The Bay State Monthly. Volume 2, No. 3, December, 1884

But there were not only servants going back and forth through the house, for it was full of guests. The Colonel's family living so near, would not come until the morning of the ceremony, but other relatives were there in force. Mrs. Archdale's brother,—a little patronizing but very rich and gracious, and his family who having been well patronized, were disposed to be humble and admiring, and her sister who not having fed on the roses of life, had a good deal of wholesome strength about her, together with a touch of something which, if it were wholesome, was not exactly grateful. Cousins of Mr. Archdale were there also. Elizabeth Royal, at Katie's special request, had been her guest for the last ten days. Her father had gone home again the day he brought her and was unable to return for the wedding and to take his daughter home afterward, as he had intended; but he had sent Mrs. Eveleigh, his cousin and housekeeper. It seemed strange that the father and daughter were so companionable, for superficially they were entirely unlike. Mr. Royal was considered stern and shrewd, and, though a well-read man, eminently practical, more inclined to business than scholarship, while Elizabeth was dreamy, generous, wholly unacquainted with business of any kind, and it seemed too much uninterested in it ever to be acquainted. To most people the affection between them seemed only that of nature and circumstances, Elizabeth being an only child, and her mother having died while she was very young. It is the last analysis of character that discovers the same trait under different forms. None of her friends carried analysis so far, and it was possible that no effort could have discovered subtle likeness then. Perhaps it was still latent and would only hereafter find some outward expression for itself. It sometimes happens that physical likeness comes out only after death, mental not until late in life, and likeness of character in the midst of unlikeness is revealed usually only in the crucible of events.

That day, Elizabeth, from her window overlooking the garden, had seen a picture that she never forgot. It was about noon, all the warmth that was in the December sun filled the garden (which the leafless trees no longer shaded). There was no snow on the ground, for the few stray flakes premonitory of winter which had fallen from time to time in the month had melted almost as soon as they had touched the ground. The air was like an Indian summer's day; it seemed impossible that winter could be round the corner waiting only for a change of wind. The tracery of the boughs of the trees and of all their little twigs against the blue sky was exquisite, the stalks of the dead flowers warmed into a livelier brown in the sunlight. Yet it may have been partly the figures in the foreground that made the whole picture so bright to Elizabeth, for to her the place was filled with the lovers who were walking there and talking, probably saying those nothings, so far as practical matters go, which they may indulge in freely only before the thousand cares of life interfere with their utterances. Stephen had come to the house, and Katie and he were taking what they were sure would prove to be their last opportunity for quiet talk before the wedding. They went slowly down the long path to the clematis arbor, and then turned back again, for it was not warm enough to sit down out of doors. Elizabeth watched them as they walked toward the house, and a warmth came into her own face in her pleasure. "Dear Katie," she said to herself, "she is sure to be so happy." The young girl's hand lay on Archdale's arm, and she was looking up at him with a smile full of joyousness. Archdale's head was bent and the watcher could not see his eyes, but his attitude of devotion, his smile, and Katie's face told the story.

[TO BE CONTINUED.]

GLORIFYING TRIAL BY JURY

By CHARLES COWLEY, LL.D

Twice within two years representatives of the highest courts of Massachusetts have published in the North American Review, panegyrics of jurics and jury trials. The late Judge Foster and Judge Pitman both concede—what indeed is too notorious to be denied—that there are frequent and gross miscarriages of justice; but they touch lightly on this aspect of the question. Being personally identified with the institution which they extol, their self-complacency is neither unnatural nor unpardonable. It seems not to have occurred to them, that if a reform of our judiciary is really needed, they are "a part of the thing to be reformed." But in weighing their testimony to the advantages of trial by jury, allowance must be made for the bias of office and for the bias of interest. In the idolatrous throng which drowned the voice of St. Paul with their halcyon and vociferous shouts, "Great is Diana of the Ephesians!" there was no one who shouted louder than the thrifty silversmith, Demetrius, who added the naive remark, "By this craft we live."

In the outset of his presentation of the beauties of jury trials, Judge Pitman says that "certain elementary rules of law are so closely associated with this system that change in one would require alteration of the other." Now, these rules of law are either good or bad. If they are bad, they should be revised; and the fact that they are so closely associated with trial by jury, that they can not be amended without injury thereto, adds little lustre to that time-honored institution. One the other hand, if these "elementary rules of law" are good, it is presumed that courts will be able to appreciate and apply them quite as well as juries.

Judge Pitman then proceeds to argue that criminal trials without juries would be attended with disadvantages, because he thinks that judges would have, oftener than juries, that "reasonable doubt" which by law entitles the accused to an acquittal. This warrants one of two inferences: either the writer would have men convicted whose guilt is involved in "reasonable doubt," or he fears that the learning and experience of the bar and the bench tend to unfit the mind to weigh the evidence of guilt or innocence. It is curious that in a former number of the same Review, another learned writer expressed exactly the contrary opinion.10 Mr. Edward A. Thomas thinks that "judges are too much inclined to convict persons charged with criminal offences," and that juries are too much inclined to acquit them. And Judge Foster seemingly agrees with Mr. Thomas upon this point.

