[TO BE CONTINUED.]
GLORIFYING TRIAL BY JURY.
By CHARLES COWLEY, LL.D.
Twice within two years representatives of the highest courts of Massachusetts have published in the North American Review, panegyrics of jurics and jury trials. The late Judge Foster and Judge Pitman both concede—what indeed is too notorious to be denied—that there are frequent and gross miscarriages of justice; but they touch lightly on this aspect of the question. Being personally identified with the institution which they extol, their self-complacency is neither unnatural nor unpardonable. It seems not to have occurred to them, that if a reform of our judiciary is really needed, they are "a part of the thing to be reformed." But in weighing their testimony to the advantages of trial by jury, allowance must be made for the bias of office and for the bias of interest. In the idolatrous throng which drowned the voice of St. Paul with their halcyon and vociferous shouts, "Great is Diana of the Ephesians!" there was no one who shouted louder than the thrifty silversmith, Demetrius, who added the naive remark, "By this craft we live."
In the outset of his presentation of the beauties of jury trials, Judge Pitman says that "certain elementary rules of law are so closely associated with this system that change in one would require alteration of the other." Now, these rules of law are either good or bad. If they are bad, they should be revised; and the fact that they are so closely associated with trial by jury, that they can not be amended without injury thereto, adds little lustre to that time-honored institution. One the other hand, if these "elementary rules of law" are good, it is presumed that courts will be able to appreciate and apply them quite as well as juries.
Judge Pitman then proceeds to argue that criminal trials without juries would be attended with disadvantages, because he thinks that judges would have, oftener than juries, that "reasonable doubt" which by law entitles the accused to an acquittal. This warrants one of two inferences: either the writer would have men convicted whose guilt is involved in "reasonable doubt," or he fears that the learning and experience of the bar and the bench tend to unfit the mind to weigh the evidence of guilt or innocence. It is curious that in a former number of the same Review, another learned writer expressed exactly the contrary opinion.[10] Mr. Edward A. Thomas thinks that "judges are too much inclined to convict persons charged with criminal offences," and that juries are too much inclined to acquit them. And Judge Foster seemingly agrees with Mr. Thomas upon this point.
Again: Judge Pitman argues that a jury is better qualified than a judge to determine what is "due care." And Judge Foster, going still further, says, "common men belonging to various walks in life, are, in most cases, better fitted to decide correctly ordinary questions of fact than any single judge or bench of judges." There are, unquestionably, many cases in which the main questions are so entirely within the scope of ordinary men's observation and experience that no special knowledge is required to decide them. With respect to such cases, it is true that
"A few strong instincts and a few plain rules
Are worthy all the learning of the schools."