jurors, from being, as it were, mere recipients and depositaries of knowledge, exercised the more intellectual faculty of forming con- clusions from testimony, a duty not only of high importance, with a view to truth and justice, but also, collaterally, in encouraging iForsyth, Tr. by Jur., 128. 2p. 129. 13 habits of reflection and reasoning, which must have had a most benefi ial effect in promoting civilization." At the present day, if the fact that a juror had personal knowl- edge of the facts were not a ground of objection to his compe- tency, yet if a judge were to direct a jury to consider their own personal knowledge outside of the evidence of witnesses, in reach- ing their verdict, it would be clear ground for a new trial. Re- cently a juror in New York city who was shown to have visited the scene of an ialleged crime for the purpose of informing him- self as a juror, was adjudged by the Trial Judge guilty of a con- tempt of court, the Court of Appeals afterwards holding that such conduct was not technically a contempt though it might be punish- able as a misdemeanor.^ It will be observed that our examination of trial by jury, thus far, shows that it was originally a procedure applied only in civil matters, and in the first instance, limited to disputes involving the right to lands or the status of freeman or villein. ■ We find no trace of a jury for the trial of criminal causes before the Norman invasion. Glanvill, in describing the modes of criminal trial, mentions only the judicial combat, compurgation, and the ordeal of hot iron, in ease of a freeman, and of water, in case of a " vil- lein," the distinction being that the combat applied to a case where the accuser came forward to make the charge, while compurgation was the ordeal applied where the charge rested on public rumor or belief. Owing to the prevalence of the custom of holding each neighborhood responsible in a degree for all offences committed within it and the natural unwillingness of individuals to come for- ward as accusers, the Constitutions of Clarendon (A. D. 1154) pro- vided that where one was suspected against whom no private accuser appeared, the sheriff should swear twelve lawful men of the neighborhood who should " declare the truth thereof according to their conscience." These jurators for a long time combined the functions of accusers and triers. By an ordinance of Richard I. (A. D. 1194) four knights were chosen from each county who in turn were to choose two from each hundred, each two of the latter choosing ten " lawful and free men out of each hundred," who, with the two first chosen, making twelve, were to present crimes and make arrests in the respective districts. Here are found, plainly, the germs of the Grand Jury and the Trial Jury. IN. T. Kep., 101, 245. 14 For a long time after the principle was in some sort established that the trial of criminal offences was a function of the jury, the accused could not demand it as of right, but it was bestowed by the King's grace, often purchased by the payment of money. In- stances of this are of record as late as the reign of Henry III. In the time of Bracton — about the middle of the 13th centurj' — the usual mode of trial was by combat, but, in most cases, the accused could ^wJ himself upon the country. In the reign of Edward III. the separation of the accusing from the trying bodj' — the Grand from the Trial Jury — had become prevalent and fixed. The qualification of personal knowledge on the part of the trial jurors, like the same qualification in civil causes, remained only in the requirement that the jurors should be summoned from the hundred where the crime was alleged to have been committed, a requirement finally reduced in England to the calling of jurors in both civil and criminal causes, from the body of the county. We may now say that we have discovered, in the progress of English history, at about the middle of the 14th centurj', an insti- tution of which the essential features are these : the choice or a BODY OF LAYMEN, USUALLY TWELVE IN NUMBER, OUT OP THE WHOLE MASS OF QUALIFIED CITIZENS OF THE COUNTY, TO ASCERTAIN, UNDER THE GUIDANCE OP A JUDGE, THE TRUTH IN QUESTIONS OF FACT ARIS- ING EITHER IN CIVIL OK CRIMINAL CAUSES, BEING RESTRICTED TO THE EXCLUSIVE CONSIDERATION OP MATTERS THAT HAVE BEEN PROVEN BY EVIDENCE IN THE COURSE OP THE TRIAL. These features are now the essential elements in the present English and American system of Trial by Jury. For over 500 years, therefore, the system has stood the highest and most crucial of all tests — the test of time and experience. But before we proceed to examine its merits or defects, let me notice the curious if not important query, why the English trial jury from almost its first appearance was limited to the number of twelve ; for it is found in some early writers that the verdict of eleven jurors out of twelve was accepted, and it was not until the reign of Edward III. that it was finally decided that there could be no legal verdict which was not the unanimous opinion and find- ing of the whole jury. It is further to be observed, that in the assise of Henry II. the jury did not consist of twelve, though no 15 verdict could be couclusive in which twelve of the jury did not unite. The mode of procedure was that if twelve did not agree, others were