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 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 
 reniainin<r nuide the panel. Instead of this, in 
 many states statutes have changed the Common 
 Law and names are placed on slips and from a 
 box containin<j: many such an officer of court — 
 often the clerk — with bandaged eyes draws out 
 these slips until he fills the panel with the num- 
 ber fixed by law. This varies in the different 
 states, but usually is twenty-four. Then when 
 a case is called, to get a jury for the trial the 
 names of these are placed in some receptacle, 
 from which the clerk or other officer should draw 
 at random, one by one, until twelve are drawn. 
 These make the trial jury. And to be qualified 
 all must reside in that same county where the 
 court is sitting, and there be legal voters; they 
 should not be affined by blood or marriage Avith 
 either party, nor older than a certain age; they 
 should have power to read and write, and have 
 no information on the case that causes an un- 
 qualified opinion. Each is examined and maj^ be 
 challenged if unqualified, and so excused. In 
 lieu of those thus challenged others may be 
 drawn until the panel is exhausted, and then the 
 sheriff may summon persons standing by to act
 
 FRAILTIES OF TEE JURY 9 
 
 as jurors. These are known as talesmen, and 
 may be challenged like the others. Most states 
 allow of challenges np to a certain number, for 
 which no cause is shown. When all the chal- 
 lenges are made, the jury thus impaneled, com- 
 posed of twelve, are sworn to try the case on evi- 
 dence adduced in court and thereon render a 
 true verdict according to the law. 
 
 Go to a common court room and see the trial 
 of a case. At one end behind an ornamented 
 desk filling a large ui^holstered chair you see a 
 careworn, dignified-appearing man. This is the 
 judge, the place he occupies, the bench. In front 
 of this is built a fence behind which stand or sit 
 some anxious-looking men, who show some evi- 
 dence of culture. These represent the bar. Near 
 them a common table stands, on which are books 
 and papers, pens and ink, while seated near are 
 suitors whom they call their clients. Some- 
 where about the bench, ofttimes in front, but 
 oftener at the right, we see another desk, behind 
 which sits an unassuming man. This is the clerk 
 who keeps the files and waits upon the judge; 
 and near him stands a potentate Avhose majesty 
 sometimes obscures the glory of the bench; this 
 is the bailiff, who speaks short-winded, chopping 
 off his words, while he commands good order in
 
 10 FJi'AlLTIElS OF THE JURY 
 
 tlie court. On one side of the room are placed 
 two tiers of straight-backed chairs. On these we 
 see a dozen men of various types and dressed in 
 different fashions. In cities they may be of dif- 
 ferent colors and of many nations, some old, 
 some young, some large, some small, most looking 
 weary and demure, twisting and squirming in 
 uneasy seats. These are the jury, and the plat- 
 form where they sit is called the jury-box. This 
 usually is at the judge's left. Between the bench 
 and where they sit is placed a chair or stool on 
 which the witness sits in giving evidence. This 
 is the witness-stand. A few old chairs or benches 
 sit about the room, on which are suitors, wit- 
 nesses and lookers-on. Somewhere upon the wall 
 an old clock swings to and fro its pendulum and 
 drowsily ticks out the time, and in discordant 
 tones strikes out the hours. Anxious care is 
 seen in every face ; the air is filled with feverish 
 unrest. This is the stage where human justice 
 holds the scales to measure out the dues of men. 
 Now note the play that here takes place: The 
 hour arrives at which the court should sit; the 
 judge appears, the people all rise up, the bailiff 
 proclaims the court in session, a case is called 
 for trial, and one by one the jurors called into 
 the box and sworn to answer questions, all chal-
 
 FRAILTIES OF THE JURY 11 
 
 lenges are made, the jury sworn to try the ease; 
 the lawyers state each party's claim, the wit- 
 nesses then testify. The judge has good facility 
 for taking notes to aid his memory of the evi- 
 dence. None is provided for the jury. The 
 law^^ers often speak, so does the judge, who in- 
 terrupts with many questions. The jurors are 
 embalmed in silence where they sit like oysters 
 when the tide is out, save as they shift about to 
 ease their bodies on the hard, wood chairs. The 
 judge has been selected for his learning; the 
 jury for their lack of it. He passes on all ques- 
 tions of the law, applies the knowledge that he 
 has and seeks for more. The jury pass on ques- 
 tions as to facts, but can not use the knowledge 
 they possess. Had it been known that they had 
 such knowledge they had not then been chosen. 
 The nearer their minds approach a blank on 
 questions they must try the better are they qual- 
 ified. Thus knowledge qualifies the judge, and 
 ignorance the jury. Some jurors never saw a 
 court before ; most are bewildered by the strange 
 proceeding and frightened by the pomp and cere- 
 mony. They have been captured by the law, 
 taken from their various vocations and brought 
 to court against their will. Beside the gray- 
 beard sits the callow youth, the painter and the
 
 12 Fh'AlLTlES OF THE JURY 
 
 peddler, side by side, book-maker and book-seller 
 near eaeh other, the elerks of banks and carriers 
 of the hod, teamsters and barbers, laborers of 
 the common sort, all confused by stage fright at 
 the part they are made to play. 
 
 "When all the evidence is in the lawyers on 
 each side address the jury and in most flattering 
 terms dwell on their honesty and intellect. This 
 often is the only point on which the learned law- 
 yers can agree. Each ornaments with virtuous 
 wreaths his client and his witnesses, and paints 
 in darkest hues the vileness of the other side. 
 Each clamoring wildly for a verdict fills the air 
 with lusty shouts for justice. When all have 
 made their arguments the judge instructs the 
 jury. Sometimes the jury stand while thus in- 
 structed, straining their ears and minds to un- 
 derstand the words. These instructions are in 
 legal language, containing points ofttimes so 
 fine that lawyers scarcely comprehend and the 
 learned judges in the highest courts may not 
 agree upon their meaning. But these instruc- 
 tions are the jury's guide, and must be under- 
 stood to be effective. They oft contain a score or 
 more of legal propositions split in pieces and 
 couched in tangled phrase, ingeniously contrived 
 to give a false impression. The jury thus in-
 
 FRAILTIES OF THE JURY 13 
 
 structed are then locked in a room, the key kept 
 by a bailiff. The room is but poorly furnished, 
 small, and badly aired, where, huddled in a 
 group, sometimes for several days, they spend 
 the long and dreary nights, without a chance to 
 sleep, denied the comforts of the felon in his 
 cell. This is done to force agreement to a ver- 
 dict, and not until the judge is satisfied they 
 never will agree are they discharged. If they 
 agree, they sign a verdict, return it into court 
 and are released. The judge may render judg- 
 ment on this verdict or contrary to it, or he can 
 wipe it out and hear the case again. The suit 
 may be appealed, and on appeal the higher court 
 may disregard this verdict and give a judgment 
 to the other side or may remand the case back 
 to the lower court where it is tried again. Some 
 states make jurors judges of the law in certain 
 cases. Then lawyers read their law books to the 
 jury, who suffer much in hearing what they can 
 not understand. While juries' verdicts some- 
 times are set aside they usually are not. Judges 
 prefer to throw on them the burden of decision 
 where they can, and law requires them so to 
 do where evidence is conflicting. Therefore, this 
 verdict in many cases is most important and 
 stands for weal or woe. They weigh the evi-
 
 14 FRAILTIES OF THE JURY 
 
 dence and measure out the sura allowed and on 
 slight proof may sweep away the savings of a 
 life of toil, or send us to a prison, or the gallows. 
 Thus are our dearest rights placed in their 
 hands. The question of their fitness is a serious 
 one. Have they the skill to do the Avork pre- 
 scribed, and if not, wherein they lack, are ques- 
 tions that I raise herein.
 
 CHAPTER II. 
 
 Honesty. 
 
 The juror should be honest. No base, un- 
 worthy motive should enter in his verdict. "When 
 suits involve large sums the jury may be 
 tempted, and, when not firmly rooted in the path 
 of honor, may yield; and thus the cause be won 
 by him who has the largest purse. No legis- 
 lator yet has found the way to make dishonest 
 jurors honest. Statutes may bristle thick with 
 penal threats as porcupines with quills, and yet 
 the purchase of a verdict be an easy trade when 
 knaves are on the jury. Its members may be 
 herded as if they had a pestilence, or guarded 
 like the prisoners of the state, and yet the expert 
 rascal with the lusty bribe finds secret passage 
 to the outstretched hand. Conscience alone can 
 surely guard the door, and drive away the 
 tempter, and he who has it firmly set needs no 
 protection, but he who has it not may fall though 
 all the nation's force hedge him about. Are all 
 the jurors likely to possess this conscience ? Are 
 honest men as plentiful as fish that one can seine 
 
 15
 
 16 FRAILTIES OF THE JURY 
 
 a dozen when he wishes? Are legal voters of 
 such honest fibre that from a box containing all 
 their names a clerk blind-folded can draw out 
 as many as he wants and never get a scoundrel ? 
 Some legal voters Avait around the polls from 
 dawn till dark looking for buyers for their votes, 
 with nothing else to sell than these, and sell to 
 both sides if they can. Some pay no debts they 
 can avoid and keep no vows which they can 
 break, and vaunt dishonor as an astute virtue. 
 Some claim all persons have a price, and he who 
 gets it not is slow; some reverence much a fin- 
 ished rascal, regarding crimes well done as noble 
 acts. Will not the names of these be taken from 
 the box ? Where are the merchants selling dam- 
 aged goods, puffing their sales in scarehead ads 
 and offering goods below their cost? Where 
 those who swindle drunkards in making change, 
 those who sell tickets to the crowd and treat 
 two-dollar bills as dollars and with bland, 
 smiling faces claim it a mistake? Where are 
 the apple vendors who pack the fine fruit in the 
 barrel's ends and put the blasted wind-falls in 
 the middle? And where the dealers who sell 
 wood and place the knots together, face to face, 
 and thus unduly swell the pile? Where are the 
 men who sell us spurious gems, adding an oath
 
