The Swedish civil jury (or Namnd) has a much older history; it appears to have been of ancient indigenous growth. See Engelman, History of Continental Civil Procedure (Millar ed. 1927) 212, 213, 216, 217, 225-232, 836-869. As to similar ancient institutions in other Scandinavian countries, see Forsyth, History of Trial By Jury (1875) Chapter 2; Moschzisker, Trial By Jury (1930) 13-19.

Seagle, Jury, 8 Encyc. of Social Sciences (1932) 498, 499-599; Pound, ibid, 492, 496, 497.

An historical accident, the marriage of James V of Scotland to a French princess, seems to have led to Scotland’s reception of Roman law and thus to its sixteenth-century abandonment of the civil jury (except in the local courts).

See citations in note 2.

See, also, Orfield, Criminal Procedure From Arrest to Appeal (1947) 361: “Perhaps the most important development in the administration of justice in England during the last half century has been the obsolescence of the petit jury through the enlargement of the powers of the courts of summary jurisdiction to hear and. determine indictable offenses. Howard, Criminal Justice in England (1931) 319. In England, in 1926, 69,695 defendants charged with indictable offenses were dealt with in courts of summary jurisdiction and only 7,924 were committed for jury trial at the higher courts. Howard, loe. cit., 407.”

Patón, Jurisprudence (1946) 459, says that “in 1935 only one-eighth of the indictable cases were tried by jury,” and that “in civil eases in the King’s Bench Division the proportion of jury cases is only slightly higher, while in the County Court it sank to 0.006 per cent.”

The percentage of American cases in which juries are waived seems on the increase. Nevertheless, the nu.mber of jury trials is not negligible. See the following excerpt from the Annual Report of the Administrative Office of the United States Courts for 1947, as to trials in the federal district courts: “The figures for trials begun in the 84 districts for the past four years are given in the following tabulation:

Civil Civil Total Criminal Criminal Court Jury Criminal Court Jury 1944 1945 1946 1947 Total Trials 9,951 8,390 7,756 7,471 Total Civil 5,025 4,358 4,586 5,042 2,702 2,845 3,153 3,408 2,323 1,513 1,433 1,634 4,926 4,032 3,170 2,429 1,819 1,391 1,139 988 3,107 2,641 2,031 1,441

These figures were supplied by the district court clerks, who reported as trials all contested proceedings, not including motions, before either a court or a jury in which evidence was introduced and final judgment sought. They do not include hearings based on agreed statement of facts, disposition of cases on motion such as for summary judgment, disposition on findings of masters or judgments entered as a result of pretrial conferences.”

Of course, in a very considerable number of eases, no right to trial by jury exists because of historically determined fortuities. Thus in a suit on a note, the right exists, but not in a suit to cancel the note; the same difference maintains between a suit for breach of contract for the sale of land and one for specific performance thereof. So, too, the right to a jury vanishes if, before suit is brought, the defendant goes into bankruptcy. Were jury trial as beneficent as its ardent devotees proclaim, such differences would be indefensibly irrational.

Morgan, A Brief History of Special Yerdiets and Special Interrogatories, 32 Yale L.J. (1923) 575, 588.

Howe, Juries as Judges of Criminal Law, 52 Harv.L.Rev. (1939) 582; see also the lengthy dissenting opinion of Gray, J. (in which Shiras, J., concurred) in Sparf and Hansen v. United States, 156 U.S. 51, 110-183, 15 S.Ct. 273, 39 L.Ed. 343.

That, for a time, such was the practice even in civil cases, see, e.g., the charge of Chief Justice Jay in State of Georgia v. Brailsford, 1794, 3 Dali. 1, 4, 1 L.Ed. 483. Cf. Thayer, A Preliminary Treatise on Evidence (1898) 254 note 2.

See Howe, loc. cit. The decisive opinion as to current federal practice is, of course, Sparf and Hansen v. United States, 1895, 156 U.S. 51, 15 S.Ct. 273, 39 L.Ed. 343.

Most of these statements are quoted in the majority opinion in Sparf and Hansen v. United States, supra. See also Frank, Law and The Modern Mind (1930) 307, 308; Frank, If Men Were Angels (1942) 82-84; Chamberlayne, Evidence (1911) §§ 72, 74; Duffey v. People, 26 N.Y. 588, 591, 592; Hamilton v. People, 29 Mich. 173, 191; Pennsylvania v. Bell, Add., Pa., 156, 160, 1 Am.Dec. 298 ; 2 Thompson, Trials, 2d Ed., § 2134.

Cf. Thayer, loc cit., 253, 254; Chamberlayne, loc. cit., 124.

The trial judge, of course, can grant a new trial in any civil case, and in a criminal case where the verdict is against the defendant. But he thus exercises merely a temporary veto, since another jury, with like power, again hears the case. Except in unusual circumstances, there is a limit to the number of now trials which may be granted. Louisville & Nashville R. Co. v. Woodson, 134 U.S. 614, 623, 10 S.Ct. 628, 33 L.Ed. 1032; Joyce v. Charleston Ice Manufacturing *58Co., C.C., 50 F. 371, 375; Clark v. Barnoy Dumping Co., C.C., 109 F. 235; Milliken v. Ross, C.C., 9 F. 855; 46 C.J. 70, 71.

