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 well as juries.

Judge Pitman then proceeds to argue that criminal trials without juries would be attended with disadvantages, because he thinks that judges would have, oftener than juries, that “reasonable doubt” which by law entitles the accused to an acquittal.  This warrants one of two inferences:  either the writer would have men convicted whose guilt is involved in “reasonable doubt,” or he fears that the learning and experience of the bar and the bench tend to unfit the mind to weigh the evidence of guilt or innocence.  It is curious that in a former number of the same Review, another learned writer expressed exactly the contrary opinion.[A] Mr. Edward A. Thomas thinks that “judges are too much inclined to convict persons charged with criminal offences,” and that juries are too much inclined to acquit them.  And Judge Foster seemingly agrees with Mr. Thomas upon this point.

[Footnote A:  N.A.  Review, No.  CCCIV, March, 1882.]

Again:  Judge Pitman argues that a jury is better qualified than a judge to determine what is “due care.”  And Judge Foster, going still further, says, “common men belonging to various walks in life, are, in most cases, better fitted to decide correctly ordinary questions of fact than any single judge or bench of judges.”  There are, unquestionably, many cases in which the main questions are so entirely within the scope of ordinary men’s observation and experience that no special knowledge is required to decide them.  With respect to such cases, it is true that

  “A few strong instincts and a few plain rules
  Are worthy all the learning of the schools.”

But where the questions involved are many in number, intricate and complicated in character, and enveloped in a mass of conflicting testimony requiring many days to hear it, is it not manifest that a jury,—­not one of whom has taken a note during the trial, some of whose members have heard as though hearing not, and seen as though seeing not, the testimony and the witnesses,—­deals with such a case at a great disadvantage, as compared with a judge whose notes contain all the material testimony, and who has all the opportunity for rest and relaxation that he may require before filing the finding which is his verdict?  With respect to such cases, it is clear that, as a learned English judge has said, “the securities which can be taken for justice in the case of a trial by a judge without a jury, are infinitely greater than those which can be taken for trial by a judge and jury."[A] A judge may be required to state what facts he finds, as well as the general conclusion at which he has arrived, and to state upon what views of the legal questions he has acted.