 FRAILTIES OF THE JURY 17 
 
 that each is genuine? Where are the makers of 
 bogus butter, of wine that never knew a grape? 
 Where are the builders who will cover up de- 
 cayed and shattered stuff with lath and plaster 
 and sell the whole, declaring it without a flaw? 
 Where are those who bribe conductors to get 
 free passage on the railroad trains and those who 
 hide and skulk and lie to beat their way ? Where 
 the conductors that "knock down" fares? 
 Where are the mining stock promoters? Where 
 are the slick wooers who win a widow to pilfer 
 her estate or steal the heart of some confiding 
 girl to get her fortune ? Where is that numerous 
 army of the vile, gamblers who cheat at cards, 
 book-makers who fix the races, pickpockets, shell- 
 game sharks, thugs, hold-up men and thieves of 
 every kind? To classify them is an endless 
 task. Are not these rascals still at large, their 
 names upon the roll of voters? How can the 
 blinded minion of the law avoid their names 
 when drawing from the box? Will heaven send 
 a loving angel down to guide the hand of him 
 who blinds his eyes ? ' ' The gods help those who 
 help themselves" 'tis said, and he who blindly 
 trusts to luck, who well might see, can have no 
 claims on heaven. The clerk who has fair luck 
 will get a just proportion of the vice and fraud
 
 18 FRAILTIES OF THE JURY 
 
 held by the box from which he draws. All 
 lawyers trained in jury suits know every jury 
 has such membership in some degree. As types 
 that I have often seen I offer these : 
 Phil. Floater. 
 
 He was a waif of fickle fortune and poor in 
 everything that man may have. His form was 
 lean, loose-jointed, and of bloodless hue, his face 
 of sneakish and frightened aspect. From youth 
 he had been poorly nourished, he ate what he 
 could get, and when, and where it could be got 
 by him, he took the scraps of what was left, 
 after the strong had taken what they wished. 
 Whatever was exposed to theft he took if he 
 could get it without peril. He was the youngest 
 of many children, all reared to forage where 
 they could, picking or pilfering other peoples' 
 crumbs. Phil followed in his father's foot-steps 
 and by an early union had a brood of children 
 who found their education in the street. He 
 hung around saloons, fed on free lunches, looked 
 for a chance to beg a dime; meanwhile his wife 
 did washing to keep away starvation from the 
 home. He formed acquaintance with small poli- 
 ticians, shadowed their foot-steps and stayed 
 about the places where they met. This way he 
 found employment in odd jobs in politics. Here
 
 PRAILTIES OF THE JURY 19 
 
 he was placed where he could do a kind of dirty 
 work. They so manipulated jury-drawing that 
 they might place him on the jury. This was his 
 harvest field: he many times procured small 
 sums to hang the jury or cause a compromise. 
 Such as he are often found among the riff-raff 
 of the larger cities, and in some smaller ones. 
 They are the settlings of our social system, who 
 find support in petty pilfering, and any kind of 
 service, good or bad, which they can get to do. 
 That such may sit as jurors and pass upon the 
 legal rights of suitors, reflects upon our legis- 
 lators and shows how primitive our jury system. 
 I now give one who started higher but reached 
 as low a level : 
 
 Jim Sport. 
 He sprang from wealthy parents and was early 
 taught the path of honor. Good books were his 
 in plenty and he had the time to read but was 
 too indolent to struggle up the hill of learning. 
 Pleasure held out her arms. He flew to her em- 
 brace. The soft, sweet dalliance on the lower 
 levels he found more suited to his taste than any 
 of the lofty peaks to which stern virtue pointed. 
 Reared on the fruits of others' toil, and reaping 
 where he had not sown, justice to him was but a 
 name, an empty name contrived to conjure, de-
 
 20 FKAILTIES OF THE JURY 
 
 signed to daz^ile fools. Though full the father's 
 purse, when it descended to the sou it soon col- 
 lapsed with emptiness. He thought it was ex- 
 haustless, like an ever-flowing stream fed from 
 unfailing sources, yet found at last 'twas but 
 a lake shut in by narrow limits, kept by the dam 
 his father's patient thrift had raised, and when 
 his unthrift broke the dam away it headlong ran 
 to ruin. 
 
 Gambling, the universal vice that curses every 
 nation on the globe and teaches fools to hope 
 from luck and chance the rich rewards which 
 patient toil must earn, quite early caught his 
 fancy, and it grew apace till in its feverish strife 
 he would not hesitate to stake all that he hoped 
 in life upon the throwing of the dice or turning 
 of a card. Often he stood in breathless frenzy 
 straining his eyes to watch the pace of running 
 horses, yelling himself to hoarseness, and hoping 
 the one on which his bet was placed would fore- 
 most reach the goal. Then cursing his ill-luck 
 he left the scene and supperless long pondered 
 o'er his loss, striving to understand how he had 
 been undone. Thus did he often lose, yet ever 
 hoped to win upon another bet. Sometimes he 
 did. He cared not what the game, the time, the 
 place, or how great the hazard. He ever held the
 
 FRAILTIES OF THE JURY 21 
 
 hope that by some liieky chance, some trick or 
 underhand device that he could succeed and get 
 another's wealth without a just return. "Where 
 he had planned to cheat he oft was cheated, and 
 knaves much shrewder than himself wrought his 
 undoing. Thus did he circle downward, aided 
 by other vices, growing worse each day and 
 poorer, changing his gems for gewgaws, his man- 
 sion for a single room, where, clad in borrowed 
 raiment, he strove to drive away the wolves of 
 want by any kind of baseness. So he became a 
 jury fixer and hawked the remnant of his ragged 
 honor to any who would bid. Sometimes he sat 
 upon the jury, wearing the livery of an honest 
 seeming, appeared to listen to the evidence, as if 
 the duty he assumed weighed heavily upon his 
 conscience, when he was planning or had 
 planned, to spend the bribe his perfidy would 
 gain. He was the finished product of that grow- 
 ing vice that blasts the fairest youths in all our 
 land, fills homes, once happy, with its broken 
 hearts, turns large estates into a stream of waste, 
 which ripples for a time in merry glee but turns 
 to rapids and cataracts and ends at last in 
 swamps of misery. Those who embark upon its 
 swiftly-flowing tide are charmed at first by banks 
 of violets, whose odors mixed with music fill the
 
 22 FRAILTIES OF THE JURY 
 
 air. Softly they glide, but ever downward till 
 at last too near the rapids they find too late 
 their destiny is ruin and despair. The people 
 who surrender to this vice have sealed their doom 
 already, they have set the date for their own 
 overthrow. IManhood and womanhood are placed 
 in pawn to pay for gambler's chips, and at no 
 distant day will be knocked down to line the 
 velvet nest of lust and crime. The victims of 
 this vice should not pollute the courts. Their 
 wrecked and wasted lives may well command 
 our pity and inspire a helping hand, but only 
 men who know the face of justice and have 
 walked that path of toil that leads to honor, who 
 gladly offer for what they get its worth in honest 
 service — only those are fit to sit upon a jury. 
 
 Here is a juror of another kind and yet as 
 bad : 
 
 Walter Whiteslave. 
 
 He was the withered remnant of a man who 
 all his life had been a corporation's slave. In 
 infancy he was its errand boy, and rising slowly 
 in his ma.ster's service advanced from post to 
 post, and when the weight of years began to 
 bend his form, wrinkle his flesh and spray his 
 head with frost, he held a place which many 
 might desire, yet he was always subject to the
 
 FBAILTIE8 OF THE JURY 23 
 
 will of one above, who at a nod could sprawl 
 him helpless, blacklist him on the roll for like 
 employment, and forever shut the door to future 
 earnings in the field where he had spent his life. 
 And so he toiled in fawning attitude and dared 
 not question those who gave him orders. What 
 told to do he did; where sent to go he went; 
 yea, more, he hung upon his master's looks, 
 divined his thoughts and sprang to serve him 
 ere the thought had been expressed in words. 
 From small beginnings the corporation which he 
 served had grown and spread its tentacles till, 
 like the mighty banyan tree, its roots and limbs 
 extended far, the tender shoots of competition 
 stifled, and had no rivals except those thrifty 
 monarchs of its kind. V/ith these it stood and 
 intertwined its limbs and formed a mighty for- 
 est, shutting out the light above and making all 
 a desert in its shade. This corporation was his 
 god, its rules and regulations Holy Writ, its will 
 the voice of law, its friends his friends, its foes 
 his foes, and all alliances which it had formed 
 he counted as his own. As such he sat upon 
 the jury, and there came the poor and weak 
 pleading for justice from such corporations, 
 showing wrongs that cried to heaven for quick 
 redress. Before him at the bar employed by
 
 24 FRAILTIES OF THE JURY 
 
 such defendants he often saw a minion of his 
 master, pride-bloated in its service, speakinp: in 
 tones familiar to his ears. Sometimes his master 
 and the party sued in this way were affinned. 
 A great alliance covering half the globe, offen- 
 sive and defensive, had been formed, and called 
 a pleasant name. In this the master was a mem- 
 ber also, linked with it this party to the suit and 
 they with many others acted in concert, like the 
 several parts of one great orchestra. 
 
