cession. Men love to walk in the
path they have once trodden, even if not the shortest way to their
end.

3. When the nation is organized more artificially and the laws chiefly
proceed from the secondary source, the government,--elective or
usurpatory--a judge is appointed by the central authority to visit
the districts (counties) and assist at the administration of justice.
As the law is now made by the distant delegates, the judge they send
down declares and explains it to the people, for they have not made it
as before directly, nor found it ready-made, an old inherited custom,
but only receive it as the authorities send it down from the Capitol.
The law is _written_--the officer can read while they have no copy of
the law, or could not read it had they the book. Hence the necessity
of a judge learned in the law. Still the people are to apply the
written law or apply it not.

Besides, the old customs remain, the unwritten laws of the people,
which the judge does not understand so well as they. He represents the
written law, the assembly the unwritten custom or tradition. The judge
is appointed that he may please the central power; the people are only
to satisfy such moral convictions as they have. There is often a
conflict between the statute and the custom, a conflict of laws; and
still more between the judge and the jury--a conflict in respect to
the application of the law.

4. Then comes the critical period of the Trial by Jury. For the
deputed judge seeks to enlarge his jurisdiction, to enforce his law,
often against the customs and the consciences of the People, the jury,
who only seek to enlarge Justice. He looks technically at the statute,
the provisional Means of law, not at Justice the ultimate Purpose of
law. To the "Country," the "Body of the People," or to the jury of
inquest and of trial, he assumes not to suggest the law and its
application, but absolutely to _dictate_ it to them. He claims the
exclusive right to decide on the Law and its Application; the jury is
only to determine the Fact--whether the accused did the deed charged
or not.

If the judge succeeds in this battle, then tyranny advances step by
step; the jury is weakened; its original function is curtailed;
certain classes of cases are taken from its jurisdiction; it becomes
only the tool of the government, and finally is thrown aside. Popular
law-making is gone; popular law-applying is also gone; local
self-government disappears and o