12 Wisconsin Academy of Sciences^ Arts, and Letters. 



a separation impracticable." When the court gives the law to the 

 jury, the court has already inferentially found the facts, and when 

 the jury find the facts they inferentially apply the law. Fact and 

 laio are so involved that they belong to one mind. 



There is a constant tendency for fact to pass up into the order 

 of law. A few facts make a custom, and custom is law. It is 

 hard to say where fact leaves off and law begins. The tendency 

 of civilization is to make law at the expense of fact. 

 In the subdivision of labor in law, lawyers do not attempt to 

 cover all the realm included in their profession. One devotes him- 

 self to the law of Patents, another to the law of Railways, another 

 to the law of Real Estate, ^et we take indiscriminately from the 

 mass of the people juries to sit indifferently, now on the delicate 

 interests involved in one of these great departments, and the next 

 moment on those of another. We set a hod-carrier to pass upon 

 facts (as, for instance, upon those which constitute negligence) 

 upon which a lawyer would give no opinion unless he had made 

 them a life study. 



We have no need here to discuss the character of our jury ser- 

 vice. The service itself, as we practice it in civil cases, is inher- 

 ently absurd. 



IN" CEIMINAL CASES. 



Trial by jury in criminal cases, at various dates within a cen- 

 tury, has been introduced into many of the nations on the conti- 

 nent of Europe. It cavne in, in several instances, as a result of 

 the political commotions of 1848. 



The popularity of trial by jury is in its application to criminal 

 cases. But a little study detects the fact, that this popularity has 

 arisen out of one peculiar class of cases. 



When Hallam eulogizes Magna Charta, especially the clause 

 which is supposed to establish the right of trial by jury, he lets 

 us see from what quarter the popularity of this institution has 

 come. He calls it "The Keystone of English Libert}'-," and says 

 that it is one of " the bold features which distinguish a free from 

 a desvotic 'monarchy.'''' 



It is because of its 'political service in monarchical or aristo- 



