A GLANCE AT THE JURY SYSTEM. 293 



This is in cases where the decision is actually left in the hands of 

 the jury. But, and this is another difference between the real and the 

 ideal in the jury system, we have in a large number of cases the more 

 extraordinary spectacle of a jury solemnly sitting through a trial for 

 the purpose of listening to the evidence and forming their own opinion 

 as to the guilt or innocence of the accused, and then being instructed 

 by the court as to the verdict they shall find. It is, as every one 

 knows, the most common of occurrences for the judge to lecture the 

 jury upon their verdict and to refuse to receive it. That the judge 

 should be more correct than the jury is not impossible, but then — 

 wherefore the jury ? In an English case in which the jury had brought 

 in " guilty," Mr. Justice Maule addressed the prisoner as follows : 

 " Prisoner at the bar, your counsel thinks you innocent ; the counsel 

 for the prosecution thinks you innocent ; I think you innocent. But 

 a jury of your own countrymen, in the exercise of such common sense 

 as they possess, and it does not seem to be much, have found you 

 guilty, and it remains that I should pass upon you the sentence of the 

 law. That sentence is that you be kept in imprisonment for one day, 

 and, as that day was yesterday, you may now go about your business." 

 In a case the other day in San Francisco the judge made similar com- 

 ments, though to the jury themselves.* The real value of these two 

 anecdotes is ordinarily overlooked. It is something beyond merely 

 raising a laugh at the expense of the jury. The laugh is not neces- 

 sarily at the expense of the jury at all. It is rather at a system which 

 takes up the time of twelve men in hearing a case and rendering a 

 verdict, and then takes it for granted that the one man who sits on the 

 bench knows more about it than the whole twelve. If the " unani- 

 mous " verdict of the twelve is not equal in wisdom to that of the 

 judge who lectures them, it is clear that they may be dispensed with, 

 without any great loss to society. 



And, if unlike its ideal, still less is the jury of to-day like its origi- 

 nal. A glance at the history of the jury system will show this. The 

 original notion of a jury was not as a protection to anybody. It was 

 not established as a bulwark of popular liberty. The jurymen were 

 witnesses rather than judges of the matter in issue. The modern 

 jury grew by a process of slow and gradual development out of cus- 

 toms which were part of the life of the Anglo-Saxons and other early 

 inhabitants of Great Britain. These customs were perfectly charac- 

 teristic of a rude, unlettered people. They were perfectly natural. 

 They were based on no recognized legal principle. They had no set pur- 

 pose in view beyond the purpose of the hour. They were almost utterly 

 devoid of judicial forms. There was no such thing known as a writ. 

 For the hearing of a complaint a messenger was sent personally to 



* A notable instance of a judge's overruling the decision of a jury has just occurred 

 in England. In the suit of Adams against Coleridge a verdict was rendered for the 

 plaintiff, and was immediately reversed by the presiding judge. — [Editor. 