called in until at least twelve reached a unanimous conclusion — a process called afforcing the jury. Mr. Starkie\ however, regards it as doubtful whether the process of afforce- ment was ever applied in criminal causes. That twelve was a favorite number is well established. Mr. Hallam remarks^ that this number was not confined to England, nor in England nor else- where to judicial institutions, and he adds, " Its general preva- lence shows that in seeking for the origin of trial by jury, we cannot for a moment rely upon any analogy which the mere num- ber affords." On this point, Forsyth says,^ " It is not difHcult to discover why the number, twelve, was chosen. Twelve seems to have been the favorite number for constituting a court among the Scandinavian nations. We have seen that in the Anglo-Saxon polity the twelve senior thanes were to go out, and the reeve with them, and swear on the relic given them in hand, that they would accuse no inno- cent man. Twelve " Lahmen " were to administer the law be- tween the British and the Angles. The number of compurgators in cases of importance was usually twelve, so that it became a common expression of Anglo-Norman law to say that a man freed himself from a charge by the twelfth hand, and this number pre- vailed equally on the continent. Long habit had taught men to I'egard it as the proper amount of evidence to establish the credi- bility of a person accused of an offence ; and it was natural that the same number should be required when the witnesses came for- ward, not to speak to character, but to facts." In an old tract published in 1682, entitled " Guide to English Juries," and attributed to Lord Somers, it is said : " In analogy, of late the jury is reduced to the number of twelve, like as the prophets were twelve, to foretell the truth ; the apostles twelve, to preach the truth ; the discoverers twelve, sent to Canaan, to seek and report the truth ; and the stones twelve, that the heavenly Jerusalem is built on ; and, as the judges were twelve, anciently, to try and determine matters of law ; and always, when there is any waging law, there must be twelve to swear in it; and,' also, 'Tr. by Jul-., 17. !Midd. Ages, vol. II., ch. viii., 273 >Tr. by Jur., 108, 109. 16 for matters of State, there were formerly twelve Councillors of State. And anything now which any jury can be said to do, must have the joint consent of twelve, else it is, in construction of law, not the doing of the jury, but of private persons, and void." "If the work of forming verdicts," says Bentham,^ " had been the work of calm reflection, working by the light of experience, in a comparatively mature and enlightened age, some number, cer- tain of affording a majority on one side, viz. : an odd numbei', would on this, as on other occasions, have been provided ; and to the decision of that preponderating number would of course have been given the effect of the conjunct decision of the whole." Upon the whole, no very logical reason can, perhaps, be found for fixing the number of the jury at twelve. It was due, prob- ably, to some degree of fanciful, superstitious, or customary deference to or faith in that number, though it may be considered that that number aflords a fair test in general of the average sense, intelligence and judgment of a community. At all events, it is unreasonable to believe that the steady adhesion for five centuries or more to that number has not rested on a conviction that it af- fords at least as strong a guarantee as any other number could, of such results as the jury was at first fashioned and is still intended to secure in the administration of the law. It is of interest here to note an historical eiTor connected with trial by jury which still has the sanction of the great names of Blackstone and Hallam, — that the phfase judicium, parium, or " judgment of one's peers," as used in Magna Charta, had refer- ence to trial by jury. The phrase greatly antedates Magna Charta, and judicium parium was a well-known and peculiar term applied strictly to the feudal procedure by which the lord with his vassals sat to try questions of title between others of his vassals. The phrase was current in France likewise long before any such institution as the jury existed. Moreover, at the time of Magna Charta, the jurors, so far as they were known at all in England, were merely witnesses deposing to facts with which they were familiar. How could their testimony have been called a judicium? Glanvill, in speaking of the verdicts of juries, says Stabit veredicto visineti, but in referring to the judgment rendered on the verdicts of juries, he says, secundum dictum visineti judicahitur. Coke, too, in his lArt of FackiDg, as applied to Special Juries. 17 Institutes, expresslj- distinguishes between trial by peers and trial by jurj- ; and Forsyth points out that amongst the pai-es o^ the baronial courts the opinion of the majority prevailed — a charac- teristic never belonging to juries.