16 'Wisco7isin Academy of Sciences^ Arts, and Letters. 



men toward jury service plainly shows that the system has out- 

 lived its usefulness. Judges scold and fine, yet business men 

 slip through their fingers, and the old soldiers take their accus- 

 tomed seats. It is not worth while to try to reform an institution 

 whose service is so universally distasteful to men of character and 

 occupation. The only question deserving consideration is, whether 

 practical injustice would be likely to result to those accused of 

 crime from the abolition of the trial by jury. 



Presentment by grand jury was once thought to be as essential 

 to the protection of tho5e accused of crime as final trial by petit 

 jury. Yet the grand jury has gone by the board in many states, 

 to nobody's damage. The petit jury might follow it with as little 

 injury. Any man accused of crime could find security enough 

 in the ordinary course of law without the jury system. He can 

 have as many new trials as he can show reason for. If capital 

 punishment were abolished in all of the states, as it is in many 

 then we could say that in all cases, as long as natural life might 

 last, courts would be open to applfcation for new trial on the 

 ground of newly discovered evidence. 



Granting these privileges, society would be likely to mete jus- 

 tice as evenly and unernngly as is possible to man. 



Why should evervthing about crime be adapted to and man- 

 aged in the interest of criminals? Is not society's right to protec- 

 tion as high as the individual's right to protection ? 



An individual has no right as against society to that which prac- 

 tically leaves it defenseless. It is an incidental matter but I can- 

 not forbear to mention the probable influence on the bar of the 

 abolition of jury trials. 



The morals and manners of equity practice are certainly heaven- 

 high over those nisi prius or of criminal courts. There is no rea- 

 son why the attempt to get at facts in cases civil and criminal cases 

 should corrupt the manners and morals of the bar any more than 

 the attempt to get at law, and yet every body knows that it does. 

 The cause of it is in the standing temptation there is in the jury. 



A good illustration of the nature of this temptation and of what 

 it can lead lawyers to do is well set forth, in a few words of Sir 

 Nicholas Throckmorton, who was tried for high treason in 1554. 



