348
THE GREEN BAG
we apply the term jury trial to anything more than, say, two hundred and fifty years old. ' But we need not go back fur ther than this to discover the source of the exceptional pride in and admiration for trial by jury. At a time when the crown was allpowerful, the aristocracy the only people, parliament corrupt, the judiciary servile, the church established, the press feeble and censored, public meetings suppressed, the jury was the one place where common people got the slightest opportunity to make themselves felt in public affairs. And the way they stood out against king, and noble, and church, and judiciary, and the only public opinion possible in such a civilization, and made an ever increasing place for common people and common rights as against the privileged, was very astonish ing and very magnificent. But the real ground for their glory was much more polit ical than juridical. Trial by jury was never consciously studied out and adopted as the expedient and practical method of ascertaining the facts in technical legal proceedings. It "just growed." At a time when most liti gation had rather a criminal cast, when only the simpler and more obvious offenses were taken notice of, when we were just beginning to get away from the regime of self-help and to recognize the State as the party primarily injured, and when, there fore, the mitigating circumstances were reasonably entitled to more weight, and both the expediency and the practicability of rigorously enforcing the penalty were more doubtful, the actual results of leaving the matter to a sort of town meeting were tolerably satisfactory.' But that transition was effected a long time ago. The relative importance of civil litigation as compared with criminal has been steadily changing, and is now at least reversed. In the last century or two, and particularly in the last fifty years, the amounts involved in litiga tion, and the reach of the effect of decisions, have been enormously extended. The vari
ety, and the complication, and the techni cality, of the facts involved in modern liti gation, have put the ascertainment of them in many cases simply beyond the capacity of any tribunal with no extensive educa tion, no sort of familiarity with large affairs, no experience in weighing testimony or witnesses, and no training in continuity of attention. On the other hand, it is clear that a modern jury is not usually as representa tive of the community as in former times, We still want a jury of the vicinage, but we want them not to know anything about the facts. Under modern conditions, freedom of motion, frequency of public meetings, and the indefatigableness of newspaper re porters, exclude from the jury all but the inert, secluded, ignorant, non-readers. The tension of modern life makes jury service a much more serious interruption of business than formerly to the class that are really representative of the community. Possibly, too, the increasing contempt for jury ser vice on the part of those whose active par ticipation is imperative, if the work of the jury is to be respected, is enhanced by at least a partial comprehension of the essen tially farcical position occupied by a num erous and imposing tribunal, summoned at much inconvenience to themselves, to a task absolutely out of their line, which they are poorly fitted to perform, and which, however well they do it, is either mere surplusage because they reach the same conclusion as the trial judge, or is an utter nullity because they reach a different con clusion. Then, too, the chances of unanimity are increased the greater the common ground among the jurors, whether of race, or nation ality, or politics, or religion, or occupation, or financial standing, or other promoter of sympathy and common point of view. In all these respects as well as in education and in aggressive independence of personality, there is more diversity among jurors than formerly. And the "hung" jury causes the