^ This system or institution thus developed in England, was, of course, brought to this country, and from the earliest periods in the history of the States of the Union, it has had its place in civil and criminal procedure. Whatever the original nationality of the founders of the several American colonies, so strong was the influ- ence of the English example that trial by jury soon became the law of all the colonies and the common right of all the people. No stronger proof of the value attached to trial by jury, and the universalit}' of its adoption, can be adduced than the fact that the Constitution of the United States, as well as the present Con- stitutions of all of the States, as well as most of the successive Constitutions of the States, as they have been from time to time amended, revised or newly made and adopted, have in some form of express words decreed the inviolability and perpetuity of trial by jury. The terms used in the Constitution of the United States are, "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed," and " In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be pre- served." In a majority of the State Constitutions the broad provision is made that " The right of trial by jury shall remain forever invio- late." In not a few, provision is made that the jury shall be drawn from the county, district or vicinity in which the offence was com- mitted, the Constitution of Massachusetts in particular, declaring that "in criminal prosecutions, the verification of facts, in the vicinity where they happen, is one of the greatest securities of the life, liberty and property of the citizen." /'/Embedded thus in the historical foundations of the civil govern- ment and jurisprudence of the English people, entrenched behind the strongest and most permanent defences which the people of this country can erect — the organic laws and constitutions of the United States and of the several States — Trial by Jury presents "Forsyth, Tr. by Jur., 91 et seq. 18 itself as one of the foremost features of the system of jurispru- dence under which the English race has been trained, concurrently with which it has gained its liberties, and through which it is be- lieved, as is evident, those liberties will in the future be preserved. We can, therefore, hardl}' put ourselves to a worthier or more useful task than that of inquiring in what lie the strength and value of this sj-stem, in what lie, perchance, its weakness and de- fects, what of it should be guarded and preserved, and what, if anj', may be discarded or changed. ' Mr. Starkie's definition of a jury is as follows:^ " A jury, as now constituted, may be defined to consist of " twelve men se- lected from the body of the community', and svjorn to decide any disputed matter of fact by judging upon evidence lawfully sub- mitted to them." ' •If we mark closely this definition, we shall observe that the first idea it presents is that of a selected number of men from the body of the communit}'. In theorj-, it is everywhere the aim to secure a fair average of the character, standing and intelligence of the com- munity. Such a body of men, if impartially and fairly chosen, be- comes in the first place fairly and sti'ictly representative of the com- munity from which they are selected. The parties to a civil cause, the accused in a criminal cause, find thpmselves brought to the bar of a tribunal composed of men in general of like conditions in life, of like sympathies, situations and surroundings. Their acts are to be viewed and judged of by those who are capable of enter- ing into the special circumstances which are presented, of applying a standard of judgment and feeling which will be the result of an intimate and life-long familiarity with the conditions of life which are thus presented. The true standard of judgment in all cases, the true rubric of impartial conclusions, is the consideration, by those who are called to judge, of the proper interpretation and valuation of the specific facts brought before them. This is a faculty which is not developed l^ by mere intellectual ratiocination or mental capacity, is not the necessary or perhaps usual result of learning or wide observation, but comes best and most surely from the fact of life, habits, pur- suits, interests and sympathies which have been concerned with facts like those which are presented for judgment. Such a capac- iTr. by Jur.,4. 19 ity or facultj- of judgment may he said, in some large sense, to be instinctive, tlie unconscious dictate of habits, modes of life and thought which lie on the same plane with those of the parties whose controversies are to be determined. It is not in human na- ture to be content with the judgments of those who are far re- moved in modes of life, thought and action ; and it is never to be lorgotten that in the composition of the controversies which inev- itably- arise in civilized society, that tribunal is to be most highly valued which not only renders just judgments, but judgments which seem just to those who are chiefly affected by them. It is the instinct of our nature to desire a sympathetic or kindred tri- bunal, not a tribunal that shall decide for us so much as one that shall decide from a practical familiarity with the conditions out of which the facts of a given case have arisen. A. jurj' of one's countrymen, the verdict of one's fellow-citizens or neighbors, answers to this instinctive sentiment and demand. Such a tribunal will itself share in the good or evil flowing from its judgments. Such a tribunal robs the disappointed suitor, or the convicted criminal, of those complaints and feelings of injury which will surely