The Jury System in Civil Cases.
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THE JURY SYSTEM IN CIVIL CASES. Bv Alfred Russell, LL.D. (From an address delivered before the American Bar Association at Boston, August 27, 1891.) IN its existing practical operation it would seem as if the jury system in civil cases were purposely contrived to produce delay and uncertainty, particularly taken in con nection with the division of the sessions of courts into terms. It is not convenient to discuss this division of the subject now with full elaboration. I am among those who believe that this system has outgrown its usefulness. We have no crown, no aris tocracy, no established church, no servile judiciary, no press censorship, no limit to the discussion of the acts of our rulers, no restriction of public meetings for reform, no hindrance to universal suffrage or universal education; and it is time that we should have no jury in civil cases. This institution grew up alongside of those other institutions which we have repudiated, and as a necessity to protect the masses in their personal and property rights against the privileged. No necessity whatever of that kind exists here. I understand, indeed, that the English Bar are now quite generally against the continu ance of the institution in England. The jury is an illustration of what John Stuart Mill calls " the influence of obsolete institutions on modern ideas," and which, he says, " perpetuate in many of the greatest concerns a mitigated barbarism; things being continually accepted as dictates of nature and necessities of life which we should see to have originated in artificial arrangements of so ciety long since abandoned and condemned." The jury, to my mind, is one of those things. Nor is the jury any longer a means of instruction for political or democratical duties. The platform and press are sufficient instruc tors. Indeed, if they are not, why saddle the burden of such instruction upon litigants? Suitors with honest causes now avoid ju
ries, as a general rule, if possible, but with an ill cause almost invariably demand a jury; and it is proverbial that before a jury we gain the causes we expected to lose, and lose those we expected to gain. Chambers of commerce and manufacturers' associations in cities establish boards of arbi tration, in order to keep their commercial controversies away from the ignorant and pitch-penny determinations of the juries which come into our courts, and away from the frightful array of new trials, overturned verdicts, bills of exceptions, proceedings for tampering, and the like, which face the ordi nary litigant in the ordinary jury case. Men competent to sit as jurors almost universally escape the duty. In spite of the glowing eulogies of the institution constantly heard, the fact remains that under existing conditions, especially in urban communities, the constitutional right of jury trial in civil cases inevitably operates, not only to produce the greatest delay, but also to insure absolute uncertainty. The main utility of the jury at present is, that it forces settlement out of court, to avoid the oppression incident to it. The enormous expense of summoning and keeping jurors is, of itself, a potent reason for the abolition of the system. If a tithe of that expense could be devoted to paying judges properly, the very best legal talent in the country could generally be secured for the bench, and would stay permanently upon the bench, and away from the service of corporations or any other pursuit. And the minds of the judges would not be kept oft' their cases, and their independence menaced, by pecuniary cares. Every lawyer of experience knows that a trial by jury depends principally upon man