Again: Judge Pitman argues that a jury is better qualified than a judge to determine what is "due care." And Judge Foster, going still further, says, "common men belonging to various walks in life, are, in most cases, better fitted to decide correctly ordinary questions of fact than any single judge or bench of judges." There are, unquestionably, many cases in which the main questions are so entirely within the scope of ordinary men's observation and experience that no special knowledge is required to decide them. With respect to such cases, it is true that

"A few strong instincts and a few plain rulesAre worthy all the learning of the schools."

But where the questions involved are many in number, intricate and complicated in character, and enveloped in a mass of conflicting testimony requiring many days to hear it, is it not manifest that a jury,—not one of whom has taken a note during the trial, some of whose members have heard as though hearing not, and seen as though seeing not, the testimony and the witnesses,—deals with such a case at a great disadvantage, as compared with a judge whose notes contain all the material testimony, and who has all the opportunity for rest and relaxation that he may require before filing the finding which is his verdict? With respect to such cases, it is clear that, as a learned English judge has said, "the securities which can be taken for justice in the case of a trial by a judge without a jury, are infinitely greater than those which can be taken for trial by a judge and jury."11 A judge may be required to state what facts he finds, as well as the general conclusion at which he has arrived, and to state upon what views of the legal questions he has acted.

Judge Foster most justly remarks: "There can be no such thing as a good jury trial without the co-operation of a learned, upright, conscientious and efficient presiding judge, … holding firmly and steadily the reins, and guiding the entire proceedings." This is what Judge Foster was, and what Judge Pitman is, accustomed to do. But if the jury requires such "guiding" from the court, and if the court is competent thus to guide them, it is clear that the court must know the way and must be able to follow it; otherwise it could not so guide the jury.

Judge Pitman also argues that the jury can eliminate "the personal equation" better than the judge. But is this so? Does education count for nothing in producing that calm, firm, passionless state of mind which is essential in those who determine causes between party and party?

Are not juries quite as often as judges swayed by popular clamor, by prejudice, by appeals to their passions, and by considerations foreign to the merits of the case? As Mr. Thomas asks in the article before quoted: "How many juries are strictly impartial? How many remain entirely uninfluenced by preference for one or the other of the parties, one or the other counsel, or the leaning of some friend to either, or by political affiliations, or church connections, or relations to secret societies, or by what they have heard, or by what they have read? Can they be as discerning and impartial as a bench of judges, or if inclined to some bias or prejudice, can they as readily as a judge divest their minds of such an impression?" If it be true that juries composed of such material as Judge Pitman shows our juries to be largely composed of, are as capable of mastering and determining intricate questions of fact as judges trained to that duty, then we may truly say—

"Thinking is but an idle waste of thought,And naught is everything, and everything is naught."

According to Judge Pitman, the system which prevails in some of the states, of trials by the court without juries (with the provision that the trial shall be by jury if either party demand it), "works satisfactorily." The testimony of lawyers and litigants in Massachusetts, Connecticut and other states where this system prevails, is to the same effect. For ourselves, while far from desiring the abolition of trial by jury, whether in civil or in criminal causes, we are by no means disposed to "throw glamour" (as the Scotch say), over an instrumentality for ascertaining legal truth, which is so cumbersome in its operation, and so uncertain in its results. A jury is, at best, a means, and not an end; and although much may be said about the incidental usefulness of jury service on account of its tendency to enlarge the intellectual horizon of jurors, all that is beside the main question.

Whether a particular occurrence took place or not, is a question which, whether it be tried by a judge or by a jury, must be decided upon evidence; which consists, in part, of circumstances, and, in part, of acts, but in part also, and very largely, of the sworn statements of individuals. While falsehood and corruption prevail among all classes of the community so extensively as they now do, it is useless to claim that decisions based upon human testimony are always or generally correct. Perjury is as rife as ever, and works as much wrong as ever. To a conscientious judge, like Judge Pitman, "the investigation of a mass of tangled facts and conflicting testimony" cannot but be wearisome, as he says it is; and, in many cases, the sense of responsibility "cannot but be oppressive;" but he has so often repeated a dictum of Lord Redesdale that he must be presumed to have found solace in it—"it is more important that an end be put to litigation, than that justice should be done in every case." There is truth in that dictum; but, like other truths, it has often been abused, especially by incompetent or lazy or drowsy judges. More unfortunate suitors have suffered as martyrs to that truth than the judges who jauntily "cast" them would admit.

