patient something to throw him into fits, on the
ground that he was infallible in curing fits."
cases from twelve to eight, it can reduce it still further, and an unlimited right of reduction in volves the power to destroy trial by jury alto GENERAL Joubert was among the many law gether. There may be no magic in the number yers who have forsaken their professional calling twelve, but if a jury does not mean twelve men, to play a great part in their country's history. what is the meaning of the term as used in the Like Ireton and Whitelock, and several other federal constitution? How far can the commonprominent figures in the Parliamentary struggle law number be reduced without violation of the of the seventeenth century, he was a lawyer be rights of the accused? What article in the con fore he became a soldier. He held the office of stitution could be cited to invalidate legislation Attorney-General in the first South African Re reducing the number of men on a jury to three? public, and is said to have acquired a great These queries are not answered by the recent decision. reputation as a cross-examiner.
IN these days of constitutional discussion, when the status of organized and unorganized territory of the United States is a subject of spirited dispute, peculiar interest attaches to a decision of the federal Supreme Court interpret ing these clauses of the constitution which pro vide for trial by jury. It is no longer an open question that in criminal cases verdicts must be unanimous in territorial courts as well as in state courts. But whether states and territories are bound to furnish common-law juries has till now been a mooted point. According to a decision in a Utah case, however, the states have the power to enact legislation reducing the number of men on a jury. The constitution of Utah provides that, except in capital cases, a jury shall consist of eight men only, while in cases of inferior jurisdiction four men are made to con stitute a jury. In civil cases three fourths of the jurors may return a verdict, and in criminal cases unanimity is the rule. Another provision is that in all criminal cases except capital ones the authorities may proceed by information in stead of by indictment at the hands of a grand jury. A man convicted of robbery by a jury of eight and upon information instituted habeas corpus proceedings in the federal courts, claiming that he was being deprived of his liberty without due process of law. This contention was based on a construction of the federal constitution, which the Supreme Court has now repudiated. It is huid that a jury does not necessarily consist of twelve men, and ¿hat a trial by a jury of eight is a legal and constitutional trial. Justice Harían has dissented from this view. He pointed out that if a state can reduce the jury in criminal
The right of counsel to shed tears before the jury was recently decided by the supreme court of Tennessee in the case of Ferguson v. Moon, which was a case for breach of promise. The court, speaking through Judge Wilkes. said: "It is assigned as error that counsel for plain tiff in his closing argument, in the midst of a very eloquent and impassioned appeal to the jury, shed tears and thus unduly excited the pas. sions and sympathies of the jury in favor of the plaintiff and greatly prejudiced them against de fendant. "Bearing upon this assignment of error we have been cited to no direct authority and after diligent search we have been able to find none. The conduct of counsel in presenting their cases to juries is a matter which must be left largely to the ethics of the profession and the discretion of the trial judge. Perhaps no two counsel ob serve the same rule. Some deal wholly in logic and legal argument, without any embellishment whatever. Others use rhetoric and occasional flights of fancy and imagination. Others rely upon noise and gesticulation, earnestness of man ner and vehemence of speech. Others appeal to the prejudices, passion and sympathies of the jury. Others combine all these modes with va rious accompaniments of different kinds. "No cast-iron rule should be laid down. To do so would result that in many cases clients would be deprived of the privilege of being heard at all by counsel. Tears have always been con sidered legitimate arguments before the jury, and we know of no power or jurisdiction in the trial judge to check them. It would appear to be one of the natural rights of counsel which no statute or constitution could take away. It is certainly
