zlement, after evidence had been given for the prosecution, an affidavit was produced alleging that a juror, on his voir dire, falsely swore that he had no acquaintance with the accused. Thereafter a letter commenting upon this affidavit was published in a newspaper, and was read by members of the jury, Held, that the court was warranted in dismissing the jury, and that a new trial was not barred on the ground of former jeopardy. The court said: "The general rule of law upon the power of the court to discharge the jury in a criminal case before verdict, was laid down by this court more than sixty years ago, in a case presenting the question whether a man charged with a capital crime was entitled to be discharged because the jury, being unable to agree, had been discharged, without his consent, from life, or the statements on which a medical adviser is expected to act, and which, if feigned, he should have skill enough to subject to some test of truth, stand on a footing which removes them in general from suspicion. But we cannot think it safe to receive such staements which are made for the very purpose of getting up testimony, and not under ordinary circumstances. The physicians here were not called in to aid or give medical treatment, The case had been relinquished long before, as requiring no further attendance. They were sent for merely to enable the plaintiff below to prove her case. The whole course of the plaintiff was taken to no other end. She had in her mind just what expressions her cause required. They were therefore made under a strong temptation to feign suffering, if dishonest, and a hardly less strong ten-giving any verdict upon the indictment. The court, dency, if honest, to imagine or exaggerate it. The purpose of the examination removed the ordinary safeguards which furnish the only reason for receiving declarations which bear in a party's own favor. The general rule in regard to other classes of hearsay evidence and statements admitted upon the same principle is that they must have been made ante litem motam, which is interpreted to mean not merely before suit brought, but before the controversy exists upon the facts. Stockton v. Williams Walk. Ch. 120; 1 Doug. (Mich.) 546, citing the Berkeley Peerage Case, 4 Camp. 401; Richards v. Bassett, 10 Barn. & C. 657; Doe d. Tilman v. Tarver, Ryan & M. 141; Monkton v. Attorney-General, 2 Russ. & M. 160; Whitelock v. Baker, 13 Ves. 514. The language of Lord Eldon in Whitelock v. Baker has met with general acquiesence. He says: 'All are admitted upon the principle that they are the natural effusions of a party who must know the truth, and who speaks upon an occasion when his mind stands in an even position, without any temptation to exceed or fall short of the truth.' Page 514. It is not necessary to consider whether there may not be properly received in some cases the natural and usual expressions of pain, made under circumstances free from suspicion, even post litem motam. The case must at least be a very plain one which will permit this. speaking by Mr. Justice Story, said: 'We are of opinion that the facts constitute no legal bar to a future trial. The prisoner has not been convicted or acquitted, and may again be put upon his defense. We think that, in all cases of this nature, the law has invested courts of justice with the authority to discharge a jury from giving any verdict whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances which would render it proper to interfere. To be sure, the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes; and in capital cases especially courts should be extremely careful how they interfere with any of the chances of life in favor of the prisoner. But after all they have the right to order the discharge; and the security which the public have for the faithful, sound and conscientious exercise of this discretion rests, in this as in other cases, upon the responsibility of the judges, under their oaths of office.' United States v. Perez, 9 Wheat. 579. A recent decision of the Court of Queen's Bench, made upon a full review of the English authorities, and affirmed in the Exchequer Chamber, is to the same effect. Winsor v. Queen, L. R., 1 Q. B. 289, 390; 6 Best & S. 143, and 7 id. 490. There can be no condition of things in which the necessity for the exercise of this power is more manifest, in order to prevent the defeat of the ends of public justice, than when it is made to appear to the court that either by reason of facts existing when the jurors were sworn, but not then disclosed or known to the court, or by reason of outside influences brought to bear on the jury pending the trial, the jurors or any of them are subject to such bias or prejudice as not to stand impartial between the government and the accused. As was well said by Mr. Justice Curtis in a case very like that now before us: 'It is an entire mistake to confound this discretionary authority of the court to protect one part of the tribunal from In Simmons v. United States, United States Su-corruption or prejudice with the right of challenge preme Court, December 21, 1891, a trial for embez The present controversy presents no such difficulty. The physicians were called in, not to give medical aid, but to make up medical testimony; and the