N.J. Constitutional Convention: Vol. 4, Page 421

Thursday, July 10, 1947 (Morning session)

JUDGE HAND: I don't know of any. It is pretty hard to answer absolutely, and it is very hard to answer what all judges under all circumstances will do. I can't imagine anyone with any sense doing that, but it might be so.

MR. DIXON: Might I ask another question, Judge, if you please? Where a man has lost his right to a trial by jury and the court makes the decision, do you feel that in those cases substantial justice is done just the same?


MR. DIXON: I have still another more radical question - and this doesn't mean at all that I am implying we are going to eliminate jury trials - but do you feel that if we do eliminate jury trials entirely in all cases in our country that we would have a poorer brand of justice than we have now, or a better brand?

JUDGE HAND: Well I shall have to make a Scotch answer - yes and no. In criminal cases I should be absolutely opposed to the idea of abolishing the juries, not so much because I think the jury is apt to get the facts better than a judge - many people do; again I may be biased - but in criminal prosecution other considerations come in. It's of great importance, in my judgment, to the stability of the whole administration of justice that all individuals should feel that their liberty is in the hands, in the end, not of any particular order of officials, but of 12 individuals who are responsible to no one but themselves and who will, whatever the law may be on the whole, judge according to the vague standards of what is decent, and so on. I would be, as far as criminal jurisdiction is concerned, the last to go for the end of the jury system.

When you come to criminal versus civil jurisdiction, I am somewhat on the fence. I am sure that the distinction between juries in law and not in equity is absurd; it's manifestly absurd, it's purely historical, it has no relation. Now, the English, who have a very practical political sense, as you all know, handle their juries in civil cases in a way that I should like to see, if constitutionally possible, done here. There are some issues which a judge will think a jury ought to decide; that is, you might say, semi-criminal kind of things and actions of somewhat the same sort - who is at fault and who isn't at fault. When they come to contest commercial cases, an English judge would never think of having a jury, and that seems to me a very wise distinction. Of course, it isn't possible always. Does that answer your question?

MR. DIXON: Yes, it does.

VICE-CHAIRMAN: Judge Hand, we have been discussing the question of whether the State should adopt the office of administrative director for the courts. Will you let us have the federal experience in that regard?

JUDGE HAND: Yes, I am very glad. That, too, is not very old,

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