 Could this poor wretch, this aged, labor-crip- 
 pled slave, with all these odds against him, 
 knowing that a breath of enmity might blow him 
 in the street to starve, look steadily upon the face 
 of justice and with unwavering hand sign a 
 large verdict against his master's friend? Yet 
 he had sworn to be impartial and his high duty 
 to his state and country and the plaintiff he 
 knew full well, but he, who all his life had crept 
 in meek submission to an iron will, which cared 
 not whom it plundered, could not now stand u}) 
 and show rebellion. 
 
 Laws that expect good service from this 
 shackled slave were born in ignorance and 
 should be changed. These truckling servants 
 should never sit on juries. The jury box should 
 be supplied with free men, who know no master
 
 FRAILTIES OF TEE JURY 25 
 
 but that honest conscience that keeps them 
 ever in the path of duty. 
 
 Look at another picture of a common juror, 
 called 
 
 Thrifty Loeb. 
 
 Floater was weak as water and was a rascal 
 because he could not help it. Sport was the prey 
 of vice and this tore down the fence of virtue and 
 seared his conscience. Whiteslave was but a 
 coward weakling, the product of that system 
 which honors power and lets the worthy starve. 
 Now turn to one whose staple vice was mean- 
 ness, who might have lived an honest and an 
 independent life. He owned a little farm and 
 from its tillage found relief from every pressing 
 want and every day might have become more 
 firm in soul and honor. But he was couched 
 in selfishness as closely as lies the unhatched 
 nestling in the egg, and through its shell he 
 never cared to break. He had no large ambi- 
 tions, undertook no brilliant scheme of crime, 
 but found his full expression in acts so mean 
 that those who saw them felt less anger than 
 disgUvSt. Such small positions as the office that 
 supervises roads, or manages the schools, or 
 waits as constable upon a justice court, excited 
 his ambition. They offered him a chance to
 
 2n FUMLTIES OF THE JURY 
 
 fleece in some dishonest way the scanty fund 
 a township treasury had gathered. In drawing 
 stealings from so thin a source he showed a 
 genius that if linked with greater force might 
 wrll linve made a money magnate of him. But 
 with his timid wing his flight was low, yet in 
 the region where he worked he missed no oppor- 
 tunity for selfish gain and followed every lead 
 which promised it. Often he got upon the jury 
 and there he sought to trade his verdict for a 
 little pelf. His hand was always out, his eyes 
 were open wide, his sleepless vigil ever was to 
 gather gold or favor by his verdict. His ears 
 were deaf to pleas for justice, his heart was cold 
 to others' wrongs, and that important organ of 
 the brain which we call conscience was but a 
 wasted membrane so steeped in soporific selfish- 
 ness that none could ever wake it. 
 
 How to exclude such scoundrels from the jury 
 should be discovered by the legislature. The task 
 is not prodigious. Men of well-proved worth 
 who in the public eye have shown their fitness 
 for exalted tru.st are not so scarce that we must 
 fill our Courts with such vile trash.
 
 CHAPTER III. 
 
 Attention. 
 
 A jury box is not a place for sleep, but many- 
 try it and succeed quite well; others sit half 
 asleep, in mental aberration. Some claim that 
 things told them in slumber are afterwards re- 
 called unconsciously in making up their judg- 
 ment. This I do not quite believe. The camera 
 takes no photograph without a plate made sen- 
 sitive. This registers the image. And so the 
 human mind receives no image from objects 
 offered to the eye or ear unless attention is se- 
 cured. Some conscious notice must be taken or 
 the event, like all the myriads everywhere oc- 
 curring, will pass without effect and leave no 
 record in the mind. Some acts compel this no- 
 tice by their force. A blow, a lightning flash, a 
 shout or scream, may draw attention even against 
 the will; but most events depend upon desire 
 to furnish them attention and this soon wearies 
 and is lost, and no record of events is made un- 
 til attention is again secured. The jury must 
 desire to hear the evidence if they remember it. 
 27
 
 28 FRAILTIES OF THE JURY 
 
 They must give close attention to every word 
 and boar a mental strain from first to last. Can 
 men untrained at listening do this task? Will 
 they be likely to attempt so great a strain ? Men 
 of wide learning and ripe experience are quite 
 exhausted by an hour of listening. A lecture, 
 concert, poem, drama, sermon, story, speech, or 
 song running beyond an hour without a rest is 
 likely to be partly lost on worn-out ears. Lec- 
 tures and sermons mostly are confined to less 
 than sixty minutes. Dramas are divided into 
 acts, each with an interval of rest between. Why 
 then should jurors be required to rivet their 
 attention for several hours without an inter- 
 mission. They do not and can not perform the 
 task. Behold them wriggle in their uneasy seats, 
 cross and uncross their legs, look at the ceiling 
 or out on the street, glance slyly at a paper or 
 the clock. Observe their wandering gaze and 
 note the look of interest come and go as intermit- 
 tently they think of their affairs, then of the 
 case. The rosy face of that young farmer lad now 
 wears a pleasant smile. Has he untied a knotty 
 problem in the case ? Not so ; his mind was with 
 the girls down in the orchard beneath the balmy 
 blossoms and the glowing mogn. 'Tis cruelty 
 to terminate his dream and make him listen to
 
 FRAILTIES OF THE JURY 29 
 
 the evidence. Note on that aged merchant's 
 care-worn face the rising frown. Has he beheld 
 some act or heard some word that causes him to 
 fear a witness has falsely sworn? Not so; he's 
 thinking of his store. His curdled brow is in- 
 dex of the fear he feels that bills maturing 
 while he is on the jury may find no cash to meet 
 them. That city stripling who looks so pleased 
 is planning for a dance to-night or party at the 
 theater. That fat old man now quite asleep is 
 dreaming it is five o'clock and he's at home. 
 Others are not asleep and yet contrive to while 
 away the weary hours in which a witness cons 
 the items of a long account, by numbering o'er 
 the buttons on his coat, the books upon a table, 
 or noting the peculiar beard or garb of some- 
 one looking on. How to attract attention is a 
 puzzle that advertisers ever find before them. 
 Preachers and actors and all who court the pub- 
 lic eye are ever on the rack to solve it. Men 
 will not look or listen long unless they find 
 amusement in so doing or feel compelled to do 
 so by a sense of duty. Great strength must come 
 from training for the purpose for which that 
 strength is used, and power to listen comes from 
 often listening long and well. 'Tis not a bounty
 
 30 FRAILTIES OF THE JURY 
 
 from the hand of Nature, but the reward of 
 patient toil. 
 
 To sliow the laek of skill in this regard I peu 
 
 two sketches: 
 
 Calvin Curiosity. 
 
 He was born with open eyes and came to see 
 the world ; his ears were large and keen to hear ; 
 his fingers long and greatly he enjoyed their 
 use; his mouth was large and filled with ruddy 
 tissues and when he saw a tempting viand it 
 watered with profusion. His health was rugged 
 and he was much alive on every plane. All 
 things of physical or mental nature, or those 
 emotions which pertain to spirit, and every 
 dream and vision that were drawn upon imagin- 
 ation's walls he longed to grasp. All that 
 a man might wish he sought with strong desire, 
 his heart high-beating longed for every throb of 
 pleasure in the world. He stood upon the lofti- 
 est peaks his means could reach; he saw the 
 smallest microbe that his glass could bring to 
 view; he drank all waters and tasted every vint- 
 age that he could procure. Rare beers, import- 
 ed liquors, cordials and mixtures, light and 
 heavj', he eagerly imbibed, not that he wished 
 to drink but only for the knowledge gained 
 thereby. All foods that man had ever eaten,
 
 FRAILTIES OF THE JURY 31 
 
 fowls, animals and insects, worms and beetles, 
 he made familiar, and every fruit, root, vege- 
 table or weed that pleases any appetite he made 
 acquainted with his palate. In his own species, 
 too, he took delight, wanted to meet all men and 
 women, youths and infants, white, black, yellow, 
 red or brown, of every nation, land and tongue. 
 And everything that man has made of art or 
 ornament he wished to view. In this pursuit 
 he would have toured in every land did not his 
 meager purse prevent. In the city where he 
 lived he travelled much ; center and suburbs and 
 all points between he eagerly explored. Once 
 only did he use a path if he could find another; 
 moved frequently from flat to house and house 
 to boarding-place, changed restaurants and of- 
 fices and hardly had he made one friend before 
 he left him for another. The gentle sex of every 
 grade gave him delight; the grave, the gay, the 
 warm, the cold, the stolid, the intense, white, 
 dark, or rosy -tinted, all caused him much amuse- 
 ment for a space. He flitted rapidly from flow- 
 er to flower and opening bud, nor dallied long 
 enough to make a deep impression. He sought 
 for freaks in men and women and curios every- 
 where. Music was his delight, but when a song 
 was learned he dropped it from his mind. The
 
 32 FRAILTIES OF THE JURY 
 
 best performers rarely charmed more than once. 
 And many books he read or scanned. If filled 
 with startling stories or pictures drawn in glit- 
 tering lines, grotesque, or quite uncommon, these 
 he devoured ; if they were merely plain but clear 
 and accurate in line and precept he threw them 
 soon aside, abhorring every form of common- 
 place, lie gave attention to relid^us faiths of 
 his and other lands, and in every creed how- 
 ever strange and difficult he took deep interest 
 until he knew its salient points, then gave it 
 thought no more. The pulpit and the rostrum 
 had for him attraction and yet he seldom heard 
 the same man twice, and if at first the speaker 
 dwelt on common things he left straightway and 
 sought another place. And so it was in all his 
 other quests. He deemed the world a museum 
 to delight his senses, and when his rising wants 
 were satisfied he followed his first impulse which 
 advised a change. This man of eyes and ears 
 and active observations w'as often seen upon a 
 jury. If the witness' tale was new and told 
 with fervor or dramatic power, he followed it 
 awhile ; if commonplace, or dull, or poorly told, 
 his mind recoiled and wandered to more thrill- 
 ing subjects, and thus in general was he the 
 worst of jurors. His lack of patience, evident
 
 FRAILTIES OF THE JURY 33 
 
 to all, caused lawyers miicli distress and parties 
 thought that he was set against them. He only- 
 saw the tops of facts. His view was like the 
 skimming swallow's when flying o'er a city, 
 who sees a maze of roofs and steeples but has 
 no vision of the life within. 
 