Sec Frank, If Men Were Angels (1942) 83, 84; Kane v. Commonwealth, 89 Pa. 522, 525, 33 Am.Rep. 787; cf. Frank, Words and Music: Some Remarks On Statutory Interpretation, 47 Col.L.Rev. (1947) 1259, 1264-1278.

See, e. g., Wigmore, A Program For the Trial of a Jury Trial, 12 Am.Jud. Soc. (1929) 166: “Law and Justice are from time to time inevitably in conflict. That is because law is a general rule (even the stated exceptions to the rules are general exceptions); while justice is the fairness of this precise case under all its circumstances. And as a rule of law only takes account of broadly typical conditions, and is aimed at average results, law and justice every so often do not coincide. Everybody knows this, and can supply instances. But the trouble is that Law cannot concede it. Law— the rule — must be enforced — the exact terms of the rule, justice or no justice. ‘All Persons Are Equal before the Law’; this solemn injunction, in large letters, is painted on the wall -over the judge’s bench in every Italian court. So that the judge must apply the law as he finds it alike for all. And not even the general exceptions that the law itself may concede will enable the judge to get down to the justice of the particular case, in extreme instances. The whole basis of our general confidence in the judge rests on our experience that we can rely on him for the law as it is. But, this being so, the repeated instances of hardship and injustice that are bound to occur in the judge’s rulings will in the long run injure that same public confidence in justice, and bring odium on the law. We want justice, and we think we are going to get it through ‘the law,’ and when we do not, we blame ‘the law.’ Now this is where the jury comes in. The jury, in the privacy of its retirement, adjusts the general rule of law to the justice of the particular case. Thus the odium of inflexible rules of law is avoided, and popular satisfaction is preserved. * * * That is what jury trial does. It supplies that flexibility of legal rules which is essential to justice and popular contentment. And that flexibility could never be given by judge trial. The judge (as in a chancery case) must write out his opinion, declaring the law and the findings of fact. He cannot in this public record deviate one jot from those requirements. The jury, and the secrecy of the jury room, are the indispensable elements in popular justice.”

See Pound, Law In Books and Law In Action, 44 Am.L.Rev. (1910) 12, 18, 19: “Jury lawlessness is the great corrective law in its actual administration. The will of the state at large imposed on a reluctant community, the will of a majority imposed on a vigorous and determined minority, find the same obstacle in the local jury that formerly confronted kings and ministers. * * * What is the purpose and what the occasion of the extensions of the powers of juries to which I have referred? Practically the purpose is, in largest part, to keep the letter of the law the same- in the books, while allowing the jury free rein to apply different rules or extra-legal considerations in the actual decision of causes — to create new breaches and widen existing breaches between law in the books and law in action. The occasion is that popular thought and popular action are at variance with many of the doctrines and rules in the books, and that the law is trying to save the latter and accommodate itself to the former. * * * If the ritual of charging the jury on the law with academic exactness is preserved, the record will show that the ease was decided according to law, and the fact that the jury dealt with it according to extra-legal notions of conformity to the views of the community for the time being, is covered up.”

Mr. Justice Chalmers stated this position thus: “Again, there is an old saying that hard cases make bad law. So they do when there ' is no jury. The Judge is anxious to do justice to the particular parties before him. To meet *59a particular hard case he is tempted to qualify or engraft an exception upon a sound general principle. When a judge once leaves the straight and narrow path of law, and wanders into the wide fields of substantial justice, he is soon irretrievably lost. * * * But hard cases tried with a jury do not make bad law, for they make no law at all, as far as the findings of the jury are concerned. The principle is kept intact while the jury do justice in the particular case by not applying it.” See Frank, Law and the Modern Mind (1930) 174: “By such use of the jury, you can eat your cake and have it too. You can preserve your rules and principles unswerving and unyielding —in the form of the judge’s instructions ■ — and you can have a jury’s decision (which determines the rights of the parties to the case) that is based upon scant respect for those abstractions as against emotional appeals. The rules and principles remain pure and unsullied — because, while clearly enunciated, they are not applied. * * * ‘It cannot be doubted,’ says Chamberlayne, ‘that a principal claim of the jury to popular favor is its traditional ability to defy, in a general verdict, the law of the land as announced by the judge.’ ” See Ohamberlayne, Evidence (1911) § 73; Thompson, Trials, 2d Ed., § 2133.

See Frank, Words and Music: Some Remarks on Statutory Interpretation, 47 Col.L.Rev. (1947) 1259, 1274-1276; Frank, If Men Were Angels (1942) 87, 88.

In support of this defense of the general verdict, an oft-cited illustration is the refusal of many juries to apply the harsh fellow-servant rule. But it is not unlikely that the judges themselves failed to abolish that judge-made rule precisely because jury verdicts made it seem unnecessary to do so. And, since some juries doubtless did apply that rule, the result was an unfair lack of uniformity in the decisions. Aside from its episodic and capricious character, such “law making” by juries seems an unnecessarily clumsy method of nullifying undesirable precedents. The same can be said of the argument that general verdicts provide desirable individualization of cases which some legal rules, were they applied, would prevent.