assert themselves if the tribunal be not of the body of the community where the facts arose. It is not the absolute wisdom of the jury, it is not the certainty that its conclusions will be consonant with the most carefully considered views of the most highly-trained minds, that gives to the jury its superiority as a practical instrument for the settlement of civil disputes or for determining the guilt or innocence of those charged with crimes, but it is because being actually representative of the community, it brings necessarily and unconsciously to its task the knowledge which comes of likeness of life, habits, pur- suits and sympathies, which is essential to the best practical results in its judgments, and still more essential to the peace, content and harmony of the society most directly affected by its judgments. The mode of selection of jurors is likewise an essential element of the value of the system. Juries come not only from the body of the community where the facts arose, but tbej' come at random and b}' the contrived chances of secrecy. The whole community of mature, self-supporting, independent citizens are the materials of our juries. It is not seldom suggested that if the best men of the community were alone selected, the results would be better. We may concede here that some individual cases might be more correctly deter- 20 mined, some miscarriages of justice be prevented, bj' restricting the range of choice of jurors, but if the highest average of good judgment in causes comes from the possession not so much of highly -trained intellectual faculties as from the instinctive sense and faculty of judging justlj' which grows out of an intimate knowledge of the life of the community where the facts arise, and if the stake which all duly qualified jurors must ordinarily have in the welfare of their communitj' is the best safeguard we can set up against corrupt, partial or careless judgments of juries, then the rule which selects jurors by lot or chance out of the whole body of the community, and not from those having superior intel- lectual qualifications, is the rule best adapted to secure judgments conformable to the welfare of the community and the demands of truth and justice. Two other consideiations implicitly involved in what has already been said may well be specified here : first, the fact that the jurj- is a constantly changing body,' a strictlj- temporarj' and occasional tribunal as to its personnel ; and secondly, the sense of safetj- and freedom which a tribunal chosen wholly from the communitj' at large gives to its members. No feature of trial by jury is more unique than its constant change. A juryman is not an officer. He is not,- even for the nonce, covered or adorned with any oflBcial ■ insignia or rank. He has no tenure. The lot draws him to the jury to^ay and tomor- row he returns to his wonted life and pursuits. He iS' a juryman solely by virtue and right of his membership of the community. He discharges only the duty of a citizen while he acts as a jury- man. He belongs to no class, to no profession ; he has no char- acteristics in himself or by virtue of his duty and function as a juryman, which do not come solely from his character of citizen. Ky the very conditions of his eligibility to jury duty, he is simply one of the body of the community. Efe acts his part as a jury- man for an hour or a day and returns to the body of the commu- nity without mark, badge or trace of professional or official dis- tinction. If now it be true that civil libertj' is the end of civil law and civil society, and if civil liberty reposes for its ultimate security on the capacity of the people at large to guard their rights and exei'- cise their privileges, and riot on the benevolence of rulers or elected oflficers, or the wisdom of legislators, then it is upon such 21 a representative body of the whole coramujiity as the jury presents, that we ought to, and must, rely for administering and enforcing the provisions of civil law and the machinery of civil society. Men sometimes say this is government by the lowest, not by the highest; our answer is that :it is the mass, the body of the com- munity, which most needs the protection of laws and their just administration ; that the wise, the learned, the rich, and those high in position, have other weapons to defend their liberties ; but the body of the community needs to sway the power of the jury as the one instrument which has proved the people's check to tyranny and their defence against despotism. No single feature of our civil life presents such freedom from ofllcialism, from professional or class influences, and the, influences of routine and artificial life, as the jury as now constituted in this country. No other agency • may, therefore, be so safe]}' relied on to enforce, and administer those rules of, property andiOf conduct, the infraction of which is the occasion and warrant of nearly all our civil laws and jurispru- dence. But I must not fail to draw attention to another notable function and influence of the jury — its direct educating influence. I have already dwelt upon the fact that the very essetice of trial by jury is the principle of fairness. " The right of being tried, of, hav- ing his dispute -syith another settled by his own fellow-citizens, taken