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Page:Popular Science Monthly Volume 24.djvu/700

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do not constitute a crime, although by express statute they do, and suppose the judge so deciding, however erroneously, should discharge the defendant, would not the result be the same, and the state equally remediless? To this it will hardly be answered that judges can always be depended upon to do their duty, while jurors can not. The truth is, that the sole duty of the jury is to find the facts, and that of the judge to apply the law, and when either does more, except in those cases where the judge tries both, it is a usurpation of power.

Bearing in mind the fact that the only work of the jury is to determine the truth or falsity of certain alleged facts, let us inquire whether or not and how well it is adapted to this purpose. It is well known that technical training in any branch of learning has a peculiar influence on the mind. The mind by such training develops certain idiosyncrasies, and nothing is more common than to see an eminent specialist whose judgment is quite untrustworthy out of his specialty. A mind so trained usually adopts certain more or less artificial tests of truth, to which every proposition is submitted with a predetermination as to the relative weight of certain classes of evidence. Nothing is more boundless than the variety of facts that may be submitted for judicial determination, and these facts do not usually belong to any specialty, but arise out of the ordinary transactions of all men. No trade or profession can claim a monopoly of facts, and I am of the opinion that twelve men, coming to the work unbiased and untrammeled by any technical rules or artificial tests, are more likely to arrive at the truth in the ordinary affairs of life than any one, or indeed any number of specialists.

Perhaps the most frequent error alleged in appeals to the superior courts is that the verdict of the jury is against the weight of evidence, which is the nature of an appeal from the verdict of the jury on the facts, and yet it is safe to say that not one case in fifty is reversed on that ground. And, for every case reversed because the jury were wrong, more than a score are reversed for some error committed by the presiding judge in matters of law. I am aware that it is often said that only those who have the bad side of cases want to try them to a jury. This statement has little or no foundation in fact. Recently one of the foremost jurists of this country, who certainly is not overmuch attached to the jury system, said: "I am also forced to admit, however, that even in civil cases my experience as a judge has been much more favorable to jury trials than it was as a practitioner. And I am bound to say that an intelligent and unprejudiced jury, when such can be obtained, who are instructed in the law with such clearness, precision, and brevity as will present their duty in bold relief, are rarely mistaken in regard to the facts which they are called upon to find."[1] I think experience has shown what reason would

  1. Judge Miller's address before the New York Bar Association, "Albany Law Journal," vol. xviii, p. 409.