It is notable that, in cases where, for historical reasons, juries do not sit — as in equity and many admiralty suits — the judges have been less reluctant to contrive flexible rules and to revise undesirable precedents.

If any legal rules are too harsh or otherwise undesirable, and the judges are unwilling, or (where the rules are statutory) unable, to modify them, recourse should be had to the legislatures which today are less tardy in acting than once they were. It seems unwise to pretend to keep legal rules alive and leave their amendment or nullification to a series of legislatures, each consisting of twelve men or women, casually selected as jurors. It may be, moreover, that reliance on jury nullification of legal rules has retarded desirable remedial legislation by the elected legislatures.

More important, the theory that juries legislate undesirable substantive rules out of existence rests on the false assumption that the jurors, with full understanding of the rules announced in the judge’s charge, deliberately and consciously nullify them. In truth, the jurors often have no understanding of that part of the judge’s charge but (frequently on the basis of prejudice) simply bring in a general verdict for the party they favor. The jurors’ legislation is thus often blind and unintentional. See infra, footnote 25a.

See, e. g., the following: Cardozo, The Nature of The Judicial Process (1921); Cardozo, The Growth of the Law (1924); Friedman, Legal Theory (1944); Patterson, An Introduction To Jurisprudence (1946); F, S. Cohen, Transcendental Nonsense and The Functional Approach, 35 Col.L.Rev. (1935) 809.

Indeed these, and many other such treatises, read as if the trial courts were virtually non-existent.

See Frank, Law and The Modern Mind (1930) 174: “Jury-made law, as compared with judge-made law, is peculiar in form. It does not issue general pronouncements. You will not find it set forth in the law reports or in textbooks. It does not become embodied in a series of precedents. 'It is nowhere codified. For each jury makes its own law in each case with little or no knowledge of or reference to what has been done before or regard to what will be done thereafter in similar cases.”

Rossman, The Judge-Jury Relationship in the State Courts, 3 F.R.D. 98, 108.

Sunderland, Verdicts, General and Special, 29 Yale L.J. (1920) 253.

See McDonald v. Pless, 238 U.S. 264, 35 S.Ct. 783, 59 L.Ed. 1300; Fabris v. General Food Corp., 2 Cir., 152 F.2d 660; but cf. United States v. Pleva, 2 Cir., 66 F.2d 529, 533.

In some states, however, such inquiries are permitted, sometimes pursuant to statute; see 2 Thompson, Trials (2d Ed.) § 2677. Where such inquiries are permitted, strange happenings are not seldom disclosed, such as, e. g., that the jury reached its verdict by drawing lots or other gambling method (a la Rabelias’ Bridlegoose). Cf. Goins v. State, 46 Ohio St. 457, 21 N.E. 476, 482 ; 2 Thompson, Trials, 2d Ed., §§ 2601, 2602.

, See Clementson, Special Verdicts and Findings By Juries (1905) 12: “Nor can we cut away tile mantle of mystery in which the general verdict is enveloped, to see how the principal facts were determined, and whether the law was applied under the judge’s instructions. * * * It is a matter of common knowledge that the general verdict may be the result of anything but the calm deliberation, the weighing of evidence, exchange of impressions and opinions, resolution of doubts, and final intelligent concurrence which, theoretically, produced it. It comes into court unexplained and impenetrable.”

See, e. g., Chamberlayne, loc. cit., §§ 95, 300, 301, 302, 311.

See, e. g., the charge reported in 3 F. R. D. 118, 119: “The law will not permit jurors to be governed by mere sentiment, conjecture, sympathy, passion or prejudice, public opinion or public feeling * * * an<i you will reach a verdict that will be just to both sides, regardless of what the consequences may be.” Another typical statement runs thus: “You are to sit here absolutely free from any bias or prejudice or sympathy or any like emotion, and judicially determine what the facts are.”

See, e. g., Goldstein, Trial Technique (1935); Harris, Hints On Advocacy (1943 ed.); Longenecker, Hints On The Trial of A Law Suit (1927).

Gair, The Trial of a Negligence Action (1946) 36.

Bodin, Selecting a Jury (1945) 50ff. See also, in the same series, Hays, Tactics in Cross-Examination (1946) 18ff. Cf. Bodin, Pleading and Practice (1946) 50-51.

Ferguson v. Moore, 98 Tenn. 342, 39 S.W. 341, 343.

The court also said: “Perhaps no two counsel observe the same rules in presenting their cases to the jury. Some deal wholly in logic, — argument without embellishments of any kind. Others use rhetoric, and occasional flights of fancy and imagination. Others employ only noise and gesticulation, relying upon their earnestness and vehemence instead of logic and rhetoric. Others appeal to the sympathies — it may be the passions and peculiarities — of the jurors. Others combine all these with variations and accomplishments of different kinds.”

Harris, Hints On Advocacy, 1943 Ed., 275.

Aristotle, in his Rhetoric, gave similar advice, in great detail, as to how to win cases before Greek juries. Those juries, we are told, “judged both the law and the facts”; but, in truth, so, too, do ours when they render general verdicts.

