ii iiiiiijiiliifcis liiffif; ii|i|iiii^ UNIVERSITY OF CALIFORNIA AT LOS ANGELES THE GIFT OF MAY TREAT MORRISON IN MEMORY OF ALEXANDER F MORRISON FRAILTIES OFTHEJURY By HENRY S. WILCOX OF THE CHICAGO BAR AUTHOR OF FOIBLES OF THE BENCH, FOIBLES OF THE BAR, A STRANGE FLAW, THE TRIAL : OF A STUMP SPEAKER, ETC. Published by LEGAL LITERATURE COMPANY Chicago, III. Copyrighted 1907 by HENRY S. WILCOX Entered at Stationers Hall London, Eng. PREFACE. In "Foibles of the Bench," the first volume of this series, an attempt was made by the author to illustrate some of the lighter faults frequently- exhibited by occupants of the bench, and the effect these have had upon the administration of to justice. Certain abuses that have become preva- ?.. lent in court proceedings were also pointed out a and changes proposed to remedy them. The volume met with a kind reception from bench and bar and the public press, and was soon fol- 2 lowed by another volume, entitled "Foibles of % the Bar." In this were noted and illustrated % some of the common mistakes of lawyers that 2 tend to impair or prevent success at the bar, and ij other methods were suggested as improvements. < This latter volume has met the same cordial »> greeting accorded to the first, and thereby has S the author been encouraged to attempt the some- o what bolder task of writing this book upon the t frailties of the jury. «9 He wishes to assure the reader that he is not conscious of any personal prejudice against the twelve men in the box. On the contrary, they 432668 4 PREFACE seem to him like personal friends who are at- tached to him by ties formed from the associa- tions of many years. Almost from boyhood he has stood before the jury pleading for their ver- dicts, watching their open faces and feeling the thrills of delight or pangs of woe sweep through his frame as they appeared to smile or frown upon his plea. The meager cottage where our youth was spent must always have a hallowed place in mind. Our pleasures there we cherish long, our sorrows .soon forget, and though the time of youth was but an April day with more of cloud than sun, to it we fondly cling and hold in fond remembrance all those whose lives were linked with ours; so must the trial lawyer ever feel when thinking of the jury, for it has formed so large a share in his associations. The jury box seems to the author like a sacred shrine where he has worshipped for many years, and now to hold its occupants up to public gaze as frail and faulty appears almost profane. Yet he is forced to this by facts and observations which he can not overlook. The faults herein .set forth are not exaggerated in the least degree, and if they fail in any way to state the facts exactly it is because they are too favorable to the jury. The characters set forth have not been taken PREFACE 5 from the worst, but fairly represent the average in the types depicted. No search is made for muck or rubbish and the author has not had the slightest wish to speak disparagingly of that large class of men who fill the jury box. Since first he saw the light his relatives and truest friends have been of those who had no special skill for service of this kind, and he has never held that snobbish notion that fails to recognize the value and true worth of men not trained for functions such as this. Life is too short and fields of labor are too vast for anyone to fit him- self for all. Each one must choose a place and fit himself for that if he would do its duties well, and each one in the place for which he has been trained may thus give service of the high- est class and merit greatest praise. Thus con- stituted will the vast machine which makes our social life be made to move in perfect harmony, and no part be esteemed as better than the others. This is the view-point that the writer holds, and this he asks the reader to adopt in judging of the jury, that he may see these men as worthy in the sphere where they are skilled as any lawyer at the bar or judge upon the bench, but being forced into a task for which 6 PREFACE they are not trained are like all other men, unfitted for it. This volume the writer hopes some time to fol- low with one entitled "Fallacies of the Law," wherein he will point out the many features of the law that are unjust and based on fictions and false doctrines. CHAPTER I. Origin and Functions. That body which we call the petit jury came from remotest times. .Tradition says King Alfred gave it birth more than a thousand years ago. Of this there is no record, and the best opinion considers it a Frankish product which followed William into Britain after the Norman conquest. When Britain's barons wrenched the Magna Charta from King John and formed the firm foundations of the English law, it was pro- vided in that precious charter that none should forfeit life nor lose his freedom or his estates without the judgment of his peers. This clearly meant a jury trial as then existing, and by this act this institution then in use was firmly grafted into English law and came with it across the sea. When our great sires shook off the British yoke they still retained the English law, the jury with the rest, and every state still has the system with slight change. According to the English law, now called the Common Law, the sheriff wTote the names of forty-eight free- 8 FRAILTIES OF ,TUE JURY hoklfivs t»r tin." fp'.mty where the ease was tried in presence of tlie attorneys on both sides, who each could strike off twelve ; the twenty-four reniainind that lay or breed with profit, may kno\y the moon and season when to sow and reap, and how to fertilize and trim, and when to sell with largest gains. He, farmer's work may do with rarest skill. He may have trained his body for such tasks until his motions seem a sleight of hand that all may envy, and yet be o< 38 FRAILTIES OF THE JURY ill the densest fopr \\lien listening: to the learned judire expound on proof beyond a reasonable doubt and proof to a moral certainty and proof by preponderating evidence. His brain well filled with ag:rieultural lore, lost in bewilder- ment, may see a mass of many images arise when he hears the court descant upon the differ- ence that exists between a general reputation for a general moral character and such repute for truth or honesty. The master builder may have the mental grasp to image in his mind a mighty temple and body forth his vision in a form where every part ',\il] fit as neatly as the human eye. He may have such skill to manage men that multitudes obey him with delight, and move like armies stirred by martial music led by a great com- mander; may have a ready use of building art, and all the skill which countless ages have sent down the tide of time, and yet be but a child groping in dark when listening to the judge ex- plain the law of negligence, in forty long in- structions setting forth the fine distinctions spun in threads of gossamer, partitions of the thin- nest fibre dividing causes immediate and remote, contributing to cause or causing consequential damages. All these are plain as noon-day to FRAILTIES OF THE JURY 39 the well-versed lawyer, and easy as the rhymes of ''Mother Goose," yet they invite the great mechanic to a realm where all is slippery foot- ing for his untrained feet, and he may wander into many errors unawares. All this applies with equal force to every adept of the manual arts, not trained in legal phrases, and shows the folly of the law that takes great captains from their chosen fields to make poor jurors of them. If such as these are failures on the jury for lack of legal knowl- edge, what of the common mass that are thus called to sit? Their minds are merely appetites; they know but little language, and that so poorly that they may stumble trying to under- stand the plainest words. Some like the Esqui- maux could not count ten without great strain, and can not grasp a dozen thoughts and hold them clear. The court's instructions and the lawyer's talk are nebulous to them, the long- drawn trial seems a milky way that paints its path of light across the sky yet leaves the earth in darkness. Jurors may understand the words and get the thought intended by a witness and yet be much deceived because they lack the pow- er to read his hidden motive. Some have the minds of children and take in all tales well told 40 FRAILTIES OF I'lIE JURY ;nul when the stories cross are in a wilderness \\illi neitlier siiiide nor compass. Snch was the simple mind of Enoch Good. His home was near a stream that gently rip- pled by and never failed. He lived upon his father's farm, its fertile soil gave always snre reward, its bubbling springs gushed forth in ever constant streams. The seasons came at their accustomed time and brought the birds and flowers that he had yearly seen, since first his infant feet had toddled on the mead. The bees had brought their honey to the hives, from year to year, the orchard its fruitful yield when Autunui came, and every plant and tree and clinging vine kept faith with him in blossom and in fruit. His parents and his friends were ever kind and never had deceived him. Be- yond the gentle rising hills that hedged about the cottage where he lived he never cared to roam, the village where he dwelt was all the world he wished to know. When he became a man the playmate of his youth he made his bride; she was the first to win his love — a cousin on his mother's side — and kept it and never proved untrue. He voted the ticket that his father voted and read the paper that his FRAILTIES OF THE JUBY 41 father read, at the same church attended, swal- lowed the sermons as young birds their food. His neighbors all seemed true, and he believed them so. He sometimes heard of falsehood as a far-off thing among the most depraved, but rarely found it in his little world. This man was drawn upon a jury, and was asked to try a case where suit was brought upon a note. The man thus sued denied he signed the note; two persons swore they saw him sign. He then brought forward four who took the stand and testified they saw him pay the note in full. How could this guileless, simple-minded man to whom such falsehood was unknown unravel such a tangled skein and draw the thread of truth? Lawsuits are born of falsehood. The truth is rarely told by all the parties, some- times both deal in lies. They come to court with their Avell-varnished tales, trained and much practiced, and with a skill that would adorn a better cause they act the part of mar- tyrs to the truth. The untrained, inexperienced novice who does not know the color of a lie can find no explanation to the puzzle, and in his efforts will often push aside the solid gold of truth and choose the plated ware. Fraud comes 42 FRAILTIES OF THE JURY to court dressed like the truth and wears her mask so well that the unpracticed juror believes her guileless. The numerous holes which pene- trate her mask are smaller than his eyes can see ; the places where her garments fail to fit escape his notice. The times she over-plays the part of innocence by vaunting it too nnieh he does not note. All these indices to the guile she hides arc patent to the well-trained judge. Before his eyes for m.any years have passed the true and false making their claims