 Take an example of another sort: 
 Robert Recluse 
 was of a different mould. He, too, had eyes, 
 but they were rarely used except upon familiar 
 things. The common sounds which he had 
 often heard gave him the most delight. He sel- 
 dom wandered from the beaten path o'er which 
 his feet from infancy had trod. He fastened 
 to the friend v/ho had proved true and never 
 thought of change. The first love of his youth 
 he m^ade his bride and wished to live and die 
 with her, and by her side be buried, hoping 
 that they might share immortal life together. 
 In early manhood he had learned a trade under 
 his father's guidance and this he practiced as 
 his father had. He added no improvements and 
 resisted all proposed. The old was good enough 
 for him. His days were filled with steady toil, 
 each day like every other, and the lack of change 
 caused no discomfort. The few things that he 
 ate and drank were never changed, but in the
 
 34 FRAILTIES OF THE JURY 
 
 accustomed order found his palate ever ready 
 to enjoy. He bad about a dozen common 
 thoughts relating to the soul, the future state 
 and social matters, and these he oft repeated 
 if he were forced to talk by some occasion, but 
 took the most delight in silence and the peace 
 which comes from shutting out the world. He - 
 bent his body to his daily task and there he 
 kept his mind, resisting all attempts to lure it 
 to strange fields and often when invited by 
 words of others he ventured no reply and soon 
 'twas clear he had not listened, but was think- 
 ing of his work. Within the narrow sphere 
 in which his life was fixed he was content to 
 know but little. Outside he had no knowledge. 
 Books to him were blanks, the world with all its 
 wealth of wonders to him was as unknown as 
 were the twinkling orbs which from the shining 
 garments of the night lighted his pathway on 
 ills journey home. He had no civic pride. He 
 sued no one and none sued him. He asked no 
 favor of the government but to be let alone. He 
 felt a great disgust when he was summoned on 
 a jury. He had no interest in the suits, was not 
 familiar with the language used, disliked the 
 conduct of the court, the advocates and suitors 
 and his fellow jurors, sat under protest, and to
 
 FRAILTIES OF TEE JURY 35 
 
 what was said and done gave little heed but got 
 away as quickly as he could. He was au igno- 
 ramus of the common type, and yet in one re- 
 spect was wiser than the men who frame our 
 statutes. He knew he was not suited to the task 
 thus forced on him by law. 
 
 Many like examples might be cited. These 
 are sufficient to show the need of men for jury 
 service trained to listen, not to amuse themselves 
 but as a duty which the law has laid upon them.
 
 CHAPTER IV. 
 
 Perception. 
 
 Attention is the photographic plate. Percep- 
 tion is the image formed thereon. Unless the 
 plate is well prepared the image will be blurred, 
 the words be heard and yet not understood, or 
 the motive mi.ssed which brought them into be- 
 ing. Thus, to perceive requires a skill which 
 only comes to minds well trained for such a 
 task. 
 
 In every suit is often used a language strange 
 to those untutored. The law has ever had a 
 language of its own. Its words are names of 
 battlefields that fly an unfamiliar flag to eyes 
 untrained. To those instructed in the law, these 
 words have meanings accurate, precise and easy 
 for them to understand. 
 
 A barber may po.ssess the greatest skill and 
 mow the stubble from the roughest chin with 
 easy grace, know to a hair just what to cut and 
 what to leave in order that his patron's head 
 may look the best, and he may know the lotion 
 that will coax the straggling fuzz upon the 
 86
 
 FRAILTIES OF THE JURY 37 
 
 glassy surface of the scalp, persuading it to 
 grow like grass in June, may draw his razor 
 with an ease and skill matching the master of 
 the violin who glides caressingly his dancing bow 
 across the singing strings. Ilis comb and clip- 
 pers he may handle well and know the use of 
 every barber's tool ; may rub and shampoo, knead 
 and wipe with such rare skill and gentleness 
 that every frowsy, unwashed customer who 
 passes through his hands may issue forth a 
 perfumed pink of beauty and delight, and yet 
 not understand a fee-tail or a springing use 
 after the judge has told him what they are in 
 legal phrase. 
 
 A farmer may reach the top in tilling soil, 
 may know each baneful bug, malicious microbe 
 and devouring. Avorm, may recognize each pest 
 that blights and mildews growing crops, and 
 know the means to nip them in the Qg^, may 
 knov/ all kinds of cattle, horses, hogs and sheep 
 and fov>d 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<rhty rulers watched the flight of birds, or 
 killed them and searched their entrails and by 
 what they saw or found decided between war 
 and peace. And sages far-famed for learning 
 noted the incoherent words of those insane or 
 drunk and deemed them oracles l)y which the 
 gods revealed their wills to men. 8ucli now 
 seems foolish, but is it any worse than letting 
 chance decide the character of a jury? If 
 chance should be the arbiter in courts then why 
 not throw a die or flip a coin and thus decide 
 the suit without a trial? The just decision of 
 a case according to the law and fact requires an 
 expert knowledge. "Would anyone select a sur- 
 geon thus, a lawyer or a judge, by drawing 
 blindfold from a box such names as chance 
 might give from the legal voters? Would any 
 sane man hire an agent thus for even common 
 work? This method is so strikingly absurd that 
 dwelling on it further seems a waste of time. 
 It may be said the reason why this grab-bag 
 game is played is to secure a- fair, impartial 
 drawing, that such our lack of faith in public 
 officers we rather trust to luck than to their 
 judgment. This belief is quite as foolish as
 
 FRAILTIES OF THE JURY 111 
 
 the system. There is no game of chance where 
 cunning may not intervene to stack the cards 
 or load the dice, or in some other way contrive 
 to cheat those who rely on fickle fortune. But 
 none is quite so easy as this one. It needs no 
 expert skill to so arrange the names and draw 
 the panel as to pack the jury. The officer who 
 does the drawing is rarely closely watched. If 
 he be plastic to designing bribers he has no trou- 
 ble to get a jury suited to their desires. He 
 who is so simple-minded that he will pin his 
 faith for honest jurors on such a method of selec- 
 tion lacks knov/ledge of the ways of rascals. 
 
 The law should fix the qualities that fit for 
 jury service. These should include, such edu- 
 cation, skill and training and well-known char- 
 acter for honor as will be needed to discharge 
 the task imposed. Men thus qualified might be 
 selected by other men appointed by the courts of 
 last resort as a commission for that purpose 
 and thus a list made up from which to draw 
 the panel. When this list was made and furn- 
 ished to the court, the judge might draw his 
 panel, selecting from the list the best names 
 he could find thereon, according to the knowl- 
 edge which he has or information that he can 
 obtain, striving at all times to procure those
 
 U-2 FRAILTIES OF THE JURY 
 
 best adapted to the service, aud freest from 
 suspicion. If jurors were selected thus they 
 would be fitted when first required to sit and 
 by experience would improve. Then would the 
 right arm of the court be worthy of its place and 
 not be paralyzed as now by unfit men. The 
 judges who had power to so select would have 
 a pride in their selection, getting the best men 
 they could find. 
 
 The method here proposed may not be per- 
 fect and doubtless many better may be found, 
 but the present system is so bad that almost 
 any change would better it, and surely one is 
 sorely needed. This weak spot in our judicial 
 fabric grows weaker every day. In former years 
 cases were few, amounts in question small, aud 
 few the efforts to corrupt the jury. Great 
 changes are occurring in the sum and charac- 
 ter of the causes. Vast fortunes now are pass- 
 ing through the courts and changing hands in 
 lawsuits and much larger sums depend upon the 
 verdicts. With this increase has come increased 
 temptations and a strong demand for better men 
 to fill the box. Meanwhile the growth of cities 
 and the spread of crime has made the mass to 
 draw from more uncertain. The blindfold 
 method will no more suffice and must give place
 
 FRAILTIES OF THE JURY 113 
 
 to one insuring fitness, or else our courts will 
 soon become the playground of corruption where 
 scheming agents of designing suitors will pack 
 the jury with their minions, ready to sign the 
 verdicts they have written. 
 Unanimity. 
 The verdict must be found by all the jurors. 
 All must agree. This feature is anomalous. 
 The nation's highest court, composed of only 
 nine, decide the fate of millions by a majority 
 of one. This judgment of five men may shatter 
 solemn acts which Congress has declared to be 
 the law. The highest courts in all the states 
 may thus declare their judgment. Congress 
 and legislatures pass their bills and corporate 
 boards manage the millions in their hands. If 
 bills required the vote of all to pass, few laws 
 would be enacted and the business of the nation 
 could easily be blocked by fools or knaves. If 
 mere majorities may pass our laws and mere 
 majorities construe their meaning and set aside 
 the jury's verdict, then in the name of all con- 
 sistency, why should the will of one be able 
 to prevent a verdict by the other jurors? And 
 yet, so blind remain our legislators that they 
 bow down before this jury fetich, decayed and 
 moss-grown with its hoary age, and dare not
 
 114 FRAILTIES OF THE JURY 
 
 make the slightest change. The writer for many 
 years was in the crowd wlio worshiped without 
 reason. Cases requiring many weeks for trial 
 were tried once, twice and thrice, and every 
 time one juror blocked a verdict until from 
 waiting weary years the plaintiffs were exhaust- 
 ed and made a compromise, recovering but a 
 fraction of that they claimed as due, and by the 
 eleven on the jury considered just. Yet so 
 sacred did he deem this idol that he could not 
 consent to change its ugly form or take away 
 one worm that burrowed in its moss. If seven 
 of the twelve could find a verdict jurors would 
 seldom disagree, and much loss occasioned by 
 mistrials would be avoided; few compromises 
 would occur and verdicts might approach to 
 justice. 
 
