By CHARLES COWLEY, LL.D.


Twice within two years representatives of the highest courts of
Massachusetts have published in the North American Review, panegyrics of
jurics and jury trials. The late Judge Foster and Judge Pitman both
concede--what indeed is too notorious to be denied--that there are
frequent and gross miscarriages of justice; but they touch lightly on
this aspect of the question. Being personally identified with the
institution which they extol, their self-complacency is neither
unnatural nor unpardonable. It seems not to have occurred to them, that
if a reform of our judiciary is really needed, they are "a part of the
thing to be reformed." But in weighing their testimony to the advantages
of trial by jury, allowance must be made for the bias of office and for
the bias of interest. In the idolatrous throng which drowned the voice
of St. Paul with their halcyon and vociferous shouts, "Great is Diana of
the Ephesians!" there was no one who shouted louder than the thrifty
silversmith, Demetrius, who added the naive remark, "By this craft we
live."

In the outset of his presentation of the beauties of jury trials, Judge
Pitman says that "certain elementary rules of law are so closely
associated with this system that change in one would require alteration
of the other." Now, these rules of law are either good or bad. If they
are bad, they should be revised; and the fact that they are so closely
associated with trial by jury, that they can not be amended without
injury thereto, adds little lustre to that time-honored institution. One
the other hand, if these "elementary rules of law" are good, it is
presumed that courts will be able to appreciate and apply them quite as