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TRIAL BY JURY IN CIVIL ACTIONS same increase of expense and delay as the wrong verdict. Moreover, under code plead ing, the issues for the jury are something very different from the narrow, concrete fact which common law pleading brought up to them; different both in number, in generality, and in the necessary comming ling of law involved in the generality. This adds enormously to the difficulty of the task for an untrained tribunal. So it is not strange that the results of jury trial grow steadily more unsatisfactory. This final denial that the jury are the exclusive judges of the weight of the evi dence, does not mean that trial by jury in civil cases has been abolished. It is a reassertion of a long established power of the courts, and is the only thing that has made jury trial endurable for the last fifty years. We have only just found out what trial by jury is, and got the real thing fairly well established. But now that we know what it is, we do not like it, and it ought to be abolished as soon as possible. Obviously that is not very soon, unless the people generally can learn faster than the lawyers. One mitigation may, perhaps, be com passed by the influence of bench and bar long before it would be practicable to carry constitutional amendments enabling us to abolish the jury. It is perfectly clear that the jury trial preserved by the constitu tions included the right of the trial judge to comment on and analyse the evidence, and indicate the salient points, and tell the jury how it appeared to him, as is done in England to-day, and in our Federal courts and in some state courts. The statutes for bidding it are obviously unconstitutional,1 and the way they were given free sweep and no opposition is another comment on the universality and persistence of the misappre hension as to the relation of courts to jury trials. If the courts cannot now hold these statutes bad, perhaps they can be repealed. This would help some, because perverse verdicts are not the main trouble. A man 1 23 Am. Law Rev. 781 ('89).
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with the judge's training in seizing the main point, in "sizing up" witnesses, in holding onto the thread, can be of great assistance to the jury; and the jury is generally very willing to be assisted. Illinois long ago suggested this remedy, going in fact a little farther than is here advised. "If a verdict is to be overthrown because it does not entirely correspond with the judgment of the court, we had better abolish the trial by jury altogether, or at least re quire the judge to tell the jury precisely and distinctly what his opinion of the case is, and require them to find accordingly, and thus save the expense of a second trial." 1 The trouble is, that requires amendment of the constitutions as much as the other solution. But restoring the power of the court to advise the jury what verdict to return, besides getting some additional cases disposed of without two or three trials, and besides appearing still to preserve the "palladium of our liberties," would in fact bring out the absurdity of having a jury merely to advise the court what the facts are, in a way that would certainly hasten the time when the voters would consent to abolish the jury. But that this is no com plete solution of the difficulty, sufficiently appears from the fact that England, where this practice has always prevailed, is even ahead of us in getting disillusioned as to the value of the jury in civil cases under modern conditions. The retort that it is idle to talk about abolishing the jury until some satisfactory substitute is proposed, comes simply from the survival of the old idea that the jury now performs some function. The proposal is merely to cut out an expensive, tedious, error-breeding survival, now obsolete. This leaves us, so far as effective machinery is concerned, just what we now have. Advis ing the elimination of an incumbrance does not of itself impose any special responsi bility for suggesting improvements. Jury trial brings certain incidental and 1 Kincaid v. Turner, 7 Ill. 618 ('45).