indiscriminately from the whole mass, who feel neither malice nor favor, but simply decide according to what in their con- science they believe to.be the truth, gives," says another, " every man the conviction that he will be dealt with impartially, and in- spires, him with the wish, to mete out to others the same measure of equity that has been dealt to himself." The value of the jury as a social and political, as well as a judicial institution, can hardly be denied by those who have well consid- ered the subject. So acute a student and observer of English and American institutions as Tocqueville has pointed out the greatly increased influence of trial by jury in its application to civil as well as criminal causes. When applied only to criminal causes, he says, the people see it in operation only at intervals, and in particular cases ; they are accustomed to dispense with it in tlie ordinary affairs of life, and to look upon it merely as one means, and not the sole means, of obtaining justice. But when it em- braces civil actions, it is constantly before their eyes and affects 22 all their interests. " The jury," he continues, " and especially the civil jury, serves to imbue the minds of the citizens with a part of the qualities and character of a judge ; and this is the best mode of preparing them for freedom. It spreads amongst all classes a respect for the decision of the law." . ..." It clothes every citizen with a kind of magisterial oflflce ; it makes all men feel that they have duties to fulfil towards society, and that they take a part in its government ; it forces men to occupy themselves with something else than their own affairs, and thus combats that selfishness which is, as it were, the rust of society."^ Bui it is as an instrument of education that it calls out his most ardent admiration. He calls it a school into which admission is free and open always, which each juror enters to be instructed in his legal rights, where he engages in daily communication with the most accomplished and enlightened men, where the laws are taught to him in a practical manner, and are brought down to the level of his apprehension by the efforts of the advocates, the in- structions of the judge, and the ver^- passions of the parties to the cause. And this is the political training which is indispensable to the security of self-government, that self-government which is the special form of our civil freedom. The jury is the most direct and patent exhibition of the principle of making the people the arbiters of all questions affecting their property, their liberties and their lives. There have doubtless been extravagant eulogists of Trial by Jury.^ Its defects and limitations have been wholly lost sight of in admiration of some of its shining benefits. But when viewed with entire soberness of temper and judgment, when considered in a scientific or philosophical spirit as an actual institution, a part of the machinery for securing our common every-day rights and lib- erties and for protecting society and individuals against civil and criminal wrongs, it seems to me in the main to warrant our most cordial support and confidence. No substitute for it has been or iLa Dem. en Amerique, Tom. 11,188. ^As witness this famous bnt preposterous utterance of Lord Brougham :— " In my mind he was guilty of no error ; he was chargeable with no exaggeration ; he was be- trayed by his fancy into no metaphor, who once said, that all we see about us. Kings, Lords and Commons, the whole machinery of the State, all the apparatus of the sys- tem, and its varied workings, end simply in bringing twelve good men into a box." Present Stale of the Law, Feb. 27, 1828. 23 probably can be devised which could bring to our society so much strength or to our liberties so much security-. Undoubtedly one of the chief peculiarities of our jury system, as it now exists, is the requirement of unanimity in- the verdict. This feature attracts and deserves careful consideration. In its origin, as has already been pointed out, unanimity, in the sense of an agreement of all the members of a jury, was not a requirement, nor was the requirement of the concurrence of twelve jurors universal and absolute until the reign of Edward III., in the first half of the 14th century. Thus, as we have seen, in the assise of Henry II., a concurrence of twelve jurors was essential, but if twelve did not at first concur, other jurors were added until at least, twelve agreed upon a verdict — a process called by the some- what sinister term of the afforcement of the jury, though no com- pulsion or violence was imposed on any juror by this process. But when we recall that at this period of the jury, the jurors were merely witnesses to facts within their own knowledge, we see that the concurrence of twelve jurors was in substance a requirement of the concurrent testimony of twelve witnesses to conclusively establish a finding upon the issue presented. The verdict of eleven out of the twelve jurors was likewise allowed till the time of Edward III. The rule of the concurrence of twelve jurors at a time when the jury was indeterminate in number was certainly a reasonable one in view of the fact that it was established when jurors were the only witnesses whose evidence was heard. But when the wliole number of trial jurors