Page:Harvard Law Review Volume 10.djvu/68

42 42 HARVARD LAW REVIEW. need fear any unmerited harm from our local Supreme Bench, and, taken all in all, the present array is one of exceptional training and capacity, and reflets credit on the scheme of popular election. During the progress of the "Boodle Trials," a Supreme Court justice declared from the bench that he had long wondered why the bar put up with such men as were offered for jury service in that court. One result of those trials was improvement in the quality of juries. The experience in jury-getting at the trials consequent on the Lexow Investigation promises further improve- ment. But our best citizens, such as the bar would most gladly have on juries, evade that service in every possible way, and juries are not yet what they should be. Constantly ex-jurors volunteer such queer reasons for voting as they have on a given case, as to compel doubt whether trial by jury ever was the bul- wark of Gothic liberty. The power of an astute learned judge at a jury trial is now a compensation for a poor jury. A judge with us may, and not infrequently does, estimate a case at the outset; he may baffle attempts to introduce error at the trial, and to a great degree and rightly steer the jury to a conclusion substan- tially just. Counsel who quarrel with a judge, proceeding thus, only help the tacit purpose of the judge. In nine cases out of ten, juries are not scrutinized, but under pressure of business are taken after one or two formal questions to the entire twelve, just as they are offered. The disaster that may lurk in this might often be avoided by slight questionings. The writer, lately having a near-sighted opponent, tried a case before an exceptionally prepossessing jury. The court kept the case from the jury, and when it was discharged it was discovered that one of its best men, being a personal enemy of the near- sighted opponent, had been quietly waiting for him. Not long ago one of our judges, at a trial by the husband against the wife for divorce, on our one statutory ground, asked who a couple chatting and laughing in the courtroom might be. He learned that they were the husband and wife, the latter defaulting on the serious charge against her. He called them before him, and she told him that she was guiltless of the wrong charged to her. Whereupon the matter became one of special inquiry. Again, recently a reputable attorney, while waiting for his case to be reached in one court, sauntered into an adjoining room where a woman was being badly broken down on cross-examina- tion by her own written testimony as to the same transaction