The historical fact that the colonists regarded jury trial as an essential of the common-law system of administering justice and that it has been guaranteed in all the state constitutions as well as in the bill of rights incorporated in the federal constitution soon after its adoption by way of amendment, proves that it was regarded as one of the important safeguards against oppression by a tyrannical government and the danger that the governments in which authority is vested under our constitutional system might attempt to exercise like tyrannical powers. Especially has the importance of this guaranty been insisted upon with reference to criminal prosecutions, for it was by means of such prosecutions that the liberties of British subjects were, during some periods of English history, peculiarly imperilled.

But constitutional provisions remain, after conditions leading to their adoption have disappeared, and it can hardly be thought that there is longer any necessity for jury trial as a bulwark against tyranny on the part of the government with reference to the individual. It may perhaps still be reasonably deemed important that one accused of crime in a prosecution necessarily instituted and carried on by a public prosecutor representing the interests of the government shall have the right to this form of trial, which secures the determination of the question of guilt or innocence by " twelve good and true men " taken from the body of people; and there has been no serious discussion of the expediency of abolishing jury trial in criminal cases. But the same considerations do not apply in civil cases, involving as they do only a contest between individuals as to their respective rights; and it has been seriously questioned whether in such cases some better form of trial might not be introduced for the determining of questions of fact. The necessity for maintaining a careful distinction between questions of law and questions of fact renders the trial of a jury case complicated and difficult. There is much greater danger of the commission by the court of errors of law which will necessitate a new trial on the theory that the jury may have been misled as to the law, than there would be if the trial judge determined both the law and the facts and rendered his judgment on the issues and evidence presented. There is more opportunity for the exercise of corrupt influences for the purpose of securing an unjust verdict or preventing the rendition of a just verdict when the result may be affected by influences brought to bear upon any one of twelve jurors who are selected largely at random. They are not trained to the responsibility of the discharge of legal duties which rests upon a judge whose training and experience have prepared him for the exercise of a sound, independent, and unbiassed judgment, and the publicity of whose life and duties removes him to a considerable extent from the danger of being approached for improper purposes. Great delay in the administration of justice may be occasioned by the necessity of granting another trial when for any reason the first trial has not ended in a verdict which can be sustained. And finally the requirement that the verdict be unanimous enables one juror, although actuated by prejudice or corrupt motives, to defeat the rendition of such a verdict as the evidence requires.

As against these objections and any arguments for modifying trial by jury or superseding it by some other form of trial it may well be urged that a jury made up of men of average intelligence is quite as well qualified as one person trained in the law to determine questions of fact; that a certain amount of assurance that justice will be done as between man and man is encouraged by leaving the ultimate decision to a jury; that while the necessity for a unanimous verdict may delay justice, it affords a protection against injustice; and finally, that the well-known methods of procedure in accordance with which rights are protected and injuries redressed should not be changed save for very cogent reasons, nor until it has been very fully agreed what method of procedure would be better.

It is a significant fact that although there has been for many years much discussion in this country of the supposed defects of jury trial as a means of determining civil suits, those who are most experienced in the administration of law continue, with rare exceptions, to believe that no better system could be devised for the disposition of cases in which jury trial is now required. In some states by constitutional amendment verdicts may be rendered on the concurrence of less than all of the jurors, and such modification of the method of jury trial seems to have been generally satisfactory where introduced, but there is a manifest reluctance to introduce any extensive change in the jury system, and practically no concerted effort has been made anywhere to entirely abolish it. It seems likely that for a long time to come the present jury system will be preserved in most of the states of the Union and in the federal courts.