Workshop/A Blow at Trial by Jury
A Bow at Tria by Jury* ‘In, PRESIDENT AND FRmNDS. I hold in my hand an official reprint copy of 3hapter 378 of the State laws of 1890 This ihapter consists of an act in twenty-three seetions, which, after passing the legislature, be sum a law by the affixing of (overnnr Morton’s signature on April 23, 1896, It bears this title: An act providing for a special jury in criminal cases in each county of the State having a certain popula don, and for the mode of selecting and procuring such special juries; also, creating a special jury commis ,idner for each of such counties, end regulating and prescribing his duties, This title aces accurately and specifically de scribe the immediatc objects of the act, I assert, nevertheless, that its ulterior purposes would have been more clearly revealed, and that its exterior would have better harmonized with its “ tree inwardness,” had it been en titled “An act providing for the enforcement ‘of those laws of the State of New York which, having found theii way into the statute-books only through the insidious machinations of a’ clique or a cabal or a boss or an interest or a handful of fanatics, are so unpopular with the citizens of the State of New York that a conviction of the violation of them can seldom, if e er, be secured from a jury fairly and Iaprtially irnpaneled from the mass of sobei minded people,” This assertion it is now my pm pose to make good. To do so it is unnecessary to make a elaborate statement of the provisions of the law, A circular setting foith its most obnoxious features has been distributed among you, and I shall assume that you are now familiar with them. I may say, however, in the briefest way, that the law provides that, in each county of the State containing five hundred thousand people, that is, in New York and Kings counties only,—a special commissioner of jurors shall be appointed by a majority of the justices of the appellate diision of the supreme court; that his terrn of office shall be five years, but that he shall be removable at pleasure and without cause by the justices who appointed him, who shall also fix his salary, within a maximum limit of sit thousand dollars year, that he shall select from the list of or dinary trial jurors, after personal examination, at le’ist three thousand special jurors, and as many moie as the appellate justices may direct, ,any of which special jurors he may thereafter strike from the special jury list at his pleasure, replacing them n ith others equally of his own selection’ that he shall not select as a special jurot any person who has been convicted of a criminal offence, or any person who possesses such conscientious opinions in regasd to the death penalty as would preclude his finding a defendant guilty if the crime charged be punishable with death, or any person who avows such a prejudice against any law of the State as would preclude his finding a defendant guilty of violating such law; that the special jurors chosen shall be exempt from ordinary jury duty, and that no one of them shall serve on a special jury oftener than once a year; A speech delivered by the editor of Liberti t a maSs meeting held In cooper Union New York, Friday evenIng, June 25, under the auspices of the Cenirni Labor Union, Typographical Union Ito, C, and other labor organizations
that in any criminal case, upon application from either side, the justices of the appellate division may order a special jury trial if for any reason the due, efficient, and impartial administration of justice requires it; and that, when the special jury trial thus ordered shall come on before the trial court below, the ruling of the trial court upon the admissibility to the jury box of any juror challenged for bias shall be final and not a subject of exception. Under this law special jury commissioners have been appointed for the counties of New York and Kings, and thcir offices are in full operationS How mnch progress has been made in Kings I do not know, but in New York large numbers of citizens have been before the commissioner for examination at his office in the Constable Building at the corner of Eight eenth street and Fifth avenue, and it was stated a few days ago in the newspapeis that he had so far secured 2,909 out of the needed 3,000 special jurors. Among others I had an interesting session with the comnusssoner,or, rather, with one of his subordinates, for I did not succeed in penetrating to the inner temple, but fell down at one of the outer gates And I may note here, by the way, as the single favorable comment that can be made upon this special jury system, that the printed noticcs served upon those whom the conunissioner wishes to examine, instead of commanding them to appear, request them to appear. You will observe that better manners prevail in the aristocratic offices of this aristocrntic commissioner on aristocratic Fifth avenue than in the more democratic offices of the ordinary com missioner of jurors, who, within sight of the unemployed on the benches of City Hall park, has to deal with the common herd, Let us find a crumb of comfort, if we can, in this improvement in official deportment. To each person appearing for etamination a printed blank is supplied, which be is expected to fill out, sign, and swear to, as a condition of admission to the special jury list. Of the printed statements contained in the blank, the following, for reasons which I will give presently, are the most objectionable’ I have not been convicted of a criminil offence. I do not possess conscientious opinions with regard to the death penalty which would preclude me from finding a dcfendant guilty, if the crime charged be punishable with death, I have not such a prejudice against any law of the State as n ould preclude my finding a defendant guilty of violating such law, In connection with this blank each peison in ceiving it is subjected to a personal examination by the commissioner oi one of his sub ordinates, He is etanuned in detail upon each of the statements contained in it, and, in the multitude of questions asked hun, two hypo thetical cases, evidently chosen with deliberation, are propounded, accompanied by a request that be state what course lie would pursue in each, ITem let, roe any thut,, in precenting my views of this mattes before a small company iecentIy, I found the phrase hypothetical question” to be a cause of misunderstanding. Even a lawyer, then present, nbc ought to have known better, supposed a hypothetical question to be a question that might be asked, but is not asked, whereas every lawyer ought to know
