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had been finished a little while before and given to the jury. The hour of adjournment for dinner arrived, and, while at the hotel, I noticed some of the jurymen in this cause, which had been finished and which had been committed to them, at the table in the dining room. I said to my associate, “ They must have agreed upon their verdict.” “Oh, no,” he replied, “they have come out to dinner, and they will go back again and resume their consideration of the cause. I said, “They are about here, talking, the same as everybody else." “ Yes," my associate said, “ but when they get through they will go back and continue their deliberations." I found on inquiry this is the practice in the State of Connecticut—that jurymen, when the hour for the noon adjournment arrives, separate and go to their meals where they please, and when the court reconvenes they resume their deliberations. Then when night comes they go to their homes if they have not agreed and return the following morning and again take up the consideration of the case. I learned upon .examination of a capital cause, where a man had been convicted of murder, the cause was carried by writ of error to the Court of Appeals, and objection was made that the jury had separated after the cause was submitted to them by the court and had gone home for the night, and returned the next morning to consider their verdict, and afterwards had brought in a verdict of guilty. The Court of Appeals said this was in accord with long-established usage and practice in the State of Connecticut and was not error.
I believe there are two Western states which have the same practice which Connecticut has in this respect, and I think there are several states, mostly in the South, which leave the matter of the separation of the jury to the discretion of the court. In one state the jurymen may separate in a civil cause,
but may not do so in a criminal cause. In another state they may separate in any cause, civil or criminal, unless it be a capital cause, when the consent of the prisoner is necessary.
Why should they be treated with such suspicion that we say to them practically, in effect: You are such weak and untrust
worthy men that unless we shut you up you cannot be depended upon to render a fair verdict? This does not conduce to bringing strong and manly service into the jury room. It is no protection against corruption, for if a man is corruptible he can be approached just as well before the charge of the court as after. The authenticated cases of corruption and bribery in the jury box are exceedingly few. The same men often are called upon
to serve as a committee of creditors in some bankruptcy matter, and it would be considered an insult to them if when once they became engaged in their deliberations they were asked not to separate for meals, not to go home, but to remain together until they had agreed upon the matter under consideration. Yet the very same men, when called to serve on a jury, in a matter of no more importance, perhaps a part of the same kind of controversy, are treated as if they were not to be trusted unless shut up and kept entirely by themselves. The President of this Association, in his very able address this morning, said that it was much better in a law school instead of surrounding a student with espionage to put him upon honor, and I submit to you whether we are not likely to get better, more intelligent and independent service from jurymen if we treat them at least with some confidence that they have the ordinary honesty and integrity of the usual run of people.
This seclusion from the world is sometimes a serious business loss to a juryman. I remember a case where, there happening to be a deficiency in the number of jurymen empaneled, an officer was sent out into the corridor of the court house to get another juryman and he caught a man going through the court house who had not been summoned for jury duty at all, and that man was brought in and compelled to serve at great loss to his business because of his sudden and unexpected interruption to his affairs which it entailed upon him. Sometimes it is most inhuman. I know of an instance where the wife of a juryman serving on a capital cause, where the jury was secluded from the beginning of the cause,
became seriously ill, and no information of her condition was given to the juryman, and she died, and she would have been buried without his seeing the remains if it had not been that the case was finished and a verdict was rendered. Is it any wonder that there is an aversion on the part of business men to serving upon a jury when jurymen are exposed to loss and inhumanity such as in these two instances I have spoken of ?
