Nathaniel Hillyer. Egleston.

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fear to tread. If we were to shape our action so as to avoid the
distrust of such people, we should be like the man in the fable,
who began by riding his ass ; then, in order to meet the views of
the passers-by, let his son ride j then got on with the boy, and
finally carried the ass himself.



SHALL THE JURY SYSTEM BE ABOLISHED? 351

" Another serious objection to the proposed change would be
the additional labor imposed on the judiciary." This objection
is probably confined to the individuals who at present constitute
that class. The problem, however, is to find out what is most
beneficial to the whole community, and not what is most condu
cive to the comfort of a small fraction of it. If a sacrifice is
necessary, some victim will probably be found in the adjacent
bushes.

The main thought of the writer of the article referred to is,
that facts could not be as well decided by a judge as by a jury.
This is not asserted in terms as a universal proposition ; it is
asserted only with reference to one of the classes of actions
mentioned by the writer; but it is implied throughout the
article in question, and is plainly what the writer means. And
it is evident that if judges can decide the facts as well as juries
can, the existence of the latter is without justification ; a simple
and inexpensive machinery being preferable to a complicated
and expensive one, if the work turned out by them be the same.
Is there any reason, d priori, why a judge cannot decide the
facts as well as a body of men taken at random from the com
munity 1 He is a man as they are. In modern times at least,
he is no recluse, but is as much a man of the world as is the
average juryman j and he has the advantage of having a trained
mind. There can be no advantage in mere numbers, for the
" average intelligence 77 of a jury cannot rise higher than the
intelligence of the best of them, which is usually much below
that of the judge. But it is not ordinarily profitable to resort
to d priori reasoning, when experience can be appealed to ; and
we have the advantage of experience in this case. In equity a
judge always decides the facts. In exceptional cases, it is true,
a chancellor takes the opinion of a jury as to the facts of a
case ; but even in such cases the opinion of the jury is not
binding, but is merely advisory ; and the judge must ultimately
pass upon the facts himself. It may be asserted, therefore, that
in equity the judges always decide the facts ; and this is true
not only of the judge who hears the case in the first instance,
but also (unless where changed by statute) of the judges on
appeal. They have been doing this in England for several cent
uries, and for the last century in many of the American States.
The experience has therefore been sufficiently extensive, and it has
demonstrated that judges can decide facts at least as well, and, as
many think, a great deal better than juries. Any competent chan-



352 THE NORTH AMERICAN REVIEW.

eery practitioner would smile if asked whether experience
showed that chancellors could not decide facts as well as
juries can.

So much for the reasons adduced in favor of the jury system.
Let us now see what can be urged against it. In the foregoing
paragraph the experience of courts of equity was appealed to in
order to show that judges could decide facts at least as well as
juries. If this be true, it would seem to follow that the more
expensive and cumbrous machinery should be done away with.
The jury system is expensive. In California the fee is two
dollars a day to each juror in civil cases, making an expense of
twenty-four dollars a day. When it is remembered that many
trials are very long, this is a cruel charge upon the losing party.
I am not familiar with the charges in other States, but a much
more moderate fee amounts to a considerable sum at the end of
a long trial. The system is also complicated. The jurors do not
kndw the law ; they have to be instructed therein by the judge,
and after hearing their lecture, they are supposed to be quite
able to apply the principles laid down to the facts of the case as
determined by themselves. It would be surprising if an untrained
man hearing a lecture once upon a new subject should be able
to seize upon the rules, exceptions, and qualifications stated
therein, so as to be able to apply them correctly. I believe that
juries do not succeed in doing so once in a hundred times. Cases
where they render both a special and a general verdict furnish
frequent examples of this ; and if any judge will take pains to
talk familiarly with jurors after a trial, as to the grounds
of their decision, as the writer has frequently done, he will often
be amazed at their crude notions of what has been told them. A
judge cannot, of course, act upon information received from
jurors as to the grounds of their verdict ; and where there is any
conflict in the testimony it can never be known, in a legal sense,
whether the jury reached their conclusion through an erroneous
impression of the law, or a certain view of the evidence. It must
therefore be presumed on appeal that they fully understood and
correctly applied the law given them by the judge ; and although
they may not have understood it at all, an error in the charge is
ground for setting aside the verdict. The machinery, therefore,
of jury trials is both expensive and complicated, and even if trials
by the judge without a jury turned out no better work, the
change must be beneficial. .



