[Footnote A:  Stephen’s History of the Criminal Law, 568.]

Judge Foster most justly remarks:  “There can be no such thing as a good jury trial without the co-operation of a learned, upright, conscientious and efficient presiding judge, ... holding firmly and steadily the reins, and guiding the entire proceedings.”  This is what Judge Foster was, and what Judge Pitman is, accustomed to do.  But if the jury requires such “guiding” from the court, and if the court is competent thus to guide them, it is clear that the court must know the way and must be able to follow it; otherwise it could not so guide the jury.

Judge Pitman also argues that the jury can eliminate “the personal equation” better than the judge.  But is this so?  Does education count for nothing in producing that calm, firm, passionless state of mind which is essential in those who determine causes between party and party?

Are not juries quite as often as judges swayed by popular clamor, by prejudice, by appeals to their passions, and by considerations foreign to the merits of the case?  As Mr. Thomas asks in the article before quoted:  “How many juries are strictly impartial?  How many remain entirely uninfluenced by preference for one or the other of the parties, one or the other counsel, or the leaning of some friend to either, or by political affiliations, or church connections, or relations to secret societies, or by what they have heard, or by what they have read?  Can they be as discerning and impartial as a bench of judges, or if inclined to some bias or prejudice, can they as readily as a judge divest their minds of such an impression?” If it be true that juries composed of such material as Judge Pitman shows our juries to be largely composed of, are as capable of mastering and determining intricate questions of fact as judges trained to that duty, then we may truly say—­

  “Thinking is but an idle waste of thought,
  And naught is everything, and everything is naught.”

According to Judge Pitman, the system which prevails in some of the states, of trials by the court without juries (with the provision that the trial shall be by jury if either party demand it), “works satisfactorily.”  The testimony of lawyers and litigants in Massachusetts, Connecticut and other states where this system prevails, is to the same effect.  For ourselves, while far from desiring the abolition of trial by jury, whether in civil or in criminal causes, we are by no means disposed to “throw glamour” (as the Scotch say), over an instrumentality for ascertaining legal truth, which is so cumbersome in its operation, and so uncertain in its results.  A jury is, at best, a means, and not an end; and although much may be said about the incidental usefulness of jury service on account of its tendency to enlarge the intellectual horizon of jurors, all that is beside the main question.