for his redress; he knows the gait of each, the ring of truth and falsehood ; and as the case proceeds shrewdly divines the purpose held by each party to the suit, the feeling of each witness, and remembers all when making up his judgment. Such men as Enoch Good, who have no knowl- edge of the guile that enters in such suits, are no more fitted to ferret out the facts from such a mass of lies than are the lap-dogs fondled at the hearth suited for hunting foxes in the tangled woods. CHAPTER V. Memory. An accurate image may be lost when memory is bad. The imprint which a fact has made upon the mind may be so faint that what occurs thereafter wipes it out. A judge takes notes of all the evidence to aid his memory and some- times has a transcript furnished to him. Trained even as he is his memory often fails and mnch he needs this aid. The jury have no training and no means of taking notes, nor are they furnished any transcript but are sup- posed to carry all the evidence in mind, the rulings of the judge thereon and how each witness did appear when on the stand. Some trials last for many weeks and scores of wit- nesses give evidence. All this the jury must remember till they reach a verdict, or its effect is lost. Have jurors such colossal minds that they can grasp this vast array of facts and hold them till they reach the jury-room? They are not thus equipped. Plagued as they are by unfamiliar words, stage frightened by their 43 44 FRAILTIES OF THE JURY .queer position and filled with worry of their own affairs now needing their return, they are confused and get but faint impres.sions of the matters taking place, and have at best but hazy notions of what has occurred. Some of the lead- ing points they may recall but all between is vagueness or a blank. Lawyers who know the witness well, have heard him tell his story and written down his tale, often can not recall his evidence when needed in their argument. Then how absurd to think a jury with so poor a chance could thus excel the skillful advo- cate. Few persons realize how little they recall of that which has occurred the day before. Some hear a lecture and forget the subject, a sermon and can not recall the text, or read a book yet can not quote a line without substantial error. The jury are but average men with common faults that mar us all and few can realize how little they recall about the cause when they have reached the jury-room. That which they heard the last will have most force and statements made by fellow jurors assuming to recollect what they do not will have great weight. Bad memories are of many kinds. Some may remember names and yet not faces, others recall the face but not the name. Some may bring FBAILTIES OF THE JURY 45 back the place with ease, who can not tell the things that there occurred. Dates sometimes are impressed upon the brain of those who have but faint impressions of other subjects, while many who can not remember dates are good recalling other things. Between the best and worst of memories are many grades, but few, indeed, there are who can remember all things well. We can recall v/ith greatest ease the things we most desired to hear and fully understood, but things we did not wish to listen to and had no clear percep- tion of we rarely can recall. The poorest mem- ory m^ay be trained to give good service, and the best one may by lack of care become the worst. Bad specimens appear on every jury, and here are two not of the worst : Benjamin Bookworm. Ilis chief delight was books. From infancy the lettered page was more to him than all beside. This appetite increased with years, un- til he hungered to devour all forms of reading matter that the world contained. Nor vv^as he careful what the matter was, so that he found it printed, except perhaps the older and more fanciful the tale the greater did he relish it. Statistics and chronologies, records of births 46 Fh'AIl/rU'JS OF THE JUUY and deaths of ancient kings, and genealogifis from tombs deciphered, the dates of battles fought so long ago that naught but records of the dates and names remained upon the moul- dering monuments, these filled his soul with ec- stacy when i-ead in musty books, but whether his iici'j;lil)()rs lived or died he did not care to hear but thought the time was wasted which was spent in hearing of the joys or woes of men h«' knew. ]']ven these if found in pi'int he took sonic interest in, and yet had not the flavor of delight which came from subjects more remote when found between the lids of ancient books. When thus embalmed events became prodigious, and the most commonplace affair when long cor- roded with the ru.st of time became a precious mor-sel. The silly doings of a petty prince, the gibberings of a naked savage, the antics of a bug, an ant, or worm, bivalve, or microbe, when told in piiiitcd htters, had more of interest to liim than did the sight of many thousand men moving in solid phalanx to fence the country of his birth against invasion. For many years he lived so near a mighty waterfall, that he could heai" its I'oar, yet went not out to see it, meanwhile he conned with eagerness prolix ac- counts of many distant cataracts, such as the FRAILTIES OF THE JURY 47 Nile, or Wirmepeg. He dug for things that time had buried deep, delved for the roots of long forgotten tongues and felt the greatest glee when he could I'cad how sand or sandstones had contained the crumbling bones or fossilized re- mains of creatures now extinct. His form was frail and poorly nourished ; his pale blue eyes were overhung with shaggy brows; his head topped like a mountain peak above the timber line, where trees and furze and mountain grass yielded at last to barren- ness. His long nose ended in a downward turn. His chin was thin and pointed. His eyes worn out by poring over books were almost blind and only by strong ghisses could be iiiade to see. He learned to skim from page to page and book to book v/ith rapid spe(!d, not seeking to retain for fuliin; us(! the matter that he read. The images thus loiined were soon erased by many that dis- plac(!d them, and these in turn were blotted out by others that succeeded. His memory thus be- came so bad that he could scarce recall the num- l)er of his home or tell his children's names, and more than once he did forget his own, but this was when exhausted, and his mind dis- traught by weariness. He had repute for learn- ing, and when not worn out by most prodigious 48 FUAILTLES OF THE JURY reading he could recall the births and deaths of many ancient kings and salient facts upon a host of subjects, and what he did recall was quite exact and not the product of his erring fancy. When he was called to jury duty he was much disgusted. He hated courts that forced him from his books and made him hear of things that he disliked. His mind recoiled from these and turned to other things, preferring foreign lore to native facts. The intervals between the sit- tings of the court he spent in efforts to regain the time thus taken from his books, and when at last the case was tried, the arguments and court instructions heard, like some poor cap- tive to a dungeon scourged he went with fel- low jurors to the jury-room. When there he strove the stories to recall that had been told him from the witness stand, then found his mind was but a blank, except on some most strik- ing points, and this he had to fill with what his fellow jurors claimed to recollect. Lucius Quintius Curtius Loquacity. His head was large, his hair was coarse and plentiful, and black as jet, his skin was dark and leathery, his eyes wide open and of dark- est hue, his neck was thick and short and stiffly FRAILTIES OF THE JURY 49 held his square, strong jaws and head upon his massive shoulders, his beard was bristly and stood about his large, coarse mouth and heavy teeth like hazel stubble round a rocky chasm. He was a fountain of vociferation that drew its water from an inner source and promised great abundance. Few were the books or papers that he read, and these he read in haste, and always was he bored when others read what they admired to him. Silence he much despised, and more than that disliked in silence to remain while others talked. He wished no gift of in- formation or advice. In this he most desired to be the giver and he made such gifts with reck- less prodigality even to those who least desired them. His lungs were large and strong, and well supplied an active throat and tongue with air to keep them moving. These he could start and then leave or go to sleep, so far as mental effort was concerned, and the}^ would run for hours with greatest speed and never drop a stitch or show the least respect for any who would in- terrupt. The product was a mass of stuff, stale and most commonplace, chop logic and wretched sophistry mixed with false statements that bub- bled upward from within like emanations from a putrid pool. His rich imagination was a bank 50 FRAILTIES OF THE JURY that never closed its doors or had occasion to reject an overdraft. On this he scattered checks like flying leaves when Autumn's gusts are whistling through the woods. Sometimes he hit upon a fact, but this he painted with a hue so strange that it misled instead of guided. All things which effervesced so freely were uttered with such force that calling them in question seemed like a challenge to a mortal combat. Few cared to contradict his furious words or try to modify the stand he took. This man was often foreman of the jury, and there his brutal presence had great weight. As boys cut withes from saplings and bend for bows or hoops or any form they like, so he did turn and twist his weak-willed fellow jurors to sign the verdict that his will dictated. Thus he who gave but slight attention to the trial and heard but little and less understood, and what he heard had mostly misremembered, now forced his highly-colored fancies on his fellow jurors and wrote their verdict for them. CHAPTER VI. Suspending Judgment. The mob makes quick decisions. A rumor may raise a lynching party. A falsehood which some reckless hand has put in print may light the fagot without any proof. The public acts on first impression and rarely stops to hear both sides. But those who sit in judgment should wait with patience till all the facts are in. Suspending thus the judgment needs much training. A law.yer learns it in preparing cases, l)ut its perfection only comes through long judi- cial service. That jurors should possess this power all must agree, but few, indeed, are thus equipped. Most reach conclusions in advance from lawyers' statements or testimony first pre- sented. Such minds are traps that spring be- fore the game is underneath, are guns discharged half-cocked, fireworks that flash and fizzle in the crowd. They reach conclusions on slight evi- dence and hold them with a dogged force. To their set minds all facts against their fixed opin- ion are much unwelcome and treated as asper- 51 52 FRAJLTJES OF THE JUFY sious. Most dread suspension of their judj;- ments, for such susjiension is a painful state which they lack patience to endure. They have no ease till they have taken sides and donned the armor which it wears, and this is true of jurors. Their lives are spent in