SHALL THE JUEY SYSTEM BE ABOLISHED t 353

But the jury system also entails frequent miscarriages of
justice, permitting thousands of notorious criminals to escape,
and disposing of important rights of property not according to
law, but in accordance with the prejudice and sympathies of
comparatively ignorant men, thus depriving the law of what
should be one of its most prominent characteristics, namely,
certainty. Every one who has had experience with juries, or
has observed the results of their work, must know that such
is the fact. Instances of note will readily occur ; for example,
the Dukes-Nutt cases in Pennsylvania, the Cash-Shannon
case in South Carolina, the Elliott-Buford case in Kentucky,
the Star-Route case in Washington, and the Bender case in
Ohio, which last was the occasion of the Cincinnati riot.
Every county in every State in the Union can furnish ex
amples, and the verdict of a jury has become almost a synonym
for uncertainty.

But it will be objected that the institution has been handed
down to us through many generations, and that if it works so
badly it surely would not have survived. It is true that the
institution is of great antiquity, and that this raises a presump
tion in its favor ; but like many another thing it has long sur
vived its usefulness. Men are prone to reverence the customs
of their fathers, and frequently cling to mere forms after the
substance has gone ; and this is not wholly without justification.
Let us, therefore, in deference to the antiquity of the system,
inquire why it is that it has existed so long and become so
endeared to the Anglo-Saxon heart. The answer is, I think,
that it once was suited to the times and was productive of good
results; but the times have changed, and it is no longer so.
What endeared it to the English people was its independence,
its resistance to the oppression of the Government and the upper
classes. Government was strong in those days, and carried out
its measures with a heavy hand ; and the upper classes inherited
a large portion of the power and prestige of their feudal ances
tors. It was very natural that an institution that withstood
oppression should become dear to the oppressed, and this more
than atoned for its imperfections. But a great change has come
over society. The upper classes have been effaced for all prac
tical purposes. The powers of the Government have been
limited, and, so far as its control over the citizen is concerned,
it is not even strong enough to have an inflexible administration



354 THE NORTH AMERICAN REVIEW.

of its own laws. It is no longer a function of juries, therefore,
to resist oppression.

In addition to this, the spirit of the age has changed. Men
are no longer of that stern stuff which exacted an eye for an eye
and a tooth for a tooth. Sentiment, benevolence, and philan-
throphy have become potent forces. Conscientious scruples
against capital punishment are common, and numbers of men
shrink from the idea of having blood on their hands, even in a
legal way ; some would no more condemn a man to death than
they would carry the sentence into execution. These feelings
are easily appealed to by an adroit advocate, and the results are
deplorable. In about half the cases crime goes unpunished,
or is punished in a very inadequate degree. The result is,
that bad men are not deterred from crime,* it is an even
chance whether they will be punished at all, and they prefer
to take that chance rather than restrain the passions of the
moment. And men who are not bad take the law into their own
hands ; they feel that the law will not protect them, and they
seek to protect themselves. These causes lead to that frequency
of homicide which is the great stain of American civilization.

With reference to civil cases, the cause last mentioned does
not, as a matter of course, apply. The main reason of the bad
results of jury trials in civil cases is that the questions arising
in modern trials are usually too complex for untrained minds.
In Lord EUenborough's time, a trial was ordinarily an affair of
an hour or so. In our time, it is ordinarily an affair of several
days, frequently of several weeks, and not seldom of several
months. The average juryman cannot hold the case in his head,
and the result is that he gives his verdict in accordance with his
sympathies or prejudices. The fatal objection to a jury is its
ignorance. Where the citizen is left to himself, he does not
usually prefer to seek the aid of ignorance to guide him in the
affairs of life. If his health is affected, he goes to a physician ;
if his property is assailed, he goes to an attorney. He hies him
to the butcher for meat, and to the baker for bread, and so on
with reference to his other affairs ; but the law, however difficult
and delicate may be the occasion, employs its agents without
reference to knowledge or other qualification. In this way a
cobbler may be called upon to decide a question of commercial
usage ; a blacksmith, a question as to the proper degree of skill
in repairing a watch ; a saloon-keeper, a question as to the



SHALL THE JURY SYSTEM BE ABOLISHED ? 355

value of a slandered character ; an old-clothes man, a question
as to the proper degree of skill in running a railway ; and so on
ad infinitum.