that in legal usage a hypothetical question is one which is actually asked, but which assumes hypothetical or supposed conditions, and. inquires of the party questioned what course he would pursue, or at what conclusion be would arrive, under the supposed conditions, Do not misunderstand me, then, The hypo thetical questions now referred to were actually put to me at the commissioner’s office, they weze actually put to others; and, in my be lief, they are actually put to all, or nearly all, the persons who appear for examination, They are of importance, because they clearly indicate the intent of the framers and executors of the special jury law to use it for the en forcement of unpopular statutes which the average juror will not consent to enforce, Not that the framers and executors have seriously at heart the enforcement of the particular unpopular statutes involved in the two hypotheti cal cases, but they are confident that any man submissive enough to aid in enforcing these will also prove submissive enough to aid in en forcing the laws which they have seriously at heart,—the laws that sustain the privileged classes in their privileges, and the laws that strip the masses of their rights in order to make theni an easy prey for the exploiter. These, then, are the two hypothetical questions propounded, as nearly as I can remember them: 1, “Supposing you to be a juror in a case where a girl is accused of kilhng a man who had betrayed her and declined to fulfil a promise of marriage, and suppose the evidence to clearly establish the defendant’s guilt, would the knowledge that a verdict of guilty would result in the imposition and execution of a death sentence prevent you from finding such a verdict 9” 2. “Supposing you to be a juror in a case where a man is accused of criminally assaulting a gui under eighteen yearn of age, and sup posing the evidence to clearly establish that the act was committed with the girl’s knowledge and consent and at her desire, have you any prejudice against the law making such an act, so committed, a criminal assault, punishable by the heavy penalties that attach to such an assault, which would preclude you from finding the defendant guilty of violating it? “ In addition to these two hypothetical questions, particular citation should be made of a third and general question which is asked: “Would you, being a juror, and being charged by the court upon a point of Jaw, and knowing this point of law to be unsound, decline to accept the ruling Now, a word as to the origin of this special juiy law, Something less than two years ago, I think, in consequence of great difficulty that had been experienced in getting a satisfactory jury in a celebrated criminal case, much emphasis was laid in the newspapers on the pressing necessity of removing this obstacle froni our legal procedure, Shortly thereafter the newspapers published a proposed special jury law purporting to have been drafted by Justice George C, Bariett, of the New York supreme court This proposed law was generally commended by the press, and was nowhere attacked, so far as I now remember, save in a paper which I have the honor to edit, Happily oi unhappily, according to the view
one takes, that paper is read only by thinking people, and con8equeutly the attaok never came to the knowledge of- our lawmakers,— which need not be regretted, since it would have exercised no influence upon them, if it had. Apparently the matter found its way before the legislature in some form, and action was taken. My memory does not permit me to state whether the law as it now stands correspond8 in every particular with Justice Barrett’s draft, but I am safe in saying that, if the two differ, they differ in detail alone. The plan and purpose of the existing law are substantially the plan and purpose of Justice Barrett’s draft. And be it noted here that the bench record of the author of this law is one of hostility to the rights of organized labor, and that he is himself a member of that appellate division of the supreme court which this law entrusts with a new and unprecedented power. The law must have been engineered through the legislature with great secrecy, for [, though my profession compels me to be an exceptionally diligent reader of newspapers, saw no record of its passage and no subsequent discussion of it, my first knowledge of the existence of the law coming to me almost a year after its passage in the shape of a notice to appear for examination under its provisions. And up to a month ago, before the publicity given by the present agitation, I had not met a single person, even among lawyers, who had any knowledge of this law which was not the result, directly or indirectly, of the examination of some individual concerning his fitness for special jury service. In the press, up to a moxith ago, a silence had been maintained regarding it which could hardly have been more complete had it been maintained by conspiracy. And even at this date it can be said that the excellent editorial, adverse to the law, which appeared a few days ago in the New York Daily “News” is the only word of opposition to the law that has appeared in the editorial columns of the New York press.* Now, my friends, I have laid before you nearly all the information at my disposal con-• - cerning this new law. And here I believe that I might safely leave the subject in your hands. It seems to me that argument against this measnre is almost a superfluity. The facts alone appear quite sufficient for its condemnation. Nevertheless, with your permission, I will indulge myself in a few words of criticism. But first let me ay that I am not here tonight to question the motives of all who have furthered this law. Doubtless some have acted with the best of intent. The main question to-night is not what motive inspired the law, but what it will be possible for men of bad motive to do with the law when once it has been placed in their hands as an instrument. Even were we to assume, then, that all the initiators, framers, enactors, and executors of this law have been and are prompted only by the purest intentions and a sincere desire to facilitate the administration of perfect justice, it would still remain true that, if, on the .contrary, they had been actuated by the most diabolical of designs, by an intent to destroy individual liberty, to undermine public welfare,
- On the afternoon of the Cooper Union meeting the “MaD and Expres8” prhlted a &ong 1eade In oppoIt1on to the special jury law.