was limited to twelve, and especially when jurors ceased to be witnesses and became only the judges of the testimony of others, the requirement of the unanimity of twelve was transferred and continued in spite of the essential and radical change in the constitution and function of the jury. We may say, therefore, that the requirement of unanimity of jurors was, in the original application to the jury as it now exists, due not to any settled or well-considered policy but to the accident that a similar rule had been previously applied when the jury was different in number and character. The original requirement meant simply that in questions of disputed facts the concurring testimony of twelve witnesses should be necessary to a verdict. The present requirement is that in questions of disputed facts 24 twelve jurors shall concur in their opinion of all the testimony pre- sented to them. As matter of history, therefore, as well, as mat- ter of reason, the requirement of unanimity does not stand upon an equal basis of authority with the other features of the jury. When the question of the reasonableness of the rule of unan- imity is considered, it may at once be said that the rule is almost wholly exceptional in respect to judicial as well as other affairs. In our courts of common law and of equity, and in our Courts of Appeal, if judges differ in opinion, the opinion of the majority prevails, and if th^ judges in Courts of Appeals are equally divided in opinion, the judgment of the court below stands affirmed. In the House of Lords, sitting as a Court of Appeal, or for the trial of a peer, or on the impeachment of a commoner, a majority of one determines the verdict and judgment. In legislative or parliamentary matters of all kinds, as well as in popular elections, the rule of a greater or less majority universally prevails. The reasons which support the rule of unanimity are not with- out force. It often happens that it is the one competent, thought- ful, conscientious juror who by his dissent compels a full and fair consideration of the evidence, and thus becomes a safeguard against precipitancy and passion in the rendering of the verdict. The fact alone that unanimity must be reached before a verdict can biB rendered, tends strongly, beyond doubt, to produce fair de- liberation and due discussion in reaching the verdict. This is an unmixed and unquestionable good.- But the question remains whether an absolute agreement of the twelve ought still to be re- quired. I confess that in criminal cases I am strongly of the opinion that unanimity is the only safe rule. If the numerous in- stances of disagreements of juries whereby those who are believed to be guilty, go unwhipt of justice) are pointed to as results of this rule, the answer is that the cases are very few in which it is possible to affirm the guilt of those who thus escape. But more than this, it cannot bei too often said, or too deepl}' impressed, that the object of our criminal law is not merelj' to procure con- victions of those charged with crimes, but it is to furnish a tribu- nal where the innocent will escape as well as the guilty be con- demned. The glory of our modern ameliorated criminal law and procedure is, above all, that it no longer aims primarily and prin- cipally to secure the conviction of alleged criminals. Torture, the rack and Lhe pulley, the inquisitorial examination of the accused, 25 were the fit instruments of ages when a trial was not so much an inquest or inquirj' as a mode of legally condemning those whose cases were already prejudged. Individual human life and indi- vidual human liberty are sacred things. Nothing is more sacred except the livesand liberties of the whole community. The safely of society alone warrants criminal punishment. To convict and punish an innocent man is to do the gravest possible in- jury to the victim and to justice. No danger or exigencj' can warrant or excuse it, nor can any fancied necessity of society jus- tify the adoption of any rules which are likely to result in unwar- ranted and unjust convictions, and I am sure that the requirement that society's great prerogative of criminal punishment shall not be exercised till twelve men sitting as a jury are persuaded bj' evidence that the real criminal is before them, is not too stringent a rule in behalf of the accused, nor too high a barrier against haste, prejudice, and the spirit of vengeance to which not individ- uals alone, but whole communities are so constantly exposed. The true maxim is that the judge is condemned, not when the guilty escape, but when the innocent suffer. The rule of unanimity has, however, been unreservedly con- demned by high authorities. Mr. Hallam,^ in his "Middle Ages," stj'les it " that preposterous relic of barbarism ; " Mr. Starkie^ says " the rule has descended to us in a state of unmitigated barbar- ism ; " and Professor Christian,' the learned commentator of Black- stone, says "The unanimitj' of twelve men, so repugnant to all experience of human conduct, passions, and understandings, could hardly in any age have been introduced into practice by a deliber- ate act of the legislature, and it remains to be seen whether the legislature will much longer tolerate such an anomaly." But Forsyth, while pointing out and emphasizing the unreason- ableness of the rule of unanimity-, admits that the countervailing considerations, such as we have just adverted to, render it wise and salutary to retain the rule in criminal cases, though he con- cludes his chapter on this topic with the remark that "it would perhaps not be difficult to prove that it is better to allow the opin- ion of the majority to prevail in both civil and criminal cases, than to demand unanimity in the former."