occupations where they decide in haste, acting on general knowledge or mere intuition, on any plan or (juestion, not waiting to gather all the facts or taking pains to weigh them. Bnsiness men have been considered ideal jurors and courts are pleased to get them v.hen they can. To hold them on the panel is not easy, so numerous and pressing their excuses, and when they sit it is against their wills. They con.stantly complain that they are losing much while thus on duty, show great impatience v/ith the judge and all who take part in the trial, alleging lack of speed and foolish practice in the court, and clamoring to get away. Take now a few examples of our business men and see if they arc fit for jury service. Rush Hurryman. His father died soon after he was born, leav- ing a little suburban notion store and many debts he could not pay. His mother took the assets and her sad condition checked to some extent FRAILTIES OF THE JURY 53 the pressing claims of creditors. They showed her mercy and she carried on the business of the store, paying in small installments a por- tion of the debts. And thus for years she work- ed, earning a meager living for herself and son. Almost as soon as he could talk the boy became his mother's clerk. Here did he show such talent that it soon appeared that he was formed for sale and barter. Quick to detect the wants and whims of buyers, inspired to say the word that stimulated trade, he showed much skill to reach the buyer's purse. He knew how large a price could be obtained, whom he could safely trust, and just the moment when to push the goods upon the buyer. This did he learn to do with such adroitness and sweet, winning ways that the hesitating buyer felt it sin to doubt the seller's faith or fairness of the price. What learning he acquired he got about the counter in his store, and contact with his customers and those from whom he bought. When to buy and what and when and how to sell and get the high- est price, these were his quest and made his world of knowledge. This he acquired so rap- idl.y and used with so much skill that long be- fore his manhood had been reached the legacy of debts his father left with all the grinding 54 FKAILTIES OF THE JURY intiM-ost which it drew was fully paid and the little notion store expanded to a general one where every kind of goods were kept. The suburb where he lived increased in population and most of it he knew; with his in- creasing means his fame increased, and many saw his rising power and prophesied a brilliant future. "When he had reached the age of twenty-one an offer came that took him to a central point. The owner of a larger store weighed down with years desired a younger man as partner in his business, and of all he knew this thrifty boy appeared to him the best. This offer he embraced, became a member of the combination formed, proved worthy of the trust impo.sed, mastered so soon its intricate affairs that its large business came to his control and he assumed a pedestal from which he viewed the world of trade and had his finger on its market's pulse. Quicker and farther than all competitors his bright eyes saw and intellect discerned. Ilis lithe and agile body, nimble as his mind, overmatched his slow opponents. Numbers that told of profit and of loss he quickly read and at a glance absorbed the gist of that affecting his affairs. With telescopic vision he beheld the mountain peaks that commerce reared in lands FRAILTIES OF THE JURY 55 remote, and was the first to see the storm clouds threatening to destroy, and note the place where they would likely break. He rarely bought too much, but when he did and saw a loss impend he quickly turned, cut short his loss and let his profit run. One by one his rivals bit the bitter crust of ruin, their wares were sacrificed and he became the buyer. Their wrecks he made his glorious wreaths. As they fell down he rose and grasped a wider field of trade, waxed in riches and in power, and where a thousand common merchants thrived but few remained. These were mammoths of colossal wealth- and he was one. These still were his competitors until he shrewdly struck the master stroke that blended all in one immense combine. This placed him at its head. Here from a central point for many years he held a thousand reins, guiding many fiery steeds all bent with haste for gain; and thus he toiled until with age his flesh was shriv- eled to the bone by anxious care, his mouth was puckered like a miser's purse, his features pallid as the face of wan distress, and yet he moved like lightning, excelling all in mental speed and quick resolve. This man was caught while in the hottest fever of his mighty strife for gain and made to sit upon a jury. There he was 56 FRAILTIES OF THE JURY askt'd to try a case wherein the question was, who owned a certain brindle calf. Would he sit calmly throufrh the summer days, dismiss the business of his mammoth store, confine his mind to note the long description of this calf and of the one that had been lost? Would he with care collect descriptive points from all the wit- nesses who testified tending to show resemblance or dissemblance in the calf, giving to each due weight, and from the whole, enlightened by the lawyer's argument and instructions of the court, give to the quest a sober, careful, and deliberate judgment, forthcoming only after all had been considered? I am certain he would not. He would regard the question as a trifle, mooted by fools, not worth his serious thought. He would decide it quickly and turn away as if it were a nuisance which courts and lawyers bred for their own gain. Thus would he be out of his proper place and no more fit for court affairs than lawj'ers for his store. Xor is the merchant rasher than his fellows. The world of commerce is a den of beasts with claws and teeth to tear down and devour. Those best succeed who are most agile, and to their strength add speed. Look at that broker dancing to the ticker. His ears are quick to hear its tale FRAILTIES OF THE JURY 57 that may mean wealth or ruin. Behold him tread on air when he succeeds, or see him drag his lifeless limbs when withered by defeat. Now uj), now down, then up again, swings the swift pendulum of his fickle fortune from day to day until at last death calls his turn, his option closed, and drags him from the floor" a mass of shattered nerves and wasted sinews. His faded eyes in frenzy roll as he in faltering accents begs a chance to place a further margin. Since first in youth his frail bark met the billows that surged so wildly on the speculative sea, his every nerve has strained with utmost tension to grasp the goal of wealth. Days in hot haste followed by nights of fever, uneasy tumbling on a sleep- less pillow he plotted eagerly to win, and fondly counted his expected gains. His life is but a battle wherein minutes may fix the fate of years and speed alone may bestow the prize. Can such as he sit on a petit jury and hear with patience of a clothes-liue quarrel? Can he with care and neatness piece together the scraps and fragments of each story told, until in one clear garment of unsullied truth the whole may glow i]i radiance and perfection? Such seems to me unlikely. With deep disgust his mind would surely wander far from the case and curse the 58 FRAILTIES OF THE JURY luck which gave him such a task. Before the evidence was closed or any witness had been sworn he would be ready with his judgment of blame for one or both. Turn from this broker to another juror whose life-work lies in quite a different field. Behold the prince of butchers whose keen knife lets life- blood daily from a myriad swine. Sturdy he stands, stained to the waist in gore, grasping his blade for no unsteady stroke. Not great Achilles on the field of Troy piling the gory ground with heroes slain has shed more blood than he draws in a day. Quick as a flash his trained eye notes the vein, his strong arm swiftly guides the unerring steel and draws it forth again so suddenly that the spurting blood scarce strikes it ere it finds another place in its next victim's throat. Thus daily he deals death with greatest speed and grace of motion and his struggling captives have scarcely time to shriek before their lives have fled. And well he may be active, for many thousands wait along the line to finish the products of his hands. His keen knife forms a most important link between the pig-sty and the royal spit, and millions scattered over all the globe are eager for the finished product. FRAILTIES OF TEE JURY 59 •Would this rare genius of the packing plant who looks and strikes as quickly as he looks be fitted for the jury? Would he suspend his judgment or keep his mind from forming a conclusion till all the facts and reasons are presented? Take then the music m.aster, who dreams ca- dences and arpeggios and hangs his hopes of wealth and ease on sweet caressing sounds. Be- hold him tear his uncropped locks in furious rage or seize his awkward student's instrument and smash it on the luckless urchin's head be- cause forsooth he has unwittingly mixed discord with the velvet symphony. Would such as he be likely to sustain suspended judgment through the many days of trial ? Then take the pampered pets of overloaded wealth whose highest cares converge and center in the color of a tie, the creasing of a pair of pantaloons or the denouement of a chance flirta- tion. Are these the kind who hold their minds at bay until the time is ripe for forming judg- ment? If these the generals in the field of action and these the darlings in the homes of plenty have not the poise and patience to suspend their judgment until the proper time, what of the privates in industrial armies ? What of the ragged wretches whipped by fortune? Can those who 60 FRAILTIES OF THE JURY see the almshouse or a prison the only haven of life's dreary winter, and like the worn-out swim- mer still must buffet against the tide, can such be calm and steady irarnerinir from day to day with care the sheaves of evidence, loading each in its appropriate place and keep the load iin- trammeled till taken to the room where it is threshed and winnowed and the grains of truth extracted from the straw and chaff? Habits of thought the products of a life are i!ot abandoned in a day because a judge requests it. The mind is a machine nicely adjusted and set for certain actions, which it will have or none. The passing years have put the parts in place, set cogs and shafting and the belts there- on, and fixed the speed and ends to whieli it moves, and when some unskilled engineer mis- takes its nature and puts it to a different task he soon discovers in the poor results the proof of his perversion. ^Machines designed for shaping spikes can not be used to sharpen needles, and minds so unac- customed to deliberate action are not adapted for judicial duty. CHAPTER VII. Bias. Bias iu countless ways brings misery to the human race. All annals of mankind reveal its havoc. The stories of its crimes blot every page. It plunges nations into war, rends empires with secession, and often makes the state a hot-bed of rebellion. It organizes every mob that bids defiance to the law. Inspired by it inhuman cruelty becomes delight. It fastens to the cross