Osborn, The Mind of the Juror (1937) 92.

Osborn, The Problem of Proof (2d Ed. 1926) 112.

Thayer, A Preliminary Treatise on Evidence (1898) 535.. See also Osborn, The Mind of the Juror (Students’ ed. 1937) 97, 190, 191.

See Boston, Some Practical Remedies For Existing Deficiencies in the Administration of Justice, 61 Un. of Pa.L.Rev. (1912) 1: “I never pick up a book on advocacy, or the so-called art of the advocate, that I am not horrified at The frankly unethical attitude of the writers toward the jury. One would think that trickery, chicanery and artful craftiness are the only elements that appeal to a jury. Courts are the institutions installed, presumably to give correct judgments upon ascertained states of fact, in dispute, under the application of the established law. But' when one takes up treatises on advocacy, he sees that he, a practitioner at law, must or must not resort to this petty trick of art, or fall into this or that trap, for fear of its effect on the jury. He must refrain from asking certain questions, or practice certain ways with witnesses, to capture or keep the favor of the jury. The jury is the great bug-a-boo, whose childish impressionability must always be reckoned with in- the administration of justice by its aid. One never hears such suggestions in respect to a judge unless he is unfitted for his position.”

Morgan, Book Review, 49 Harv.L. Rev. (1936) 1387, 1389.

L. Hand, The Deficiencies of Trials to Reach The Heart of The Matter, 3 Lectures on Legal Topics (1926) 89. Judge Hand has often elsewhere recognized important policy reasons for retaining the criminal jury.

Palko v. Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 152, 82 L.Ed. 288. See also Adams v. United States ex rel. McCann, 317 U.S. 269, 279, 63 S.Ct. 236, 87 L.Ed. 268, 143 A.L.R. 435.

Cf. Chamberlayne, §§ 300, 306. And see footnote 23a, infra.

See In re J. P. Linahan, Inc., 2 Cir., 138 F.2d 650, 651-654; Frank, A Plea For Lawyer-Schools, 56 Yale L. J. (1947) 1303, 1308; Frank, A Sketch of An Influence, in Interpretations of Modem Legal Philosophies (1947) 189, 235. And see footnote 37a, infra, as to the emotional element in a trial judge’s reactions to the orally-testifying witnesses.

Riddell, Common Law and Common Sense, 27 Yale L.J. (1918) 993, 996. In Huskie v. Griffin, 75 N.H. 345, 74 A. 595, 598, 27 L.R.A.,N.S., 966, 139 Am.St. Rep. 718, the court said: “Judges are men, and their decisions upon complex facts must vary as those of jurors,might on the same facts. Calling one determination an opinion and the others a verdict does not * * * make that uniform and certain which from its nature must remain variable and uncertain.”

Nevertheless, the trial judge has distinct advantages. So far as he is a juror, his experience with many trials gives him a training for his job: the distractions and interruptions do not confuse him as they are likely to confuse the ordinary juryman. And obviously, the trial judge is far better able to understand the legal rules and the method of applying them to the facts.

Moreover, the character of a trial is different when only a trial judge sits. Says Green, “If the jury is taken out of the courthouse, the drama is gone. The court-room is not the same place. There is no tenseness. The lawyers are not the same; they no longer glare at one another. Even the parties are docile. The judge returns to himself. The attendants drop back into their humdrum ways. The crowd is made up of a few parties at interest and the habitual loungers. The place is dead. There is no haranguing in choosing the arbiter, nothing more than a brief statement of the issues, and seldom that; the examination of the witnesses proceeds with calmness, barring the most exceptional case; objections to evidence are seldom made, and when made, if there is the slightest uncertainty, the judge hears the evidence and states that if it appears to be inadmissible he will ignore it in his findings. The argument on the issues is brief and pointed. There are no instructions to prepare, no verdict, no motion for a new trial except in the rarest instance. The judge either announces his conclusion, or else takes it under advisement for further study and later announcement. He may then file the findings which support his decision. The whole process is deflated until there is little left to do save get down to business. The trial of the *64same case before a judge and before the same judge witb a jury, with the same lawyers, reflects the most startling differences. * * * ’* Green, Judge and Jury, 403, 404.

The writer of this opinion has expressed his own views on this subject in a dissenting opinion in United States v. Antonelli Fireworks Co., 2 Cir., 155 F.2d 631, 642, 665-, as follows: “It has been suggested that a judge (like me) who shares the doubts about the wisdom of the jury system is inconsistent if he urges that the courts be vigilant in preserving the jury’s function. I do not understand that criticism. It is the sworn duty of judges to enforce many statutes they may deem unwise. And so, when on the bench, our private views concerning the desirability of the jury system are ‘as irrelevant as our attitudes towards bimetallism or the transmigration of souls.’ Consequently, as long as jury trials are guaranteed by constitutional or statutory provisions, it is the obligation of every judge, no matter what he thinks of such trials, to see that they are fairly conducted and that the jury’s province is not invaded. That does not mean that a judge may not freely express his skepticism about the system, may not seek to bring about constitutional and statutory changes which will avoid or reduce what he considers its unfortunate results as it now operates.”

