But where the questions involved are many in number, intricate and complicated in character, and enveloped in a mass of conflicting testimony requiring many days to hear it, is it not manifest that a jury,—not one of whom has taken a note during the trial, some of whose members have heard as though hearing not, and seen as though seeing not, the testimony and the witnesses,—deals with such a case at a great disadvantage, as compared with a judge whose notes contain all the material testimony, and who has all the opportunity for rest and relaxation that he may require before filing the finding which is his verdict? With respect to such cases, it is clear that, as a learned English judge has said, "the securities which can be taken for justice in the case of a trial by a judge without a jury, are infinitely greater than those which can be taken for trial by a judge and jury."[11] A judge may be required to state what facts he finds, as well as the general conclusion at which he has arrived, and to state upon what views of the legal questions he has acted.
Judge Foster most justly remarks: "There can be no such thing as a good jury trial without the co-operation of a learned, upright, conscientious and efficient presiding judge, ... holding firmly and steadily the reins, and guiding the entire proceedings." This is what Judge Foster was, and what Judge Pitman is, accustomed to do. But if the jury requires such "guiding" from the court, and if the court is competent thus to guide them, it is clear that the court must know the way and must be able to follow it; otherwise it could not so guide the jury.
Judge Pitman also argues that the jury can eliminate "the personal equation" better than the judge. But is this so? Does education count for nothing in producing that calm, firm, passionless state of mind which is essential in those who determine causes between party and party?
Are not juries quite as often as judges swayed by popular clamor, by prejudice, by appeals to their passions, and by considerations foreign to the merits of the case? As Mr. Thomas asks in the article before quoted: "How many juries are strictly impartial? How many remain entirely uninfluenced by preference for one or the other of the parties, one or the other counsel, or the leaning of some friend to either, or by political affiliations, or church connections, or relations to secret societies, or by what they have heard, or by what they have read? Can they be as discerning and impartial as a bench of judges, or if inclined to some bias or prejudice, can they as readily as a judge divest their minds of such an impression?" If it be true that juries composed of such material as Judge Pitman shows our juries to be largely composed of, are as capable of mastering and determining intricate questions of fact as judges trained to that duty, then we may truly say—
"Thinking is but an idle waste of thought,
And naught is everything, and everything is naught."
According to Judge Pitman, the system which prevails in some of the states, of trials by the court without juries (with the provision that the trial shall be by jury if either party demand it), "works satisfactorily." The testimony of lawyers and litigants in Massachusetts, Connecticut and other states where this system prevails, is to the same effect. For ourselves, while far from desiring the abolition of trial by jury, whether in civil or in criminal causes, we are by no means disposed to "throw glamour" (as the Scotch say), over an instrumentality for ascertaining legal truth, which is so cumbersome in its operation, and so uncertain in its results. A jury is, at best, a means, and not an end; and although much may be said about the incidental usefulness of jury service on account of its tendency to enlarge the intellectual horizon of jurors, all that is beside the main question.
Whether a particular occurrence took place or not, is a question which, whether it be tried by a judge or by a jury, must be decided upon evidence; which consists, in part, of circumstances, and, in part, of acts, but in part also, and very largely, of the sworn statements of individuals. While falsehood and corruption prevail among all classes of the community so extensively as they now do, it is useless to claim that decisions based upon human testimony are always or generally correct. Perjury is as rife as ever, and works as much wrong as ever. To a conscientious judge, like Judge Pitman, "the investigation of a mass of tangled facts and conflicting testimony" cannot but be wearisome, as he says it is; and, in many cases, the sense of responsibility "cannot but be oppressive;" but he has so often repeated a dictum of Lord Redesdale that he must be presumed to have found solace in it—"it is more important that an end be put to litigation, than that justice should be done in every case." There is truth in that dictum; but, like other truths, it has often been abused, especially by incompetent or lazy or drowsy judges. More unfortunate suitors have suffered as martyrs to that truth than the judges who jauntily "cast" them would admit.
Judges may do their best; juries may do their best; they will often fall into error; and instead of glorifying themselves or the system of which they are a part, it would be more modest in them to say, "We are unprofitable servants." Not many judges have been great enough to say, "I know I sometimes err," but some have said it. The lamented Judge Colt said it publicly more than once, and the admission raised, rather than lowered, him in the general esteem. When he died the voice of the bar and of the people said, "Other judges have been revered, but we loved Judge Colt."
Massachusetts gives her litigants the choice of a forum. All trials in civil causes are by the courts alone, unless one party or the other claims a jury. If the reader has a case of much complexity, either with respect to the facts, or with respect to the law, perhaps he would like to have our opinion as to which is the better forum. The answer is the same that was given by one who lived at the parting of the ways, to a weary traveller who inquired which fork of the road he should take: "Both are full of snags, quagmires and pitfalls. No matter which you take, before you reach the end of your journey you will wish you had taken the other." In the trial by jury, and in the trial by the court, just as in the trial by ordeal, and in the trial by battle in the days of old, the element of chance is of the first magnitude