TRIAL BY JURY IN CIVIL ACTIONS serious miscarriage of justice. But some times it merely means that rigid, universal rules, when applied to a variable and incal culable thing like human nature, do not always fit; that it is practically impossible to frame a safe general rule that will yield justice in all conceivable circumstances; and here is one of the cases where, on the whole, there had better not be any further punish ment by the State. While we are getting away from the notion that any sort of a tribunal, if only it is numerous enough and "common" enough, will yield results marvelous for justice and wisdom, still the opposite of this, " personal government," suits us still less. We want "a government of laws, and not of men." We do not want the laws framed so that the judge may apply them, or not, as he thinks expedient; and yet we do not want them applied when the net result is wrong. For a concrete and identifiable person like the judge to ignore or override the law would be very shocking, and tend to anarchy. But for a nebulous, impersonal, shifting, evan escent tribunal like the jury to do the same thing is merely one of the accidents of jury trial. It is difficult to put the blame on anybody in particular, and no one attempts to place the blame when the actual result is not seriously objectionable. In short, we are rather content to have a jury on hand to "take up the slack," or give a little freer play to the legal machinery, as may be needed; and to get this we are willing to tolerate some blundering and some per versity. As has been said, we are pretty nearly past the stage where it is possible to con vict any innocent person; the query now is whether we can convict any guilty person. This situation is not satisfactory; but both because it is harder to remedy than is the case with civil proceedings, and because it is the public that is hurt and not definite individuals, the abandonment of the jury in
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criminal cases is farther in the future. It is practical, if not logical, to consider the matter in its civil aspect separately. If we do reach a point where we want the criminal law enforced as it stands we can get it done by having such a jury, as was suggested for civil cases, answer special questions, instead of returning a general verdict, and leaving it to the court to apply the law. If the reaction from democracy goes far enough so that we will tolerate it, a slight extension of the maximum and minimum penalty idea will put it in the "discretion" of the judge to say whether the particular case in hand is not so far exceptional that the law does not apply. It grinds a little now to have any mere man say what we shall, or shall not do. But the golden mean is somewhere between a government of laws and a government of men, and a good deal of legal reform lies in the direction of giving the judge a larger discretion. This ought to assist some in securing a cordial recogni tion of the fact that it is the judge and not the jury that really determines the facts. It is entirely possible that a legislator who proposed frankly to abolish the jury in civil cases would find that the opposition is largely imaginary. If we recall that business is done very satisfactorily without a jury in habeas corpus cases, and in chancery, probate, admiralty, and bankruptcy courts: that it is voluntarily waived in, perhaps, half the civil cases where it might be insisted on, and in many criminal cases; that Scot land has abandoned it; and that we have pretty generally abandoned the grand jury because it is an absurdity as a means of discovering and apprehending criminals in an age of newspapers, telegraphs, telephones, and lightning expresses, it is clear that the maintenance of the petit jury in civil cases is not vital to civilization; and it may be that reformers only need the courage of their convictions to get it speedily dropped. Topeka, Kansas, May, 1907.
