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Transactions of the Wisconsin Academy of Sciences, Arts and Letters
volume IV (1876-1877)

Caverno, Charles
The abolition of the jury system,   pp. 7-18 PDF (3.4 MB)


Page 8


8       TlMsconsgn Academy of Sciences, Arts, and Letters.
then tell them substantially what facts they shall hand back to it,
as found by them, it is apparent that we have an institution which
has little setting in reason and, as matter of fact, has little respect
with those familiar with it in practice.
  In trial by jury to-day we have a marked instance of an insti-
tution, sapped of its strength by the growth about it of a multitude
of petty restrictive details. Force that does not go to stalk, goes
to shoot, till life is smothered by its own abnormities.
                         IN CIVIL CASES.
  That trial by jury in civil cases is not an essential element of
civilization, and is not necessary to industry and commerce, is appar-
ent when the fact is known that jury trial in such cases has never had
place on the continent of Europe, was not in fact introduced into
Scotland till a period within the memory of men still living.
  Lord Mansfield, toward the close of his illustrious career at the
end of the last century, advised against the introduction of the
jurv in civil cases into Scotland.
  Lord Campbell said that the principles underlying Mansfield's
objections were unfortunately overlooked when jury trial in civil
cases, in 1807, was introduced into Scotland.  He further adds,
"The experiment, I am afraid, has proved a failure, and Lord Mans-
field's objections been fatally verified."
   While as much as this would not be allowed by all Scotch law-
yers to-day, yet the claim is distinctly made, that all the advan-
tages which have arisen in Scotland with the introduction of the
jury system are not due to that system at all, but are due to a con-
temporaneous rectification of the Scotch system of pleadings.
   Trial by jury in civil cases is distinctively English in origin and
limited in practice to England and the colonies -Scotland being
allowed for as above stated.
   Great Britain and America do not transact all the business of
the world. There has been done and is doing a vast deal of busi-
ness on the continent of Europe. If all this business has been
transacted without the jury system in legal matters, we may at
least conclude that that system is no social necessity.
  If there has been and is no call for the establishment of the


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