Page:The Green Bag (1889–1914), Volume 03.pdf/487

agement, and that a judicious smile or well- fraud, we have a jury sitting with the judge; timed joke may carry a dubious cause or but, on the contrary, if we seek to enjoin the destroy a meritorious one, and it is to be same trespass, or the operation of the same especially noted that this necessity for re j fraud, we hold the judge competent to find sorting to artifice has a demoralizing effect the same facts, without the delay, the uncer tainty, and the expense of a jury. upon the profession itself. If objection is made to the one-man power Among the body of the people in all parts of the country it is found that the jury of the judge, what shall we say of the onemethod of settling facts among litigants is the man power of the twelfth juror? subject of jest and ridicule. As Brougham Let us be rid of the delays and uncertain said, the schoolmaster is abroad. Almost ties inevitable from setting aside verdicts be every intelligent citizen who watches our cause there was no evidence; or because courts is opposed to the system, especially against evidence; or because the damages if he finds it necessary to go to law himself. were excessive, so that the judge may him The truth is, that the jury system in civil self find a verdict, actually just, in a reduced cases is more of a fetich than the compul amount, by the contrivance of giving a new sory study of Greek in colleges. Nothing trial unless the plaintiff will remit. Let us can better illustrate the difficulty of dislodg be rid of the ignorances, the prejudices, the ing any inveterate custom than the retention compromises, the friendships for parties, the of this system. Although imbedded in our bribery and the disagreements of the jury, constitutions, public opinion, influenced by which assimilate a legal inquiry to a game the bar, may change them as it made them. having about as many elements of certainty The tax-paying part of the public would at as the roulette table. least concur. That part rarely sits on juries, It is universally agreed that the jury, not to be absolutely unjust, must be largely con but often suffers at their hands. It is a mistaken idea that the disposal of trolled by the judge, who may show them questions of fact is, even now, principally substantially what to do, and how to do it, and by jury. In wide regions of inquiry, the may give them his opinion upon the question contrary is the case; and I avail myself of of fact which they are instituted and organ the enumeration of Mr. Justice Bradley, in ized to determine. Let us have the judge's opinion outright, and to begin with; not sug 1882, in considering a question of the ascer tainment of fact, in a matter of depriving a gested to a jury, nor recommended to them, counsellor of his reputation and means of nor slowly filtered through them. Let us livelihood, without a jury. He said: "The have the saving of time in introducing testi important right of personal liberty is gener mony; the short and pointed arguments; the ally determined by a single judge, on a writ conclusion reached upon the logical bearing of habeas corpus, using affidavits or deposi of the proof, by a trained and honest picked tions for proof, when facts are to be estab man, which we get before a court without a jury. Let us follow the example of the lished. Assessments for damages and bene fits, occasioned by public improvements, are Scots and the French, and let the petty usually made by commissioners in a summary jury go the way of the grand jury, which has been done away with in many States, way. Conflicting claims of creditors, amount ing to thousands of dollars, are often settled by and which was formerly deemed as essential the courts on affidavits or depositions alone. as the jury now is. And the courts of Chancery, Bankruptcy, Mentioning these views to a distinguished Probate, and Admiralty administer immense I brother lawyer, he said : " But there are fields of jurisdiction without trial by jury." many cases where juries make the conceded If we seek damages for a trespass or a I law bend to the equity of the case." In my