Ex parte Peterson, 253 U.S. 300, 40 S.Ct. 543, 64 L.Ed. 919.

Note, for instance, the following statement in a charge to a jury: “It would be a violation of your duty to attempt to determine the law or to base your verdict upon any other.view of the law than that given you by the court— a wrong for which the parties would have no remedy, because it is conclusively presumed by the court and all higher tribunals that you have acted in accordance with these instructions as you have been sworn to do.” 3 F.R.D. 118.

Bok, I, Too, Nicodemus (1946).

There are at least three theories of how the general-verdict-jury-system works: (1) According to a naive theory, the judge conclusively determines the pertinent substantive legal rules, and the jury confines itself to finding the facts. (2) A more sophisticated theory runs thus: The judge has one function and the jury two. The judge announces authoritatively the pertinent rules of law. The jury (a) ascertain the facts and (b) apply to these facts the rules of law laid down by the judge and (c) thus arrive at their general verdict. The judge, that is, supplies the major premise, consisting of the abstract rules of law; the jury determine the minor premise from the evidence, and then work out the syllogism to its logical condusion in the verdict which they report to the judge. Some of those who accept this theory assert that juries often circumvent the legal rules by misfinding the facts; the facts, it is said, are “found in order to reach the result.” [See, e. g., Pound, Introduction to the Philosophy of Law (1921) 133; cf. 121.] That thesis assumes that the jurors, understanding what the judge told them about the substantive legal rules, proceed with consummate skill and cunning to devise the exact finding of facts which, when correlated with those rules, will logically compel the judgment the jurors desire. (3) A more realistic theory maintains that jurors often do not understand the judge’s instructions and simply bring in an unexplained verdict for the party they favor. See Frank, Law and The Modern Mind (1930) Part One, Chapter 16, and Appendix Y.

Green, Judge and Jury (1930) 351.

See also Orfield, Criminal Procedure Prom Arrest to Appeal (1947) 449; Orfield, Criminal Appeals In America (1939) 200.

Rossman, The Judge-Jury Relationship In the State Courts, 3 P.R.D. 98, 109. See Parley, Instructions to Juries, 42 Tale L.J. (1932) 194,-208, 215-216; Cornelius, Trial Tactics (1932) 291.

These reversals appear to be at war with the thesis (see note 13 supra) that the great virtue of the jury system consists of the jury’s power to disregard or nullify the substantive legal rules. Perhaps, ‘however, a defender of that thesis believes that a jury ought to know the substantive rules before it nullifies them.

Since lawyers use the trial judge’s instructions about the substantive rules (instructions often unintelligible to the jurors) as traps for the judge, it is manifest that the substantive rules in general-verdict jury cases often are in large part but procedural devices. See Prank, A Plea Por Lawyer-Schools, 56 Tale L.J. (1947) 1303, 1317,

It is a curious fact that many courts which refuse to reverse for (1) so-called “procedural” errors they call “harmless” nevertheless will be prompt to reverse for (2) errors in the charge to the jury about the substantive rules — although the first kind of errors (such as, e.g., improper remarks of one of the lawyers) are often matters well within. the comprehension of the jurors and may have influenced their verdict, while the second kind. frequently are putside the jurors’ comprehension and therefore could not have affected their judgment.

Here is where some persons believe that much law-school teaching about the substantive rules remains deficient. As Professor Llewellyn, noted when addressing. law students in 1930, “much of our study will be taken up with re-examining * * * instructions [to juries] * * * will be spent upon the learning of an etiquette of instructions. * :S ” Llewellyn, The Bramble Bush (1930) 21.

See Prank, If Men Were Angels (1942) 82: “In fact, certain areas of, the ‘law,’ as described in classroom and legal literature, are nothing more than painstaking studies of upper-court ‘ discussions of trial judges’ instructions. To law students, the field of torts, for example, is largely made up of the words which appellate courts have permitted trial judges to say to juries; the extent to which these words have any connection with juries’ decisions has so far remained a question which most professors of the ‘law of torts’ have made no attempt to answer. We do not suggest that there is no connection.. But it is surely folly to make the study of the legal rules in the judges’ charges a be-all and end-all of all legal thinking, and to ignore the fundamental issue of the practical significance of those charges.”

Sunderland, loc. cit. See Carroll v. Bohan, 43 Wis. 218, 221 to the effect that special verdicts tend to “dispel the occasional darkness visible of general verdicts.”

See Green, loc. cit., 358, 369, 370; 64 C.J. 615, 616; Nordbye, Use of Special Verdicts, 2 F.R.D. 138, 139, 140, 141; McCormick, Jury Verdicts upon Special Questions in Civil Cases, 2 F.R. D. 176.

Clementson, Special Verdicts and Special Findings by Juries (1905) 12.

Clementson, loc. cit., 15. See Chamberlayne, loc. cit., §§ 95, 100; cf. Morrow v. County of Saline, 21 Kan. 484, 503, 504.

Rossman, loe. cit., 109. See Chamberlayne, loc. cit., § 96.