and to utterly emasculate that chief remaining safeguard of both, the jury system, even in the condition of decline from its former high estate to which previous and gradual judicial usurpations have reduced it,—even then, I say, they could scarcely have framed an instrument better adapted than thiB law for the fell purpose. In detailing my criticisms I shall begin with the minor and proceed to the major. This law, then, is unjust and a piece of special legislation, in that it applies to only two counties in the State. Important and intricate cases, widely commented on by the press, may and do arise in all parts of the State, and not alone in the counties of New York and King; and, if impartial administration of justice requires that such cases be tried by a special jury in one or two counties, it requires that they be so tried in all counties. At the present time, in fact, a very important murder trial is in progress up the State, at Batavia in Genesee county, and, in consequence of the ridiculous system of examining jurors now in vogue, much trouble has been experienced in impaneling a jury. If a special jury system facilitates the administration of justice, why should Genesee county be deprived of this blessing? If the new law tends to promote justice, then the people of the State at large are discriminated against in being shut off from its benefits. If it tends to promote injustice, then the people of New York and Kings are discriminated against in being alone subjected to the evil and oppression that grow out of it. This law, again, is a public menace in that it clothes the judges of the higher courts, who already exercise prerogatives that are nearer akin to absolute despotism than anything else that this country knows, with a new, alarming, and far-reaching power. It places in the hands of these judges an absolute control of the make-up of the jury- in whatever cases they may see fit to try by special ury. The ordinary commissioner of jurors is an appointee of the mayor. not of the courts, and he is not subject to removal by the courts. But this new and special commissioner of jurors is an appointee of the appellate division of the supreme court, and is removable at its pleasure and without cause. The appellate division se1ects the commissioner and caii discharge him at will, and the commissioner selects the jurors and can discharge them at will. This same appellate division fixes the commissioner’s salary and the salaries of his subordinate8, controls the appointment and removal of all such subordinates, and decides what cases shall be tried by special jury. Thus it has the whole special jury machinery under its immediate and irresponsible control, and can see to it, therefore, that jurors to it8 liking, and no others, are admitted to the special jury list from which will be drawn the juries to try the most important cases that arise. I submit that this is a distinct and dangerous departure in the direction of judicial usurpation and despotism. [To be concludel.)
A Blow at Trial by Jury [C vcivded,] This law, again, tends to greatly impair the efficiency of the jury system in general b) giving ‘i tremendous impetus to the growing evil of exemption from jury duty, and so lowering the average of the general jury hot in quality that it becomes less representative of the community as a whole It withdraws instantly from ordinary jury duty, in each county to which it applies, at least three thousand picked men, and as many more as the court sees fit to enroll. The ordinary jury list in New York county containing only 35,000 names (and, by the way, it ought to contain lfiO,UUU at the very least), to take from it 3,000 names is an extra exemption of almost tcn per Cent.; and in Kings county, where the ordinary jury list cannot be more than half as large as that of New York county, a reduction of 3,000 must amount to an extra exemption of twenty per cent. Of course, the burden upon the remaimng ordinary jarots will be almost correspondingly increased, since the number of special jury trials will not suffice to shorten the ordinary trial calendar by even one per cent. No special juror being required to do special jury dut3 oftener than once a year, it would be necessary, in order to give each man of the minimum three thousand one case annually, to try by special jury two hundred and fifty cases each year But, as the number of cases of sufficient importance to be so tried would certainly not exceed tis enty-five a year in a given county, no special juror, unless especially un fortunate in the drawing, would be required to serve oftener than once in ten years. Here, tL, , very great nduce,,t (to stronger word) offered to those busy and sue cessful mea who wish to avoid jury duty, and yet whose services as jurors the public so much needs, to seek enrolment on the special jury list, whereby they may secure absolute exemption from ordinary juxy duty and something pretty near to exemption from any jury duty at alL The obvious result is that the great
mass of cases will be, tried by a reduced body of jurors, if not inferior in quality, at least les8 representatiie of the community as a whole If this be not an assault on the jury system, what is it? In confirmation of this view, an important piece of expert testimony has been rendered very lately. On the evening of Thursday, lay 20, the annual address provided by the Law Academy of Plu]adelphia was de livered before a reprecentative gathering of Philadelphia members of the bench and has by Justice John Dean, of the Pennsylvania an preme court, his subject being “The Jury)’ In this address Justice Dean had nothing to say of this special jury act,—I doubt if lie knows of its existence, but be said macli that bears powerfully upon the phase of the subject which I am now discussing. I cite him upon it i ith the more force and the more pleasure, because, first, he is a high member of the judi cinry, whose prerogatives and powers this special jury act so increases; bccause, second, Ins interest in the subject is prompted by his sympathy with the holders 0f property and cap itoh, and his alarm at what he considers the growing tendency of juries to award inor dinately heavy damages in suits against cmporations and rich men; and