Judges may do their best; juries may do their best; they will often fall into error; and instead of glorifying themselves or the system of which they are a part, it would be more modest in them to say, "We are unprofitable servants." Not many judges have been great enough to say, "I know I sometimes err," but some have said it. The lamented Judge Colt said it publicly more than once, and the admission raised, rather than lowered, him in the general esteem. When he died the voice of the bar and of the people said, "Other judges have been revered, but we loved Judge Colt."

Massachusetts gives her litigants the choice of a forum. All trials in civil causes are by the courts alone, unless one party or the other claims a jury. If the reader has a case of much complexity, either with respect to the facts, or with respect to the law, perhaps he would like to have our opinion as to which is the better forum. The answer is the same that was given by one who lived at the parting of the ways, to a weary traveller who inquired which fork of the road he should take: "Both are full of snags, quagmires and pitfalls. No matter which you take, before you reach the end of your journey you will wish you had taken the other." In the trial by jury, and in the trial by the court, just as in the trial by ordeal, and in the trial by battle in the days of old, the element of chance is of the first magnitude

PUBLISHERS' DEPARTMENT

SENEFELDER, THE INVENTOR OF LITHOGRAPHY AND CHROMO-LITHOGRAPHY.—HIS ART IN BOSTON DEVELOPED BY L. PRANG & CO.—COLOR-PRINTING ON SATIN, ETC

A century ago the world knew nothing of the art of lithography; color-printing was confined to comparatively crude products from wooden blocks, most of which were hardly equal to the Japanese fan pictures now familiar to all of us. The year 1799 gave us a new invention which was destined to revolutionize reproductive art and add immensely to the means for education, culture and enjoyment.

Alois Senefelder, born 1771, at Prague (Austria), started life with writing plays, and too poor to pay a printer, he determined to invent a process of his own which should serve to print his manuscript without dependence upon the (to him) too costly types.

A born inventor, this Alois Senefelder, a genius, supported by boundless hope, immense capability for hard, laborious work, and an indomitable energy; he started with the plan of etching his writings in relief on metal plates, to take impressions therefrom by means of rollers. He found the metal too costly for his experiments; and limestone slabs from the neighboring quarries—he living then in Munich—were tried as a substitute. Although partly successful in this direction, he continued through years of hard, and often disappointing trials, to find something more complete. He hit upon the discovery that a printed sheet of paper (new or old) moistened with a thin solution of gum Arabic would, when dabbled over printers' ink, accept the ink from the dabbler only on its printed parts and remain perfectly clean in the blank spaces, so that a facsimile impression could be taken from this inked-in sheet. He found that this operation might be repeated until the original print gave out by wear. Here was a new discovery, based on the properties of attraction and repulsion between fatty matters (printers ink), and the watery solution of gum Arabic. The extremely delicate nature of the paper matrix was a serious drawback, and had to be overcome. The slabs of limestone which served Senefelder in a previous emergency were now recurred to by him as an absorbent material similar to paper, and a trial by making an impression from his above-mentioned paper matrix on the stone, and subsequent gumming, convinced him that he was correct in his surmise. By this act lithography became an established fact.

A few short years of intelligent experimenting revealed to him all the possibilities of this new discovery. Inventions of processes followed each other closely until in 1818 he disclosed to the world in a volume of immortal interest not only a complete history of his invention and his processes, but also a reliable description of the same for others to follow. Nothing really new except photo-lithography has been added to this charming art since that time; improvement only by manual skill and by chemical progress, can be claimed by others.

Chromo-lithography (printing in colors from stone) was experimented on by the great inventor. He outlined its possibilities by saying, that he verily believed that printed pictures like paintings would sometimes be made thereby, and whoever has seen the productions of our Boston firm, L. Prang & Co., will bear him out in the verity of his prediction.

When Prang touched this art in 1856 it was in its infancy in this country. Stray specimens of more or less merit had been produced, especially by Martin Thurwanger (pen work) and Fabronius (crayon work), but much was left to be perfected. A little bunch of roses to embellish a ladies' magazine just starting in Boston, was the first work with which the firm occupied its single press. Crude enough it was, but diligence and energy soon developed therefrom the works which have astonished not only this country but even Europe, and the firm, which took thereby the lead in their speciality of art reproduction in color, has succeeded in keeping it ever since from year to year without one faltering step, until there is no single competitor in the civilized world to dispute its mastery. This is something to be proud of, not only for the firm in question, but even for the country at large, and to crown its achievements, the firm of L. Prang & Co. have this year made, apart from their usual wonderful variety of original Christmas cards and other holiday art prints, a reproduction of a flower piece of the celebrated Belgian flower painter, Jean Robie, and printed it on satin by a process invented and patented by Mr. Prang. For truthfulness as a copy this print challenges the admiration of our best artists and connoisseurs. The gorgeous work as it lies before our eyes seems to us to be as perfect as if it left the very brush of the master, and even in close comparison with the original it does not lose an iota of its charms.