and stake the purest and most loving' hearts. It lights the fagot and drives the cruel nails that ignorance provides for seer, sage and saint; in- cites blind zeal and fires the stupid crowd against the heralds of a brighter day. It spreads its poison in society of every rank, depletes success in every branch of man's affairs, and strikes at every institution of the state, but nowhere has it greater power to harm than in the courts. A most pernicious form abounds in many jurors. They yearn to help the weak against the strong. This kind of bias seldom is dis- closed before it is too late, for those who have it swear they have it not, and protest strongly 62 FRAILTIES OF THE JURY iu their solemn oatlis that no amount of crying need or claims of sympathy can swerve their judgment in the least degree. All this they may believe, yet, when the crucial test is made, and they see crippled innocence oppressed with want, praying relief against defendants armed with w -allh, they can not stay the sympathetic hand, and thus the rich man finds his wealth against liiin weighed; the adult by the infant is out- weighed; a woman's rights made greater than a man's, and poverty soon tips the beam when corporate wealth sits on the other scale. All will admit that neither youth nor age, sex, wealth nor health nor any kind of status should move the scale a fraction of a hair when justice weighs the facts before the law. But what does a sympathetic jury care for this? Their heart- throbs stifle reason's voice Avhile they with lavish hands divide the gifts by fortune made and make the rich disgorge to feed the poor, the strong to help the weak, the sterner sex to bear the weaker 's load. Thus they despoil defend- ants, and make the court an almshouse for the poor. Most men are tender toward the needy and much inclined to aid them.. This kindness should appear in acts and gifts made by each person on his own account, from his own means, FRAILTIES OF TEE JURY 63 not taken under color of the law pretending pay- ment of a debt where none exists. To thus despoil another of his means is confiscation and should be classed as such. Few are the jurors who have not this fault in some degree. They lack that clear perception which should restrain the promptings of the heart, and thus they fall an easy prey to such appeals as lawyers make to stir their blood. Another kind of bias let us note — ^the sort inspired by certain kinds of suits. Sometimes a claim is quite distasteful to the jury because the law which gives the right is not approved, and they refuse to grant relief save on the strongest proof. Sometimes they so abhor the crime that has been charged that they will raise the sword to strike upon a mere suspicion, and then the accused can not escape their wrath except by clearest proof of innocence. That bias such as this is most unjust all will agree. The matter in dispute should not affect the law, nor change the measure of the evidence required to prove a fact, a bushel should be the same in size of any substance measured, a gallon should con- tain four quarts of soda or champagne. Most jurors can not comprehend this simple truth and so stretch their arms to jerk one culprit from G4 FRAILTIES OF THE JURY the jail and push with eager zeal another in, they pass upon the wisdom of the law and if they find it faulty, set the captive free. If they approve they gladly give it force. When some vile crime arouses public rage, they take the first suspected as an object lesson and if he can not show an alibi in proof so clear that none can find the spot to place suspicion on, they seize him in the whirlwind of their Avrath and send him to the gallows. AVhen thus excited by a thirst for blood, the average jury then becomes a mob; and a jury trial but a lynching party, conducted with some order. They sense the feelings in the air, and recognize no curbs to make them wait for proof. The court's instruc- tions are but paper wads blown from uncertain guns which make some noise but always miss the mark, unless they tell the jury to acquit. While bias follows general lines, 'tis subject to no cer- tain rules. Most lean in favor of a damage claim when brought by injured persons, but some are strongly set against such suits. ]\Iany dislike the liquor laws and strive against convictions imder them, and others loathe the traffic with so great a hate that they convict upon the slightest proof; a common gamester shields the gambling den and bends the bars to let its boss escape ; the FRAILTIES OF THE JURY 65 brothel's patron lets its inmates go, yet there are some who patronize each place that go against the facts to punish those accused of either crime. Bias may spring from politics or any social status, may have religion for its foun- tain head, or learning as the object of its hate. The ignorant despise the learned and when a doctor or a lawyer sues for fees, oppose the pay- ment of his legal claim and slice the sum and thus appease their bias. So various are the kinds of bias that find a lodgment in the minds of jurors that listing them becomes too great a task. To any catalogue we muse soon add some fresh and startling cause of prejudice, the off- spring of a folly not before suspected. Take two examples of the common kind quite often seen. Anthony Saint. His form was tall and slender, his nose was long; his hair was coarse and straight; he wore it long and usually unkempt; his beard was patriarchal and both hair and beard were thin and of iron gray, resembling much the whiskers of a goat. His cheeks were sunken; his fore- head thin and high ; his eyes pale blue, set under bushy brows, which bore the traces of a constant frown, his temperature was cold; complexion 6G FRAILTIES OF THE JURY pale; his garments plain and misfits of the coarsest kind, showintr by many stains of vari- ons hues the proof of their long use; he stood erect, straight as a pine and walked with firm, defiant tread ; he had descended from the loins of toil, a line of men inured to the hardest kind of manual tasks. He was a self-made man of which he was most proud, he scorned all shams, despised the hypocrite, and looked on learning with contempt. Prompt and exact in all his deals he often walked the floor late in the night for fear he could not meet a bill maturing on the morrow. So anxious was he to be fair and true, and keep above reproach, that he gave many more than was their due; and yet sus- pected every other man and found in all some fault that he disliked; he had great reverence for the decalogue, and as he understood, obeyed, yet formed no union with any church, because he found no creed he could endorse ; in politics was independent, voting, with pride, for those who had no chance to win. He deemed his coun- try 's institutions wrong, and felt himself in- spired to urge a change in laws and their en- forcement, and so from crown to toe was filled with strongest bias, yet was he sure that every- one was wrong except himself and he the only FRAILTIES OF THE JURY 67 fair, unbiased person in the land. He was some- times compelled to sit upon a jury. Here he considered courts were bad inventions, contrived by lazy and dishonest lawyers to take advantage of the simple minded. He held all controversies should be settled out of court, where some fair man (such as himself) should be the chosen arbiter, and so was opposed to every suit and every one who brought it into court. A slight suspicion raised against a woman made him dis- credit her whole story. No spectacle of sorrow touched his heart or softened his austerity, and those who sought to move him ly a show of anguish caused him to turn against them; he would not listen to the lawyers' talk, assuming he knew more than they, nor did he heed in- structions from the judge. The law he claimed was common sense, and this he thought he had. AVhen the jury had retired he stated what the verdict ought to be, assuring all that he would sign no other; he said but few words and then maintained a sullen silence; his fellow jurors plead with him for hours and sometimes days seeking to compromise upon a verdict, but found the effort vain, and either the others came to him or else there M^as no verdict. Note now a juror of a different type. 68 FRAILTIES OF THE JURY Barney Blubber. lie was short and fat, bo\v-lef,'god and round in all his features, his face smooth shaven and his hair clipped closely to the scalp, his short, fat neck as ruddy as his full red cheeks, his eyes were large and watery, his eye-brows arched, nose thick, lips large, chin full and deeply dim- pled. The world and -he were on good terms and all its pleasures on the common plane were suited to his taste. Speculations on the future state were naught to him ; he puzzled not his brain with mgiaphysic thoughts; he championed no reforms, was fitted to the world as it now is, and wished to see no change. He was not moved by scruples or the claims of persons or the pub- lic, his heart was large, his hand was warm, his friends were many, and to their wants he gave a quick response. When on the jury he showed his feelings for an injured plaintiff who sued for damage against the rich, the last speech always caught his fancy — such the advantage that the plaintiff' had. He scarcely could re- strain his tears when sorrows were depicted and his sympathetic eyea inspired the plaintiff's advocate to make a moving plea. But when the case was criminal, involving life or liberty, he was against the state, and favored an acquittal FRAILTIES OF THE JURY 69 unless the charge was oue of great atrocity and then the victim of the crime might have his sym- pathy and cause him to convict. He Vv^as a child of impulse with no certain sense of right, and seldom the first opinion he had formed would last until the end. Some other juror of a firmer sort with a persuasive voice could swaj^ him from his moorings by statements not in evidence, and make him sign a difiPerent verdict from the oue which he had planned. Nor was he strong to stand against attack; he cowed before the threatening attitude of those who would brow- beat or use coercion, and when the larger num- ber took a different course than his opinion pointed, he changed reluctantly, and followed them rather than to disagree, accepted that which he had first opposed. He thus gave up his sympathies and left the path of duty to curry favors from his fellow jurors. Such men are often found upon a jury; sometimes they make a large majority and often all the jury, and then the last speech gets the verdict, un- less the other side has much the larger claim for sympathy. Where such a man as Saint is mixed with Barney Blubber he writes the ver- dict, if one is reached. Between these two ex- tremes are many grades, some filled with bias 70 Fh'AlLTIES OF THE JURY when they take their seats; some ready to im- bibe it as a thirsty sponge, and others weak as water to its influence. The slightest trifle oft- times wins the ease, a eireiunstanee light as the thinnest gas that elt'ervosces in the air, will often in such minds, have greater weight than reams of evidence read in depositions or solemn asservations made from the witness stand bj^ those whose characters are unassailed. A smile, a smirk, a handshake from