because, third, Mr. Charles A, Dana, the editor of the Sun,” with characteristically unsci upulous rndacity, has striven to make it appe”r that Justice Dean sympathizes with the modei a assault on the juiy system, whereas, in reality, as you will see, be is a rational and fair minded man who wants to secuse justice to all, including the rich, by restoring tiial by jnr, in part at least, to its ancient estate I wish that time pes mitted me to read his entire address to you, but it limits me to a few extracts He says The jury wheel is to be filled with the namcs of “sober, intelligent and judicious persons “ These, names ought to and do include citizens from every vocation in life the laborer, mechanic, business and professional man, It will at once be noticed that the jury wheel and the general panel represent the aver age conscience end intelligence of the district; dmamate from this the mrchauic, small storekeeper, and laborer, 3 ou get above the grade of conscience and intelligence applicable to the settlement of disputes in ordinary aifairs of men; for these are caperts In those matters which immediately concern them I have received more light in the trial of a cause from a coal miner thea from an c1imcated mining engineer, the coal miner was better educated in the practical knowledge which he dug out with his pick than the engineer, whose knowledge was largely gained from his books And, if you eliminate from tIm jury panel the educated man, the man of large business affairs, the professional man, 3 ou get below the average conscience and intelligence of the judicial district The professional man, the boss mechanic, the city councilman, the thriving farmer, all want to be excused from jury service, because of the pressing nature of their bus ness affairs They are superior men, the very best specimens of the judicious citizen. Relieve this class from jury duty, and you at once reduce the average of conscience and intelligence in the jury box. . . . The most intelligent and judicious cit izen in avery court is seeking to escape jury duty, and too often be succeeds in evading the performance of an unpleasant service This was not the case in early history of our country, Then the most intelligent and influential citizens felt honored by being called upon to serve as jurors, and never sought to evade the duty. Business was not so exacting in its demands; the pursuit of wealth was not so eager. The consequence of this evasion of duty is you have not in the jury box the average conscience and Intel lience of the public. What would be the verdict in any given case involving a property tight wIth
thircc or four such inca on every jury to aid by their conscience, intelligence, and knowledge of business affairs in the deliberation, we cannot certainly know, but I believe that, with them there, unjust verdicts would be rare, and the growing dissatisfaction with the jury 8351cm would in a few years disappear. I would take the banker from his desk, the editor and profcs-or from their chairs, the preacher from his pulpit, cad put them in the jury bak, there, under oath, to well and truly try or a true deliverance make according to the evidence. . . . The presence of such men would raise the average of conscience and intelligence as indicated by the verdict, and have it re present the intelligence and conscience of the genera public. I bare not sought to discourse profoundly on the principles of junsprudence, as applicable to trial by jury, but only to call attention to ahat to me seems full of peril to the institution Itself, and so, if possible, to suggest a practical cure for the defect, cad to save to our free government that part of it a hich, in my opinion, Is its very life To survive, the jury must represent the conscience and intelligence of the whole people, not of a part. Contrast now with this the pui’pose of the special jury act, which is to segregate the busy inca into a separate class of jurors with veiy little jury ditty to do, and that little often to be done in matters where the class interests of men of business are directly at stake, thus mak mng them, if unbalanced by other elements, incomplctely representative of the community at large. How much wiser and fairei is Justice Dean’s proposal to restore to public service as general jurors these busy men atho noa sue eeed so largely in dodging jury duty altogether, and thereby to give them thea just share of influence in the jury box, and no morel This law, again, is fraught with danger to justice in that it is capable of being used by judges, not only to pack the juiy list itself, but also to pack, with impunity, the special jury di awn front the list foi any given case. For tinder its provisions the trial judge’s i’ul ing upon any challenge of a juror fot bias is final and subject to no exception As appealed cases are otten ieversefl by the higher courts because of the lower court’s error in admitting or excluding a challenged juror, it as ill be seen at once that to give the lower court absolute power in this respect is to greatly add to the jeopardy of all accused persons It was errors of this sort (made, howevei, by the highser court as well as the lower, which only shows the necessity of all possible caution) that led to the judicial murder of August Spies and his comrades at Chicago, and that laid the prin cipal foundation for the righteous and glorious pardon issued by Goveinor Altgeld to Feelden, Schwab, and Neebe. But we come to an as en more serious phase of the subject when we approach the qualifications laid down in this law as requisite in a special jutor. To begin with one of the milder ones, let us look at the requirement that he shall never have been convicted of a criminal offence, At first blush this commends itself, but on a closes’ look it becomes more doubtful. If it were requiied that he should never have been convicted of certain specified and extremely serious crimes, possibly no oh jection to it could be offered But in its prcs eat sweeping form it is unjust and urationaL I undertake to say that at least one-half of the men who have been convicted of crime and have paid the legal penalties would make as good jurors as one half of the men who have never been so convicted. Who of us, I should