See, e.g., Dobie, The Federal Rules of Civil Procedure, 25 Virginia L.Rev. 261, 287 (1939).

See Green, Judge and Jury (1930) 350.

In several states, special verdicts are used in criminal cases. See A.L.I. Code of Criminal Procedure (1931) 1000, 1002; 23 C.J.S., Criminal Law, § 1399. As to special verdicts in criminal actions in the federal courts, see United States v. Wilson, Fed.Cas.No.16,730, 28 Fed. Cas. 699, at page 712; United States v. Noble, 3 Cir., 155 F.2d 315, 317 note 3.

Green, loc. cit., 372, 373; Dobie, loc. cit., 287.

As to interrogatories, see Wicker, Special Interrogatories to Juries in Civil Cases, 35 Yale L.J. (1926) 296; Green, loc. cit., 354, 355.

Clementson, Special Verdicts and Findings By Juries (1905 ) 45, 46, says: “The submission of interrogatories * * * is a sort of ‘exploratory opening’ into the abdominal cavity of the general verdict * * * by which the court determines whether the organs are sound and in place and the proper treatment to be pursued.”

Marcus Loew Booking Agency v. Princess Pat, 7 Cir., 141 F.2d 152, 154; Cohen v. Travelers Ins. Co., 7 Cir., 134 F.2d 378, 384; Van Pelt v. United States, 6 Cir., 134 F.2d 735, 740; S. S. Kresge Co. v. Holland, 6 Cir., 158 F.2d 495, 499; Car & General Ins. Corp. v. Cheshire, 5 Cir., 159 F.2d 985, 988; Home Ins. Co. v. Tidal Co., 2 Cir., 140 F.2d 211, 213.

Defendant’s counsel misreads New York Central & H. R. R. Co. v. Banker, 2 Cir., 224 F. 351, which expressed a preference for special verdicts in cases under the Employers’ Liability Act, 45 U. S.C.A. § 51 et seq., but did not reverse for failure to require such a verdict.

Defendant’s request here included questions as to the “negligence” of the parties. The answer to such a question involves, at least theoretically, the application of a substantive legal rule to the facts as found. See Barbarino v. Stanhope S. S. Co., 2 Cir., 151 F.2d 553, 555; Kreste v. United States, 2 Cir., 158 F.2d 575, 577, 578. It might be possible, in a negligence case, to put purely fact questions which would not call on the jury to apply a substantive legal rule.

Trial-court fact-finding is difficult art. As Wignore says, it means “solva complex mass of evidence in contentious litigation,” and requires the coordination of evidence heard under distracting circumstances. See Wigmore, Principles of Judicial Proof (1913) 3, 747, 748.

This coordination plainly has peculiar difficulties for men untrained in that art, men placed, as jurymen are, in unaccustomed conditions — in the jury-box and and jury-room — by no means conducive to calm deliberation. Twelve judges would not find it easy to reach a satisfactory joint conclusion were they treated as we treat jurors.

Recognizing the difficulties, Judge Knox said that, “to accomplish justice,” we must have jurors “with intelligence, sound judgment, and courage that will enable them to decide intricate questions of fact * * * ” See testimony, June 12 and 13, 1945, before House Committee on the Judiciary (on H.R. 3379, 3380 and 3381) 9, 12. Judge Otis insisted that the task calls for jurors who have the “capacity quickly to comprehend the applicable law and intelligently to apply it.” See Otis, Selecting Federal Court Jurors. Both those judges suggested that jurymen with such capacities will be procured by providing higher standards for jury service and in “hand-picking” those eligible for that service.

One may well be skeptical of the efficacy of such a remedy. Nor will it do the trick to distribute brief handbooks for jurors or to have the judge briefly lecture the panel about jurors’ functions. The system adopted in the Superior Court of Los Angeles County, California, is more promising. There prospective jurors receive a written test; they must pass this test and also show their aptitudes in oral interviews. But, even that device would seem insufficient. A more thoughtful proposal is that we establish detailed courses in “schools for jurors.” See Judge Galston, Civil Jury Trials and Tribulations, 29 Am.Bar Ass’n, J. (1943) 195.

Nor can juries come near ascertaining the actual facts of cases as long as we retain the numerous exclusionary evidence rules. Judge Learned Hand (loe. cit.) after stating that he was “not enamored of jury trials, at least in civil cases,” went on to say, “but it is entirely inconsistent to trust them as reverently as we do, and still surround them with restrictions which, if they have no rational validity whatever, depend upon distrust.” Says Boston: “But our law * * * requires that all matters for consideration of the jury shall be, as it were a sort of predigested food for mental invalids; and so it strains this food * * * through the most highly developed rules of evidence, which have been evolved by reflections of party trained metaphysicians on the operations of the human mind * * * In short, we recognize in every imaginable way that the jury is the weakest element in our judici&l system, and yet we ponder to it as a sacred institution. We treat a jury as a sacred institution, and we regard it, in all ways in which our regard can be *68measured, as wholly incompetent for the purpose for which we establish if.” Boston, Some Practical Remedies For Existing Defects In The Administration of Justice, 61 Un. of Penn.L.Rev.. (1912) 1.