a lawyer in the case calling the juror by his given name as in famil- iar friendship, a chance resemblance to a rela- tive, a residence at the juror's native town, voting his ticket, attending the same church, matters which have no bearing on the points in issue, possess great weight in making up a verdict. These facts are known to lawyers and thus they bow and fawn, hoping to win the juror's favor or counteract the bias inspired by courtly conduct on the other side. And where the cause espoused gives chance to sue for pity or awaken rage, they beg for tears in tones like mourning doves, or call for vengeance like an angr}' god. In this way has a jury trial become uncertain as a game of chance, defying all pre- dictions and in its conduct oft is so absurd that did not life and liberty depend thereon, it would FRAILTIES OF THE JURY 71 become a mark for laughter or contempt. The men who sit in judgment on their fellow men should tower above these petty things, and see beyond the mists that bias has upraised the fair, unclouded face of justice, as formed and finished by the law and facts. CHxVPTER VIII. Judging. We enter now the precincts of that room in which the jury gather to consult; that sacred sanctum where blind justice secret sits to weigh all matters with her even-handed scales. Each juror now becomes a judge of high prerogative. From out the many chambers of his mind he must bring forth the facts in evidence, the ruling-s of the court thereon and see in memory again the witnesses who told their stories to him from the stand ; he must recall their motions and their manner, the tone and texture of their emanations and every sign and symptom that give the stamp of truth or falsehood to their tales. Like two proud champions set each against the other in knightly lists for mortal combat, he should arrange and place the facts which fight on either side, observe all points of strength, and note all blemishes, find every hole or weakened joint disclosed in cither's armor, and watching closely the minutest motion and hearing quickly the faintest word, decide which 72 FRAILTIES OF THE JURY 73 charapiou is the knight of truth and which is the pretender. His eyes must be familiar with the face of truth that he may recognize her at a glance. His ears must know the tone in which she speaks that he may not mistake her words. A botanist when shown a leaf tells accurately the tree on which it grew. A judge familiar with the ways of witnesses can easily detect the nature of a tale. All matters move in perfect order ; causes connect effects in natural sequence, and make a perfect chain which has no missing link. Feelings and even thoughts are causes, each having an effect of its own nature, and he who sees all clearly reads the motive in the act. The true tale has a foliage differing from the false. Its roots run deeper and its branches wider spread; its fruit a sweeter flavor to the taste, and looks much finer when examined closely. All products manufactured for the occasion begin and end too soon, and so in their extremities lack fitness with surrounding facts. A lie is like a patch which some shrewd tailor places on a garment ; so well it seems to fit that the unpraeticed eye detects it not, but every tailor sees it at a glance. A perjured story is a counterfeit which long may pass unchallenged by those unskilled in detecting it, but when it 74 FRAILTIES OF THE JURY nioets the practiced eye, its baseness is at once observed. As writing experts tell the note that's forged so expert judges find the tale that's false. A man must sei"ve his time in every field where he becomes an expert, and training in one trade will not suffice for others; some show great skill in guessing weight of cattle, who could not esti- mate a load of hay and tell its weight within a hundred pounds. No one is born with wisdom. In every calling all must it acquire by trudging up the stony hill of hard experience; thus only can they reach the lofty heights. Weighing evidence and detecting truth are no exceptions; some say that truth is in a well. If this is so, who draws her forth must learn to dive. In litigation truth is often hid beneath a mass of many falsehoods and fair seeming, and he who would uncover her must learn to dig. The task of picking out the truthful tale is not so easy as it seems, but 'tis the pastime of a summer afternoon compared with that much greater task which every juror should perform. He must apply this truth when ascertained to all the complicated questions in the case, and these are often many. Let me a common in- stance cite. Here is an ordinary case : A suit for damage caused by negligence. The ({ues- FRAILTIES OF THE JURY 75 tions that arise are few, compared to many other suits, but are enough to puzzle untrained minds. Was plaintiff injured as he claims, and if so, where, how, and when, and how much was he injured? Was the defendant negligent as charged, and was this negligence the cause in whole or part; was plaintiff free from negli- gence contributing to cause his hurt, and when will he recover? What has the plaintiff lost in earnings and expense, and what must he expend for further treatment? What pain has he en- dured or must endure, and what sum of money will suffice to compensate him for his injuries? These questions may seem simple, yet they are but names of groups of other questions, mixed together into one compound question, requiring expert sl^ill to analyze, and thus divided into several parts, each part is still sufficiently com- plex to give an expert quite a task. The juror who can perform this feat must have a mental structure capable of thinking long and clearly; he must be able to sustain a train of thought in logical connection until each question in proper order and in just relation has met with its solu- tion and each solution carried to the end has with the whole allied formed the criterion for his verdict. These various questions are like 76 FRAILTIES OF THE JURY many burdens laid on the steps that lead into a temple : the weak may take up one and carry it, but he who properly ascends must take and carry all until the top is reached, for all compose the basis of the verdict. This work requires a thinker of uncommon skill who has a mind that knows no master but the truth : a mere automa- ton or pipe through which another blows or plays upon is not sufficient. All creatures have some reason and show ability to think about familiar things; men of small minds may in their narrow sphere teach wisdom to the wisest, while men accounted great in intellect when forced outside the sphere of their experience v.nll often fall and be the easy marks for fraud and crime. Most men dislike to think out of their spheres; they save themselves the effort and adopt the notions of their fellows, or they follow blindly time-worn precepts of the honored dead. Great numbers seek a master who will assume to guide them and plan in their behalf, and when some low-brov.'ed egotist assumes superior knowl- edge, him they much adore, cling to and follow, and for his boldness give him wealth and most obsequious service. Let me present a type of these who always seek to be controlled. FRAILTIES OF THE JURY 77 Job Devotee. He was a thin and rabbit-headed man, a blue nose blonde, with fine soft hair, long neck and bright blue eyes, and had a beg-your-pardon air about him; from youth he had been docile and obedient, followed the guidance of his parents, obeyed his teachers and employers and all who gave him orders without a question or misgiving. In politics he bore the torch, at church he passed the hat, in business was a body servant who v/ore his master's livery with pride; he held the cup when others drank and vv'aited at the door Avhile others watched the play; he was a fashion plate in dress, in man- ners was a model, moved like a dancing master, and like a water spaniel fawned on the hand that fed him. He quickly saw the thoughts and wants of other men, endorsed their notions and gratified their wishes. In the opera of life he was a shining member of the chorus, coming on call and standing where directed. He looked to others as his natural masters, and those the most presumptions thought exalted beings whom he was made to serve. Like to the vine that twines around the tree or moss that hugs the rock his plastic mind leaned clingingly on those who would direct him. Sometimes this man was 78 FRAILTIES OF THE JURY summoned on a jury, and here in harmony with his whole life he echoed but the views of fellow jurors and signed the verdict which the others formed, having no more to do with guiding the course of justice than stokers at the steamer's furnace in steering it through stormy seas. Many Job Devotees appear on juries, all juries have them, and thus the verdict rarely reflects the judgment of twelve men. Pretending to be such, it is a sham and well it may be asked, if filching money from a suitor by such contrivance is not as shameful as picking pockets, while pi-e- tending to teach the loser moral precepts. We claim a great regard for mental training and wreath with laurels those of greatest skill; we tax ourselves to fill the land with schools and strive to train our youths in ways of wisdom. Our doctors, lawyers, ministers and merchants, mechanics, bankers, and tradesmen of every class all in one voice demand the aid of skill. In every public office in the land, we call for training with but one exception, and that is the jury. Our urchins when they play at ball with nothing but their pride at stake, will not engage an umpire ignorant of the game. And even wild geese flying o'er our heads move in good FRAILTIES OF THE JURY 79 order, choosing as their leader one who knows the way that they would fly. We love our courts and speak of them in terms of praise ; our constitution we believe a shield which none can pierce to take away our rights. We pass, amend and supplement our laws, striv- ing to make each line the voice of justice. But what are constitutions, courts or laws, when those who sit in judgment know them not and have no skill to fit them to the facts, who pass on suits impulsively as careless children handle guns, having no skill to aim, but shoot at ran- dom, hitting anyone who happens in the way. CHAPTER IX. Firmness. The verdict must be found by all the jurors. Each must endorse it as his own true judgment. This he should do in honest faith, because he so believes from all the facts. If he instead gives up his judgment to his fellow jurors, if weary of the long dispute and bitter wrangling he at last consents to sign a compromise not squaring with his personal judgment he thus deserts his post; he brings a si)urious i)roduct into court and, by a falsehood uttered for the purpose, has it recorded as a legal verdict. A juror should have moral fibre that (luails not under opposi- tion, but calmly hears and weighs with patience and holds his ground until nev*^ reasons con- vince him he should change. If this he has not, he is not a juror such as the law intends, but merely a clay dummy, which other hands may mould as they desire. Yet he is counted to make the panel, supposed to. have twelve men. This fraud the courts might not endorse could it be shown, but like a secret