like to know, has never committed a crime? There is not a person within the sound of my voice, not a person in active life anywhere in the civilized world, who does not violate more than one statute law every day of his life. I go farther: with the monstrous and ridiculous laws that year by year are accumulating on our statute-books, one may safely say that the than who is not a confirmed criminal is scarcely fit to live among decent people. Mark Twain, who is not only a great humorist, but, like most great humorists, a philosopher as well, said the other day in all seriousness, in an article in the New York “ Herald,” that, until a man has committed a crime or undergone a term of inprisonment, he is not fit to sit in judgment upon his fellow creatures. I do not go as far as Mark Twain; but I am sure that mitch more can be said in favor of his view than of the contrary view, embodied in the special jury law, that a man who has been convicted of crime is necessarily unfit to sit in judgment. How absurd it is to insist that all criminals ire unfit for jury duty! Why, a man may commit some of the crimes to which very heavy penalties are attached, and still be a well-nigh ideal juror. Suppose, for instance, —and it is by no means an impossible case, for stranger things have often happened in our courts,—snppose, I say, that the head of the house of Harper Bros. were to be arrested under the Comstook law and sent to prison for ten years for the crime of publishing and selling Du Manner’s novel, “Trilby,” or Thomas Hardy’s novel, “ Jude, the Obscure”; could it be claimed for a moment that, on coming out of irison, provided his imprisomnent had not ruined him physically, mentally, or morally, he would not make one of the best of jurors? Under this law John Brown would not have been an admissible juror; under this law George Washington would have been excluded from the jury box; under this law the man who was legally crucified on Calvary would have been disqualified for jury duty after he rose from the dead. And at this present moment I have in mind a man who ould be. on this platform to-night, were he not temporarily absent from the city; a man whom many people in this hail know and honor and intimately associate with; a man whom I consider as belonging to the salt of the earth; but a man who once served a long term in prison for the commission of an act as innocent in itself as my act in delivering this speech; and this man, although he has repeatedly served on ordinary juries in this city and has proved an excellent juror, was summarily set aside at the special coInmisioner’s office, after examination, because he would not deny that be had once been convicted of a criminal offeace. Why, my friends, I say, entirely apart arnw from the question of fitness of a former criminal for jury duty, that, when a man, haviig been convicted of crime and duly sentenced, has paid in full the penalty exacted of him by society, to compel him thereafter to appear before an official and, under penalty of further punishment for contempt, answer the question whether he has ever been convicted of crime is distinctly an outrage, and that the law under which this can be done is an infamy intolerable by freemen. I Bliali not dwell long on the requisite that a speeial juror must be willing to accept the
court’s rulings upon matterB of law, because, although I personally consider it a perversion of genuine trial by jury, and maintain that jurors should be judges of the law as well as of the facts, I recognize that there is a difference of opinion upon this point, and I wish to-night to address you solely from the geneiallyaccepted view of jury trial. Nevertheless I crave your indulgence for a moment while I relate in this connection a recent experience of mine illustrative of the ignominious treatment which jurors continually suffer at the hands of judges, and of the propensity of the bench to carry things with a high hand. A few evenings since, reaching my dwelling- place at about nine o’clock, I found there a summons in which I was ordered to appear in court at ten o’clock the following morning for ordinary jury duty. Short notice though it was, I appeared, together with other victims. After the jury-roll had been called, and those present had answered their names, and before any juror had uttered word or gveii sign of protest, the judge (I was informed that it was Judge MoAdam, though I (10 not know this of my own knowledge) suddenly broke out with a tirade after the manner of an impatient schoolmaster addressing a crowd of unruly schoolboys, saying: “Now I want you jurors to understand that you have been summoned here, not to be excused, but to serve. I will listen to none but absolute excuses. If any of you belong to the militia or fire department or any of the classes expressly exempt by law, I will hear you. Now get into line, those of you who are legally exempt. All others keep out of the line.” The line began to form, and, as it length. ened, the judge broke out again, repeating almost word by word, but with greater vehemence, his previous remarks. Although I did not come within the classes legally exempt, I took a place in the line wiiii all the intrepidity of a member of the really “unterrified” democracy. Those ahead of me were heard in private, at the judge’s bench, one by one, with varying results. Finally my turn Caine. Placing my summons in the judge’s hand, I said: “I have already been pronounced incompetent to serve as a juror in any case in this State.” “How so? Why are you incompetent?” “Because my views of trial by jury are such as to prevent me fom accepting the ruling of the court upon a point of law, when, in my opinion, such ruling is unsound.” “What Not accept the ruling of the court? How’s that?” “Because of opinions formed after twenty- five years’ study of this and kindred questions.” Well, but why not accept the court’s ruling? I don’t “Because I consider that juries should judge the law as well as the facts, as they do in Illinois and Maryland.” “But so they do here in some cases—for instane, in cases of criminal libel.” “I know it; and I simply think that this Bhould apply to all cases.” “You an American “ Yes, sir.” “Native American ?“ “ Yes, sir.”
