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which the smallest detail obtains. But who would think of suggesting secrecy instead of publicity — progress is toward light, not darkness. Some undesirable features might disappear if trials were by judges instead of jurors, but the innate conservatism of man kind, to which we owe so much both good and evil, brands as an iconoclast the per son who dares to say a word against trial by jury, that ancient bulwark of liberty. I shall hazard a word about the jury in a moment. Some one has suggested that in order to stifle sensationalism some sort- of closure should be applied. The judge some times applies that now, but it is a hard and a doubtful remedy, and I believe the wisest judges require to be thoroughly convinced that reasonable latitude has been exceeded before they will venture to interfere with the responsibility of counsel. If it be true that sensationalism is intruding in our courts, I imagine the only remedy will be found in the sense of personal responsibility of every one connected with the administration of justice, and perhaps to some extent of the public press, to which civilization owes so much for the removal of abuses and the purifying of all our institutions. And now, at the risk of my head, allow me to say a word about trial by jury. You all know what a safeguard it was against oppression by the Crown and the privileged classes, by whom the Bench was appointed and with whom it was in sympathy. Is it within the bounds of possibility that this grand old institution may become itself the medium of oppression? Co-operation is a modern tendency, and in the commercial and industrial world it usually takes the form of incorporation. I do not know how it is in the State of Nebraska, but in some other States and in some other countries it is becoming more and more difficult for a corporation to obtain fairness and justice from a jury. I should not venture to make so serious a statement, and so bluntly, were I not confident that it accords with the weight of opinion in the profession. Kipling
says that the very worst thing you can do with a fact is to deny it. If this be a fact, and I frankly believe it, no good purpose is to be served by closing our eyes to it, or dismissing it with a. half humorous euphem ism. Are the intellect and conscience actuated by novel and occult considerations whenever individual and corporate interests compete? It is perhaps not exactly a modern tendency for sympathy to supplant reason, or for arguments not founded on pure ethics to be addressed to jurymen. Old Aristophanes in "The Wasps" makes Philocleon, the Athenian dicast, or elected juryman, tell of the arguments he was accustomed to hear. "I listen," he says, "to them uttering all their eloquence for an acquittal. Come let me see; for what piece of flattery is it not possible for a dicast to hear there? Some lament their poverty, and add ills to their real ones, until by grieving he makes his equal to mine; others tell us mythical stories : others some laugh able joke of jEsop; others cut jokes, that I may laugh and lay aside my wrath. And if we should not be won by these means, forth with he drags in his little children by the hand, his daughters and his sons, while I listen. And they bend down their heads together and bleat at the same time. And then their father, trembling, supplicates me, as a god, on their behalf to acquit him from his account." And later, when the dog Labes is being tried for stealing a Sicilian cheese and every argument has failed, his advocate exclaims : " Where are his puppies?" "Mount up O miserables and, whining, beg and entreat and weep." 1 hold some opinions upon trial by jury, but I shall not attempt to develop them now further than to notice one regrettable tendency, and it is for jurymen to be influenced by considerations other than the evidence adduced — in most cases in which corporations or employers defend. It may be said that this tendency really arises from a meritorious motive, to help the weak against the strong. The ragged logic