declarations were made to them while engaged in that work. It would be difficult to find a case more plainly within the mischief of the excluding rule.' While we adhere to the rule permitting such testimony in proper cases, we do not feel inclined to extend it beyond the necessities of the case, nor to cases clearly within the exception noted in the Huntley Case." See note, 33 Am. Rep. 828. Railroad Co. v. Newell, 104 Ind. 264; S. C., 54 Am. Rep. 312, is to the contrary, and on the other hand Railroad Co. v. Johns, 36 Kans. 769; S. C., 59 Am. Rep. 609, seems to approve the Huntley Case with a "possibly." allowed to a party; and it is at least equally a mis take to suppose that in a court of justice, either party can have a vested right to a corrupt or prejudiced juror, who is not fit to sit in judgment in the case. United States v. Morris, 1 Curt. 23, 37. * *** It needs no argument to prove that the judge, upon receiving such information, was fully justified in concluding that such a publication, under the peculiar circumstances attending it, made it impossible for that jury, in considering the case, to act with the independence and freedom on the part of each juror requisite to a fair trial of the issue between the parties. The judge having come to that conclusion, it was clearly within his authority to order the jury to be discharged, and to put the defendant on trial by another jury; and the defendant was not thereby twice put in jeopardy, within the meaning of the fifth amendment to the Constitution of the United States." By Gray, J. EDITOR'S LETTER FROM CHICAGO. MY ple, from the address of the president, Mr. James M. Riggs, it is evident that it takes about as long to dispose of a cause here as at home. Four years and a half Mr. Riggs considered to be the life of a well-nurtured lawsuit, and he did not spare the bench in his denunciation of this delay. He was especially severe on the perambulatory character of the Supreme Court, which sits in three different towns by turns, and is apparently unable to get legislative relief from this unprofitable if not injurious necessity. In a report, Mr. Rosenthal, the accomplished librarian of the Law Institute, recommended the abolition of admission to the bar upon the diploma of certain law schools, etc.-seven in number-without examination at the bar-a gross abuse which was suppressed im our State twenty years ago. Ex-Governor Hamilton made a terrific attack on the State board of equalization, revealing a state of affairs as corrupt and iniquitous as any under the Tweed regime in New York, by which Cook county- which means Chicago-is saddled with about eighty-six millions in excess of its just proportion of valuation. Mr. George W. Kretzinger was very forcible and perfectly right in his denun. ciation of party affiliation as a requisite qualification for office. One novelty of this meeting was the "symposium" idea. There were two of these discussions, one of which I heard, on "Transfer of Land Titles," in which the Torrens (Australian) system was the chief text for debate, and in which Messrs. Orendorf, Bigelow and Callahan were opposed to, and Mr. Hurd was in favor of its adoption. It seemed to me that the "tyrannical" majority for once had the better reason. matter of general regret that Judge Bradwell, the veteran favorite and useful friend of the Illinois bar, was prevented by sickness from being present and fulfilling the duty of historian assigned to him. It was a pleasant thing to see Judge Trumbull, active and vigorous at the age of eighty, reading a suggestive and instructive paper, and the association honored itself by choosing him president for the coming year. Much of the success of the meeting was due to the energy and intelligence of the secretary and treasurer, Judge W. L. Gross, of Springfield, who is an ex-president of the association. It was a Y first visit to Chicago since "the fire" was last week, and was induced by an invitation from the Illinois State Bar Association to attend their fifteenth annual meeting. Every thing in Chicago dates from "the fire" (as in the minds of people half a century ago it dated from "the great wind"), when they "wiped out and began again" the sum of municipal existence. A good deal could be written of a city which has gained a million inhabitants in twenty years and has buildings twenty stories high, but my commission is simply to speak of the lawyers. It is evident that "westward the course of empire takes its way," but it is some consolation that it has been founded by the wise men of the east. The east regards her stalwart offspring, not with the mean jealousy and fear with which Great Britain looks on this country, but with the glowing pride and hearty respect with which the father of five feet eight inches height looks up to his six-foot son. Most of the lawyers whom I fell in with here are from the east, many from our own State, and graduates of the Albany Law School are in number like the autumn leaves that strew the brooks in Vallambrosa, only they are not quiet and dead like the leaves, nor so easily shaken off the tree of life. The exercises of the association filled two days and were well attended- much more numerously than the meetings of the New York State Bar Association. This was the first meeting ever