CC BonN in this country?” “Yes, sir.” “Well, I am surprised to hear that a native American entertains such views. Well, I suppose I shall have to excuse you; but I—really I am astonished to hear a native American talk so.,, Whereat I smiled sweetly, and departed. Strange, is it not? that a man in this country cannot manifest the 8mallest 8ign of mental independence without straightway coming under suspicion of being a Pole, or a Russian, or a Hungarian, or some other awful monster. Is it not a curious upsetting of all the traditions that, when a man with two hundred years of Yankee stock behind him ventures to intimate that his soul is his own, his native Americanism is promptly called in question? Yet, after all, it seems not so extraordinary that judges should have such a conception of native Americanism, when we reflect upon the contemptible meekness with which native Americans, for the past twenty years, have submitted to the piling-up of tyrannies upon them. I could not help asking myself, as I left that court-room, after being thus insulted, how Judge MeAdam would feel, should he chance to meet me that evening in the parlor of a mutual friend. I wondered with what sort of grace, under such circumstances, he would be able to look me in the face. Yet such a contretemps must sometimes happen in the experience of am overbearing magistrate. Nay, even worse, for Judge McAdam’s treatment of me was princely courtesy in comparison with the insults daily heaped upon inoffensive gentlemen by boorish judges dressed in a little brief authority. I cannot urge too strongly upon all who hear me the importance to true .Americanisni of refusing to be overawed by the bad manners of the bench. And now for the worst feature of it aI. I refer to the hypothetical questions put by the special commissioner, and to the requirement that the special juror shall have no prejudice against any law of the State that would preclude him from finding a defendant guilty of violating it. There are times when a single and simple illustration is more forceful than all the arguments in the world. Let me cite to you, then, just one fact. In 1851, in the United States district court for the district of Massachusetts, Peleg Sprague, the Uniteg States district judge, in empanelling three several juries for the trials of Scott, Hayden, and Morris, charged with having aided in the rescue of a fugitive slave from the custody of the United States deputy marshal, caused the following question to be propounded to all the jurors separately, and those who answered unfavorably for the purposes of the government were excluded from the panel. Do you hold any opinions upon the subject of the fugitive slave law, so called, which will induce you to refuse to convict a person ndicted under it, if the facts set forth in the indictment, and constituting the offence are proved against him, and the court direct you that the law is constitutoua1? The reason of this question was that the “fugitive slave law, so-called,” was so obnoxious to a large portion of the people as to render a conviction under it hopeless, if the jurors were taken indiscriminately from among the people.
A similar question was soon afterwards pro. pounded to the persons drawn as jurors in the United States circuit court for the district of :Massachusetts, by Benjamin R. Curtis, one of the justices of the supreme court of the United States, in empaneling a jury for the trial of Morris, and again those answering unfavorably for the government were excluded. Now I ask you, my friends, if you think this new jury law is in harmony with the people,— if you think, that is to say, that the people desire the “fugitive slave laws” of to-day to be easy of enforcement. Here we get at the very essence of this issue. The purpose of trial by jury is less the punishment of the guilty than the safety of the innocent. The object of the barons when they exacted the right of jury trial from King John was the protection of the individual against the tyranny of the governuaent. The object of those who are now seeking to emasculate this right seenis to be to leave the individual helpless in the tyrant’s hands. “But,” I bear some one ask, “is it not rather absurd to put the enforcement of a law ii the hands of a jury composed in whole or in part of men prejudiced against that law?” Well, it does seem a bit irrational, until we inquire what the purpose of statute law is, or ought to be. If the purpose of statute law is the attainment of a rigid, inflexible, stiff- backed, cast-iron justice, then perhaps the special jury system is an excellent method of achieving it. But I declare to you that no such justice is wanted in any civilized coinmunity. 1iVe want a justice, not rigid, but elastic; ‘we want a justice, not stern, but tempered with mercy, sympathy, and common sense; we want a justice, not blind, but with eyes sharp enough to detect causes, conditions, and circumstances; we want a justice, not superficia’, but profound. Granting perfectly that no man is entitled to assault another, we yet want a justice that will not punish the striker who knocks down a so-called “scab” three times as severely as it punishes any common citizen for knocking down another common citizen. Granting perfectly that property ought to be protected against thieves, we yet want a justice that, instead of putting the rich man who steals a million in prison for a year and the poor boy who steals a tencent pocketbook in prison for six years and a half, will reverse the severity’ of those sentences. Granting perfectly the validity of t1 eighth commandment, we want a justice that, when convinced that a man has stolen a loaf of bread because he was actually starving, will send him to jail for not more than a week, and will see that he has three good meals a day while he is there. And not only granting, but asserting, the freedom of woman to choose, we want a justice that will see to it that a difference of twenty- four hours in a young woman’s age shall not make aL the difference between a man at per. fect liberty and a man in prison for twenty years. But such justice as this, my friends, is not to be had by excluding from jury duty men who have prejudices against certain statutes. It is prejudice against the law that oftenest saves society. However we may look at it theoretically, prejudice against the law serves in practice as a most valuable corrective of the folly of law-givers and the cruelty of