 The Number. 
 Another feature is the number. Israel had 
 twelve tribes, and Christ had twelve apostles, 
 therefore must we have twelve men on the jury? 
 These are the only reasons I can conjure up. If 
 weight of flesh were useful the number would 
 add power, or if the task could be divided into 
 sections each juror might take a part and num- 
 ber be the means of speed. But neither fact ex- 
 ists. Since every juror must do all the work,
 
 FRAILTIES OF THE JURY 115 
 
 must hear all evidence, remember all, and all 
 consider, and form a judgment on his own ac- 
 count, the number is a brake and not a help. 
 As well it might be fifty or a hundred as just a 
 dozen. The nation's highest court, as I have 
 shown, contains but nine; most state courts 
 of the highest sort but six or seven, and some 
 have only three. From their high perches these 
 great courts decide the weightiest matters and 
 give decisions that are final. Why then should 
 twelve men be required to try a simple case, thus 
 subject to review by courts of one or three or 
 seven. The number some may say secures de- 
 liberation which would not be the case if one 
 man was the jury. This I concede has force. 
 Each controverted question has two sides and 
 two may represent these sides, and lest they 
 might stand one and one against each other 
 and so no verdict be obtained, a third might 
 well be added; thus two of three could find a 
 verdict. I find no basis for a larger number 
 and think that three, except in matters of the 
 highest import might well suffice to form a jury. 
 These should be qualified as I before have urged 
 and then their judgment would be as likely to 
 be right as are the courts of last resort which 
 hear the case from printed abstracts.
 
 CHAPTER XIV. 
 
 Restricted Juries. 
 
 A most important branch of jurisprudence 
 now has no jury. In chancery cases, which in- 
 volve great questions of both law and fact 
 and large sums are at stake, no jury is allowed 
 unless the chancellor thinks that he needs a 
 jury to advise his conscience. This seldom is 
 required, and when he gets a verdict he may dis- 
 regard it. The judge who sits to try these 
 chancery suits, sits also on the law side of the 
 court, where every suitor may demand a jury on 
 every controverted question, and must have one 
 unless he waives it. Thus the same man, whom 
 we trust to try disputes involving millions, if 
 the suit is brought on one side of the court, may 
 not determine the most trifling issue if on the 
 other side without the verdict of twelve men. 
 And these two sides are merely legal fictions. 
 Once they had meaning. The system that we 
 call the common law grew like a tree. Its trunk 
 was rooted in the throne of England, and sent 
 out a branch providing many forms of action, in 
 
 116
 
 FRAILTIES OF THE JUBY 117 
 
 which the king was forced to grant a jury. 
 Finding these forms of action incomplete, 
 judges grafted to the trunk of this great tree 
 another branch providing for another form of 
 suit which they assumed to try without a jury, 
 claiming its nature needed greater wisdom 
 than the jurors would possess. This tree we have 
 transplanted with these branches and here it 
 grows, both branches drawing forces from the 
 self-same roots, and having fruit of like va- 
 riety, are practically the same, but still we 
 keep the fiction that was framed on foreign soil. 
 The same judge sitting on one branch declares 
 himself a court of common law, when on the 
 other branch a court of chancery. Now bring 
 to view the whole and we can plainly see how 
 foolish the distinction. If we can trust a single 
 judge to try one suit, why not another, with no 
 greater sum at issue? And why may not the 
 jury be abolished in common law as well as 
 chancery suits? Most lawyers have a leaning 
 toward the jury, so has the writer, and would 
 retain some form of it in every case where any 
 reason can be found, but we must search in vain 
 to find a reason for its use in civil suits. Where 
 claims are small one judge learned in the law 
 and trained at hearing evidence ought to suffice,
 
 118 FUAILTIE^S OF THE JURY 
 
 and wliero the sum involvoci does not exceed 
 live hundred dollars, to brinji: in other men to 
 aid who have less skill and training seems a 
 waste of time, especially when his jiulynient is 
 reviewed by other judges on appeal. Where the 
 sum in question exceeds this sum and the greater 
 risk might call for other men to share it, two 
 might be added, and two of this three determine 
 the decision. The judge or judges who decide 
 the case should find the facts, and all the evi- 
 dence offered by either party should be admit- 
 ted, except where all who sit find it irrelevant. 
 This evidence and facts so found should con- 
 stitute the record on appeal and there the case 
 should be decided on its merits, and final judg- 
 ment entered. In this way would we have a 
 speedy trial and termination of the case, and 
 escape the game of battledoor and shuttlecock 
 so often played by courts. This would rid us 
 of a mass of questions which now so often cause 
 us trouble relating to the proper functions of the 
 court and jury. The law makes jurors judges 
 of the facts in many cases, and courts are 
 judges of the law. Most cases are so mixed with 
 questions of both law and fact that what is 
 strictly law and what is strictly fact becomes 
 most difficult, for at the last analysis all laws
 
 FRAILTIES OF THE JURY 119 
 
 are facts and facts are often laws. So where 
 the judge's province has its end and Avhere the 
 jury's does begin breeds close distinctions, 
 which depend upon the fineness of the sight of 
 him who views them. The minds of learned 
 courts so often disagree that myriads of cases 
 are reversed and tried again because forsooth the 
 upper court believed the lower court had erred 
 in taking from the jury or in not taking 
 some question as it ought. Great losses are in- 
 curred to suitors by this conflict, which usually 
 is remote, and touches not the substance of the 
 suit, and in the end does nothing but decide 
 who should decide the case, not how decide it. 
 The losses thus sustained are large indeed, but 
 small when set against the enormous waste now 
 caused by bad instructions to the jury, or those 
 which upper courts may hold are bad. About 
 one-third of all the suits appealed return for 
 second trial because of faults in this respect. 
 The jury are supposed to know no law, which 
 probably is true. They are supposed to get a 
 knowledge from the court which probably is 
 not. The fine distinctions made in legal points 
 mean nothing to the jury, and yet the courts 
 must logically presume that they are under- 
 stood, and that instructions faulty in the least
 
 120 FRAILTIES OF THE JURY 
 
 degree may have worked serious harm, and so 
 ten thousand errors have arisen and caused re- 
 verses which really had no bearing on the ver- 
 dict. The train of woes, defeats and disap- 
 pointments springing directly from this source 
 are quite beyond our calculation. Thus often 
 have the claims possessing greatest merit suf- 
 fered delay until the death or loss of witnesses 
 have compassed their defeat; and others have 
 been wasted in protracted trips from court to 
 court. The abolition of the jury in civil suits 
 would bring relief from losses such as these. 
 
 The claim is often made that damage suits 
 necessitate a jury trial. Such damages can not 
 be calculated by any certain standard ; pain, loss 
 ol" health, beauty or reputation rely for com- 
 pensation on opinions, and these may be as nu- 
 merous as the persons who compose the jury. 
 Hence, it is said, twelve average men can give 
 a better estimate than any judge. If that be true, 
 ■Ahy should the judge have power to nullify 
 that estimate and set aside the jury's verdict? 
 My observations lead me to believe the supposi- 
 tion is not true. The average jury has no skill 
 to ju.stly pass on damage claims. Thej'^ can not 
 separate the loss from liability to pay the loss. 
 Bi.rne on a sympathetic tide that carries all
 
 FRAILTIES OF THE JURY 121 
 
 before it they but see the loss sustained and ask 
 not for the fault that caused it. The courts 
 contrive in every way to check this sympathy 
 and go to great extent in nullifying verdicts. 
 If they did not and gave to the jury all the sway 
 the law intends, the stream of wealth required to 
 pay such claims would ruin every public cor- 
 poration and many private parties. An injury 
 so slight that had it happened from an acci- 
 dent on which no suit was brought, it would 
 have scarcely had a moment's thought, becomes 
 of such importance when magnified in court by 
 plaintiff and his witnesses that all the savings 
 of a thrifty life would scarce suffice to pay the 
 verdict. To save themselves from verdicts such 
 as these defendants go great lengths in de- 
 vious ways. They hire most artful counsel to 
 cajole the jury, to coax and flatter them and win 
 attention from the plaintiff's wrongs to their 
 sleek persons. They use the officers of the court 
 to juggle with the panel, thus getting for their 
 cases the hardest hearts and closest purses, 
 whose itching palms may easiest be reached. 
 They line the pockets of the judge with passes 
 or other so-called courtesies designed to make 
 him mellow. They sweeten relatives of the 
 jurors with sly, ambiguous favors, expecting
 
 122 FRAILTIES OF THE JURY 
 
 that the sugar-coated dose will somehow work 
 upon the jury; and when the sum involved will 
 warrant such a risk, they send out under cover 
 of the night agents with bribes to visit homes of 
 jurors. By these and many other underhanded 
 ways, defendants in these damage claims have 
 nullified to great extent the vast advantages 
 which a jury otherwise would give the plain- 
 tiflfs. Here then, as elsewhere, there are natural 
 checks by Avhich one wrong, in part, off-sets 
 another. A jury eager to despoil the rich man's 
 purse and help the claimant, whether right or 
 wrong, begets defendants who for self-defense 
 will use the vilest means to hang the jury, and 
 judges who know the jury's bias are easily in- 
 clined as far one way as jurors are the other. 
 Because of these abuses of the courts by which 
 both judge and jury are disabled from form- 
 ing fair, unbiased judgments, the just claim has 
 no better chance than it would have without a 
 jury. Three well-trained, upright judges, 
 scorning to favor either party, would be far 
 safer for the honest claim than this bad mix- 
 ture of biased judge and jury, and he whose 
 claim was false would be quite certain of defeat. 
 Men trained to judge are not less tender to 
 human suffering than the common mass that are
 
