The Cecil Whig. [volume] (Elkton, Md.) 1841-current, 1881-06-25
TRIAL BY JURY IN CIVIL SUITS.


| - III TIC community al "lNt-
spread distrust of the trial by jury. Its
results are commonly spoken of as ut
| terly uncertain. 1t is said that reasons
alien to the merits of cause are likely
to decide it: that the relative ability of
the parties to bear an unfavorable YER
diet is often quite conclusive: that a cor
! poration has little chance of Justice: that
the plaintiff, having the closing argu-
ment. has an undue advantage: that Il
decently yelled unscrupulousness in the
advocate is pretty sure to win, when OPP
posed only by learning, talent. and in
| tegrty. Such charges are constantly
made, and meet with little contradiction
Nor is this merely the loose talk of ire
sponsible grumblers. Baron Bramwcll,
on examination before the Law Courts
| Commission (Scotlaud) said, If | want
ed nothing but the truth in Il particular
case, | should prefer the verdict of a
judge, and it seems to me impossible to
doubt he is the preferable tribunal. <
In an action against a railway company,
they Ijuriesl generally go wrong; in ac-
lions by tradesmen against gentlemen in
questions whether articles supplied were
necessary to an infant or wife. they are
sure to go wrong; i'll action for discharg-
ing servant. they generally 90 wrong;
in actions as to malicious prosecution.
they are always wrong" Mr.. Patrick
| Frazer. well known as an advocate and
law author, before the same commission
said, " think it [jury trial the biggest
farce that ever was instituted for the in
vestigation and settlement of civil rights.
i i In number of eases, unless
the judge takes the case out of their
hands, the verdict is sure to be one way.
But, apart from my opinion,
the practical result is this: we have tried
it for fifty years, and it has entirely
failed. You can't bring people to the
jury court. Merchants in Glasgow say
they would rather resign their rights and
interests altogether than submit their
cases to a jury"
On the other hand. the institution has
been the subject of great deal of indis-
criminate eulogy. Blackstone declares
1t to have been in use among the earliest
Saxon colonies: to be more than once in
sisted on in Magma Charta as the princi.
pal bulwark of liberty; to be the most
tranScendent privilege which any subject
can enjoy or wish for. And he concludes
that Montesquieu had no right to infer
that the liberties of England must in
time perish from the fact that Sparta.
Carthage. and Rome had lost theirs,
since they were strangers to the trial by
jury. SO Judge Story, speaking of the
seventh amendment of the constitution.
says, 1T places upon the high ground
of constitutional right the inestimable
privilege of trial by jury in civil cases"
So, De Tocqueville: ''C'est done lie Jury
civil qui a reellement sauve les Liberties
de rAngleterre."
The founders of our State and National
governments regarded it as all important.
by the Constitution of 1850 it was Sc
cured for Massachusetts: and eight wears
later the opponents of the Federal Con-
stitution found their most hopeful point
for attack in the failure to provide for it
in express terms. The friends of the
Constitution replied that it was already
provided for in fact, if not in terms: but
they yielded to the objection so far as to
accompany the adoption of the Constitu-
ton with proposal to amend in this par
ticular; and the amendment was made.
1t is generally true that institutions
have at some time met actual needs. or,
at least, were the best attainable when
they originated: but it does not follow
that they are adapted to the wants of
subsequent age. Time takes the soul
out of them. and leaves the form, like
the husks and stalks of last years corn
rubbish fit only to be burned. So it
comes that they often continue to be long
after they cease to be useful, and that
the fact of being is small proof of the
right to be. 1t may be considered as at
least doubtful whether this institution
has any rightful place in the world of
to-day.
show that it has any adaptation to the
present. Originally, as a trial by recog-
nitors, it was welcomed because it offer
ed an escape from intolerable evils. 1t
took the place of the Saxon trials by the
freeholders of the county and by wager
of law. and the Norman trial by battle;
and thus in 4 large class of cases fur
niShed mode of settling rights of pro-
perty by the aid of human knowledge
and intelligence, previously determined
by force or accident. or at best by the
within Of a popular assembly, acting with
or without evidence, and guided by no
settled rules. In the course Of centuries
its character changed. to meet, so far as
it might changing needs. 1t became
what it now is when the forms of pro-
perty and business relations were so I'M
like those of the present that if it could
be shown to have been the best, or the
best attairable, for that time, no infer
ence could be drawn that it has now a
right to continued existence.
1t must, then. stand upon its merits.
If. as has been claimed, it is the great
huiworl Of Ehprty oven If II ha in, Won't
ant among the causes that have develop
ed and now uphold constitutional govern
ment. we need inquire no further. It's
value rs 4 means of administering JUS
tice is of secondary Importance The
safety of the State is paramount. 1t is,
however, difficult to see how public lib
erty can be affected for good or evil by
the fact that court. in determining
whether Il parcel of land or a sum of
money belongs to 4 or b, proceeds with
or without jury. Courts of admiralty.
equity, and probate try questions of fact
without iuries. 1t cannot be said that
their influence is unfayorable to free gov
eminent. Can we trace any connection
between this form of trial of civil suits
and Magma Charta, the habeaS corpus,
the petition Of right. the Revolution. the
responsibility of the kings ministers,
the life tenure of judges. the reform bills,
or any of those great national attain
ments by which constitutional govern
mpnt has been advanced rpuulated and