TRIAL BY JURY IN CIVIL ACTIONS earlier, and hence reexamination for a new trial on this ground is "according to the rules of the common law." As was said by the Supreme Court of California, it is a recog nized part of trial by jury.1 The long contest against the assumption by the court of power to interfere on the facts in "jury" cases, has been based vaguely on constitu tional grounds. This objection being abso lutely without foundation, there is no possi bility of a reversal by the courts themselves of the present trend of decision on the point. This means that as the law now stands, and has really stood for certainly one hun dred and fifty years, the verdict of a jury in a law case is merely advisory to the court, exactly as when he voluntarily calls in a jury in an equity case, except that he has not the power to ignore the verdict and enter immediate judgment, but must go through the form of summoning new juries till he finds one that agrees with him as to the facts.2 This is thoroughly absurd. So absurd that some courts have sought to mitigate it by holding that when juries prove obdurate, and persist in bringing in successive verdicts the same way, the court will surrender after two or three trials.8 This seems to be abdicating on the part of the courts, and is apparently not permis sible. Statutes purporting to authorize such practice seem even more dubious. It is a straddle anyhow, and does not affect the fact that we need to decide whether we want the facts to be settled by the jury or the judge. 1 Ingraham v. Weidler, 139 Cal. 588 ('03). To the same effect: Bird v. Bradburn, 131 N. C. 488 (•02). 2 One recent instance where the court with apparently unconscious sarcasm calls this process getting the facts determined by the "proper tribunal" is, McDonald v. Met. St. Ry. Co., 167 N. Y. 66 ('02). s Slocum v, Knosby, 80 la. 368 ('90); Clark v. Jenkins, 162 Mass. 397 ('94); Hyde v. Haak, 132 Mich. 364 ('03); Van Doren v. Wright, 65 Minn. 80 ('96); Haven v. R. R. Co., 153 Mo. 216 C99); Milliken v. Ross, 9 Fed. 855 ('81); Foster v. Steele, 3 Bing. N. C. 892 ('37). Cf., Graham & Water man, New Trials, 1366.
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Trial by jury has a powerful hold on the feelings of lawyer and laymen alike. But notwithstanding the slow progress of the idea hitherto, it does seem that we have reached a point where lawyers, at least, must come soon to a realization of the fact that the institution we are so proud of is very largely imaginary', and very ill adapted to its present purpose. In the first place, we deceive ourselves in talking about the antiquity of the jury. While it is true that the institution can be traced back more than a thousand years with a certain amount of historical contin uity, what was called a jury a thousand years ago was pretty nearly the opposite of the jury of recent times. In its beginnings the jury was a cautious attempt at a miti gation of barbarism. Litigation, if we may use the term, was chiefly of,a criminal nature, and involved directly personal lib erty. The first juries were a considerable, but indefinite number of citizens best posted as to the facts, who were assembled as a sort of town meeting to decide what, on the whole, had better be done under the cir cumstances; and to bring some pressure, at least of public opinion, to bear on the parties to induce them to acquiesce in the conclusion of the "jury," instead of fighting it out. It appears from Fortescue, who wrote his De Laudibus I^egum Angliae about 1470, that the quality of jurors as witnesses was still the chief thing in his day. It appears from Bushel's Case,1 which ended the coercion of jurors by fine, that they could still render a verdict on their own knowledge in 1670. The late Prof. J. B. Thayer, than whom no one is better authority on such a point, says it was not until R. v. Sutton, 4 M. & S. 532 ('16), that the true quality of jurors became just reversed, and it was required that they know nothing about the facts, instead of as much as possible.2 So we are not using language with much technical precision if 1 Vaughan, 135. 3 See his sketch of the history of the jury in 5 Harvard Law Review, at 385.
