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Page:Popular Science Monthly Volume 24.djvu/702

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THE POPULAR SCIENCE MONTHLY.

or corruption in a jury may affect a particular case, but ignorance or corruption of a judge affects the whole system upon which depend the rights cf all. If a corrupt jury taints the waters for a moment, to become pure again the next, a corrupt judge poisons at its head the fountain from which all must drink. I am inclined to think that the corrupting influences of corporations upon our courts is greatly exaggerated, but it would be idle to underrate the strength of public opinion on this subject. When so many suspect the purity of the bench, we should consider well before we eliminate the popular element from our courts of justice. Let us do nothing to exclude in fact or alienate in feeling the people from one of our most important institutions lest the evil spirit should whisper in the ear of poverty the all-too-powerful argument of Romeo:

"Art thou so bare, and full of wretchedness,

And fear'st to die? famine is in thy cheeks,
Need and oppression starveth in thy eyes,
Contempt and beggary hang upon thy back,
The world is not thy friend, nor the world's law;
The world affords no law to make thee rich;

Then be not poor, but break it and take this."

What do the opponents of the jury offer in its stead? The only substitute that has yet been proposed is an increase of judges and trial to the court in all cases. We have already seen that one of the most useful features of the system of trial by jury is the separation of the power that tries the facts from that which decides the law. A question of fact is tried upon evidence, in the weighing and considering of which the mind should be trammeled by no artificial tests or technical rules. On the other hand, to determine questions of law requires long experience and accurate knowledge of rules and principles evolved from the common experience of mankind. The judge must be learned in the common law scattered through thousands of volumes of reported cases, as well as thoroughly acquainted with the statutory and constitutional law of the land. A finding of fact in one case can not, from the nature of the circumstances, be any aid in determining another set of facts upon different evidence in another case, and hence a finding of fact, or a verdict of a jury, can have no authority as a precedent. On the other hand, a determination of a principle of law is final not only in that particular case, but in all similar cases in that jurisdiction thus a court of last resort, in deciding a single case, may settle a principle of law upon which scores of other cases depend. Now, it is this separation of the trial of the law and the facts—functions essentially different in their nature and requiring entirely different kinds of training and preparation—that has enabled our courts to build up, develop, and unify our system of jurisprudence. This division of labor, which has had much to do in producing the certainty, completeness, and symmetry of our law, would be wholly lost by the