For the foregoing reasons, it is believed that it would be a
great reform to abolish the jury system, and allow the judge to
pass upon the facts as well as the law. It is true that he might
be called upon to decide questions of which he had no previous
knowledge ; but it is to be remembered that, after deciding such
a case, he is not dismissed, as a juryman is, but can carry the
fruits of the investigation to the next case of the kind. He
could not hold office very long without becoming experienced as
to the questions that most frequently arise, and the advantage
of a trained mind and skill and experience in weighing evidence
is incalculable. "Whether this reform will come in our time,
qucere f

ROBERT Y. HAYNE.



THE GENESIS OF TENNYSON'S "MAUD."



NOT a few among the most devout worshipers and ardent
admirers of Tennyson's genius, in spite of the obloquy and
abuse lavishly heaped upon it at its first appearance, have long
cherished the noble poem of " Maud" as the consummate flower
of his highest artistic work j standing midway, as it does, be
tween the early efflorescence of his school-boy and under-graduate
effusions and the decline and fall of his septuagenarian period.

The substance of this poem was first given to the world in
the summer of 1855, while the Crimean .war-fever was at its
height, and the war-passages of the concluding section or part
were probably an after-thought. At any rate, that section of
the poem, which begins, " O that 'twere possible," * and which
stood in the first edition as the twenty-fourth and in the second
as the twenty-sixth (the germ from which the whole poem
eventually sprang), was originally published eighteen years
previously, as far back as 1837, in the pages of a long-forgotten
and now almost unattainable miscellany, entitled " The Tribute :
a Collection of Miscellaneous Unpublished Poems, by Various
Authors, edited by Lord Northampton ; " whence, as the late
Mr. George Brimley remarked,! it is " now recovered, and set as
a jewel amid jewels." " There is nothing," he says, " that presents
the incipient stage of madness, springing from the wrecked affec
tions, with more of reality and pathos n than this poem. These
stanzas elicited incidentally from the " Edinburgh Review " { its

* It seems probable that the opening lines or key-note of these "Stanzas "
may have been suggested by a passage in Webster's " Duchess of Main":

" O that it were possible we might
But hold some two days' conference with the dead !
From them I should learn something I am sure
I never shall learn here."

t "Cambridge Essays," 1855, p. 268.
t October, 1837, p. 108.



THE GENESIS OF TENNYSON'S "MAUD." 357

first notice of Tennyson. "We do not profess," says the re
viewer, "perfectly to understand the somewhat mysterious con
tribution of Mr. Alfred Tennyson, entitled ' Stanzas/ but amidst
some quaintness, and some occasional absurdities of expression,
it is not difficult to detect the hand of a true poet in those
stanzas which describe the appearance of a visionary form, by
which the writer is supposed to be haunted amidst the streets of
a crowded city." And last, but not least, Mr. Algernon Swin
burne, speaking of some of the chief contributions to " that fort
unate volume of miscellaneous verse," describes this one as
" what seems to certain readers the poem of deepest charm and
fullest delight of pathos and melody ever written even by Mr.
Tennyson ; since recast into new form, and refreshed with new
beauty, to fit it for reappearance among the crowning passages
of Maud." Instead of the concluding stanza,

"'But the broad light glares and beats,"

as it now appears in " Maud," the " Stanzas," as they originally
stood in the " Tribute," after

"To the regions of thy rest,"
closed as follows :

" But she tarries in her place,
And I paint the beauteous face
Of the maiden that I lost,
In my inner eyes again,
Lest my heart be overborne
By the thing I hold in scorn,
By a dull mechanic ghost
And a juggle of the brain.

" I can shadow forth my bride
As I knew her fair and kind,
As I woo'd her for my wife ;
She is lovely by my side
In the silence of my life
J Tis a phantom of the mind.

" ; Tis a phantom fair and good ;
I can call it to my side,
So to guard my life from ill,
Though its ghastly sister glide
And be moved around me still
With the moving of the blood,
That is moved not of the will.