Sunderland, Findings of Faet and Conclusions of Law, 4 Un. of Chicago L.Rev. (1937) 218; Davis v. Boston Elevated Ry. Co., 235 Mass. 482, 494, 126 N.E. 841, 842, 843; of. Guiseppi v. Walling, 2 Cir., 144 F.2d 608, 622, 155 A.L.R. 761.

Sunderland, Findings of Faet and Conclusions of Law, supra.

Thus Judge McClellan, in discussing new federal criminal Rule 23(c), which requires a judge in a non-jury criminal ease to make special findings of fact when so requested, said: “We all know, don’t we, that when we hear a criminal case tried, we get convinced of the guilt of the defendant or we don’t; and isn’t it enough if we say guilty or not guilty, without going through the form of making special findings of facts designed by the judge — unconsciously, of course — to support the conclusions at which he arrived?” Federal Rules of Criminal Procedure With Notes and Proceedings of the Institute of the New York University School of Law (1946) 173.

See, e. g., Koffka, Gestalt, 6 Encyc. of Soc. Sciences (1931) 642, for citations; see also George, The Scientist in Action (1938) 120, 128, 133, 134, 264, 334; Riechenbach, Experience and Prediction (1938) 100, 220, 221.

The essential idea is ancient, traceable at least as far back as Aristotle; cf. Aristotle, On the Parts of Animals, I, 641a, 1417; see McKeon, Aristotle’s Conception of the Development and the Nature of Scientific Method, 8 J. of History of Ideas (1947) 3, 14.

Akin to the gestalt thesis are the theses of the “functional anthropologists”; of those who study human behavior in terms of the “total situation”; of the “institutional” economists; and of those who advocate “the functional approach” to the judicial process. See, e. g., Benedict, Patterns of Culture (Penguin ed., 1946); Rice, Methods in Social Science (1931) 55, 549, 553-554; Ogden, Structural Psychology and the Psychology of Gestalt, in the same volume, 109, 113-117; Lynd, Knowledge For What? (1945) Ch. VIII; Gambs, Beyond Supply and Demand (1946) 25, 74-75, 81; Cohen, Transcendental Nonsense and The Functional Approach, 35 Col.L.Rev. (1935) 809.

With reference to gestalts in trial courts and administrative agencies, see Timberg, Administrative Findings of Fact, 27 Wash.Univ.L.Q. (1941) 62, 65; dissenting opinion in Old Colony Bondholders, v. New York, N. H. & H. R. Co., 2 Cir., 161 F.2d 413, 431, 449; In re Fried, 2 Cir., 161 F.2d 453, 463 note 28; Malone, The Formative Era of Contributory Negligence, 41 Ill.L.Rev. (1946) 151, 170,179; Frank, Words and Music: Some Remarks on Statutory Interpretation, 47 Col.L.Rev. (1947) 1259, 1277 and note 76; Frank, A Plea for Lawyer-Schools, 56 Yale L.J. (1947) 1304, note 8.

Holmes, J., in Chicago, B. & Q. Ry. Co. v. Babcock, 204 U.S. 585, 598, 27 S.Ct. 326, 51 L.Ed. 636. Cf. Perkins v. Endicott Johnson Corporation, 2 Cir., 128 F.2d 208, 221 and note 49.

For discussion of the difficulty of nicely separating “law” and “facts,” and as to interactions between them, see Wurzel, Methods of Juridical Thinking (1904) in The Science of Legal Method (1917) 390, 396; Orfield, Criminal Appeals in America (1939) 85; Paul, Dobson v. Commissioner: The Strange Ways of Law and Faet, 57 Harv.L.Rev. (1944) 753; Isaacs, The Law and the Facts, 22 Col.L.Rev. (1922) 1, 11; Fox, Law and Fact, 12 Harv.L.Rev. (1899) 545; Thayer, A Preliminary Treatise on The Law of Evidence (1898) 183ff, 249ff; Green, Judge and Jury (1930) 270; Dickinson, Ad minis*69trative Justice and The Supremacy of Law (1927) 52-55, 168-170, 203, 313-319; Morris, Law and Fact, 55 Harv.L.Rev. (1942) 1303; Cook, ‘Facts' and ‘Statements of Fact,’ 4 Univ. of Chi.L.Rev. (1937) 233; Green, Mixed Questions of Law and Fact, 15 Harv.L.Rev. (1901) 271; Clark and Stone, Review of Findings of Fact, 4 Univ. of Chi.L.Rev. (1937) 190, 211 note 93. Compare Pound, Appellate Procedure in Civil Cases (1941) 28 with Pound, Justice According to Law, 14 Col.L.Rev. (1914) 103, 104.

The word “logic,” of course, stems from the Greek word for “word.”

See, e. g., Langer, Philosophy In A New Key (1942), Pelican ed. (1943) passim; Sullivan, Beethoven (1927) 32-35; cf. Ortega, Concord and Liberty (1946) 61-63; MacMillan, Law and Other Things (1937) 255; Bok, I, Too, Nicodemus (1947) 319-330; Huxley, Science, Liberty and Peace (1946) 35-39; Forster, On Criticism of The Arts, Harpers’ Magazine, July 1947, p. 9; Pascal, Pensees (1670) Nos. 1-4, 36, 253, 276, 282, 283, 358.