courts. Shall we, then, dismiss so useful a public servant? Suppose, however, that we were to admit— which we do not, for the reasons just given— suppose we were to admit that prejudice against a particular law ought to disqualify the man who entertains it fdr jury service in a trial involving that law. Tber is nothing new about this. As we have seen, it is a condition that has sometimes been insisted on in the pastS But does tbis furnish the slightest justifieatio for a jury Jaw providing that no iuan having a prejudice against any single law, no matter what, shall sit as juror in any important case whatsoever, though the law involved in the case be onc in which he thoroughly believes? Against this special jury law a man prejudiced against the Raines law could not serve as juror in a murder tria’, though he believed as stoutly as Moses and Jehovah in the doctrine of an eye for an eye, a tooth for a tooth, and a life for a life. Under it a man having conscientious scruples against the death penalty could not sit in judgment on the tobacco trust, though he were to outdo Karl Marx in asserting the right of the State to suppress freedom of trade. Could there be a more monstrous perversion of common sense and fairness than this? Does it not show beyond a doubt that the purpose of this law is to exclude men who are both intelligent and honest from the jury box? For who are the intelligent and honest men in a community? They certainly are not the men who swallow all the laws in a lump. Rather are they the men of sufficient mental calibre to enable them to examine the laws for themselves, to discriminate between the good and the bad, and to reject some while accepting others. “But,” it may be said, “this law does not exclude the simply prejudiced; it excludes only those who will not or can not put aside their prejudices sufficiently to enable them to convict.” Ah! it is a damaging admission. For it is confessed thereby that it is the purpose of this law to recruit special jurors exclusively from those who are willing to dethrone their brains and consciences, to abdicate their individual sovereignty, and become mere cat’spaws of those in power. I take it that it is not such men that we need for the jury box. But that this new law wants such, and only such, we have abundant proof. I know a man—a very amiable gentIeman whom I esteem highly as a friend—who is on this special jury list. ile is a very mild and gentle individual, who strongly objects to capital punishment. He was examined by one of the commissioner’s subordinates, and then by the commissioner himself. The commissioner, on discovering his objection to the death penalty, turned to his subordinate, and asked rather severely: “Why did you bring this man in to me? You should have known that he would not do for us.” “Please, sir, ask him a few more questions,” mildly urged the subordinate. The few more questions were put, and, in answering them, the gentleman stated that, while believing it wrong to kill a murderer, he would consider it his duty, in his capacity as a juror, to finda murderer guilty, in order that the State might kill him.
“Ohs in that case,” said the commissioner, “you are just the iuan we want,” and on the list he vent. I suppose that this gentleman would also accept the office of sheriff, press the button that would send a fatal current of electricity through some helpless wretch, aid then piously exclaim: “Of this act of murder I wash my bands. It was not I, it was the sheriff who did it.” I do not believe that the people of these two counties want their jury boxes hued exclusively with such men as he. Do not, however, understand rue to declare that all the men now on this special jury list are thoroughly objectionable. I believe that it is a part of the plan to have Borne good men on it at first. The executors of the law desire to be able to say to objectors: “See! we have laborers on our jury list.” Personally I know of two or three labor leaders wo are on the list. I even know one Anarchist on it. It is the intention not to be too particular in this first sifting. Moreover, it is no easy matter, even in as large a county as Iew York, to find at Bhort notice 3,000 men exactly to the liking of our masters. So they are taking the best that they can easily get, being well aware that, as they learn to know their men, they can cast out the unruly and put the submssive in their places. Meanwhile the game is to make the thing attractive to the people. Note the course late1y pursued by the commissioner against Mr. John Claflin, millionaire, of the great dry goods house of Claffin & Co. Mr. Claim has long been accustomed to ignoring notices to appear for jury duty. Consequently, and being inaware of the new special jury law, when he received the special commissioner’s notice he ignored this also. But, the mulionaires collectively having in their own interest determined that no individual millionaire shall dodge special jury duty, a warrant forthwith issued for Mr Claflin’s arrest. Whereupon he hastened before the commissioner, and was received with the usual affability. I tell the story substantially as it was told in the UeWS1)apers. “Evidently, Mr. Claflin,” said the commissioner, in substance, “you don’t know a good thing when it is put in your way. If you had known what a snap we were offering you, you would have