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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 9


The Abolition of the Jury System.9
system on the continent, by the commerce there located, then we
may judge that the system, in such cases, is not even of apparent
social convenience. But the argument against the system is only
partially made when you look at continental commerce. In En-
gland itself the tendency has been, in the growth of legal practice
to wrest department after department from under the incubus of
the jury system. Just think how much business is covered by
equity, probate, and admiralty. Yet they are exempted from the
jury system.
  Lord Mansfield said that equity grew up in England to rectify
abuses resulting from the jury system. This statement at once
explains why it is that England and her colonies are the only
countries where law and equity have been divided and assigned to
separate courts. The jury system, was only adapted to coarse,
crude business. Anything requiring care or nice discrimination
had to be sent to another court, which, significantly enough, was
called a court of equity, as though something like even justice
might be there expected. How important the equity side of law
is, lawyers understand. Thee stretch of equity over legal business
must increase more and more with the growing complexity of civ-
ilization.
  Take probate business; as a rule, that is exempt from the jury
system. The statutes sometimes commit special matters to juries,
or they are found by way of appeals to other courts. But what
a reach there is to probate business. All the property of a coun-
try passes through probate, generation by generation. Yet the
difficulties of this huge business are normally met without the
intervention of a jury. The value at stake in matters passed upon
in common law actions cannot compare with the values that are
adjusted in probate, nor do such common law actions present
problems of greater interest or intricacy.
  To admiralty in England, and usually in this country, the jury
system is not applied. "Britannia rules the waves." The
jury
system is peculiarly a British institution, yet Britain has taken
good care that the right arm of her power and prosperity should
not be fettered by the jury system. She has followed the adage,
"Ne entor ultra crepidam."
9


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