* 'Supp. Notes, Mid. Ages, 262. 2Tr. by Jur., 49. » l^ide Forsyth, Tr. by Jur., 209. 'Id., in. 26 Civil cases, however, present other considerations, ami in civil cases the report of the Parliamentary Commission upon the Eng- glish Courts of Common Law in 1830 seems to set forth well the reasons for a change and the extent and conditions of the change. "We purpose," say the Commissioners,' " that the jur^' shall not be kept in deliberation longer than twelve hours, unless at the end of that period they unanimously concur in applying for further time, which in that case shall be granted ; and that at the expira- tion of the twelve hours, or of such prolonged time for deliberation, if any nine of them concur in giving a verdict, such verdict shall be entered of record, and shall entitle the party in whose favor it is given to judgment ; and in failure of such concurrence the cause shall be made " a remanet," that is, a mis-trial. There is one other feature of our jury system on which I am moved to comment and criticism. I have heretofore adverted to the consideration that special intellectual, technical, or profes- sional training is not what we seek or need for jury service, or for its most eflflcient and satisfactory' discharge, but there is a tolerably well-defined class of cases arising more frequently in the progress of the commercial life and development of I'ecent years, of which it does not seem too much to say that thej' are in their nature unfit for jury trial. 1 refer to a class of cases thus described by a re- cent writer:^ "Cases involving large mercantile or shipping transactions, operations in stocks, disputes between great corpora- tions about matters of franchise, and others of similar kind, which may be characterized as causes arising from the investment and handling of large amounts of capital in active business." Ver3' few, comparatively, of any' community have such knowl- /_ edge of this class of transactions as is requisite to understand them, much less to pass upon them. The feeling and judgment, I be- lieve, is well-nigh universal with those called upon to conduct cases, as well as with the litigants therein, that such cases cannot be submitted to ordinary juries with the prospect of correct or even intelligent verdicts. To continue to require that such cases, in- volving questions not only of intricacy and complication, but of a nature which lies outside the experience or observation of most men, and dependent for correct solution and decision not on prin- ciples of common sense or common experience bnt on the results 1 yide Forsyth, Tr. by Jur., 209. 2L. Skidmore, Piize Essay, Am. Bar Assoc, 1884. 27 of minute, varied, complicated and involved sets or series of trans- actions, to be viewed not in general or loosely, but with strict reference to details and with knowledge and appreciation of most difficult and technical questions and rules of commerce and busi- ness, — transactions, too, extending often over many years and through many changes in the personnel of the actors, — to require sueh cases, I say, to be submitted to oi-dinary juries, is plainly, in my judgment, to submit to chance and accident what should pass under the scrutiny of minds fitted by some previous training or experience to tAat them with intelligence. The legislation, statutory or constitutional, which shall aim to effect the change here contemplated, should, however, be most carefully guarded in its description of the excepted cases, in order not, under the guise of this reform, to narrow, in other respects, to the smallest extent, the province of jury trials in the full scope which they have hitherto been given in our jurisprudence. In the course of the historical development of trial hy jury as i respects its general constitution and functions, we have noticed \j three prominent stages ; first, the jury as simple recognitors, se- lected because of, and acting throughout on, their own knowledge of the subject of investigation ; secondly, the jury exercising the mixed functions of recognitors on their own knowledge, and judges of the fact upon evidence laid before them ; and thirdly, the jury acting solely as judges of the facts brought before them b}' the evidence of witnesses. It is, perhaps, impossible to fix an exact date when the jury as simple recognitors was first established, but if we find its source as a well-defined part of English law in the assise of Henry II., about the middle of the 12th century, and if the period of the introduction of the second stage — the jury act- ing in part as recognitors and in part as judges of facts testified to them — be fixed, as Mr. Starkie fixes it, in the reign of Edward III., or a little before tlie middle of the 14th century, and if the date of the final and universal limitation of the function of the jury to the determmation alone of questions of fact upon evidence