held at Chicago, the meetings always having hitherto been held at Springfield. It will be observed that the The closing exercises were in the form of a banassociation was formed in the same year with that quet on the evening of January 29. This was held of our State. The addresses and papers to which I at the Grand Pacific Hotel, and three hundred and listened were all marked by a high degree of learn- fifty, including many women, filled the great dininging, force and practicalness, and were on live topics room and themselves. The admission of women is and infused with a lively desire and design of iman excellent departure from our selfish, crabbed, provement. From some of them I learned that the old-bachelor New York plan. I never heard more administration of legal affairs in this great State is wit, humor and drollery from after-dinner speakers not regarded by the lawyers with entire composure in my life; never saw a wittier toast-master than and satisfaction; on the contrary there was a great Mr. Jas. S. Norton; and most of the stories were deal of trenchant and fearless criticism. For exam- new, even to me and I am apt to believe that I His duties as treasurer are not so onerous as those of the treasurer of the State Bar Association of New York, for the Illinois association has no surplus to speak of and has never sought to have any, and indeed it is difficult to imagine the use of such a surplus. 66 have heard every story that ever was told. The last toast The Fair," was designedly ambiguous, and the first response, by Mr. Benjamin Butterworth, was exclusively in reference to the coming exposition, and then came Mr. William G. Ewing, who talked exclusively about the women, and in a strain of slow and solemn drollery quite worthy of Mark Twain. A novelty was a toast to 'Moses," responded to by the learned and eloquent Rabbi Hirsch, who bravely declared himself one of the new school of Hebrew scholars who deny the personality of the great law-giver. If the Rabbi will come down to Albany, after the completion of our threatened King fountain, we will convince him of his error by showing him the statue of Moses in the act of smiting the rock, and thus affording to our city a possible solution of the much-vexed problem of our local water-supply. But Moses would have found no necessity at this banquet for illustrating his miraculous power and his bad temper, for water was not greatly in demand. The presence of the women however was at once a safeguard against excess and a convenience in respect of the unwonted intricacies of the house front-door. The feast itself was excellent; in fact Chicago can "give us points" in this as well as in respect to most other things, but for geographical reasons she cannot give us "blue points." For several days the courtesy and hospitality of this wonderful city have been showered upon me. The further one goes west the heartier and more spontaneous these traits become, quite putting to shame our shy, cold, pedigree-inquiring eastern manners. Pretty much every thing has been offered to me out here. I should not be in the least surprised by the offer of a gratuitous flat on the eighteenth story of one of those new sky-scrapers; and if I should go on to Salt Lake City, doubtless I should experience that peculiar form of hospitality which Bayard Taylor (if I recollect right) records as prevailing among a tribe of Himalayan mountaineers. I hope my hearers did not think that by quoting "the pen is mightier than the sword," in my paper, I intended a pun and a drive at Chicago. CHICAGO, February 2, 1892. IRVING BROWNE. LEGAL JOURNALISM. (By IRVING BROWNE. Read before the Illinois State Bar Association, at Chicago, January 28, 1892.) THE HE great French memoir writer of the time of Louis XIV, censures the grand monarch for seeking to depress the aristocracy by appointing to place so many "men of the pen and robe." By this phrase he did not mean editors and lawyers, for the former were unknown, and the latter had none of that substantial monopoly of the great offices which they have enjoyed in more recent times. But since the advent of the nineteenth century the great fourth estate of the press has arisen, and the men of the pen, having found in the printing-press a fulcrum for that lever, have pried the world on to unwonted movements, and as the only considerable rivals of the modern men of the robe, are trying with a large measure of success to pry them out It must be admitted that the men of the of office. robe have hung back with all their constitutional inertia against the pen movement, but their efforts have been as vain as the struggles of a man to stop a runaway horse by pushing with both feet against the dashboard. There is no ground for denial of the power of the press, overwhelming, and as some think, excessive, but there is no necessity for admitting that it is alone in the hands of "men entirely great that the "pen ness. The is mightier than the sword" and the gown. The power of the press is mainly due to two causes: its impersonality and its pervasiveness or simultaneousA man may confide his opinions to the ear of one hearer or several, or he may stand at the street corner and loudly announce the same opinions to bystanders or passers, and he gains but little attention or