 FRAILTIES OF TEE JURY 123 
 
 untrained, nor are they less inclined to value 
 loss sustained by hurts and slander; and where 
 the facts and law create a right of action, they 
 are more prone to give fair compensation than 
 men of less learning. But they place above 
 their sympathies the duty that the law enjoins, 
 and so allow no spectacle of woe to move them 
 to forsake it. It is therefore my belief that in 
 this class of suits a jury is not needed. There 
 is, however, one consideration which makes me 
 hesitate. Due partly to the jury system, as I 
 before have stated, and partly to a lust for power 
 and gain, great combinations of the corporate 
 type have grasped the government in all its 
 branches. Their tentacles have touched the seat 
 where sits the judge. Their lobbies whisper in 
 his ears the welcome promises of future favor. 
 They bring to bear upon the bench seductive 
 arts, well planned to win weak men, and by 
 their miuions they so pull the wires of politics 
 that weaklings find a pathway to the bench, and 
 sometimes do they place thereon the men who 
 many years have been their servants. Such pow- 
 er they now possess with prospect of increase as 
 years go by, that the procurement of three up- 
 right men to hold the balance fair in cases 
 such as these might prove most difficult; and
 
 124 FRAILTIES OF THE JURY 
 
 now therefore it' there is a reason, which I do 
 not concede, that we should still retain the jury 
 in these cases, it must be as the price of our 
 ilebasemcnt, because we can not trust ourselves 
 to place upon the bench the competent and 
 honest men who should be there. The jury 
 as we have it now is but a weak protection in 
 any case and weaker grows from day to day, be- 
 comes a greater burden, clog, and means to cause 
 delay with every passing year, until a trial has 
 become a long-continued game of chance, bring- 
 ing discredit on our courts and ruin to the 
 righteous suitors. If jurors are retained they 
 should be made of better men to give us much 
 protection, should be reduced in number and 
 a mere majority empowered to find a verdict. 
 The laws should guard with greatest care all 
 steps in their selection. ]\Ien worthy of the 
 highest trust should do the work, having the 
 end in \new of getting on the jury list the names 
 of those most fit for jury service. If those 
 whose waxing riches have placed them at the 
 top in power would use their means to purify 
 the bench and not debase it, there is no doubt 
 a jury would be a useless thing in trying civil 
 cases. 
 
 The claim is sometimes made that lawyers
 
 FRAILTIES OF THE JURY 125 
 
 are too technical and therefore unsafe judges 
 where the facts are close and evidence conflict- 
 ing, and that it is far better to have the laity per- 
 form this work. I see no force in this objection 
 against the bar, but if there is, and men not 
 trained in law should sit in judgment on the 
 facts in issue, then I suggest they sit upon the 
 bench in seats of honor like sovereigns, having 
 equal power and rank with other judges. The 
 jury now are captives, who sit like dummies, 
 subject to the call of him we call the judge. 
 Their function is important and if they are 
 worthy to discharge it they should be treated 
 as we treat the judge. Let there be two of them 
 instead of twelve and with one lawyer elected as 
 the judge make up the court. This trinity could 
 then decide all civil cases, each having privil- 
 eges of taking notes and asking questions and 
 using transcripts of the evidence in forming 
 court opinions and equal voice in making up 
 the judgment. 
 
 In prosecutions brought for crimes where life 
 or liberty is at stake we have a different ques- 
 tion. Money means much to its possessors and 
 more to those who have it not, and yet most 
 people hold it lightly, staking it upon the merest 
 chance or casting it aside for whims and trifles.
 
 12fi FRAILTIES OF THE JURY 
 
 Life is the gift of heaven, and liberty its fair- 
 est, sweetest fruit, without which life seems 
 but an empty cheat, and both are dear beyond 
 compare, and should be treated as priceless boons 
 in every court of justice. No one should forfeit 
 either until the proof is clear and leaves no room 
 to doubt in the minds biased by suspicion, en\y 
 or revenge. If anyone the law has placed in 
 judgment has doubt about the prisoner's guilt, 
 when all the evidence has been heard and been 
 considered, the verdict should acquit. And I go 
 further still in favor of the accused; if circum- 
 stances so surround the act and him who did 
 the deed that mercy may be properly invoked, 
 there is no place in all the land more fit to meas- 
 ure mercy and apply it than this, where all 
 the facts are known, and in no office is it more 
 becoming than at the judgment seat. After 
 the question of a prisoner's guilt it should be 
 asked : Is this a case to punish ? and how 
 much? And everyone who sits in judgment on 
 the bench or in the jury box should vote for 
 punishment as his own free judgment, before 
 conviction is secured. In ordinary accusations 
 incurring but a fine or short jail sentence a 
 trained and upright judge should be sufficient 
 to decide the matter, and fix the punishment.
 
 FRAILTIES OF THE JURY 127 
 
 subject to review upon appeal if one is taken. 
 In accusations which may lead to terms in prison 
 of one year or more, or to the taking of a life, 
 three men should constitute the bench, save in 
 a certain class of crimes where I would 
 add a jury. Treason and government 
 offenses and those which have their root 
 in politics and may be punished by destroying 
 life, should have a jury when the accused re- 
 quests it, who sit free from coercion by the 
 bench, decide in secret, and must agree to cause 
 conviction. The object of this jury is to coun- 
 teract the natural bias so liable to sway judi- 
 cial officers in such a trial and give the victim 
 a better chance to be protected from official 
 power. The number that should form this jury 
 is not an easy question. There is no basis on 
 which to fix it. Twelve seems too many; six 
 ought to be sufficient ; thus doubling the number 
 sitting on the bench, and making nine in all. 
 In order to convict, the nine should all agree 
 beyond a doubt as to the prisoner's guilt, and 
 that he has no claim to mercy. This judgment 
 subject to review upon its merits if defendant 
 wishes to appeal, should give the culprit just 
 protection and save him from the vengeance 
 of his foes.
 
 CHAPTER XV. 
 
 Choosing a Jury. 
 
 At common law the sheriff made a list and 
 parties struck the names therefrom until a panel 
 was secured. These were summoned and no 
 challenges allowed except for cause. Most states 
 have laws allowing challenges peremptory, where 
 no cause is stated. Lawyers then may choose 
 whom they will take and whom reject within the 
 limits thus prescribed. Here is the riddle of 
 the sphinx, that neither men nor stars have 
 means to solve. The fresh-fledged nestling from 
 the schools with untried wing and high, ambi- 
 tious hopes, may feel oppressed with knowledge 
 which drizzles from his overflowing stock, and 
 so have much to say on this. He merely strips 
 his shoulders for the stripes which coming years 
 will bring. In many sad defeats he will unlearn 
 the lore so confidently held. The prudent vet- 
 eran of a thousand battles, whose back is cal- 
 loused with the stings that disappointment gives, 
 when asked for his advice on this will shake his 
 head and change the subject. And I perhaps 
 
 128
 
 FRAILTIES OF THE JURY 129 
 
 might better leave unsaid what many readers 
 wish to know. On this dark point my torch 
 is dim. I claim no light beyond that com- 
 mon stock which years may bring to all who 
 strive and suffer. Long have I tried to read the 
 minds of jurors; but alas, the soul of man is 
 like the face of Jove, veiled in thick clouds. 
 Sometimes my nearest neighbor, chum, and con- 
 fidant has hung the jury and defeated me, and 
 sometimes a man I knew an enemy, drawn in 
 the box when challenges were gone, has saved 
 the verdict for me. In fifty cases that I tried 
 one year I had no adverse verdicts; another year 
 in fifty-three I lost but two. And in the follow- 
 ing year suits which promised sure success met 
 quick defeat and all my cherished hopes crum- 
 bled like ashes in my hands. Such is the sad 
 uncertainty attending jury trials and show how 
 far from perfect are all plans for picking jurors. 
 Yet there are rules in guessing which have 
 seemed to serve me well, and these I offer here 
 for such consideration as they may deserve. 
 Juries should fit the case. Suits complicated 
 with mixed questions requiring careful thought 
 and nice distinctions need men of intellectual 
 grasp. The lawyer who expects to win because 
 his cause is just and tries to found it on the
 
 l:U) Fh'AILTIES OF THE JUHY 
 
 plaue of reason should strive for jurors who 
 can understand the reasons that are urged. This 
 is essential to the plaintiff and to defendant 
 doubly so. The latter must rely on mental 
 strength to stand against the closing speech and 
 so needs minds ranged on his side who can not 
 be deceived by sophistry, or moved by strong 
 appeals to passion. The suitor with a doubtful 
 case but feebly bolstered in the evidence, de- 
 pending more on pity than on law or facts, seeks 
 more for hearts than brains. Men of fat, ruddy 
 faces, large eyes and portly bodies are suited 
 to his plea and serve him better than high- 
 browed and frowning men with deep-set eyes 
 and forms of bony build, youths with bounding 
 blood are better far for him than frosty age. 
 