Most people are used in their ordinary affairs to regular hours of labor. I do not mean, of course, that there may not come an emergency or that everybody may not find that he gets to his office an hour earlier or stays an hour later at times, but there is some approach, at least in ordinary occupation, to regular hours of labor. On the other hand, a juryman does not know how many hours he may have to serve in a day, nor how far into the night he may be compelled to remain away from his family. Yet in any other duty which a citizen must perform-except, of course, in the case of war—when he leaves home in the morning he goes with some expectation that he will return by a particular time of night. But if a man is serving on a jury he does not know whether he is going to get home for dinner, or at what hour in the evening he will get home, or whether he will get home before the next day. I am not speaking of emergencies which may arise, but simply that in the ordinary occupation of a juryman he cannot make any engagement with any degree of certainty that he will be able to keep it. In Connecticut a juryman is treated like any other officer of the court; he serves the same hours; he goes to court in the morning at its opening; he leaves at the noon recess, and he leaves again at the adjournment for the day. He is treated like any other person who takes part in the administration of justice.
Most of us have become habituated to certain regular hours for food and sleep, and, whatever our avocations may be, there is some general rule as to when we expect to get our meals and when we expect to get our sleep; but if a man is called for jury service he is exposed to irregularity in all these respects.
Now, why should this be so? It is said that it is for the purpose of bringing the jury to an agreement. But I submit that is hardly the purpose of maintaining courts and providing jurymen-to bring about an agreement through starving them and depriving them of sleep. Dispatch of business is not the great aim in courts of justice, but rather the detection and punishment of wrong. If these things were changed and a juryman was treated like any other officer of the court, should we not find that many business men who now shrink from service on a jury would be more willing to take part in its deliberations. In People vs. Sheldon, 156 N. Y. 268, where the trial judge kept the jury out three days and a half and so compelled a conviction, the Court of Appeals set it aside as obtained manifestly by coercion and not by reason or evidence. Once the conditions were very much worse than they are
We read of the old days in England, where four men prevented the jury from agreeing and the jury had been kept out all day and all night without food or sleep, and there was a riot, and those four men were in danger of their lives, set upon with such fury by the other eight jurors, that they agreed to a verdict because their companions on the jury were starving. We read of instances in England of fines being imposed on jurymen who did not agree, and sometimes they were sent to prison for not agreeing. In fact, it was a part of the old law that jurors might be kept without meat or drink, without heat, without a light, until they agreed upon a verdict, and in some cases they could be put into a cart and driven about upon the circuit, following the judge from place to place until they should render a verdict. Of course, we should all
Of course, we should all say that such things were barbarous and utterly impossible to take place today. But where is the difference in principle between them and depriving a juryman of his ordinary and regular meals and keeping him hour after hour at night without sleep in order to get a verdict? In some respects the old system was more merciful, because jurymen could be added to the panel until there were found twelve who would agree.
We are a patient people. We do not make changes, as a rule, until there comes some striking occasion for them, where wrong has been done which is brought home to our notice. It is not the fault of the judges that such things take place. Indeed, such alleviations as have been found for juries have come from the judges. But the judges are necessarily conservative; they move slowly, and they are not given to making any rash changes. Therefore, such changes, if they come, must come from the act of the legislature; and I believe no body of men would welcome a provision for more humane, just and reasonable treatment of jurymen than the judges of our courts.
Complaint sometimes is made of the quality of jurymen; sometimes it has foundation; generally, it has not; but I submit whether we should not be likely to improve the quality of the jurymen if we would remove these petty and unnecessary annoyances, if they were treated like other persons engaged in ascertaining rights, given regular hours of employment, permitted to have their meals and their sleep at regular times, and not treated with so much suspicion that they must be shut up as weak and utterly untrustworthy citizens.
The Association is very grateful, I am sure, for these interesting and suggestive remarks. The subject is now open for general discussion.
Walter S. Logan, of New York:
I think there is one reason why we should maintain our jury system in this country that was not touched upon by the speaker. Ours is a judge-governed land. It is a land of liberty because it is a judge-governed land. We are in no special danger of executive usurpation. The only despotism that would be possible here would be judicial despotism; the judge with his injunction is more likely to become a despot than the governor with his very limited powers. But we are in no danger of judicial encroachment upon our liberties while the administration of justice is divided between judge and jury.