The Portland daily press. [volume] (Portland, Me.) 1862-1921, 1881-06-29
Trial By Jury.
IJohn @. Dodge in July Atlantic.l


| Trial by jury proves the existence Of FREQ
government; 1t is the exercise by the people Of
one branch of supreme power When we say
1t POUNDS or upholds ii, we put the effect for
the cause. But suppose Its value for tho con-
servation Of liberty in the past were admitted,
it does not follow that 1t is needed now for the
like purpose. Officials are powerless beyond
constitutional limits. Judges by the tenure Of
Office are beyond the influence OF executive
power, and generally Of the ballotbox. The
end now to be sought is that the law, as the ex-
pressed will OF the people, should be every
where and always supremeIand uniform in its
administration.
And so we come to this vital question: Is
justice according to fixed rules of law more
likely to be attained by our present system, or
by one In which both fact and law are settled
by the court without the Intervention Of 1u-
ry?
In cases In which we may assume that jurors
would have no bias, 1t is obvious that they are
greatly liable to error from the want of proper
qualifications for the work they are to do. 1t
was found in the beginning that the worlds
work could not be done without special prepa-
ration for special duties. Our neighbor may bs
a great man, but we do not call upon him to
set broken limb unless he has had the train
ing Of surgeon. Much as we may esteem our
physician, we do not ask his advice when a
claim is set up to the estate we inherited and
supposed our own. We never 90 to our shoe
maker for q coat, nor to our tailor for boots.
In our late war, we sometimes, when smarting
under defeat, talked wildly about military gem
ius and West Point machines; but in the end
Al
vindicated, while the civilians, who early In
the war, by political influence or otherwise
obtained Independent commands in the army,
for the most part failed miserably, involving
the country In vast loss and suffering. The
average juryman Is unaccustomed to continu-
ous thought. He has never learned by prac-
tice to weigh and compare evidence, nor to
judge Of the truthfulness of witnesses. In pro-
tracted trials it is impossible for him to carry
the testimony in his memory, or to aid his
memory effectively byinotes. At the,close of the
testimony the court instructs him in the law
applicable to the case, and then 1t becomes his
duty to make up his verdict by applying as
best he may legal principles often imperfectly
understood to testimony imperfectl3 remem-
bered. We should not set q man to cultivate
farm or make shoe without practical acquain-
tance with his work. We should expect moth
ing of him but failure, II his preparation had
been only lecture or course OF lectures.
And yet we se1jurors to the performance of
the most responsible and difficult OF all duties,
with such preparation and aid only as they can
receive from the arguments of the lawyers and
the charge of the court.
Again, the juryman is impressed into the
service. Often he brings with him the cares
of the business from which he was taken; and
if anxiety about the harvesting, the notes that
must be paid before the banks close, or the con-
duct of the boy who thinks "epsom salts means
oxalic acic" distracts his attention, he will
console himself by the reflection that his re-
sponsibility is shared by eleven others.
On the other hand, the judge brings to the
work mind disciplined by years Of study,
followed by years Of study and practice. His
knowledge of law enables him to see what
facts are to be proved, and on which of the
parties rests the burden Of proving
them, and so, as each witness de-
livers his testimony, to appreciate its
probative value. Practice has taught him to
read Witnesses. For him not words only, but
the manner, the tone, the gesture, the counte-
nance, have force and meaning. He is not
likely to be misled. He has opportunity to
take full notes, if need be, and afterwards to
revise and compare the statements Of wit
nesses. The duties of his office are his work.
His attention is not distracted by outside
cares
So much for the relative capacity Of Judge
and Jury to administer justice.
/