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there are some cases which ought to be tried by jury, that are decided by the judges. It is believed that the learned author, although a distinguished advocate in France never thoroughly comprehended the grand divisions of our complicated system of law, in civil cases. First, is the distinction between cases in equity and those in which the rules of the common law govern. Those in equity are always decided by the judge or judges, who may, however, send questions of fact to be tried in the common law courts by a jury. But as a general rule this is entirely in the discretion of the equity judge. Second, in cases at common law, there are questions of fact and questions of law:—the former are invariably tried by a jury, the latter, whether presented in the course of a jury trial, or by pleading, in which the facts are admitted, are always decided by the judges.
Third, cases of admiralty jurisdiction, and proceedings in rem of an analogous nature, are decided by the judges without the intervention of a jury. The cases in this last class fall within the peculiar jurisdiction of the federal courts, and with this exception, the federal judges do not decide upon their own authority any questions, which, if presented in the state courts, would not also be decided by the judges of those courts. The supreme court of the United States, from the nature of its institution as almost wholly an appellant court, is called on to decide merely questions of law, and in no case can that court decide a question of fact, unless it arises in suits peculiar to equity or admiralty jurisdiction. Indeed the author's original note is more correct than the translation. It is as follows: “Les juges fédéraux tranchent presque toujours seuls les questions qui touchent de plus près au gouvernement du pays.” And it is very true that the supreme court of the United States, in particular, decides those questions which most nearly affect the government of the country, because those are the very questions which arise upon the constitutionality of the laws of congress and of the several states, the final and conclusive determination of which is vested in that tribunal.—American Editor.]
The jury, then, which seems to restrict the rights of magistracy, does in reality consolidate its power; and in no country are the judges so powerful as there where the people partakes their privileges. It is more especially by means of the jury in civil causes that the American magistrates imbue all classes of society with the spirit of their profession. Thus the jury, which is the most energetic means of making the people rule, is also the most efficacious means of teaching it to rule well.
