the more recent books published during the last summer in London and this country have apparently escaped notice. While Dana's edition of Wheaton is mentioned, we should think that the one by Atlay (1904) should be added. Chancellor Kent's lectures should, we think, be cited as contained in volume I, of the commentaries, of which there are many available editions, instead of referring to the single volume edition published many years ago in England. We most cordially commend Admiral Stockton's books to all who desire a clear and reliable presentation of a great subject. G. E. S. As the various English colonies in America came to establish independent state governments and later a federal government they very generally provided in their constitutions for a perpetuation of that common law institution in judicial procedure then and since known as "trial by jury." Thus, in Connecticut, it was provided that "The right of trial by jury shall remain inviolate"; in Massachusetts, that "In all controversies concerning property and in all suits between two or more persons, except in cases where it has heretofore been otherwise used and practiced, the parties have a right to trial by jury"; in New Jersey, that "The right of trial by jury shall remain inviolate"; in Virginia, that "The trial by jury is preferable to any other and ought to be held sacred." In the Federal Constitution the language is "In suits at common law where the value in controversy shall exceed twenty dollars the right of trial by jury shall be preserved." As new states came into the union, except perhaps a few of those within the last decade, they made similar provisions. The term almost universally used is "trial by jury," but rarely was there any attempt to define the term or to state its elements. Evidently it was assumed that the term had by that time become so familiar, and its elements and attributes so fixed and well understood, that definition was unnecessary. "Trial by jury" meant to the people of the colonies that known to the common law of England and brought to and adopted in the colonies as an institution of that law. Thus, in the Maryland constitution it was declared "That the inhabitants of Maryland are entitled to the common law of England and the trial by jury according to the course of that law." In the Federal Constitution it was provided that "no fact tried by a jury shall be otherwise reëxamined in any court of the United States than according to the rules of the common law." Indeed it has all along been assumed that the "trial by jury" sought to be preserved was the English common law trial by jury with all its elements and incidents. The three words "trial by jury" connoted all those elements and incidents. For instance, the jury was to consist of twelve men, freeholders of the county, selected and summoned by designated officers to attend before a judge of one of the common law courts to try under his direction, not the cases themselves, but only the issues of fact developed by the pleadings. They were not to render judgment, but only to answer questions of fact and then only when all twelve were agreed as to what the answer should be. They were to have the benefit of hearing the witnesses, the arguments of counsel, and the instructions of the judge upon matters of law and of his analysis of the evidence and of his comments, and even opinion, on the evidence if he deemed it necessary for their enlightenment; always, however, in such case reminding them that they were to answer according to their own opinion based upon the law and the evidence and not according to his opinion. It was such a trial the parties were entitled to by the common law, and their right to have the judge give the jury the benefit of his analysis and comments whenever he deemed it necessary for their full enlightenment was unquestioned. The term "trial by jury" connoted this right as much as any other. Thus Sir Matthew Hale, writing of "trial by jury" about the middle of the seventeenth century and but a few years after the English settlements in America, wrote, "Another excellency of this trial is this; that the judge is always present at the time of the evidence given upon it (the issue of fact). Herein he is able in matters of law emerging upon the evidence to direct them; and also in matters of fact to give them great light and assistance by his weighing the evidence before them and observing where the question and knot of the business lies; and showing them his opinion even in matters of fact, which is a great advantage and light to laymen." 'Hale's Hist. of the Common Law, Ch. XII. The full discretion of the judge as to when and to what extent the case required him to analyze and comment upon the evidence and even express his own opinion upon it does not seem to have been questioned in England till well into the nineteenth century, and in the few cases where it was questioned the exercise of the discretion was sustained. A few citations will illustrate the English understanding of "trial by jury" in that respect. In Balcher v. Prittie, Tindal, L. C. J., "summed up the case to the jury with strong remarks in favor of the defendant, yet the whole facts were submitted to them and they were at liberty to exercise their discretion." Held, "not sufficient ground for saying the jury were misdirected." In Solarte v. Melville,3 one question was whether certain transactions were usurious. Tenterden, L. C. J., "told the jury that in his opinion the transactions were not usurious" but left the question to the jury for the exercise of their own judgment. The jury found in accord with the Chief Justice's expressed opinion. Held, that his expression of opinion was no ground for a new trial. In Davidson v. Stanley, Baron Rolfe "left the case to the jury with strong observations upon the weakness of the evidence offered to support the plaintiff's case and particularly as to the non-production of the pass book, and as to the absence of a witness." Held, no ground for a new trial, Tindal, C. J., remarking that the judge "was perfectly justified in stating the precise effect of the evidence on his own mind." Whoever has heard the "summing up" by English judges of to-day in jury cases will be satisfied that the right of the judge to analyze and comment upon the evidence and even express his opinion thereon still exists in full vigor in England. I do not know of any effort there to abridge that right. The judges of the Federal courts of the United States exercise the same right as a part of their common law powers. The United States Supreme Court in Capital Traction Co. v. Hof said: "Trial by jury is a trial by twelve men in the presence and under the superintendence of a judge empowered to instruct them on the law and to advise them on the facts and (except on acquittal of a criminal charge) to set aside their verdict if 24 Moore-Scott 295. '7 B. & C. 430. in his opinion it is against the law or the evidence. This proposition has been so generally admitted and so seldom contested that there has been little occasion for its distinct assertion." The court also quoted from Sir Matthew Hale the following: "It (trial by jury) has the judge's observation, attention and assistance in points of law by way of decision and in points of fact by way of direction to the jury." Evidently Lord Hale meant by "direction" merely pointing, indicating, guiding, not commanding. 6 The same court had previously declared the same truth. In Vicksburg R. R. Co. v. Putnam, it said: "In the courts of the United States as in those of England, from which our practice was derived, the judge in submitting a case to the jury may at his discretion whenever he thinks it necessary to assist them in arriving at a just conclusion comment upon the evidence, call their attention to parts of it which he thinks important and express his opinion on the facts." דיי Although thus far there has been no attempt in England to deprive the jury and the parties of this assistance of the judge when helpful to a correct finding, nor in this country as to the Federal courts, yet in many states have been enacted statutes designed to effect such deprivation. Even in Massachusetts it has been enacted that "The courts shall not charge the juries with respect to matters of fact, but may state the testimony and the law"; a most gracious permission for which the Massachusetts judges should be duly grateful. In Illinois, the legislature has undertaken to enact that the judge "shall only instruct as to the law of the case" and even that only in writing; also that he shall either give or refuse a requested instruction and that he shall "in no case after instructions are given, qualify, modify, or in any manner explain the same to the jury otherwise than in writing." In Georgia, if in any case, during its progress or in his charge to the jury, the judge shall "express or intimate his opinion as to what has or has not been proved" it is ordered by the legislature that a new trial be granted. In Kansas, the legislature requires the judge to write out and number his instructions, though he may read them to the jury, but he must do so before the counsel make their arguments to the jury. In 7 118 U. S. 545, 553. See also U. S. v. P. & R. R. R. Co., 123 U. S. 113, 114; Thompson v. Utah, 153 U. S. 102, 106; Cooley on Const. Law, 239. |