credence, and in the latter case is depreciated as a "crank," and is fortunate if he is not "run in" by a policeman. But let him set up a printing-press, and issue a newspaper containing the very same views, and he finds a respectful and attentive audience and a considerable measure of agreement, no matter how crude or absurd his opinions. In the former case his personality and the lack of a great audience stood in his way; in the latter the impersonality and the pervasiveness of the newspaper win him a victory. fact is not changed, no matter how uninfluential or even disreputable the man. Thus the greatest newspaper ever built up in America was created by a man who was repeatedly publicly whipped on the streets for intolerable libels on private character. We know not, or if we know we do not care, how insignificant or lacking in personal worth, the writers on a newspaper, its columns charge on and carry us away. My neighbor, Hustler, editor of the Albany Evening Rattler, a highly respectable but rather dull man, occasionally walks down street with me in the morning, and usually improves the occasion by rehearsing to me something which has the air and sound of an approaching editorial on tariff or silver or elections, about which I know nothing and care less, and his utterances go in at one ear and out at the other. But in the evening when I peruse the Ruttler, and read the same views in his types, I find myself involuntarily taking stock in Hustler, and saying to myself: "Smart fellow, that Hustler; didn't think it was in him." The newspapers would gain nothing by having their writers sign their articles, and they are generally wise enough to recognize it. As to their pervasiveness, it is as if the cultured Bostonian, Prof. Sullivan, when he addresses one of his knock-down arguments to an opposer, should be able, by means of an electrical attachment, to convey the force of that appeal to a thousand or ten thousand or a hundred thousand other individuals on the same day. He would compel fear and respect if not assent and adherence. In this way the newspapers are enabled not merely to give voice to, but absolutely to make, modify and control public opinion. It may well be that the newspaper men have received valuable aid from the lawyers in recent times. Mr. Lecky takes this view, for in his " History of European Morals" he says: "An important intellectual revolution is at present taking place in England. The ascendency in literary and philosophical questions which belonged to the writers of books is manifestly passing in a very great degree to weekly and even daily papers, which have long been supreme in politics, and have begun within the last ten years systematically to treat ethical and philosophical questions. From their immense circulation, their incontestable ability and the power they possess of continually reiterating their distinctive doc ୮ trines, from the impatience too of long and elaborate writings, which newspapers generate in the public, it has come to pass that these periodicals exercise probably a greater influence than any other productions of the day, in forming the way of thinking of ordinary educated English men. The many consequences, good and evil, of this change it will be the duty of future literary historians to trace, but there is one which is, I think, much felt in the sphere of ethics. An important effect of these journals has been to evoke a large amount of literary talent in the lawyer class. Men whose professional duties would render it impossible for them to write long books, are quite capable of treating philosophical subjects in the form of short essays, and have in fact become conspicuous in these periodicals. There has seldom, I think, before been a time when lawyers occupied such an important literary position as at present, or when legal ways of thinking had so great an influence over English philosophy, and this fact has been eminently favorable to the progress of utilitarianism." The journals and newspapers fondly and sedulously cater to the taste, caprice and opinions of the public. There are journals for every religion and every sect, and for those who have no religion; for every political party and for those who do not believe in government and would destroy it; for every conceivable reform and "ism;" for every school of medicine and every form of quackery; for the army and navy (although it is a little difficult to see how the latter can get their papers regularly); for every age and sex, the most widely circulated journal in the world being the Youths' Companion; for every class, even the insane, deaf and dumb and the criminal class; for the lovers of almost every special form of sport, such as racing, boxing, prize-fighting, yachting, bicycling; for almost every trade and occupation, from the unpleasantly essential but highly respectable commercial drummers and insurance people down to such public enemies as plumbers, dressmakers and stockbrokers; for the promotion of elegant culture in letters, music, painting, sculpture and architecture, and for the diffusion of science. Even the animal creation is cared for by the press generally, as by Our Dumb Animals, and the horse in particular in Black Beauty. Newspaper editors are of all kinds and conditions of men. There are