358 THE NORTH AMERICAN REVIEW.

" Let it pass, the dreary brow,
Let the dismal face go by.
Will it lead me to the grave ?
Then I lose it: it will fly.
Can it overlast the nerves ?
Can it overlive the eye ?
But the other, like a star,
Through the channel windeth far
Till it fade and fail and die,
To its Archetype that waits
Clad in light by golden gates
Clad in light the Spirit waits
To embrace me in the sky."

All this was omitted when the " Stanzas " were remodeled to
appear in the poem of " Maud," which appears to have grown
out of a remark of the poet's friend and neighbor, the late Sir
John Simeon, of Swainston, to whom Tennyson had read the

lines,

"O that 'twere possible."

Mrs. Richmond Ritchie (better known as Miss Thackeray)
relates that Sir John Simeon said, " it seemed to him as if some
thing were wanting to explain the story of this poem, and so by
degrees it all grew." A curious and significant anecdote, explan
atory also of the sense of a verse of the poem, is told on the
authority of Mr. Henry Sidgwick. Tennyson was reading the
poem to a silent company, assembled in the twilight. When he
came to the lines opening the twelfth section :

"Birds in the high Hall-garden

When twilight was falling,
Maud, Maud, Maud, Maud,
They were crying and calling,"

he stopped short, and asked an authoress-who happened to be
present what birds these were. Much embarrassed, and feeling
that she must speak, and that the eyes of the whole company were
upon her, the lady faltered out, " Nightingales, sir." "Pooh. ! "
said Tennyson, " what a cockney you are ! Nightingales don't
say * Maud.' Rooks do, or something like it. Caw, caw, caw,
caw." Then he went on reading.

A sketch by the late Dante Gabriel Rossetti, dated 1855, of
" Tennyson reading Maud," is at present in the possession of
Robert Browning, the poet, who, together with his wife, was of



THE GENESIS OF TENNYSON'S "MAUD" 359

the party. It was exhibited at the Rossetti Exhibition of the
Burlington Fine Arts Club, shortly after the painter's death j
and a wood-engraving from it appeared in " Harper's Magazine/ 7
for December, 1883, accompanied by an article from the pen of
Mrs. Ritchie, the daughter of Thackeray. Mr. Joseph Truman,
himself one of the most noticeable of the lesser constellation of
living poets, paid a visit to Farringford, the poet's home in the
Isle of Wight, a quarter of a century ago, and had the privilege
of hearing him read " Maud,' 7 with many passages and lines now
omitted. The question as to the madness of the hero of " Maud "
has been almost as much, as variously, and as fruitlessly dis
cussed as that of the madness of " Hamlet." It will be interest
ing in this connection to note that a set of proof-sheets of the
second edition (considerably revised and enlarged, and published
in 1856) bore the title of " Maud ; or, the Madness," but this
second title, an after-thought, and probably intended as a sop to
the critical Cerberus, was rescinded before publication. In the
edition of 1859 the poem was divided into two parts, and subse
quently into three. In the later editions it is entitled, "Maud :
a Monodrama."

A defender of the work appeared in the person of Dr. Eobert
James Mann, who published an elaborate brochure of eighty
pages on the spirit and purpose of the poem, entitled, " Tenny
son's i Maud' Vindicated : an Explanatory Essay." The poet ap
pears to have approved of his commentator's interpretation,
for he writes to Dr. Mann as follows :

" No one with this essay before him can in future pretend to misunder
stand my dramatic poem, ' Maud ' ; your commentary is as true as it is full."

In a small anonymous volume of poems, entitled " lonica," *
another defender came forward with some lines of considerable
merit, entitled, " After Reading 4 Maud,' September, 1855." Three
years ago the writer of the present paper was privileged to see
the original proof-sheets of the first edition of " Maud." A long
printed passage, of remarkable power and pungency, describing
in scathing language the young lord-lover whom the heroine's
brother desires to force on her, was scored out in these proofs
and never appeared in the published poem. It begins with the
second stanza of the tenth section, after the lines closing the
first, as they still stand :

* Smith, Elder & Co., 1858, pp. 61-64.



360 THE NOETH AMERICAN REVIEW.

"And over the sullen-purple moor
(Look at it) pricking a cockney ear."

The canceled passage runs as follows :

ii.

"What, has he found my jewel out,
This babe-faced lord? I am sure it was he,
Bound for the Hall, and perhaps for a bride.
Blithe would her brother's acceptance be.
Maud could be gracious, too, no doubt,
To the dawdling drawl of the tender ape,
His bought commission and padded shape,
His one-half grain of sense, and his three
Straw-color'd hairs upon either side
Of a rabbit mouth that is ever agape.

in.

