The Green Bag
86
strange method of reasoning the con clusion seems to have been reached that whereas in all trials involving equitable principles a judge may safely be entrusted to consider and weigh
us; for trial by a jury in a court pre sided over by a partially muzzled judge
at the truth, and may also be entrusted with the application of the law to the facts and the decision of the case, still, when the same judge presides over a jury trial, he becomes unsafe and untrustworthy, and any power of direction given to him over the de
assisting the jury to arrive at the right conclusion upon the facts, and pointing out to them the proper principles of
uttering abstract propositions of law
and set formulas like a phonograph is a very different thing from a common the evidence for the purpose of arriving, law trial with the judge aiding and
liberations of the jury other than the bald statement of abstract propositions of law would poison the very springs of justice and contaminate the sacred
precincts of the jury-room. As a rule the interests involved in actions before a judge sitting as a court of equity are vastly more momentous in a property
sense than those tried before a jury. In the one class of cases the trial judge
is presumed to be governed by pure motives and to be capable of rendering
law to be applied to the facts thus ascertained. “I have made some effort to trace
the history of the early legislation in the various states which took away these important common law functions of trial judges, but found the task took more time than I could spare. An interesting field here lies open for in vestigation by the student of legal history. To sum up, either the judge should be left more free in his charge
to the jury or the number of peremptory challenges should be more nearly bal anced. Judge Taft, William Dudley Foulke and others recommend both
proper judgment; in the other it seems to be presumed that he is unfit to use his trained faculties of observation,
of these changes. It is possible that the ditions class in distinctions England, which and narrow social con‘ the
discrimination and comparison in aiding
field from which judges are selected to a choice few, and the manner of selec tion, have the effect to raise the standard of ability, so that greater power may
the jury to arrive at the truth from a consideration of the facts. This anomaly
does not exist in the federal courts nor in the courts of England. There the presiding judge sums up the whole case
and the evidence to the jury, gives his direction on the matters in issue and on the points of law applicable to these matters, and may give his opinion in such matters. He may also comment
on failure of defendant to testify if he thinks right.2
It may be seriously
questioned whether the ‘trial by jury’ which is sought to be preserved to us by our constitutions and Bills of Rights,
now exists or has been preserved for 'Halsbul'Y- "Laws of England." 369.
with safety be entrusted to trial judges there than here. However this may be, I would prefer for the present at least
to
limit
somewhat
the
number
of
peremptory challenges rather than to extend the power of the court in criminal
cases.
Even in England, the Maybrick
trial and the Beck case were notorious examples of mal-administration of crimi nal law. But in civil cases I think more power of direction should be given the judge, and if this proves a wise change then I would extend it to criminal trials as well.”
