cuting machinery that it is considered in the study of the prosecutor's office. With respect to petit juries, improvements over the older system are: first, substitution of chance for selection upon solicitation; second, reduction of length of service from a term to two weeks, thus reducing the hardship on individual citizens and the opportunities for corruption; third, unlocking the door to the room in which the drawings take place.

WEAKNESSES

The fundamental weakness in the present jury system is inherent in all attempts to make trial by jury work in a great modern city. Personal service by the sheriff or his deputies upon thousands of jurors during the course of the year is impracticable and expensive, and compelling attendance by mailed summonses is difficult. Indeed, the late Judge Foran, in his report on the selection of jurors dated February 28, 1921, doubts whether the present method is a proper compliance with G. C., Sec. 11297-1, providing for substituted service by mail, even granting the validity and effectiveness of that statute. The suggestion that the number of jurors be cut down by extending the term of service for the individual juror again increases the difficulty of securing fit men who can sacrifice so much time from commercial and industrial pursuits. Even with only two weeks to serve, the number of people who are excused by the jury commissioners and the court is disproportionately large.

Another weakness of the system is that there still remains some small margin of discretion in the selection of jurors which is vested in a minor official; namely, the jury bailiff. When a jury is called for, the jury bailiff selects a group from among the idle jurors in his room and sends them down. No matter how honest a jury bailiff may be, this situation will create suspicions which tend to undermine respect for justice. Lawyers complain that in trying against a public service corporation, for instance, they sometimes find a disproportionate number of its employees on the jury, and, vice versa, in trying against some of the ablest tort lawyers, they find a surprisingly large number of jurors

1 Judge Foran aptly quotes "Henry IV":

"Glendower: 'I can call spirits from the

"Hotspur:

vasty deep.'

'Why, so can I, or so can any

man;-but will they come when
you do call for them?'"

* Rule 23 (9) of the Common Pleas Court directs the jury bailiff to assign jurors in the order in which they are drawn, but apparently practical difficulties have forced the breakdown of this rule.

of the same nationality as the foreign plaintiff. Whether such suspicions are founded upon mere coincidence, or exist only in imagination, the remedy is simple. The names of all jurors waiting to be called should be placed in a jury wheel in the assignment room or in some other public place, and, as new juries are called for, should be drawn from the wheel in the presence of attorneys for all the parties. Some jurors might thus serve more continually than others, but this objection is outweighed by the fact that a feeling of absolute fairness would be created.

The jury commissioners are commanded by G. C., Sec. 11423, to "select such number of judicious and discreet persons, having the qualifications of electors of such county, as the court may direct," and further that "no person shall be selected who shall not, in the judg ment of such commissioners, be competent in every respect to serve as a juror." It will thus be seen that, except for certain statutory exemptions, the commissioners are unlimited except as to electors, and in Ohio there is not even a literacy test for electors. To the commissioners falls the task of weeding out of the electors great numbers of foreignspeaking citizens, besides ignorant and shiftless native whites and blacks. Even if the commissioners were well-paid officers and men of large ability, which they are not, the task could scarcely be performed with thoroughness. Hitherto the office of commissioner has been a political trinket, yielding only $300 per year. The Common Pleas judges made a wise change this spring by appointing as commissioners the two assignment commissioners, Virgil A. Dustin and Archie J. Kennel, both able men. This step should be productive of some improvement.

1

FIRST EXAMINATION OF JURORS

The failure of the jury system, however, has a deeper cause than any schematic defect. In Cleveland, as in many other large cities, most citizens of means or intelligence avoid service. This avoidance has become traditional, so that it is a kind of mild disgrace for a socalled "respectable citizen" to allow himself to be caught for jury service-like being swindled, for instance. Table 26 shows the results of the letters and preliminary examination by the jury commissioners for

1In Boston the preliminary examination is made by the police in a house-tohouse canvass. Since in Massachusetts naturalized citizens must be able to read English, the police need only eliminate the morally and physically unfit. Although a policeman is hardly an ideal judge of a juror's qualifications, he has only his own precinct to canvass, which makes the task relatively easier.

the January term, 1921. For purpose of comparison, Wards 11 and 14, largely of shifting white, foreign, and negro population, and the recognized prosperous suburbs of Cleveland Heights, Lakewood, East Cleveland, and Shaker Heights are given separately. The reasons given for the failure to qualify on this examination are those recorded by the commissioners, although some rearrangement has been necessary in order to assimilate kindred excuses into as few classes as possible. Credit is due Thomas Gafney and Gibson H. Robinson, the retiring commissioners, and William H. Ence, their bailiff, for keeping such a record. No record of the kind is available for prior terms.

