s
well to examine into its inherent probabilities and test it by what we
know of the actual facts.

In the first place, it should be remembered that the jury was instituted
and designed to protect the English freeman from tyranny upon the part
of the crown. Judges were, and sometimes still are, the creatures of a
ruler or unduly subject to his influence. And that ruler neither was,
nor is, always the head of the nation; but just as in the days of the
Normans he might have been a powerful earl whose influence could make or
unmake a judge, so to-day he may be none the less a ruler if he exists
in the person of a political boss who has created the judge before whom
his political enemy is to be tried. The writer has seen more than one
judge openly striving to influence a jury to convict or to acquit a
prisoner at the dictation of such a boss, who, not content to issue his
commands from behind the arras, came to the courtroom and ascended
the bench to see that they were obeyed. Usually the jury indignantly
resented such interference and administered a well-merited rebuke by
acting directly contrary to the clearly indicated wishes of the judge.

But while admitting its theoretic value as a bulwark of liberty,
the modern assailant of the jury brushes the consideration aside by
asserting that the system has "broken down" and "degenerated into a
farce."

Let us now see how much of a farce it is. If four times out of five
a judge rendered decisions that met with general approval, he would
probably be accounted a highly satisfactory judge. Now, out of every
one hundred indicted prisoners brought to the bar for trial, probably
fifteen ought to be acquitted if prosecuted impartially and in
accordance with the strict rules of evidence. In the year 1910 the
juries of New York County convicted in sixty-six per cent of the cases
before them. If we are to test fairly the efficiency of the system,
we must deduct from the thirty-four acquittals remaining the fifteen
acquittals which were justifiable. By so doing we shall find that in
the year 1910 the New York County juries did the correct thing in about
eighty-one cases out of every hundred. This is a high percentage of
efficiency.* Is it likely that any judge would have done much better?

* The following table gives the yearly percentages of
convictions and acquittals by verdict in New York County since
1901:

NUMBER NUMBER
YEAR CON