poison mixed with 80 FRAILTIES OF THE JURY 81 food the spurious dose appears a legal verdict, and so is swallowed and does its vicious work without detection. Most men do not possess this moral fibre. They yield to win the good-will of the crowd. How many vote for unfit men to please their friends? How many break their sacred ties and put aside the claims of conscience to gain the title of good-fellowship? Few can be trusted to handle wealth of others or their own, because they lack the courage to refuse the many who would borrow. Heads sound and sane in many ways are often soft in this. They drop the jewels that are genuine and choke the righteous throbs of conscience that they may chase the butterflies of present favor, and gather glittering gewgaws. Let me present one of the best of these : Jeremiah Jellyfish. He was in youth instructed in the best of schools and made familiar with all moral pre- cepts. He was a model son of model parents, taught in the lore of all the ages, and filled with all the facts of modern science. His were the graces that adorn the cultured, the arts and manners of gentility that pass as current coin at every counter. Nature had blessed him with much manly beauty. In form and face he was 82 FRAILTIES OF THE JURt a model fit for a statue of a Grecian god. A noble brow adorned with chestnut curls, a beard that Mars might envy, eyes bright with quick intelligence, yet beaming tender sympathy, a skin as white as milk save where the hue of health flushed his full lips. Tall and erect he stood among his fellow-men and looked like one made by the hand of Nature to command and lead mankind from darkness into light. Nor were his fine proportions made to mask a mental weakling. His mind was broad and comprehen- sive as his noble brow. Memory held her place and did most perfect work. Reason was ever active and quickly grasped effects and causes in their proper sequence. And far above the whole a well-instructed conscience sat and watched the compass pointing to the right. His heart was warm for others' woes;liis hand outstretched to render aid. Firmly he held himself upon the narrow path of personal purity, yet looked with charity and love on all who took the broad and downward road to vice and crime. So general was his kindly sympathy that all accounted it a privilege to have his company. He spoke the right word in the proper place and did the fit thing when the time arrived. He mingled with the grave and gay and was enjoyed by all. No FRAILTIES OF THE JURY 83 liquor ever touched his lips, and yet among the drinking and the drunk he found warm welcome. His character for morals bore no stain and yet the vicious oft invited him and at their orgies found his presence no reproof. A church of orthodox belief held him a member of a high repute; meanwhile he counted as his dearest friends agnostics of the strongest kind. In poli- tics he bore a public part, aiding with voice and pen the party of his choice, but kept his words so free from bitterness that none opposed by him felt enmity. Employers and employed oft waged a bitter war. Each asked his aid. He spoke as he believed, and those he spoke against loved him no less, so soft and gentle were his words and moderate were his views. In all things was he blessed. Health, wealth, domestic peace, were his in fullness. His neighbors, city, state and country held him in high esteem and took delight to do him honor. Fortune turned ever toward him her sweetest smile and showered on him her richest bounties. Such are the bless- ings sometimes won by easy grace and prudent conduct when skillfully employed by one en- dowed by Nature with a shining front. This rare and radiant man was sometimes summoned on a jury. How did his heavenly g4 FRAILTIES OF THE JURY plumage fit the jury box? The evidence he un- derstood, and court's instructions, and all the points brought out in argument he easily dis- cerned, his memory carried well the load until the jury room -was reached, and there he listened patiently to all his fellow- jurors had to say and modestly expressed his own opinion. He had no bias or wish to favor either side, and formed a judgment on the facts presented, in strict accordance with the law, as given by the court. And such had been his verdict, but his fellow- jurors were moved by other motives. Inflamed to fever by the closing speech they had forgotten many facts and many others misremembered, and disregarding all the court 's instruction, they were in haste to find a verdict, written by their indignation. This wise man sought to stay their haste and call them to the bar of reason, but found the effort vain. Their minds were set against the ground he took. He then tried sev- eral times to compromise and bring the others to him. He found them quite unyielding, but finally they moved a little way and he then went the rest and drank the bitter draught that they had mixed for him. Then with them went before the court and solemnly declared this base child of their bias was an offspring of his FRAILTIES OF THE JURY 85 judgment. Thus was the law's intention set aside because this man of noble parts was lack- ing in the moral strength to stand by his own judgment. There frequently are jellyfish found on the jury, but rarely have they such a mental grasp. In many walks of life they fill their places well and in the march of human progress give great aid, but on the jury they become poor timber, likely to warp or break when strength is most required. For this they offer many reasons. Sometimes they urge expenses of another trial would put the party plundered in a worse condition ; sometimes predict another jury would go further still in the wrong; oft- times they put the blame upon the losing lawyer for not excusing certain jurors. When conscious guilt needs badly an excuse, none is too thin for service as its cloak. The jurors who desert the post of duty for bribes or fear or lack of moral strength, show often in their faces, when they hear the verdict read the signs of their debase- ment; they hang their heads in shame or carry them too proudly, and when they answer to the tisual questions asked they either speak too low, in sneaking accents, or else in tones of loud de- fiance, covering their guilty tracks with hum- mocks, that easily are seen. CHAPTER X. Talesmen. Jurors drawn to make the panel are sum- moned to the court and there attend for several weeks to try such cases as require a jury. Those are the regular panel. When for any cause more jurors are required the sheriff summons persons sitting in the court to act as jurors, or goes out and summons men he finds at work or on the street. These are denominated "tales- men." The power to pick these talesmen for the cause is quite important to the sheriff. Some- times he uses it to help his friends who seek employment on the jury; sometimes to get the kind of jurymen a certain party may desire. The sheriff rarely does the work himself; his deputy, known as a bailiff, performs the task. This practice has produced a type of juror call- ed ''professional," and thereby some succeed in getting many years of jury service. There is a city in my native state to which my mind with loving memory turns. She sits 86 FRAILTIES OF THE JURY 87 in majesty on gentle hills where two bright, softly flowing rivers blend. Her people hold the highest rank for moral worth and high ideals, and her many courts for probity and lore are famed. Her bar maintains the loftiest seat for learning and professional skill — and rarely has corruption reached her court or juries with its slim.y hand. Here many years the writer prac- ticed law. Here talesmen often occupied the jury-box. A man who once resided there was absent from the city many years. On his return great changes had occurred. He saw paved streets where formerly were swamps and mansions of rare beauty sat upon the hills that had been barren when he went away. Large business blocks displaced the shacks that stood along the thoroughfares. A splendid court house took the place of shabby ruins on the public square, and on that hill where once a shattered state-house stood, he found a gorgeous capitol raising on high its golden dome. Where'er he went he noted many changes and did not fCel at home, until he came into the court and there found the selfsame men upon the jury, as on the day he left. Looking down the vista of the years I still 88 FRAILTIES OF THE JURY recall some faces that I saw before me on the jury when I practiced there. I seldom missed them from the court. They were of that pe- culiar type that much abounds where talesmen are in use. This I will try to sketch by putting forward my old friend Waverly Weathercock. He was a modest, unassuming man, with noth- ing very good or bad about him. His parents had been well to do, but w'ith advancing years their means decreased and then he came to want. He had been educated well, but when he tried to get a place to earn his livelihood he found it very difficult because he had not learn- ed a trade and had no skill for any special work. The gentle tasks that he could get to do lasted not long nor did they bring much pay ; he had a constant strain to keep himself afloat in that swift moving social sea where he was wont to swim. He met and loved a girl whose parents also had been well to do. She had good taste and many wants, but she had learned to fit them to her purse, and when these two were wed, they made a shift to live the best they could. She rented rooms, served meals and did such FRAILTIES OF THE JURY 89 fancy work as she could find employment for, and thus in many ways assisted to sustain the home. He worked about the house, helped her to wash and clean, and cook and mend, relied on her to think and plan and acted as her general errand boy. Thus did they manage to exist and make a good appearance on the meagre sum which jointly they acquired, but nothing could they save for feeble age. They read the public library books, the latest magazines upon its shelves, and took a daily paper, and in that way kept in touch with the doings of the world. They made associates of the cultured class — talked much of poetry and art — and held a place as critics in the literary world. They found no fault with their pinched lot and always seemed content, and made a mimic show that well con- cealed the pressing needs that vexed them con- tantly. Thus sped the years till he had passed his prime, and was no longer fitted for the lit- tle tasks which once he did, and had no fitness then for greater ones. He drew no pension from the government, nor had he claim on any public fund, except perhaps a refuge at the poor-house the county kept for all its indigent. His claim on this he did not care to make, so 90 FRAILTIES OF THE JURY as a last resort to drive away the wolves of want, he hung about the court, and sought a place as talesman on the jury. The sheriff was his friend, and wished to favor him in every way he could, so when talesmen were needed to fill up the box, this needy gentleman was chosen. He always testified that he was qualified. He never had an interest in the ease, nor had he heard of it before. He was without the slight- est bias on the subject matter, and had no wish to aid or injure either party, and so he seemed an ideal juror, and rarely was he challenged or removed. He listened patiently to all pro- ceedings and understood them better than the average juror, and kept his mind in equipoise until the evidence was in, and when the jury were in consultation to settle on the verdict they should find, he seldom spoke or ventured an opinion, but voted without a word the secret ballot. He kept with the majority and signed the verdict that they wished. He had no force to stand by his opinion. His poverty made him as yielding here as he had ever been through life. He did not dare to hang the jury or re- fuse to take the way the largest number went, lest he might lose his chance to sit again. Thus, he was little worth and scarcely earned the FRAILTIES OF THE JURY 91 little money paid for his weak service. When the verdict was announced he sought the party who had lost the case and told him he had done his best to get a verdict in his favor, but all the other jurors were opposed. This also did he tell the losing lawyer and so did curry favor where he could, paving the way for further jury service. In this way he for many year.