Of the marvellous excellence of this, the latest achievement of this remarkable house, thousands who visited the late exhibition of the Massachusetts Charitable Mechanic's Association and saw Messrs. L. Prang & Co.'s, extensive exhibit, can bear witness. Everybody who looked at the two pictures, the original masterpiece by Robie and its reproduction by Prang, side by side, was puzzled to distinguish which was which, many pointing to the reproduction as the better, and in their eyes, therefore as the original picture. The same was true with regard to many more of this justly celebrated firm's reproductions, which they did not hesitate to exhibit, alongside of the original paintings. Altogether, their exhibit with its large collection of elegant satin prints, its studies for artists, its historical feature, showing the enormous development of the firm's work since 1856, its interesting illustration by successive printings of how their pictures are made, and its instructive and artistic arrangement of their collection, made it one of the most attractive features of the fair.

What more can we say but that we are proud ourselves of this achievement within our city limits; it cannot fail to increase the fame our beloved Boston as a town of masters in thought and art. Honor to the firm of L. Prang & Co.

NOTICES OF NEW BOOKS

THE VOYAGE OF THE "VIVIAN" to the North Pole and Beyond, or Adventures of Two Youths in the Open Polar sea. By COLONEL THOMAS W. KNOX, the author of "The Boy Travellers in the Far East," "The Young Nimrods," etc. Illustrated; 8vo.; cloth, $3. Harper & Brothers, New York.

A fascinating story for boys, into which is woven by the graceful pen of the author the history of Arctic exploration for centuries past. The young readers who have followed the "Boy Travellers in the Far East" will welcome this addition to the literature of adventure and travel.

LITTLE PEOPLE OF THE AIR, By the authors of "Little Playfellows." Illustrated; 8vo., $1. D. Lothrop & Co., Boston.

A series of pretty stories of feathered songsters, for little men and women, alike interesting to the young and children of an older growth.

POLITICS FOR YOUNG AMERICANS. By CHARLES NORDHOFF, author of "The Communistic Societies of the United States," etc. Popular edition; paper, 12mo., 400. Harper and Brothers, New York.

A series of essays in the form of letters, calculated to instruct the youth of this country in their duty as American citizens.

A PERILOUS SECRET. By CHARLES READE. Cloth, 12mo.; 75 cents. Harper and Brothers, New York.

This volume forms one of Harper's Household editions of the works of this popular novelist.

THE ICE QUEEN. By ERNEST INGERSOLL, author of "Friends Worth Knowing," "Knocking Around the Rockies," etc. Illustrated; Cloth, 16mo., $1. Harper and Brothers, New York.

A story for boys and girls of the adventures of a small party storm-bound in winter, on a desolate island in Lake Erie.

GOD AND THE FUTURE LIFE; or the Reasonableness of Christianity. By CHARLES NORDHOFF, author of "Politics for Young Americans," etc. 16mo., cloth, $1. Harper and Brothers, New York.

Paley's "Natural Theology," familiar to students, is supplemented by this volume, which brings the argument down to the present developement of science. It is a book for thoughtful men and women, whose faith in the immortality of the soul needs strengthening.

MOTHERS IN COUNCIL. 16mo., cloth, $1. Harper and Brothers, New York.

A series of essays and discussions of value to the family circle, teaching how sons can be brought up to be good husbands, and daughters to be contented and useful old maids, and many other valuable lessons.

GOOD STORIES. By CHARLES READE, 16mo., cloth, $1. Harper and Brothers, New York.

These short stories by Mr. Reade, some of which have appeared from time to time in the Bazar, are here gathered in one volume. They are "The History of an Acre," "The Knightsbridge Mystery," "Single Heart and Double Face," and many others.

I SAY NO; or, the Love Letter Answered. By WILKIE COLLINS; 16mo., cloth,$1. Harper and Brothers, New York.

The announcement that a new novel from the pen of Mr. Collins has appeared is enough to insure a large and steady demand for it.

1

The Churchman.

2

From a genealogical memoir of the Lo-Lathrop family, by Rev. E.B. Huntington, 1884.

3

Rec. Alonzo H. Quint, D.D. in Granite Monthly.

4

Rev. Dr. Quint.

5

Rev. Dr. Quint.

6

The Paper World.

7

"Les Colosses anciens et moderns," par E. Lesbazeilles; Paris: 1881.

8

Vide papers by Clarence Cook in The Studio, and by Professor D. Cady Eaton of Yale College in the New York Tribune.

9

Copyright, 1884, by Frances C. Sparhawk. All rights reserved.

10

N.A. Review, No. CCCIV, March, 1882.

11

Stephen's History of the Criminal Law, 568.