 Some nations leave their impress on their 
 subjects. This lasts for many years; and often 
 it appears upon a jury. The suitor of a for- 
 eign birth will often find a juror of a like de- 
 scent much in his favor. Some nations have 
 greater pity for the weak and some a stronger 
 sense of duty. These facts the lawyer should 
 consider. Fathers feel more for children, hus- 
 bands more for wives and widows than men not 
 thus related. A situation like the plaintiff's 
 in age, vocation, wealth, or social status, has
 
 FRAILTIES OF THE JURY 131 
 
 some effect to favor him and if the juror has 
 sustained a wrong which bears a close resem- 
 blance to the one alleged, this makes him easy 
 to convince. Elements of prejudice like these 
 appear in every jury and must be reckoned with. 
 They rarely are decisive of the verdict, unless 
 they move the leader of the panel. One man, 
 more forceful than the rest, will often take the 
 other jurors with him. This man is most im- 
 portant to discover before the jury is accepted, 
 and if his composition does not fit your case 
 he should be challenged and the leadership 
 placed in the hands of one more fitted to your 
 side. On this point alone have more mistakes 
 been made than any other. Most lawyers con- 
 fident of power to argue and persuade prefer 
 the mild-eyed, yielding juror to the stern and 
 sober thinker with his hard, unsympathetic face, 
 and on both sides a plastic jury is the object 
 sought. The jury thus selected is mostly of this 
 mettle and yet a few remain cast in a different 
 mold, who have not been discovered or could not 
 thus be challenged. One of these is sure to 
 write the verdict. In the world of men the wise 
 select the leaders for alliance ; the common mass 
 they only count with. They find the wether 
 in the human flock and put their bell on him.
 
 1;12 Fh'AILTIES OF THE JURY 
 
 This should the lawyer strive to do who picks 
 tiic jury. In this, however, he must often fail. 
 Wliilo much is evident from outward signs, it 
 often happens that the inner man does not 
 display his excellence, and he who seems the 
 frailest proves the strongest under test, and he 
 who otters much assurance before the battle has 
 begun proves but a weakling when the fight is on. 
 Flamboyant airs thus often may deceive and 
 make the shrewdest lawyer found his hopes on 
 sand. It is well to know the history of the man 
 and if it fits his pompous seeming; whether he 
 be a trifler of the common sort or have that 
 prowess that is wont to deal in weighty matters 
 as if they were but trifles. When you have done 
 all that the wisest man could do, to get the best 
 of juries for the cause, the slightest thing may 
 turn the whole awry and dash your hopes to 
 dust. Such is the frailty of a common jury. To 
 seek for justice at its hands is usually a vain 
 pursuit. Attracted by its ancient source and 
 democratic composition we think its lustre is the 
 star that guides us to the sacred place where 
 justice sits enthroned. We follow its alluring 
 light with perfect trust and find at last it is 
 the ignus fatuus' fatal gleam that leads us to 
 the tangled swamp of wretchedness and ruin.
 
 CHAPTER XVI. 
 
 Treatment of the Jury. 
 
 Considering these many frailties and all their 
 wide effects, how can a lawyer so conduct his 
 cause that it shall suffer least and gain the most 
 therefrom? Each juror is a little tree with many 
 tender branches and every branch acutely sen- 
 sitive in some respect and thus the twelve men 
 on the jury become a wood, where he who moves 
 about must take great care. It is not safe to 
 talk on general matters or wander from the point 
 in issue or comment on an alien subject lest 
 you may hit some juror in a tender spot and 
 make him turn against you. A man who throws 
 a stone into a crowd may wound a friend, and he 
 who speaks against an institution or a general 
 class, or by derision grills a witness for some 
 defect in speech or manner may pinch a friendly 
 juror and turn him to the other side. Therefore, 
 the advocate should never wander or strike a 
 blow not surely aimed to hit a certain mark; 
 nor should he show his personal likes or hates 
 or make exposure of his views on any subject 
 
 133
 
 134 FRAILTIES OF THE JURY 
 
 wlioi-e men may divide, lost thereby some one on 
 the jury who holds a contrary view may much 
 dislike the exhibition and look with disfavor or 
 contempt upon the person making it. Nor 
 should the lawyer put himself in evidence in 
 any other way. The ease alone is what he has 
 to try and certain questions only are submitted 
 to the jury. "What does not bear distinctly on 
 these questions should be ignored, and all his 
 strength and time be spent upon the issues. By 
 this their untrained minds may be directed to 
 the best advantage. 
 
 All men like praise and those enjoy it most 
 who least deserve it. Juries are gullible to flat- 
 tery and man}' lawyers use it with success. It 
 is a dangerous weapon which each side may much 
 employ and thus competing with each other 
 go to excess and only win disgust from court 
 and jury. The time so taken from a true discus- 
 sion and energy thus lost when added to the 
 degradation caused thereby, make up a sum of 
 loss which more than equals any gain there- 
 from. With great respect the jury should be 
 treated, becoming the high function they dis- 
 charge. This tends to lift them to a lofty 
 plane above the mists of petty bias, and here 
 they should be kept that they may reason, free
 
 FRAILTIES OF THE JURY 135 
 
 from unworthy motives. He who believes his 
 cause is just should be content with this and 
 so will find a surer pathway to success. He 
 who promotes a spurious plea, depending on con- 
 fusion and vile motives for success, will always 
 strive to drag the jury down from this high 
 plane. He often may succeed, because their un- 
 developed minds do not detect false lights or 
 closely note the lines where duty bids them 
 move. While such men are employed, the false 
 will sometimes win and justice stumble or mis- 
 carry. Such sad results can be avoided, if at 
 all, when he whose cause is just sticks to the 
 higher plane and never in the least degree soils 
 his clean hands with any kind of baseness. The 
 minds of untrained men are easily upset and 
 turned awry by conflict and confusion; they 
 move but slowly, and he is wise who hurries 
 not or tries to hurry them. The advocate should 
 take the necessary time to clearly make the point 
 he undertakes, painting the background for the 
 thing he would present, so that it will stand 
 out distinct in all its parts, thus stamping on the 
 juror's mind an image that will last until the 
 consultation room is reached. 'Tis better far 
 to make a few points clearly than many that 
 are vague. Those feebly painted may be wiped
 
 136 FRAILTIES OF THE JURY 
 
 away by what occurs thereafter and before the 
 jury reach the room. Abstractions are unsafe. 
 The tersest statements of the tritest truths will 
 often fail when made to minds that slowly act 
 and are but dull in comprehension. Children 
 use blocks to learn the forms of letters and 
 pictures to acquaint themselves with words. 
 Simple minds can easiest be made to understand 
 by using concrete forms and glowing images. 
 Big pictures in strong lines will much impress, 
 while lines of finer texture delicately traced, 
 in soft, artistic tints, may have but slight 
 effect. The essence of the plaintiff's case lies 
 in the wrong to be redressed. This should the 
 lawyer paint in colors glowing as the truth will 
 warrant and give the strongest setting that the 
 facts will bear. All should be free and natural, 
 not showing efforts to exaggerate. The conse- 
 quences of this wrong and all its wide effects 
 should have a full portrayal as they bear upon 
 the state, the plaintiff and the law, that those 
 who sit in judgment may freely comprehend 
 what pleads for their redress. The burden of 
 defendant's ease is innocence or an excuse. The 
 facts that tend to show him faultless or lay the 
 blame upon the plaintiff or some other person, cr 
 prove the injury an accident with none to
 
 FRAILTIES OF THE JURY 137 
 
 blame, should all be mustered and set forth in 
 strongest light that jurors having all in mind 
 may fix the blame and measure the redress. 
 From first to last, all should be so contrived that 
 it will give their untrained minds the fairest 
 chance to comprehend the whole. Thus will the 
 case be fairly tried and justice done, if that be 
 possible by such imperfect means.
 
 CHAPTER XVII. 
 
 Bench, Bar, and Jury. 
 
 When winds of May awoke the violets, and 
 woods and fields had donned their fairest hue I 
 seized my pen, eager to ease the burden that 
 so long had lain upon my mind. "Foibles of 
 the Bench" was first my theme. From out the 
 musty chambers of the past I brought the vis- 
 ions of my early years and resurrected forms 
 of long ago. From these I framed composites, 
 hoping without offense to show thereby what 
 havoc may be wrought by human weakness of 
 the milder kind when lifted to that lofty seat. 
 Some have received the message that I penned 
 and sent to me their kindly words, and now I 
 watch and wait to see the fruitage of the seed 
 thus sown. 
 
 When summer's reign was in its fullest prime 
 I took again the pen and wrote of "Foibles of 
 the Bar" and launched the little craft upon the 
 tide, hoping it might drift to sympathetic hands, 
 where it would bless my brothers at the bar 
 and those who might thereafter seek its foid. 
 
 138
 
 FRAILTIES OF THE JURY 139 
 
 Nor was I disappointed here. It touched a 
 tender chord which brought me sweetest music. 
 A mother loves the babe she brought to life and 
 feels a throb of heaven to hear it praised. Thus 
 did the words come back to me that spoke of 
 merit in my book. 
 
 Now in November's melancholy days, when 
 chilling gusts sport with withered leaves, I stand 
 again upon the rippling beach prepared to start 
 another craft. Much do I fear it will not find the 
 favoring gales that met my other ventures. Se- 
 curely in its box the jury sits wreathed by the 
 halo of the centuries, and well may smile at any 
 words of mine however well directed. The mul- 
 titude of broken hearts, the victims of its lack 
 of skill, now beat no more. The long proces- 
 sion of the innocent, torn from their homes and 
 carted to the scaffold, may not arise to plead 
 again their causes. 
 