TABLE 26.-REASONS FOR FAILURE TO QUALIFY OF 6,520 PERSONS CALLED FOR JURY SERVICE, CLASSIFIED BY TYPICAL RESIDENTIAL SECTIONS

It will be observed that in the four better sections, about 37 per cent. of those who did not qualify simply ignored the summons,-No. 2, "no answer," as compared with 28 per cent. for the total-including these suburbs, and 26 per cent. for Wards 11 and 14. In other words, those whose ignorance might excuse them for not responding made a much better showing than the "substantial citizens," who knew too much to heed the summons. It also seems that the exclusive suburbs are much more unhealthful than the poor districts,-No. 3, "illness, etc.,"-since in those sections 12 per cent. of those who did not qualify were excused because of illness, compared with 8.7 per cent. of the total of Wards 11 and 14. Illness is reported proportionately almost 50 per cent. more often in the most desirable residential districts.

In the four suburbs 9 per cent. of those who did not qualify reported that they were away at the time of the summons,-No. 13, "away or late," or received it too late, as compared with 4.4 per cent. of the total, and 3 per cent. in Wards 11 and 14. Since the shifting population in the suburbs is much smaller than in the poorer sections, one may conclude that the excess of excuses of this type represents winter vacations, business trips, or subterfuge.

No conclusion can be drawn from the increase of "home duties" excuses-No. 8-in the suburbs, because most of those excused for this reason were women, and women electors were not called proportionately from the different sections. This was due to the fact that two polling lists were used by the commissioners-an old one before the suffrage amendment was passed, and the new one for 1920. It is to be hoped that women from these and kindred sections will not shirk their jury duties as their husbands and fathers have done. Such women, on the whole, have more leisure than any other group of citizens, and, as a rule, they possess the qualifications of good jurors. Some judges and lawyers already profess to see a higher grade of juries owing to the advent of women. Others, however, feel that the women jurors who have been serving are generally not noticeably superior to male jurors and that their presence has brought neither harm nor benefit to the system. It should be observed that literacy and language disqualifications were practically unknown in the selected suburbs. Also, it is worth noting that in the suburbs only 6.2 per cent. of those not qualifying could not be located, compared with the general average of 13.1 per cent. "Business," No. 7, and "financial," No. 9, represent those excused because their presence was vital to their business, or because they could not afford the financial loss involved in jury service. A large proportion of the "business" excuses were from men operating a "one

man" business, or if in a country district, a "one-man" farm. A favorite excuse in the rural settlements was that the notice was received "too late," No. 13,-reflecting the slowness of the midwinter mails in the country, or the tendency on the part of farmers to call periodically at the local post-office.

"Occupational," No. 10, includes chiefly those excused because employed in occupations exempted by the statute, G. C., Sec. 11444— public officers, clergymen, priests, physicians, police, and firemen. Most of this group were public employees of various kinds.

It is to be noticed that only 16 were excused because "contributing to a military order" No. 6. Probably among those who failed to answer were additional contributors to such orders, who held this exemption as a secondary defense in case of trouble caused by ignoring the summons. Although the members contributing to military societies number in all only 600,' this bizarre method of escape does much harm to the public morale in performing jury service. In effect, it means that influential citizens may purchase immunity from an important civic duty at five dollars a head.

Present statutes exempting contributing members are G. C., Sec. 5195, in substance the original provision, and G. C., Sec. 11444, where contributing members have been recently added as specific exemptions. The section first cited also exempts such members from "labor on the public highways," thus adding a quaint touch of the medieval "corvee" to the distinction. This exemption reveals somewhat the decay of democracy. Originally Ohio frontier conditions required that all ablebodied white male citizens be made part of the militia. Then, as conditions settled, a system of volunteer companies developed. In 1857 the members of such companies were excused from jury service or service on roads, 54 O. L. 49-50, Sec. 11. Then came the Civil War draft laws, establishing the principle that immunity from military service might be purchased. Shortly thereafter "contributing members" were added to the personnel of the independent companies, and these noncombatants shared in the immunities granted to the others. This anti

Four societies, numbering 150 members each.

'It exists, however, in rural districts of Ohio.

The most recent statute exposes the contributing member to the possibility of performing military duty within the county limits. It is doubtful whether this remote contingency will restrain the jury slackers as a whole from continuing to avail themselves of the exemption. The previous statute, which imposed no obligation on contributing members beyond the payment of a fee, had been held unconstitutional. Hamann v. Heekin, 88 O. S. 207 (1913).