« kept from the almshouse by the sums he earned from sitting on the jury. In justice courts the jurors all are talesmen brought by the constable out of the street, oj: taken from loungers in the court. In some states the laws require that they be paid by him who asks a jury. The sum required for this is placed in court before jurors are required to sit. "When this is done the officer ofttimes exacts a promise that they will find for him whose money pays the fees, and justice jurors in the larger cities are often of such timber that any constable can bend them to his pur- pose. The party paying for the jury rarely fails to get the verdict, if one is found. In other states the jury fees in justice courts are taxed as costs, and when the costs are paid the fees are given to the jurors, and if not paid the jurors get no fees. Where laws like these 92 FRAILTIES OF THE JURY prevail, the jury often ascertains which party can be made to pay the fees, then beat him in the suit to get their pay. The writer knew a case in such a court where quite unmindful of their fees a jury found their verdict against the party who had no means. AVhen they brought their verdict into court the venal justice chidingly exclaimed, "See what you've done. How can we ever get our fees ? ' ' Such is the mart in which all forms of legal justice is so cheaply bought and sold. There doubtless are exceptions and sometimes honest juries are obtained of talesmen, even in justice courts, and jurors sometimes cast aside their own advantage and stoutly stand for right and duty. But so uncertain is the hope that they will keep this path that few have faith in such a verdict as representing law or jus- tice. Jurors are rarely summoned in large cities to sit in justice courts, unless the party knows his case is bad and thinks it worth the cost of paying for a jury to make the other side appeal. Jurors should be composed of men whose Avorth so far transcends the little sum that comes from jury service that such considerations can cause no bias in their minds. The law that FRAILTIES OF THE JURY 93 places squalor in the box and bribes the empty handed jurors to find a verdict of a certain kind that they may get their pay, reaches the highest point of folly, and is in keeping with all the other features of this stupid system. CHAPTER XI. Aggregated. Herein have I considered many jurors, set dawn some faults that brand them as unfit, and tried to show the weakness of the many links which form the chain. Now let us test the chain itself and see if it is stronger than these several links. Some may contend that taken as a whole the jury has the strength of all its parts and that the verdict which they jointly find will represent the added strength of each; that all the character, skill, intelligence and wide-expe- rience possessed by each will be combined into a compound equal to the sum of all the several parts. This notion may possess a fair outside, but being inward searched with close analysis will prove unsound. Such graces of the mind can not be added. Each soul stands by itself. Its virtues can not be transferred by simple mathematics. 'Tis said some statisticians wish- ed to cross a stream and finding out its depth at either side and in its middle from one who knew it well, they ascertained the average was FRAILTIES OF THE JUBY 95 below their stature and thus concluded they could ford the stream. They attempted it and they were drowned. Their figures were correct but not in application to the stream. It had no average depth but was to them as deep as in its deepest part. No quantity of knaves can make an honest man, no sum of fools a sage in wisdom. In counsel it is said that there is safety. The truth of this depends upon the qualities of those who thus consult. If they are rogues who plot for fraud or crime there is no safety for their victims. If they are imbe- ciles the combination of all their follies will have no attributes of wisdom. 'Tis true the jury may consult together and each impart some knowl- edge to the others, and thus the sum of all be made the greater. Here all addition ceases, for in the end each juror should the verdict base on his own judgment. This verdict, therefore, can not rise, when all tides are in flow, above the stature of the highest juror. This is the loftiest mark that ever is attained and never is this reached on any controverted question un- less the weaker minds and wills of the others are made subservient to the best man on the jury. Most verdicts fall below. The wise and fair, in small proportion to the other 96 FRAILTIES OF THE JURY jurors, must yield to ignorance and brutal bias or else no verdict is secured. This some- times is a mere surrender, delivering arms and baggage to the opposition and making no conditions, but usually it is a treaty which compromises for a part of that which conscience claimed as due. The plaintiff, not entitled to recover, receives the major portion of his spurious claim; the one whose cause is just receives a fraction only of his due. This counterfeit of justice comes as the final product of a bitter wrangle where many speak at once and more than once, using coarse epithets and vulgar threats, charging corruption, bias, and the worst of motives. Factions are formed among the jurors, led by the hottest-headed on each side. These shout and swear and threaten and berate, and with a view of final compromise each fac- tion makes the most prepasterous claims. This conflict is protracted until a stage of weariness is reached where memory is almost a blank. Then by ignoring law and evidence and all opinions they have formed therefrom the jurors sign a compromise which all agree to call a ver- dict. Thus in the end brute force becomes the victor as in the days when suitors tried their suits by battle. Each champion beat the other FRAILTIES OF TEE JURY 97 with a stave of wood and he who first succumbed was then adjudged as in the wrong. In jury trials as they are conducted, the suitors now appear by substitutes. No loager staves of wood decide the contest, but words quite as offensive strike the ears, break down the stubborn wills and make the weaker yield. Thus one bold juror, made noisy by the bribe that hired him to decide the question wrong, may force the honest members of the jury to come to his position or prevent a verdict, and defeat the object of the trial. Most bribes are given by defendants, who putting forward sham defenses are pleased to block the wheels of jus- tice and by delay at last defeat the honest claim. Thus in the strength to find an honest verdict the aggregated lengths of this judicial chain are no whit stronger than its weakest link. The author never sat upon a jury and hence his facts are hearsay, when applied to tell the secret workings of this body. The emanations from a secret chamber may give sure hints of what takes place within. Foul odors fly not out from flower beds where only roses bud and bloom. Vile epithets with coarse and boister- ous clamors rerely salute the ears from happy homes. The exhalations from a jury room so 98 FRAILTIES OF THE JURY far as one can hear who stands outside are not assuring of delibei-ation, and cause less hope for justice than distrust. For many years the author has attempted to ascertain from jurors when discharged the leading reasons for their verdict, both in his cases won and eases lost.. He thus has had more than a hundred answers, and of the many can not now recall a single one that ought to be a reason, or did not violate the court's instructions. Here are a few that well may serve as samples for the others. In a suit brought by a widow for her husband's death, caused by a street ear striking him, she was defeated, and the reason given was that she had collected much insurance which she had placed upon his life and therefore had sustained no loss. Another case brought for an injury to the head resulting in paresis: the claimant met defeat and this is the reason as stated by a juror: another person whom the juror knew once had a harder blow upon the head and did not have paresis. In many suits brought by de- positors of a bankrupt bank against defendants who had once been partners in the bank and had retired, the question was whethei* the plaintiffs knew these partners had left the bank when making their deposits, or had they actual notice FRAILTIES OF THE JURY 99 that the change was made? The plaintiffs had executed many checks bearing the new firm name, deposited on blanks with its recital, and had deposits entered in a book containing it in large black letters, yet in nine cases out of ten defendants were defeated and the reasons given were in most cases these : Some said they thought defendants had a bond to keep them free from loss ; and others, that they should have taken one when they retired. A few spoke of the plaintiffs' poverty and of defendants' riches, and the sum defendants made in selling out. A lawyer claimed $2,000.00 for a fee. The issue was the amount. I saw a statement of the ballots" taken. One juror fixed the sum at $50 and one $2,000; some said $500. Some put the sum at less and others more, and after nineteen ballots had been taken nine hundred dollars was the sum agreed. The one who voted fifty dollars gave me the facts and said he still believed the sum he fixed sufficient, yet signed the verdict to save expenses of another trial. Often the jury add the sums suggested by the several jurors and then divide the amount by twelve and take the quotient as their ver- dict. Thus do they mix their several judgments 100 FRAILTIES OF THE JURY ill a kettle and stirring it, dip out a one-twelfth part and call it justice. If every juror gave a written reason for that strange compound which is called a verdict, and wrote that reason without aid the general pub- lic would be so disgusted that they would rise against the jury system. But all sit silent while the case is tried. ]\Iany have high-browed heads and look quite wise, and what is done when making up their verdict is veiled in mists of secrecy, and, thus disguised, their