secondary advantages of considerable importance, which assist in blinding us to its failure in its primary purpose. It is the most effective means we have for giving ordinary citizens any actual share or interest in the administration of justice. It gives them some vivid understanding of their personal and civil rights. It shows them how difficult a matter it is to arrive at exact justice, and makes them more intelligent as to the function and success of courts. It furnishes some preparation for their duties in selecting judicial and prosecuting officers. It broadens the horizon and the acquaintance of some who have little other occasion to deal with things or with men of much moment. It protects the court somewhat from the anger of disappointed litigants, and from the envy and malice of professional rivals, and from charges of partisanship in certain political and factional cases, to the considerable increase of his total efficiency. But changed conditions have lessened most of these secondary advantages. They pretty nearly vanish when we can no longer blink the fact that the whole jury juggle is essentially a sham. They cannot begin to atone for the fact that jury trial adds atrociously to the delay, and the expense, and the uncertainty of judicial proceedings.
Some of these advantages can be measurably retained by allowing the judge, and perhaps the parties, in certain cases, to call in a "special" jury of, say, three to find the facts, or certain specified facts. By special is meant that they need not be chance jurors, but persons having some peculiar competence for the task required. In some classes of cases the facts are simple: the questions can be put with precision, and separately from the law; and their answer requires rather familiarity with common things and with human nature, than any special knowledge or experience. Among such have been mentioned cases based on negligence, defamation, personal injury, fraudulent representations, and common usage. On these it is possible that a jury is a trifle more likely to be right than a judge, and he might well have the option to call such a jury.
As to the number three, we can offset the reasons for having twelve because there were twelve tribes, twelve apostles, twelve months and so forth, with the three Fates, three Graces, three persons in the Trinity, and other equally weighty and relevant reasons. Besides, it is at once the largest number that will keep down the present delay and expense in obtaining a jury, preserve individual responsibility, and prevent tie votes; and at the same time the smallest number that will minimize the risk of individual peculiarities and idiosyncrasies. It is the number that the business world in fact resorts to for the arbitration of questions they are afraid to trust to twelve.
There is, of course, no really logical reason for discussing jury trial in civil cases, as distinguished from criminal cases. In fact from a pedantic logical point of view it is a little more absurd in criminal than in civil cases. It is settled that, if a defendant is acquitted, the court has nothing to say; while if he is convicted, the judge may set the verdict aside. "Heads, the accused wins; tails, the state loses!" Courts have had the courage of their convictions and directed a verdict of guilty.[1] Juries have been independent, and convicted when the court told them to acquit.[2] But such verdicts are not allowed to stand. The right to render a general verdict of guilty or not guilty, gives the jury in a criminal case the power, if not the right, to judge both the law and the facts. This prima facie, is much less rational than making the court judge of the law and the facts.
But this decision of criminal cases is nearer to the original function of the jury; and on the whole they perform it better. Sometimes they ignore or override the law; and sometimes such conduct constitutes a