newspapers edited avowedly by men, others avowedly by women, and others by persons whose sex is not divulged and which it is sometimes hard to guess. There are newspapers edited evidently by gentlemen and scholars; others by brutes and ruffians; many by honest men and some by rascals; some by liberals and some by bigots; many by party hacks and some by independents; many by sane men and some by "cranks" and lunatics; some with a decent regard to individual privacy, others with an inhuman disregard of it; some in a chaste and dignified manner, others with a disgusting exhibition of vulgarity and slang and an unwholesome sensationalism. There are many newspapers whose opinions could be bought for a very few dollars, there are others whose opinions it would require a great deal of money to buy, and there are many more whose opinions could not be bought for any amount of money. In fact the great fourth profession is very much in personnel like the other three; as there are hypocrites in religion, impostors in medicine and shysters and pettifoggers in law, so there are unworthy men among editors, but they are probably as largely in the minority as the unworthy in the other professions. At an early day in this country a young lawyer, one Joseph Story, furnished out of bis fancy, which then ran to rhyme, a motto for the Salem Register newspaper: "Here shall the Press the People's right maintain, This lofty and solemn pledge has never been kept by the newspapers as to the law, at least so far as concerns the declaration and reporting of it, and not always as to the obeying of it. Even down to this day the omniscience of the press has failed to embrace the law. Moliere says that "people of quality know every thing without ever having learned any thing." So the newspaper people have assumed to know the law as well as every thing else, but they have proved treacherous guides over its dark and slippery paths. However full and intelligent may be their reports of the weightier matters of prize-fights, baseball games and hangings, they have not yet acquired the art, at least in this country, of intelligently reporting any law case or trial except the simplest. They do much better in England and seem there to attach more importance to such news. The English newspapers, even out of London, give remarkably full and correct accounts of the proceedings of the courts. But in this country the newspaper continues to bring women to majority at eighteen, to break wills because the testator did not leave at least a dollar to each of his next of kin, and to marry people against their consent. As a distinguished lawyer observed in a brief in this State: "In the good time coming it will doubtless be one of Now when the lawyers looked about them and be- one in Richmond, one widely circulated and of mature age in St. Louis, one in New Jersey, and there is a daily in the city of New York. Several of the leading law schools issue monthly periodicals, that of Harvard being of a remarkable degree of ability and interest. In addition to the legal journals proper, there are several reviews of high merit, either quarterly, bi-monthly or monthly, one of which, published in St. Louis, combines to a considerable extent the characteristics of the law journal with those of the review, and is marked by distinguished talent and interest. New Jersey furnishes the only and an admirable magazine of criminal law. The oldest of the American law reviews ceased only a few months ago at the age of nearly forty years. Canada has several respectable weekly or monthly periodicals. London and Ediuburgh furnish each a learned quarterly. Dublin has a bright weekly. France, Germany and Italy produce monthlies of the broadest and most profound scope of learning. In addition there are in this country several weeklies and monthlies furnishing more or less extensive reports of cases, but bestowing little or no attention on the peculiar attributes of legal journalism in the strict sense of the phrase. Several periodicals are devoted to special branches of the law, such as banking, insurance and railway and corporation law. Finally, that the bar are not completely engrossed in the practical is strongly evidenced by the success of a picturesque Boston monthly, just entering on its third year, and boldly professing to be " useless and entertaining," the latter of which it decidedly is and the former of which it decidedly is not. Perhaps it will be profitable now to inquire, first, what is legal journalism, and second, what are the essentials of the ideal legal journalism. It is easier to say what legal journalism is not than what it is. In the first place the legal journal is not a mere review, published four or six times a year. The journal, as its name indicates, tells of the transactions of the day, at least once a week, and does not wait until they are posted into the quarterly or bi-monthly ledger of the review. There are some admirable reviews in the legal world, but they do not constitute what is understood by journalism. In the second place, the legal journal is not a mere digest nor a partial or complete reporter of adjudications. As we should hardly call that a medical journal which fills its pages with descriptions of the symptoms, treatment and results of actual