United States v. Forness, 2 Cir., 125 F.2d 928, 942, 943.

“It is not a thoroughly sound objection to such articulations [i. e., analyses in terms of facts and legal conclusions] that, in so far as they attempt to analyze ‘wholes,’ they are ‘rationalizations.’ For almost all logical analyses are, in that sense, ‘rationalizations.’ Logic serves, among other things, to test the validity of conclusions reached by non-logical processes.” Old Colony Bondholders v. New York, N. H. & H. R. Co., 2 Cir., 161 F.2d 413, 450 note 82 (dissenting opinion). See also In re Fried, 2 Cir., 161 F.2d 453, note 28.

Scientists, too, rely on intuition (“hunches”) which they then articulate as premises from which they reason logically (i. e., mathematically). As to the “hunch” element in all sorts of thinking, including that of scientists and mathematicians, see, e. g., Wallas, The Art of Thought (1925) 80ff; Wallas, The Great Society (1914) 180-182; Poincare, Science and Method (1914) 75; Lenba, Psychology of Religious Mysticism (1925) 240ff; Lewis, The Anatomy of Science (1925) 90ff; Frank, Law and The Modern Mind (1930) 169; Bell, Men of Mathematics (1937) 547— 552; Montmassari, Invention and Discovery (1942); Benjamin, Introduction to the Philosophy of Science (1937) 176ff; Porterfield, Creative Factors in Scientific Research (1941) 97ff; Cairns, Theory of Legal Science (1941) 57-60; Cannon, The Way of An Investigator (1945) Chapter Y.

However, it wifi not do to push too far the analogy between scientific thinking and the decisional process of a trial judge in reacting to conflicting oral testimony. For the trial judge’s reactions to witnesses unavoidably involve a large emotional element. With respect to those reactions, the following may be pertinent: Langer, loe. cit., 18, 19: The “basic concepts of physical science * * * have delivered all physical nature into our hands. But strangely enough, the so-called ‘mental sciences’ have gained very little from the great adventure. One attempt after another has failed to apply the concept of causality to logic and aesthetics, or even sociology and psychology. Causes and effects could be found, of course, and could be correlated, tabulated and studied; but even in psychology, where the study of stimulus and reaction has been carried to elaborate lengths, no true science has resulted. No prospects of really great achievement have opened before us in the laboratory. If we follow the methods of natural science our psychology tends to run into physiology, histology, and genetics; we move further and further away from those problems which we ought to be approaching. That signifies that the generative idea which gave rise to physics and chemistry and all their progeny — technology, medicine, biology-does not contain any vivifying concept for the humanistic sciences. The physicist’s scheme, so faithfully emulated by generations of psychologists, epistemologists, and aesthetieians is probably blocking their progress, defeating possible insights by its prejudicial force. The scheme is not false — it is perfectly reasonable — but it is bootless for the study of mental phenomena.”

Pascal, Pensees (1670); “Those who are accustomed to judge by feeling do not understand the process of reasoning, for they would understand at first sight, *70and are not used to seek for principles. And others, on the contrary, who are accustomed to reason from principles, do not at all understand matters of feeling, seeking principles, and being unable to see at a glance * * * For it is to judgment that perception belongs, as science belongs to intellect. Intuition is the part of judgment, mathematics of intellect * * * Two extremes: to exclude reason, to admit reason only * * * Tlie heart has its reasons, which reason does not know * * * We know truth, not only by the reason, but also by.the heart * * * And reason must trust these intuitions of the heart * * * The heart has its own order; the intellect has its own, which is by principle and demonstration. The heart has another * * * The internal war of reason against the passions has made a division of those who would have peace into two sects. The first would renounce their passions and become gods; the others would renounce reason, and become brute beasts * * * Man is neither angel nor brute, and the unfortunate thing is that he who would act the angel acts the brute.”

Frank, Fate and Freedom (1945) 324: “We may ask whether” any one “can write a scientific description of, or reduce to a mathematical equation, the kiss of his beloved, the taste of cool water, the cry of his sick child, the tang of a brisk autumn day, the torture of physical pain, the anguish at the death of a dear friend.”

For expressions of approval of special verdicts by federal courts, see Zauderer v. Continental Casualty Co., 2 Cir., 140 F.2d 211, 213; New York Central & H. R. R. Co. v. Banker, 2 Cir., 224 F. 351, 354; Phillips Petroleum Co. v. Bynum, 5 Cir., 155 F.2d 196, 199; Pacific Greyhound Lines v. Zane, 9 Cir., 160 F.2d 731, 737 note 7; cf. Walker v. New Mexico & Southern Pac. R. Co., 16o U.S. 598, 597, 17 S.Ct. 421, 41 L.Ed. 837; Grand Trunk Western Ry. Co. v. Lindsay, 7 Cir., 201 F. 836, 842.

Fact-verdicts by advisory juries may be of considerable value in certain kinds of cases. See Arnstein v. Porter, 2 Cir., 154 F.2d 464, 473.