576
THE GREEN BAG
original type possessed. Now, it may not be too fanciful to suggest that where a political or legal germ happens to fall in a fertile soil, the virtue of the soil enables it to spring up and become the parent of a flourishing progeny. Our ancestors moulded the jury into an instrument that was serviceable not only for discerning the truth, but also fpr securing freedom and justice; freedom, because the jury was practically independent of royal power; justice, because the jury, although it was sometimes intimidated and occasionally even corrupted, was on the whole less liable to be tampered with by those malign influences which might poison the mind or prevert the action of a judge in days when public opinion was ill-informed or weak. We in England have no longer that confi dence in the wisdom of a jury in certain classes of civil actions which we once had, and the tendency in recent years has been to narrow the sphere of its employment. But the institution of the jury has had some notably beneficent results. Along with those rules of pleading to which I have already referred, it helped to form in us a keener perception of separating issues of law from issues of fact than exists any where outside of England and America, and has trained us how to make this distinction in every case we have to advise on or argue. It tended to keep judicial deliverances of the law within due limits of brevity, because when a judge finds himself tempted to wan der off into the merits of the case he is reminded that those are for the jury and that his natural human tendency to do what he thinks substantial justice must be restrained by the sense that his business is to declare the law and be content with advising the jury on the facts. It formed the practice of using oral evidence at a trial, and thus, incidentally, it prevented both those secret examinations of the accused person and that recourse to torture which were common in continental Europe. It confirmed the ancient usage of requiring
judicial proceedings to be conducted in public, and thus kept subject to the watchful eye of popular opinion, and it mitigated that harshness of the penal law which belongs to all comparatively harsh societies, and which was not removed from the English Statute Book, until the memory of persons still living. When men were liable to be hanged for small thefts, English juries refused to convict for such offenses, and the refusal of the juries to convict hastened the march of legislative reforms. Now, the mention of penal matters sug gests a word as to the extreme technicality of the older Common Law. Frequently as that technicality frustrated the doing of sub stantial justice in civil cases, it had its advantages in criminal proceedings. Often a prisoner who did not deserve a severe sentence — and no doubt also sometimes a prisoner who did — escaped on some tech nical ground. Our forefathers had such a respect for the law that they would rather see a guilty man escape punishment than that some of their technicalities were ne glected. Perhaps they carried that prin ciple a little too far. The Common Law, which had the great merit of forbidding the use of torture, — abominably frequent in continental Europe even in the eighteenth century, — had also the merit of forming in the legal pro fession the feeling that an accused person ought to have a fair run for his life, a sportsmanlike instinct, like that which gives the hunted deer " law " a fair start, or that which forbids certain tricks by which a game at cricket might be won. A judge who bul lied a prisoner was condemned by profes sional opinion. A prosecuting counsel who overstated his case or betrayed a personal eagerness to convict the prisoner, incurred the displeasure of his brethren, and was sure to hear of it afterwards. I have often been struck in our criminal courts — and, no doubt the same thing occurs here — by the self-restraint which experienced counsel impose on themselves