cases of croup, measles and whooping-cough, so we do not call that legal journalism which gives reports in part or in full of the thousands of similar and tedious cases of negligence, the statutes of limitations, of frauds and of usury, of replevin, trespass, landlord and tenant, seduction and assault and battery. If we desire to buy a lumber yard we do not need to tear open every pack of shingles or clapboards nor pull down every pile of planks or joists in order to see if there may not be a difference of length or thickness or smoothness or roughness or an occasional knot hole. If a man wishes to look at all the lumber of the legal yards, there are excellent printed reporters which will furnish all in any one State or all in every State, to his heart's discontent. But this is not journalism. The proper scope of legal journalism probably does not extend beyond reporting or referring to or commenting on say one thousand of the twenty-five thousand cases annually decided in the United States. The legal journal may and should report in some form every case of general, important, exceptional and novel interest, just as the medical journal should report concerning epidemics and strange and peculiarly fatal diseases, but should stop at that. Nor does legal journalism consist wholly or chiefly in reports of leading cases with learned notes, nor in long and exhaustive articles on the mere history and comparative weight of adjudication on special and familiar topics. This may constitute an occasional and useful form of professional recording, but the journal cannot expect to rival the text-book. Such articles are seldom read at the time of publication, however beneficial they may prove for possible reference in the future, and the great purpose of journalism is to furnish something essential to be read at once, and not simply something for possible subsequent reference. The legal journal should not be conducted on the narrow lines of personality, favoritism and puffery which disfigure the rural newspapers that describe the minister's last donation-party, acknowledge cordwood, hunks of wedding-cake and big squashes, and tell who is in town and what he has to say for himself. Personality should appear in the legal journal only when it has a relation to the legal profession, never when its relation is simply that of the individual to the editor. Gross laudation should be left to legal dinners and legal obituary speeches, when wine and the natural leniency toward the failings of the departed obscure the moral sense, but it is not every judge who is a “jurist," not every lawyer who is a "leading advocate," not every bookwriter who is "unrivalled," accurate" or "profound." The first essential in legal journalism is the same as in preaching-according to the "Country Parson "— that it should be interesting. Otherwise it will not be read, and if not read it will soon cease to exist. And to make legal journalism interesting, it is not entirely indispensable that it should be dull and somniferous. There are plenty of wide-awake legal topics in this stirring era, which may be made interesting, and by advocating or combating which the writer may induce and promote reform and resist deterioration or relapse. There are many burning questions of legal policy now before the public, on which it is our journalists' proper function to have and to promulgate opinions. Among these are the questions of codification of the common unwritten law; the abolition or modification of the systems of grand and petit juries; the justice and expediency of capital punishment; the right rule as to insanity absolving from responsibility; the punishment of criminals and reformation of the criminal classes; the best mode of vesting the power of pardon; the oppressive detention of witnesses in criminal cases; the formation of marriages and the proper causes for divorce; the practicability of a uniform system of marriage and divorce in the United States; the proper scope of "parental" legislation; the propriety of allowing railroad companies to grant free passes to judges and of allowing judges to accept them: Sunday observance; the statutory regulation of the relations of master and servant; the rights of married women; the law of conspiracy, with special reference to the relations of capital and labor; the attainment of a cheaper, speedier and more certain administration of justice, both civil and criminal; lotteries; lynch law; the relations (becoming somewhat strained) between Federal and State jurisdiction; the abuses growing out of expert and detective testimony; the best method of legal education; the proper qualifications for admission to the bar; the comparative mer. its of the elective and the appointing system of the selection of judges; the propriety of contingent fees; the most efficient method of reducing the evils of intemperance; the advisability of a separate class of advocates; the expediency of granting larger license for libel to the press; the abuse of cross-examination. The legal journalist should write in a concise style. Our busy profession will not stop to read long and elaborate articles, at least in weekly periodicals. It is better to offer frequent small doses than one nauseous long one. Reiteration too is advisable and essential, |