come here voluntarily. Why, my dear sir, this is the juror’s paradise You are not only exempt from ordinary jury duty, but, assuming the worst, you will not have to serve On a special jury oftener than once in four years.” And then Mr. Olaflin’s examination began. “Have you, Mr. Clãflin, any prejudice against any law of the State that would preclude you frona finding a defendant guilty of violating it?” “Well, yes, I have a prejudice against the Anti-Trust law.” “But now, Mr. Claflin, you surely are an honest man. Do you not think that, in spite of your prejudice, you could find a verdict iii accordance with the law and the evidence?” “Well, yes, I suppose I could.” And so Mr. Claffin’s name went on the list, and a double purpose bad been served. An effective warning had been given to the rich as to what tbeir fellow rich men expect of them in this matter, and, by a huge bluff, the people
- (en asured that this new huv is the poor ian’S friend, designed to force the rich man to o his fair share of jury duty. By holding this iceting to-night the organized labor of these wo counties declares that this bhff does not go, ud insists that the commissioner and his backers all show their hand. It is a eall which the
pedal commissioner will not relish, for, as he centIy deoared in conversation, his commis[onership is his bread and butter. It is likely, my friends, that still other efforts nil be made to hoodwink the people. Special ains may- be taken to make orainary juty serice ap)ear inefficient, ineffective, and ridicums, and, with the ground thus prepared, the pecial jury law may be first brought into acion in a case carefully selected for the conealineat of its inherent evils, and the abuses r whieh it opens the door may be strenuously voided. Then the newspapers will promptly all our attention to the beautiful manner in ,hieh this law is saving the precious time of ur courts. But some fine day a band f Lanaics will have a pet persecution to enforce, or a and of thieves will contemplate a new and giantic steal under the cover of the law, and we hail awake to the fact that we have placed in he hands of our enemies one of the most potent ngiues ever devised for crushing out the librties of men. I come here to-night simply to warn you of he danger. The law is passed and on the staute books, thanks to our indifference. We are onfronteci now with a condition, not a theory. nd I ask you, in the language of a great criilnal, famous and infamous in the annals of ew York, who, numerous and appalling as vere his crimes never committed any half as nischievous, never perpetrated one a thonsandtb art as wicked in effect, as this new av will rove,—I ask you, in the language of 13111 wecd, but in a very different spirit: “What re you going to do about it?” For myself, I tell you frankly that I am not oo hopeful of this law’s repeal. Mighty inerests are entrenched behind it. I am certain hat it will not be repeated if our efforts are to top with this meeting. I am certain that you annot secure its repeal by going to Albany Lnd asl.dng for it. I am certain that you will lot remove it from the statute-books by your )alIots next November. Make these efforts if ou will; I wish you all success. But I predict ai1urc. There is, however, a way, a certain -ay, of repealing this law, and it lies in your wn hands. That way is the pursuance by ach of you, individually, in the courts, of that olicy which Parnell pursued so successfully in he British parliainent,—the policy of passive esistance, the policy of loud and steady pro;est, the policy of embarrassment, hindrance, blockade, and obstruction. Next week, next month, next autumn, next year,. at some time r other in a not remote future, it will fall to the lot of many of those in this hail, and to Iuauy more in these two counties outside of this a11, to be summoned for ordinary jury duty. [f each and every one of you, on being paeed in the jury box and before each trial begins, will rise in his p’ace and say to the court: “I most earnestly protest against having to serve On this jury; there were afready too many exemptions, and now the exemption by the special jury law of an additional three thousand in this county imposes upon me more than my fair share of jury duty; I serve here only on corn -pulsion and in a spirit of indignant discontent,”—if each and every one of you will do this, and will repeat it on every occasion that arises, you will powerfully contribute to a constantly-swelling current of public opinion that sooner or later will become a torrent and cause this obnoxious law either to be repealed, or else, to quote Grover Cleveland again, to fall into a state of innocuous desuetude. You need not fear to take this course. You are perfectly safe in doing so. Every juror has a right to make such a protest. No one can say hini nay. The judge will frown, but he is powerless to do more. The very worst that he can do is to ask you if you are a native American. And you, in return, if you choose to take a risk, and desire to rival the judge as a blackguard, can ask him if h18 grandmother was a monkey. If, indecd you have in you just a little of the stuff that stiffened the spine of native Americans a century ago, you will go still further, on occasion. You will resent every attempt of the court to encroach upon the province of the juror, and especially, when the court orders you as a juror to bring in a certain verdict, you will decline to do so, and will then and there declare that the registration of the verdict as your own is a falsehood spread upon the records of the court. If you have in you the stuff to do that, you will win this fight; if you have not, you deserve your slavery. At any rate such tactics a’one can succeed, and it is these tactics that I advise you to follow, while I at the same time promise to follow them myself. Remember, my friends, that they have rights who dare maintain them.