The Abolition of the Jury System. 11 



was a simple office, easily discharged. In England, and in this 

 country, wherever the old common law forms are used, the 

 writs summoning juries still preserve the direction to summon 

 men from the vicinage, when knowledge of matters naturally con- 

 sequent upon being of the vicinage disqualifies the juror for the 

 very service to which he is impliedly called, and sends him from 

 the jury panel to the witness box. It is a long tale to tell how 

 legal practice wandered from that to this. Is it to severe too say 

 that there was sense in that, but that reason has dropped out by 

 the way to this ? 



But the argument against juries in civil cases can be strength- 

 ened by still other considerations. 



There is a constant endeavor to escape them by trials by the 

 court alone or by references -from the court. Generally, ifc may 

 be stated that a jury is the terror of a good cause and the hope 

 of a bad one. A case that wants a jury usually has an eye to pos- 

 sible aid from that peculiar character — the twelfth juryman. 

 Arbitration is growing more and more frequent as a means of 

 escape from the jury system. Various guilds and associations in 

 the industries and in commerce, make as part of their constitu- 

 tion, provision for the settlement of disputes that may arise among 

 their members. "With higher moral culture, more and more will 

 be made of the principle and practice of arbitration. Where 

 juries are preserved, ultimate confidence in no case is placed in 

 them. Provision is always made to review their work by another 

 tribunal. It is not worth while for society in any civil matters to 

 preserve so cumbrous and expensive a system in which after all 

 it puts so little trust. 



It is good theory to say that the province of the court is to pass 

 on law and that of the jury on fact. But it is often a question 

 of law what facts shall be taken into consideration, and often a 

 question of fact what the law is. 



This division between fact and law is one which can rarely be 

 clearly made in practice. 



Alexander Hamilton says : " Though the true province of 

 juries be to determine matters of fact, yet in most cases legal con- 

 sequences are complicated with fact in such a manner as to render 



