THE CIVIL AND THE COMMON LAW of individual rights among the Englishspeaking peoples, which do not exist where the law is looked upon as the will of the ruler, and criminal proceedings are regarded as merely the vindication of his right to rule. It is not the mere form of government which is significant, for England has had, and still has, a monarchy, quite as potential theo retically as that to be found in any conti nental country; while, on the other hand, representative government has, from time to time, been established in various Euro pean countries, I think the difference ex ists in the conception of the nature of law and of the functions of the courts which ad minister it; and that the conception which is entertained by the one who is ruled under the system of the common law is far more conducive to the general public welfare and happiness than is the conception prevailing under the civil law system. A notable feature of the administration of justice under the common law is the recog nition and practical preservation of the right of trial by jury, a right which has its fundamental basis in the fact that men are equal before the law, and that the judgment of his fellow-men with reference to whether he has committed a wrong, is a better safe guard of the rights of the individual than the determination of some official, even though he be a judge, owing his allegiance to some superior and remote power. The anomalies of a jury trial, the absurd results sometimes reached, and the inefficiency in many cases of this method of determining the questions submitted, are often com mented upon. And yet, it is a significant fact that those most familiar with the ad ministration of law have continued to assert their confidence in the system of jury trial as the best system yet devised for reaching substantial justice in cases involving a con troversy as to the facts. It must be re membered that jury trial was not developed as a theoretical system, but originated as a popular institution, adapted to the needs of the people among whom it sprang up;
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that it has been modified from time to time as necessity seemed to require; that the function of the judges in announcing the law and supervising the action of jurors to see that they do not transgress their proper sphere, is as much a part of the judicial system which involves jury trial as is the action of juries in passing upon facts, and that the continuity, stability, and publicity of the rules of law, as regulating the conduct of individual members of society, is main tained by the pronouncement of the judges whose decisions stand as expressions of the law, while the verdicts of juries have sig nificance only in the particular cases in which they are rendered. Here again the sense of security of personal and property rights is quite as important as the theoretical perfection of the judicial system; and while on the continent, where, by the way, trial by jury has been to some extent introduced, the administration of law by the courts may be actually as effective in attaining the ends of justice, there is not the same feeling of security of each man in his rights, regardless of the interests of the abstract state, as there is in the common law coun tries. Were we now to sit down as philoso phers and jurists to invent a system of law, we would perhaps not include jury trial as we now understand it. But systems are to be judged by their practical workings, rather than by their theoretical consistency or per fection, and I beg to express very grave doubt as to whether any radical modifica tion of our judicial system, which would eliminate the feeling of security which comes from a realization that one's rights will be determined, as to matters of fact, by his peers, and not by his superiors, would be beneficial. Another essential distinction between the common law system and that of civil law countries, is as to the force and effect to be given to the pronouncements of the law by the judges in particular cases. The com mon law system is notoriously a system built up on precedent, while the civil law