ignorance is hid, and when at last they come before the court and solemnly de- clare a certain verdict to be their well-consid- ered, combined judgment the public by their fair appearance are hoodwinked and induced to trust the jury system. If they could only see behind the veil that hides the ugly features of this false prophet who claims to have transcend- ent beauty, the cheat would be discovered and his duped admirers would put him out of busi- ness. The thought that fortunes, liberty and life are held by such a tenure that all may lose them at the whim of such as may compose a jury should stir us into action and demand a system more in accord with reason. CHAPTER XII. Effects. The frailties herein pointed out have much effect upon the suitors, lawyers and the public. The preacher writes his sermons for his flock; a journal's readers guide the writer's pen; buy- ers select the merchant's stock, and those who lined the avenue have caused the gay parade. In this way does the jury shape the lawyer's course; he crooks his knees and twists to win their favor, he strives to take advantage of their faults that he may win a verdict for his client. If he appeals to motives that are base, he deems the jury governed by such motives, thus indirectly is the bar debased. All methods urged for better ethics at the bar will fall far short, while juries are composed of men whose minds are swayed by vicious pleas. Judges may preach and writers write and both may paint upon the heavens the lustrous image of eternal truth and beg all lawyers to bow down before it. While there abides a law that fills the jury box with baby minds, with whom a lie 101 'i\)2 FR/i/i/iHf^^ OF THE JURY iS i-oU-nt a^ :the -t^iith, their labors Avill have l)Oor success. Some hiwyers still will falsify the facts, make pleas of lying fabrics and bring forth to touch the juror's sympathetic nerves, a mass of matter not in evidence. Suitors anx- ious for success will seek such lawyers for their 'advocates and let the truthful starve. The fickle public praising him who wins will wink and smile approvingly. Not till the jury box is purged of minds untrained and subject to such pleas, will there be hope to purify the bar. Now take the loss the suitors suffer because of frailty in the jury box. A jury trial is a game of chance where he who wins must often lose by winning, verdicts obtained are set aside because against the evidence, and thus the case is often tried again, until the substance of the final judgment is wasted in the costs of many trials. Ofttimes the case goes to a higher court and, there reversed, comes back, is tried again before another jury, again appealed, reversed and tried again, and thus the shuttle goes from court to court and then returns and makes another trip, weaving a shroud of loss for every party to the suit. Ten years are often spent before a suit reaches a final judgment, when two had been sufficient if the jury who tried it first FRAILTIES OF THE JURY 103 had all been fit. And when the final verdict has been rendered, it rarely has a just appear- ance, the product is a compromise which gives the suitor but a part of what he justly claims as due, or gives him judgment for a claim that's false. The courts grow weary of the many trials, despair of justice, and in the end allow the verdict most unjust of all to stand. The suitor for the honest claim then counts the sum of trouble he has had, the years of anxious care and large expense, and chides himself that he did not consent to being robbed without the jury's aid. Nor is this all: the suitor winning on a spurious claim gives hope to many knaves of like success and suits are brought by thou- sands who possess no rights to found them on and sham defences frequently are plead, and thus defendants are oppressed with unjust suits and plaintiffs have their honest claims delayed, because of hope that a jury will go wrong; upon the other hand, a multitude of honest claims are never sued, claimants preferring to lose the whole, rather than go to great ex- pense and lose the greater part. Such are the loss, expense, distrust and disappoint- ments brought to suitors in civil suits by jury faults. But these are small when matched 104 FRAILTIES OF THE JURY against the loss tliat follows prosecutions bronglit for crime. If the case is one of general notoriety, the getting of a jury is a task prodigious, weeks and often months drag on in weary pace, while judge and lawyers strive to get a jury in tlio box; thousands are sum- moned from their tasks of toil, brought to the court and thei'e examined and if perchance some ]-umor tlying on uncertain wing has reached their ears and lodged, 'tis feared their simple, untrained minds have thus been biased and hence they are excused and thousands more are summoned. This slow proceeding wastes the public funds, depletes the means of those ac- cused and causes losses to the many men thus summoned to the court, and when the jury is procured by all this mighty labor, it is so weak and frail it may convict the innocent on mere suspicion or be cajoled by advocates to let the guilty go. The public pays enormous bills for costs made necessary by such trials, when all the points in issue could be better tried with slight expense, if done without a jury, or the law had planned a jury of men well trained for jury service. The public and the private loss might be endured without complaint and all its victims well might smile if by the sacrifice FRAILTIES OF THE JURY 105 the precious boon of justice were procured. Such, alas, is not the case — the jurors chosen are so unfit to do the work intrusted in their hands that all the burdens laid on them, on suitors and the public are worse than wasted because their verdicts are but cloaks which hide oppres- sion in the guise of justice. So court expenses have become prodigious and yet wax greater every passing year, and like a cancer at the nation's vitals, gnaw deep and wide, threaten- ing a speedy ruin. Murder keeps up its car- nival of bloody riots; thieves of all kinds now ply their wicked trades; and every kind of crime thrives unmolested; while courts groan on their slowly moving wheels, years behind the criminal procession. The tools of burglars have been much improved and implements of crime reached high perfection, and yet the mode of trying criminal cases has made no progress since the Pilgrims landed. The system first devised to fit the wants of feudal Engliand when laws were few and population scarce and men's chief fear the encroachments of the Crown, we still have with us as it stood when much of Britain was a wilderness. Genius has filled the world since then with countless gifts to bless man- kind. Invention's wand has touched the seas; 106 FRAILTIES OF THE JURY wiiorc once frail sail boats loitered on their tedi- ous way, wooing uncertain gales to give them speed, now many mighty steamships swiftly plow the main, carrying the ocean commerce of the world. "Where once the sluggish oxen drew the creaking wain along a rocky road and by the urging of the driver's whip might cross one township in a drowsy day and carry a little load to town, now flying trains inspired by fhinie and steam and drawn by limbs of steel can make a thousand miles from sun to sun and carry an army's rations in each car. Where few could read and less could write and those whose minds were most advanced had scarce a dozen books that did not treat of war or lust or superstition in some form, the printing press now fills the land with countless books contain- ing lore of every age, science, art and every branch of learning; and magazines and pam- phlets everywhere make frequent visits into every home, and people of the common sort when they awake at dawn now find upon the threshold of their homes the doings of the world the day before, brought by the lightning from the dis- tant lands. Where once the simple hunter trad- ed skins, his prowess gathered from the woods, for food the farmer gathered from his farm, FRAILTIES OF THE JURY 107 and trade beyond the neighborhood was quite unknown, now merchants stretch their arms to every quarter of the globe and all the product^ of earth's various climes we now command and buy and sell. Science has moved in mighty strides and lifted superstition's fogs and every- where the minds of men have broken bars that hid the light. We proudly boast of progress in all the arts and vaunt ourselves as first in skill and learning and all the great achievements which the enlightened mind admires, and yet we blush to own that in our courts we still re- tain and practice unimproved the worn-out, anti- quated modes of trial which once were useful to a barbarous people, but long ago were obso- lete for us and now a serious hindrance to our progress. CHAPTER XIII. General Faults. Selection. Tlio eoniinon method of selection is the blind- fold drawinir. The law provides some officer to make a list. This list contains the names of voters, made up from those who voted at the last election. These are selected by the officer to suit his wishes, oxclndinj? those by law dis- qualified, and those who have a legal right to claim exemption. The names so taken are put on separate slips, placed in a box and then another officer, with bandaged eyes, draws from this box the names sufficient to make up a panel. Those drawn are summoned to the court, sworn and examined. If they prove residents of the county, are qualified as voters, can read and write and have the sense of sight and hearing and are be- low a certain age they are accepted on the panel. Lawyers and doctors, clergymen and druggists, teachers and editors, and many public officers have legal right to be excused. Men whose en- gagements are important are usually let go and 108 FRAILTIES OF THE JURY 109 only those remain who can plead no excuse in law. When any case is called for trial the names thus on the panel are put on other slip's and mixed together and the clerk draws from these haphazard until the jury box is filled. This is the usual method of selection. It varies some- what in the different states but is essentiall}^ the same in every court Avhere jurors are em- ployed. The object is to get a jury drawn from the body of the county who are its citizens. When in the box the jury are examined by the lawyers who represent each party to ascertain if they have any bias. If found related to either party or interested in the cause on trial, or they have formed opinions that are unqualified, about the merits of the suit, they may be chal- lenged as unfit. Most states provide for chal- lenges by either party, for which no reason need be given. These are called "peremptory" and the number fixed by law according to the nature of the case. The place of every juryman ex- cused is by another filled until the jurors on the panel have all been called, then talesmen may be summoned to fill the box. Such are the usual methods used to get a jury. The part blind chance plays in the game is no FRAILTIES OF THE JURY most important. On this alone all must rely. Once men were slaves of superstition. Then nii X J.i^'^J\. 6268 Frailties of T,4T64fr -J-.hf^. ji^T-^r PN 6268 L4'.V64fr L 009 618 800 8 UC SOUTHERN REGIONAL LIBRARY FACILI" AA 001 232 190