seem to prove the contrary. The number of cases decided by them has been increasing from year to year, and is now, as well as the amount of property upon which they have decided, surprisingly large. Cases in which the disputed property

amounted to several hundred thousand dollars have been taken before these courts, and it has repeatedly happened in Prussia, that in a suit before the regular courts of law, the settlement of portions of the suit have been taken, by common consent, to arbitration, and the suit at law has proceeded with the deci sion of the court of arbitration. It is remarkable that the amount of property at stake, thus taken out of the court of law to the court of arbitration, has sometimes been very large. The establishment of courts of arbitration has produced a signal decrease of litigation and diminution of expenses.

Finally, it may be observed, that the fundamental idea of courts of arbitration somewhat resembles, in one point, the principle upon which, originally at least,' the house of lords, decided as the last court of appeal,-a principle which many of our states had imitated, by giving the last appeal to the state senates, and which, so far as my inquiry has led me to conclude, produced beneficial results. The introduction of courts. of arbitration, along with the abolition of elective judges, and especially of judges elected for a short term, would produce the best effects in our country.2

1 At present, when the house of lords sits as a court of appeal, none but the law lords are generally present.

2 In some manufacturing districts on the continent of Europe, for instance in Rhenish Prussia, so called Manufactory Courts exist. They consist of elected employers and employed, and judge of all the minor difficulties which may arise between the employers and the employed out of their immediate relation to one another. The common question, for instance, whether the woven piece, returned by the weaver, contains all the material given to him, or whether it be returned in a perfect state, is adjudged by them. General satisfaction seems to prevail with these courts, whose German name is Fabrik-Gerichte.

CHAPTER XX.

INDEPENDENCE OF JUS, CONTINUED. TRIAL BY JURY. THE ADVOCATE.

41. THE judge cannot occupy a sufficiently independent position between the parties by the accusatorial proceeding alone. If there is not what may be called a division of the judicial labor, separating the finding of guilt or innocence, or of the facts, from the presiding over the whole trial and the application as well as the pronouncing and expounding of the law, the judge must still be exposed to taking sides in the trial. This division of judicial labor is obtained by the institution of the jury. This, it seems to me, is one of the most essential advantages of this comprehensive, self-grown institution. It is likewise a guarantee of liberty in giving the people a participation in the administration of justice, without the ruin and horrors of an administration of justice by a multitude, as it was in Athens. The jury is moreover the best school of the citizen, both for teaching him his rights and how to protect them, and for practically teaching him the necessity of law and government. The jury, in this respect, is eminently conservative. In this, as in many other respects, it is necessary that the institution of the jury exist for the civil trial as well as for the penal, and not, as in many countries, for the latter only. The necessity of the jury does not militate against the arbitration courts, which have proved, as has been stated, a great blessing in all countries in which they have been properly established, or against certain courts of minor importance which may be advantageously conducted without a jury.1

1 For the history of this institution in general, the reader is referred to William Forsyth, History of the Trial by Jury; London, 1852.

The results of trial by jury have occasionally been such that even in England and here, voices have been raised against it. Men feel the existing evil only; they do not see those evils that would result a hundredfold from an opposite state of things. Nor are those, who feel irritated at some results of the trial by jury, acquainted with the operation of trials without jury. So is occasionally the publicity of trials highly inconvenient; yet should we desire secret trials? Liberty, as we conceive it, can no more exist without the trial by jurythat "buttress of liberty," as Chatham called it,' and as our ancestors worshipped it-than without the representative system. But we must remember that in all spheres the exception is patent; the continuous operation of the rule is latent.2

The Declaration of Independence specifies, as one of the reasons why this country was justified in severing itself from the mother country, that Americans have been "deprived in many cases of the benefits of trial by jury."

1 Lord Erskine, when he was raised to the peerage, adopted the words Trial by Jury, as the scroll of his coat of arms.

2 The laxity now, unfortunately so common, in the administration and execution of the laws; the crying evil that in our large cities numerous idlers, of a low character, make their living, during court time, by being ready to serve as jurymen when called upon, of which they are now very sure, owing to the facility with which judges excuse citizens from serving; the frequency of non-agreement and consequent new trials; the length to which the doctrine is carried that juries are judges of law as well as fact; and many other things, have induced several persons loudly to call for the abolition of the jury. They do not seem to know much of history, or they would know that courts without juries are, indeed, not exempt from falling into abuses, or from becoming actual nuisances. Let us imagine our present elective judges without jury, would that mend matters? The opposite is hardly ever the cure of an evil. A glutton would not take the right step of amendment by the resolution of starving himself to death. Our jury trials exhibit many deplorable facts, in the present time, owing to the general spirit of disorder; but the administration of justice, it would seem, suffers far more from want of energy in the judges. Let us fervently hope that the recuperative power which has been shown by modern nations, and by modern nations alone, will manifest itself also with us. At any rate, no good is done, when the ship of state is in danger, by cutting away the very ribs of the ship.

