682 THE POPULAR SCIENCE MONTHLY. 



do not constitute a crime, although by express statute they do, and 

 suppose the judge so deciding, however erroneously, should discharge 

 the defendant, would not the result be the same, and the state equally 

 remediless ? To this it will hardly be answered that judges can always 

 be depended upon to do their duty, while jurors can not. The truth 

 is, that the sole duty of the jury is to find the facts, and that of the 

 judge to apply the law, and when either does more, except in those 

 cases where the judge tries both, it is a usurpation of power. 



Bearing in mind the fact that the only work of the jury is to de- 

 termine the truth or falsity of certain alleged facts, let us inquire 

 whether or not and how well it is adapted to this purpose. It is well 

 known that technical training in any branch of learning has a peculiar 

 influence on the mind. The mind by such training develops certain 

 idiosyncrasies, and nothing is more common than to see an eminent 

 specialist whose judgment is quite untrustworthy out of his specialty. 

 A mind so trained usually adopts certain more or less artificial tests of 

 truth, to which every proposition is submitted with a predetermination 

 as to the relative weight of certain classes of evidence. Nothing is 

 more boundless than the variety of facts that may be submitted for 

 judicial determination, and these facts do not usually belong to any 

 specialty, but arise out of the ordinary transactions of all men. No 

 trade or profession can claim a monopoly of facts, and I am of the 

 opinion that twelve men, coming to the work unbiased and untram- 

 meled by any technical rules or artificial tests, are more likely to arrive 

 at the truth in the ordinary affairs of life than any one, or indeed any 

 number of specialists. 



Perhaps the most frequent error alleged in appeals to the superior 

 courts is that the verdict of the jury is against the weight of evidence, 

 which is the nature of an appeal from the verdict of the jury on the 

 facts, and yet it is safe to say that not one case in fifty is reversed on 

 that ground. And, for every case reversed because the jury were 

 wrong, more than a score are reversed for some error committed by 

 the presiding judge in matters of law. I am aware that it is often 

 said that only those who have the bad side of cases want to try them 

 to a jury. This statement has little or no foundation in fact. Re- 

 cently one of the foremost jurists of this country, who certainly is 

 not overmuch attached to the jury system, said : "I am also forced 

 to admit, however, that even in civil cases my experience as a judge 

 has been much more favorable to jury trials than it was as a practi- 

 tioner. And I am bound to say that an intelligent and unprejudiced 

 jury, when such can be obtained, who are instructed in the law with 

 such clearness, precision, and brevity as will present their duty in bold 

 relief, are rarely mistaken in regard to the facts which they are called 

 upon to find."* I think experience has shown what reason would 



* Judge Miller's address before the New York Bar Association, " Albany Law Jour- 

 nal," vol. xviii, p. 409. 