 Like unskilled surgeons awkward with the 
 knife the juries' worst mistakes are in the tomb. 
 Our earth has seen a deal of cruelty. The race 
 in struggling upward toward the light has 
 strewn its path with wrecks. Each institution 
 that we cherish most began in wrong, and like 
 the Hindoo Juggernaut crushed many prostrate 
 victims while it onward moved, until at last
 
 140 FRAILTIES OF THE JURY 
 
 by law of precedent, what once was wrong be- 
 came a sacred right. A straggling few of all 
 the countless crimes appear on history's page; 
 the most are lost to human annals. But of these 
 few some of the blackest sort were fashioned by 
 the courts. In these proceedings juries had a 
 hand. A tyrant rarely had a task so mean, so 
 foul and full of blood and horror that he could 
 not find a solemn-visaged, servile, oath-bound 
 jury to give it righteous color by a verdict. But 
 jurors have not acted on their own account, they 
 have been truckling tools of stronger men ; some- 
 times the dupes of despots, othertimes of mobs 
 and always by the agency of lawyers. Bench^ 
 bar, and jury box have often stood a trinity 
 in crime and then the other two have made a 
 scapegoat of the box, saddling their vilest sins 
 upon the simple weaklings who have filled it. 
 This is the rule in all affairs of life, the strong 
 receive the profits and the weak the blame. Yet 
 after centuries the jury still retains its place 
 within our courts, is still responsive to coercive 
 means and swayed by bias and unworthy mo- 
 tives. 'Tis still a clog and hindrance on the 
 wheels of justice, the hope of knaves and cloak 
 to cover crime. On every hand we see its errors, 
 the numerous wrecks its blunderings have made
 
 FRAILTIES OF THE JURY 141 
 
 in wasted fortunes and in ruined lives, and yet 
 we venerate it for its age and clutch it as a 
 rock of refuge. 
 
 When I survey the ground o'er which I've 
 passed, writing of bench and bar, the jury and 
 the court, the mass of faults that do appear to 
 mar and block the courts in their high function 
 and the enormous loss incurred thereby, I sicken 
 at the sight. I can not hope these lines of mine 
 will move these mountains in the path of 
 progress, or even cut a trail across them. The 
 first explorer rarely scales the loftiest peaks. 
 A few steps upward in the steep and flinty rock 
 he cuts with patient toil and dies ; another start- 
 ing where he ceased may cut a few steps more 
 and be succeeded by another still, who also cuts 
 and climbs until some future climber completes 
 the task and stands upon the top and sees the 
 glorious vision of the world beyond. So I be- 
 hold the labor here essayed, and hope these sev- 
 eral efforts of my pen may prove so many steps 
 that upward lead to truth in this regard and 
 that when I, exhausted with my worn-out tools, 
 must cease, another, abler, stronger, than myself, 
 fresh to the task, with sharper tools than I have 
 had, may, where I cease begin, and so toil on 
 until at last some future toiler finishes the task
 
 142 FRAILTIES OF THE JURY 
 
 and in the coming years humanity may stand 
 upon the highest peak and there behold the 
 da\\Tiing of that glorious day when Justice 
 linked with Liberty shall dwell in all the earth.
 
 FOIBLES OF THE BENCH' 
 
 A Remarkable Volume by Henry S. Wilcox 
 of the Chicago Bar 
 
 PRESENTING 
 Judge Knowall Judge Wasp 
 
 Judge Wabbler Jude Wind 
 
 Judge Fearful Judge Graft 
 
 Judge Whififet Judge Doall 
 
 and many others, who will readily be recognized as types of 
 ancient and modern Judges, also depicting faults and abuses 
 in judicial procedings and suggesting remedies. To a judge 
 or a lawyer this volume is of great value and to the gen- 
 eral reader it is a source of great instruction and amuse- 
 ment. It corresponds in size and color with this volume on 
 "Frailties of the Jury." 
 
 Read what the press say : 
 
 Press, Pittshurg, Pa. : "The book is assuredly amusing 
 and entertaining and the stories told are all full of humor 
 and wit." 
 
 Western Christian Advocate, Cincinnati, Ohio: "The vol- 
 ume abounds with penetrating comment, shrewd suggestions, 
 sagacious observations mixed with rhetorical exaggerations 
 and sharp sayings galore." 
 
 Times, Seattle, Washington : "Mr. Wilcox's analysis of 
 men and his delineation of the tricks of the lawmaker make 
 him a novel and curiously interesting showman." 
 
 Buffalo Courier : "The author indulges in many clever 
 and good-natured hits at the weak points oftentimes found 
 in justices of wide reputation." 
 
 The Bee, Sacramento, Cal. : "This volume will be much 
 appreciated by the Bench and the Bar." 
 
 The Journal, Albani/, N. Y. : "The book is clever, the 
 diction pleasing, and must meet with a large sale, and will 
 live in literature for some time to come." 
 
 Commercial-Appeal, Memphis, Tenn. : "It teaches a 
 wholesome lesson to the Bench." 
 
 Republican, Denver, Col. : "A strong sense of humor, a 
 keen wit and the power to penetrate the disguise of the 
 human heart combine with a nimble mind and ready pen to 
 produce here a book that every lawyer will want to read." 
 
 The Public, Chicago : "It is as interesting as fiction." 
 
 Eagle, Brooklyn, N. Y. : "It should prove as Interesting 
 to the general reader as members of the legal profession." 
 
 Louisville Courier- Journal : "Judicial foibles are held up 
 to scorn on the author's rapier point." 
 
 Chicago Tribune : "All character sketches are written 
 in a racy style and abound with humorous incidents." 
 
 Chicago Journal : "It is exceedingly Interesting." 
 
 Chicago Record-Herald : "Its brief sentences are packed 
 with meaning." 
 
 PRICE $1.00 POSTPAID
 
 "FOIBLES OF THE BAR" 
 
 BY 
 
 HENRY S. WILCOX 
 
 (Of the Chicago Bar) 
 
 AUTHOR OF 
 
 " Foibles of the Bench, Etc." 
 
 It contains 163 pages and corresponds in size and color 
 witli this volume. It introduces many types of lawyers and 
 points out the faults and mistakes that prevent success and 
 shows how to avoid them. Every page is worth more than 
 the price of this book to the lawyer or the student who in- 
 tends to become such ; and it is of great value to the general 
 reader on account of the delight and instruction which it 
 gives. 
 
 Read What the Press Say: 
 
 Detroit Journal : "No better guide could be put in th« 
 hands of the newly fledged lawyer." 
 
 Grand Rapids Herald : "The hook is well written and 
 skillful in its character drawing." 
 
 Detroit l^ews : "The book is replete with stories, humor- 
 ous instances and funny sayings." 
 
 Buffalo Evening News : "The style is clear and racy, 
 the character sketches well drawn and highly interesting, 
 and the book is replete with funny stories, humorous inci- 
 dents and witty sayings." 
 
 Brooklyn Citizen : "The book is abundant in spicy and 
 humorous sayings." 
 
 Cleveland Plain Dealer : "rhc book is distinctly enter- 
 taining." 
 
 Salt Lake Tribune : "Each subject is worked out in ad- 
 mirable form, and every lawyer can get points from it of 
 value to him." 
 
 PRICE $1.00. POSTPAID
 
 "A STRANGE FLAW" 
 
 BY 
 
 HENRY S. WILCOX 
 
 (Of the Chicago Bar) 
 
 AUTHOR OF 
 
 Foibles of the Bench, Etc. 
 
 A powerful novel, telling the story of a man oppressed 
 by taunts, sneers and abuses, who turned upon his oppress- 
 ors and by a scheme well executed succeeded through the 
 agency of the legislature, court and high officials of the 
 Government in punishing some of those who had abused 
 him. The novel opens at the President's inaugural ball and: 
 concludes at the Tresident's mansion. It has a well-told 
 love story running through it and depicts many interesting: 
 scenes of American life ; is replete with wit, sacasm and' 
 pathos and exposes many forms of official rascality. 
 
 Sunday Examiner and American, Chicago : "The most 
 caustic passages in Mr. Wilcox's previous books were honey 
 and water compared to the least blast of this." 
 
 Brooklyn Citizen : "A good love story is woven into the 
 tale. * » ♦ The great debate on the land grant bill is 
 a clever bit of satire. * ♦ • One is apt to finish this 
 novel at one sitting, so interestingly is the story told." 
 
 Portsmouth Daily Chronicle : "Mr. Wilcox tackles a 
 problem with great courage. * * * In assailing present- 
 day conditions he minces words not at all. • * « ^piig 
 *^pes are easily recognized and in the main true to life." 
 
 Kansas City Star : "The amusing satires upon legal 
 practice redeem this story from its general ferocity." 
 
 GILT TOP. 270 PP. PRICE $150 .
 
 "THE TRIAL OF A 
 
 STUMP SPEAKER" 
 
 WRITTEN BY 
 
 HENRY S. WILCOX 
 
 (Of the Chicago Bar) 
 
 AUTHOR OF 
 
 "FOIBLES OF THE BENCH" 
 
 "A STRANGE FLAW." ETC. 
 
 It is a series of sketches and humorous incidents occur- 
 ring during the many years' experience of the author, illus- 
 trating the difficulties, disappointment and annoyances that 
 beset a stump spealier, and some of the absurdities and in- 
 consistencies of politics. Cloth bound, 75 cents. 
 The Courier, Buffalo, N. Y., July 20, '00 : 
 
 "It is one of the funniest efforts in the way of humorous 
 books of recent publication." 
 'Tournal, Albany, N. Y., July 25, '06, says : 
 
 "It makes refreshing reading and is just the book to 
 take on the train or steamboat when you travel. It makes 
 the time go rapidly. There is a freshness about it that is 
 most enjoyable." 
 
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