submitted to them under the guidance of a judge, be fixed as the first year of the reign of Queen Anne, or the year 1702, we shall see that the first stage continued nearly two centuries, the second stage a little more than three centuries and a half, while the third stage has now extended over nearly two centuries, — the latter 28 period covering nearly all of what may properly be called the en- lightened development and humane amelioration of English law. That the limitation of the function of the jury to questions of fact is the result of the evolution or growth of our law for the last two centuries is high proof certainly of the wisdom and practical value of this limitation. It may, in truth, I think, be regarded as the ripest and best fruit of our legal experience and reflection as applied to the trial by jury. It may be looked upon, too, as the result of mature and considerate reflection and purpose in contrast with some of the more fortuitous or accidental of Ihe earlier forms and stages of the system. Lord Mansfield, near the close of the last century, declared that " the fundamental definition of trial by jury depended on one universal maxim which admitted of no ex- ception, — Ad quoBstionem juris non respondent juratores ; ad qums- tionem facti non respondent judices ;"^ and I cannot hesitate to ex- press my own belief that the firm and unshaken establishment and continuance of this feature of trial by jury is the absolute condi- tion of its.permanent acceptance by any people who are intelligent and jealous of civil freedom. It is not, however, to be denied that this restriction of juries to questions of fact has been often represented as an encroachment upon the just province of juries. At almost all times, there may be said to be a feeling in many minds, amounting at times to a popular impression or sentiment, that all questions, especially in criminal cases, should be submitted to the jury. It seems clear, however, that the very characteristics of a jur^' which render it a fit instrument for solving questions of fact, — its constant familiarity and sympathy with the common life, motives, habits and feelings of those who for the most part are engaged in litigation or affected by criminal proceedings, its free and unoffi- cial character, its freedom from the influences of class or profes- sional training and instincts, the brief, almost momentary period of its service and its quick disappearance into the indistinguish- able mass of its fellow-citizens, — all these incidents and qualities of the jury actually unfit it for the function of determining what is the law which shall govern a case and in the light of which the facts are to be weighed and applied. It is not needful here to raise any question of the relative im- iQp. on motion for new trial in case of Dean of St. Asaph. 29 portance of the functions of the court or judge on the one hand, and of the jury on the other, for it is certain that these functions are essentially dissimilar. The law is, and must ever be, an aggre- gation of rules and principles requiring for its knowledge and ap- plication the most disciplined mental faculties and much special and technical training. The law, too, especially our law, whose glory it is that it has sprung by a free and natural process from the life and wants of the people, is linked together from generation to generation through centuries of unbroken evolution. No branch of our law is without its special history and its accumulated liter- ature and learning. Precedent is the ligament that binds it into an intelligible and consistent whole. That the English doctrine of Precedent, or the controlling force of established rules and decided cases over subsequent cases, is not thus esteemed by some even of the legal profession, is well-. known. At a recent session of the American Bar Association this doctrine was thus characterized by a learned and eminent lawyer, — ■ " Our progress in law reform is slow," said he, " and slow for the most part because we are dragging the old fetters of precedent and tradition, instead of boldly and freely abandoning the past and taking as our guides our present free thoughts and aspirations and hopes." Against all such passionate, though eloquent and enticing appeals, I would oppose what I believe to be the conclu- sions of reason and of history, that the doctrine of precedent or authority is at all times essential to the idea of the law, and that its prevalence in EngUsh jurisprudence is perhaps the most potent cause of the present superior value and influence of English law. It will not be needful to consume time in demonstrating that to commit the law to juries is to destroy the possibility of the regu- lar or effective application of the doctrine of stare decisis. To retain and apply this doctrine when juries become judges of the law as well as the facts, would require of juries much of the same special training and high. mental power which the office of a judge now demands. It would commit to the decision of an unskilled body of citizens the determination of what our law and jurispru- dence is today ; and it would commit to a like unskilled body tomorrow the question of what our law and jurisprudence shall then be. The close of the 18th century witnessed a contest in Englai.-^'. >-T^. ^i^^ im ^^^^^^1 ■