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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 12


12      TVisconsin Academhy of Sciences, Arts, and Letters.
a separation impracticable." When the court gives the law to the
jury, the court has already inferentially found the facts, and when
the jury find the facts they inferentially apply the law. Fact and
law are so involved that they belong to one mrnnd.
  There is a constant tendency for fact to pass up into the order
of law. A few facts make a custom, and custom is law. It is
hard to say where fact leaves off and law begins. The tendency
of civilization  is to  make law   at the expense of fact.
In the subdivision of labor in law, lawyers do not attempt to
cover all the realm included in their profession. One devotes him-
self to the law of Patents, another to the law of Railways, another
to the law of Real Estate. Yet we take indiscriminately from the
mass of the people juries to sit indifferently, now on the delicate
interests involved in one of these great departments, and the next
moment on those of another.  We set a hod-carrier to pass upon
facts (as, for instance, upon those which constitute negligence)
upon which a lawyer would give no opinion unless he had made
them a life study.
  We have no need here to discuss the character of our jury ser-
vice. The service itself, as we practice it in civil cases, is inher-
entlr absurd.
                      IN CRIMINAL CASES.
  Trial by jury in criminal cases, at various dates within a cen-
tury, has been introduced into many of the nations on the conti-
nent of Europe. It camie in, in several instances, as a result of
the political commotions of 1848.
  The popularity of trial by jury is in its application to criminal
cases. But a little study detects the fact, that this popularity has
arisen out of one peculiar class of cases.
  When Hallair eulogizes Magna Charta, especially the clause
which is supposed to establish the right of trial by jury, he lets
us see from what quarter the popularity of this institution has
come. He calls it "The Keystone of English Liberty," and
says
that it is one of "the bold features which distinguish a free from
a despotic monarchy."
  It is because of its political service in monarchical or aristo-


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