"Now are they serf -like, horribly bland,
To this lord-captain up at the Hall:
"Will she smile if he presses her hand?
Captain? he to hold a command!
He can hold a cue, he can pocket a ball.
And, sure, not a bantam cockrel lives
With a weaker crow upon English land,
Whether he boast of a horse that gains,
Or cackle his own applause, when he gives
A filthy story at second-hand,
Where the point is miss'd and the filth remains.

IV.

"Bought commission! can such as he
Be wholesome guards for an English throne,
When if France but make a lunge, why she,
God knows, might prick us to the backbone ?

v.

"What use for a single mouth to rage
At the rotten creak of the old machine,
Tho' it makes friend weep and enemy smile,
That here in the face of a watchful age
The sons of a graybeard-ridden isle
Should dance in a round of old routine,
And, a few great families lead the reels,
While pauper manhood lies in the dirt,
And Favor and Wealth, with gilded heels,
Trample service and tried desert."



THE GENESIS OF TENNYSON 1 S "MAUD." 361

In the original proofs, the " shining daffodil " of the pub
lished version appears, in two places, as "the sweet Narcissus":

11 The sweet Narcissus dead, and Orion low in his grave."

"And the sweet Narcissus dies, and the charioteer
And starry Gemini hang like glorious crowns
Over Orion's grave low down in the west."

In these original proofs, Maud's brother is not described as
" the Sultan " ; that epithet was an after- thought. Three well-
known lines describing him run thus in the first draft :

"But his essences made the Morning sick,
And "barbarous opulence jewel-thick
FlashM on his obstinate -finger'd hands."

Enough has been said to show into what a refiner's furnace
this most artistic, if not flawless, work of the most artistic of
living poets was cast, before it came forth in its present shape
liness, purity, and perfection of workmanship.

RICHARD HERNE SHEPHERD.



THE DEVELOPMENT OF MACHINE GUNS.



THE prominent position now accorded to machine guns in
naval and military armaments, as well as the increasing interest
evinced of late in all matters pertaining to them, might lead to
the supposition that they are a comparatively recent production,
whereas small-bore weapons of the kind, termed organ guns,
were employed by the military as early as the fourteenth century.
And yet it requires a great stretch of imagination to treat the
organ guns as the prototype of such weapons as the Gatling,
Nordenfelt, Gardner, and other modern rifle-caliber guns.

Machine guns have been rapidly developed in the past few
years, and the question of naval machine-gun armaments daily
assumes increasing importance. The demand for naval machine
guns has been brought about partly by the very decided advance
effected in their construction more particularly in regard to
those of rifle caliber and partly by the introduction of powerful
torpedo boats. This latter cause has necessitated some special
means for affording to the huge and costly iron-clad an effective
protection against the attack of boats armed with the White-
head or other equally destructive torpedo ; for the swift and
stealthy movements of these craft, and the suddenness of their
onslaught, render the ordinary armament of an iron-clad com
paratively useless for this purpose; besides, the torpedo boat
offers but a small target to the ship's guns even when an attack
is made in the day-time. And the creation of a special class
of swift cruisers for the protection as well as for the destruction
of commerce on the high seas, and the determination of some of
the naval powers to enroll, in time of war, the principal steamers
of the mercantile marine as ships of war, have together hastened
the improvement of the guns.

There are practically three distinct classes of machine guns,
viz., those of rifle caliber, firing only rifle bullets ; those of one-
inch caliber, firing only solid shot j and those of one-and-a-quarter-



THE DEVELOPMENT OF MACHINE GUNS. 363

inch caliber and upward, which by the Geneva Convention are
entitled to fire shells. Thus we have: First, rifle-caliber ma
chine guns, sometimes termed small-bore machine guns, and
mitrailleuses. Second, one-inch caliber machine guns. Third,
shell machine guns. Of the latter the heavier forms are usually
spoken of as "rapid" or " quick >; firing guns, for the reason
that they are loaded by hand, and not, as in the case of the
other weapons, by automatic means, and therefore the expression



Online LibraryNathaniel Hillyer. EglestonThe North American review (Volume 139) → online text (page 35 of 60)