684 THE POPULAR SCIENCE MONTHLY. 



or corruption in a jury may affect a particular case, but ignorance or 

 corruption of a judge affects the whole system upon which depend the 

 rights of all. If a corrupt jury taints the waters for a moment, to 

 become pure again the next, a corrupt judge poisons at its head the 

 fountain from which all must drink. I am inclined to think that the 

 corrupting influences of corporations upon our courts is greatly exag- 

 gerated, but it would be idle to underrate the strength of public opin- 

 ion on this subject. When so many suspect the purity of the bench, 

 we should consider well before we eliminate the popular element from 

 our courts of justice. Let us do nothing to exclude in fact or alienate 

 in feeling the people from one of our most important institutions lest 

 the evil spirit should whisper in the ear of poverty the all-too-powerful 

 argument of Romeo : 



" Art thou so bare, and full of wretchedness, 

 And fear'st to die ? famine is in thy cheeks, 

 Need and oppression starveth in thy eyes, 

 Contempt and beggary hang upon thy back. 

 The world is not thy friend, nor the world's law ; 

 The world affords no law to make thee rich ; 

 Then be not poor, but break it and take this." 



What do the opponents of the jury offer in its stead ? The only 

 substitute that has yet been proposed is an increase of judges and trial 

 to the court in all cases. We have already seen that one of the most 

 useful features of the system of trial by jury is the separation of the 

 power that tries the facts from that which decides the law. A ques- 

 tion of fact is tried upon evidence, in the weighing and considering of 

 which the mind should be trammeled by no artificial tests or technical 

 rules. On the other hand, to determine questions of law requires long 

 experience and accurate knowledge of rules and principles evolved 

 from the common experience of mankind. The judge must be learned 

 in the common law scattered through thousands of volumes of reported 

 cases, as well as thoroughly acquainted with the statutory and consti- 

 tutional law of the land. A finding of fact in one case can not, from 

 the nature of the circumstances, be any aid in determining another 

 set of facts upon different evidence in another case, and hence a find- 

 ing of fact, or a verdict of a jury, can have no authority as a prece- 

 dent. On the other hand, a determination of a principle of law is 

 final not only in that particular case, but in all similar cases in that 

 jurisdiction — thus a court of last resort, in deciding a single case, may 

 settle a principle of law upon which scores of other cases depend. 

 Now, it is this separation of the trial of the law and the facts — func- 

 tions essentially different in their nature and requiring entirely differ- 

 ent kinds of training and preparation — that has enabled our courts to 

 build up, develop, and unify our system of jurisprudence. This divis- 

 ion of labor, which has had much to do in producing the certainty, 

 completeness, and symmetry of our law, would be wholly lost by the 



