THE JURY SYSTEM. 685 



proposed change. It is suggested that, instead of a jury of twelve 

 untrained men, three or five judges experienced in the law should de- 

 termine both the law and the fact, and that such decision be final. This 

 would certainly have the virtue of producing speedy justice, if justice 

 at all. But what would be the result ? Let us suppose a case. The 

 Legislature passes a law which the judicial tribunal of one county 

 holds to be unconstitutional, while that of another county declares it 

 constitutional, and in two other counties it is construed to mean two 

 quite different things, and so on through fifty counties, each of which 

 has an independent, distinct, and final judicature. We see at a glance 

 that there must be one supreme judicature whose jurisdiction is con- 

 terminous with that of the Legislature, whose will it interprets. The 

 confusion now existing between the thirty-eight States in this regard 

 is the source of much regret, and might have been fatal to the exist- 

 ence of the Union had it not been for the Federal Supreme Court, 

 whose silent but constant influence gradually overcame the violence of 

 contending factions. Then, by whatever tribunal cases are first tried, 

 we must always have one Supreme or Appellate Court, and it is fair to 

 presume that about as many cases would find their way into the higher 

 courts, if first tried to the court, as if tried by a jury. And the pro- 

 posed system would have the further disadvantage that, the higher a 

 case were carried through the successive tribunals, the less would be 

 the probability of a correct determination of the facts. While the ap- 

 pellate tribunals are usually best qualified to settle a question of law, 

 they are, from their technical training and tendency to generalize, least 

 qualified to determine a question of fact. Nor can we reasonably ex- 

 pect a reduction in expense by employing high-salaried specialists to 

 do that which the ordinary laymen can do much better. 



It is suggested, however, that justice would more certainly be 

 meted out to litigants if the whole subject of controversy were in the 

 hands of a few experienced men. Might not the same be said of the leg- 

 islative branch of our Government ? A score of well-trained lawyers 

 could doubtless enact a more consistent and probably a better code 

 of laws than any of our heterogeneous Legislatures, yet this would 

 scarcely induce the people to make the change. Indeed, the strongest, 

 cheapest, and best government is an absolute despotism in the hands 

 of a strong, wise, good man. But the character of an institution 

 ought to be estimated by its effects on the people, and that is on the 

 whole the best which produces the best results. It is not only what 

 people are called upon to actually do, but also the possibilities that lie 

 before them, that affects their character. The occasional deposit of a 

 ballot is not of itself much of a public education, but the possibilities 

 and responsibilities that the elective franchise brings with it can 

 scarcely be overestimated in their influence on the character of a peo- 

 ple. Much the same is the influence of the popular branch of our 

 system of judicature. While the direct influence of sitting occasion- 