It may not be improper here to enumerate briefly all the advantages of so great an institution, whether they are directly connected with liberty or not.

The trial by jury, then, if properly and intelligently administered, divides the labor of the administration of justice, and permits each part quietly to find the truth in the sphere assigned to it;

It allows the judge to stand, as the independent organ of the law, not only above the parties, hostilely arraigned against each other, but also above the whole practical case before the court;

It enables plain, common, and practical sense properly to admix itself with keen professional and scientific distinction, in each single case, and thus prevents the effect of that disposition to sacrifice reality to attenuated theory, to which every individual is liable in his own profession and peculiar pursuitthe worship of the means, forgetting the end;1

And this is the reason that nearly all great reforms have worked their way from without, and from the non-professional to the professional, or from below upward.

I beg to arrest the reader's attention for a moment on this topic. In all civilized countries it is acknowledged that there are some important cases, which on the one hand it is necessary to decide, for Mine and Thine are involved, and which, on the other hand, are not of a character that the lines of demarcation can be drawn with absolute distinctness, in a manner which would make it easy to apply the law; e.g. the cases which relate to the imitation of a part of a work of art, of a pattern, or the question of a bona fide extract from an author's work, which, according to the Prussian copyright law, was decided by a jury of "experts," long before the general introduction of the jury in that country. A similar case is presented when an officer is accused of unofficerlike and ungentlemanly conduct. Now the question becomes: Are not these cases far more frequent than it is supposed in the countries where the trial by jury does not exist? Are not almost all complex cases, such as require in a high degree good strong common sense, the tact of practical life, together with the law, to be justly decided? Are not, perhaps, the greater part of civil cases such? The English and Americans seem to believe they are. They believe that close logical reasoning is indeed necessary in the application of the law, and they assign this to the lawofficers, but they believe also that a high degree of plain good common

It makes a participation of the people in the administration of justice possible without having the serious evil of courts, consisting of multitudes or mobs, or the confusion of the branches of the administration of justice, of judges and triers ;

It obtains the great advantage of a mean of views of facts, regarding which Aristotle said that many persons are more just than one, although each of the many were less so than

sense, unshackled by technicalities, is necessary to decide whether, "upon the whole," "taken all in all," the individual case in hand is such as to bring it within the province of the specific law, with reference to which it is brought before the court, and they assign this part of the trial to the jury, that is, to non-professional citizens. The English, and the people of some American states, do not only follow this view in the first stage of a case, but, in order to avoid the evil of letting technicalities get the better of essential justice, of letting the minds of professional lawyers, whose very duty it is to train themselves in strict, uncompromising logic, decide complicated and important cases in the last resort, they allow an appeal from all the judges to the house of lords, or to the senate.

It appears to me an important fact, which ought always to be remembered when the subject of trial by jury in general is discussed, that by the trial by jury, the Anglican race endeavors, among other things, to insure the continuous and necessary admixture of common sense, in the decision of cases; and who can deny that in all practical cases, in all controversies, in all disputes, and in all questions which require the application of general rules or principles to concrete cases, common sense is indispensable, that is, sound judgment, which avoids the Nimium? Who will deny that every one is liable to have this tact and plain soundness of judgment impaired in that very line or sphere in which his calling has made it his duty to settle general principles, to find general rules, to defend general points? The grammarian, by profession, frequently, perhaps generally, writes pedantically and stiffly; the religious controversialist goes to extremes; the philosopher, by profession, is apt to divide, distinguish, and classify beyond what reality warrants; the soldier, by profession, is apt to sacrifice advantages to his science. Dr. Sangrado is the caricature of the truth here maintained.

The denial of the necessity of profound study and professional occupation would be as fanatical as the disregard of common sense would be supercilious and unphilosophical. Truth stands, in all spheres, emphatically in need of both.