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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 11


The Abolition of the Jutry System.
was a simple office, easily discharged. In England, and in this
country, wherever the old common law forms are used, the
writs summoning juries still preserve the direction to summon
men from the vicinage, when knowledge of matters naturally con-
sequent upon being of the vicinage disqualifies the juror for the
very service to which he is impliedly called, and sends him from
the jury panel to the witness box. It is a long tale to tell how
legal practice wandered from that to this. Is it to severe too say
that there was sense in that, but that reason has dropped out by
the way to this ?
  But the argument against juries in civil cases can be strength-
ened by still other considerations.
  There is a constant endeavor to escape them by trials by the
court alone or by references from the court. Generally, it may
be stated that a jury is the terror of a good cause and the hope
of a bad one. A case that wants a jury usually has an eye to pos-
sible aid from that peculiar character -the twelfth juryman.
Arbitration is growing more and more freque-t as a means of
escape from the jury system. Various guilds and associations in
the industries and in commerce, make as part of their constitu.
tion, provision for the settlement of disputes that may arise among
their members. With higher moral culture, more and more will
be made of the principle and practice of arbitration. Where
juries are preserved, ultimate confidence in no case is placed in
them. Provision is always made to review their work by another
tribunal. It is not worth while for society in any civil matters to
preserve so cumbrous and expensive a system in which after all
it puts so little trust.
  It is good theory to say that the province of the court is to pass
on law and that of the jury on fact. But it is often a question
of law what facts shall be taken into consideration, and often a
question of fact what the law is.
  This division between fact and law is one which can rarely be
clearly made in practice.
  Alexander Hamilton says:    "Though the true province of
juries be to determine matters of fact, yet in most cases legal con-
sequences are complicated with fact in such a manner as to render
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