Central Law Journal.

St. Louis, Mo., July 29, 1921.

WOMEN AS JURORS.

Reforms which solve one problem often create many others equally difficult. Of this character is the reform which in enfranchising women, at the same time imposed upon them duties of citizenship hard for them to perform. Of these duties none are more difficult for women than that of determining the issues in a case at law. There are many serious and embarrassing situations caused by a woman's presence on a jury and these embarrassments sometimes affect the woman herself and sometimes the case which she is called upon to decide. In England recently a judge at the Cornish Assizes allowed all women who desired to do so to withdraw from cases involving the investigation of acts of infidelity, adultery, obscenity and immorality. The judge said he was sorry to lose their services, because he thought women were, in such cases, better judges of the truth than men, and could more accurately pass upon the guilt or innocence of the "woman in the

case."

Women are not only embarrassed themselves by service on a jury, but they are sometimes very embarrassing to lawyers on both sides of a case who do not know the Psychology of a woman's mind and are not sure which way she is going to jump. For this reason, in many criminal cases, lawyers for the defense, at least, have been in the habit recently of striking the names of all women from the jury lists.

Women defendants themselves seem most anxious not to be tried by women. Two recent murder trials in Chicago and Cleveland illustrate some of the interesting phases of the sex question in the case of jury selection. The Chicago prosecutor declared, when a fair defendant had been acquitted by a male jury of the murder of

her lover, that men in Cook County would not convict a beautiful woman. Whether this was not too broad a generalization, even if restricted to the chivalrous spirit of Cook Countyans, it seems to us to be a conclusive argument for woman's presence on a jury when a fair woman is the defendant. A woman juror will make the men understand the woman's motive; she will tear off the woman's mask and show up her guilt or innocence in such true colors that justice to society, as well as to defendants in such cases will be secured.

In the Kaber case, tried in Cleveland, the defense, it is reported, objected to women on the jury. They were evidently afraid of a woman's severity in passing judgment upon another woman who has not only dishonored her sex, but destroyed a home.

"And when our sex from injuries takes fire, Our softness turns to fury-and our thoughts Breathe vengeance and destruction."

Voltaire said that "all the reasoning of men is not worth one sentiment of women.” This, it will be objected, is just the reason why women should not serve on a jury, but to our mind it is a very strong recommendation in behalf of a woman's fitness to be a juror. It is ridiculous, in the first place, to say that jurymen cver "reason" about the evidence. The ordinary juryman has not the mental training by which he is able to solve a complicated state of facts and reach a right conclusion under the law and the evidence. As a matter of fact, in most cases, he pays very little attention to either the law or the evidence, and absolutely none whatever to the judge's instructions. His feelings decide the cases. The "impres:ions" made upon him by the parties, witnesses and attorneys lead him to the conclusion which he promptly embodies in a "verdict." If he is in doubt he throws up a dollar-heads, I win; tails, you lose.

If we were compelled to rely upon the "sentiments" of men or of women for justice, we should prefer to be tried by a jury of

women, provided we knew we had a just cause, since a woman's intuition will reach a just conclusion where frequently a man, who is unable or refuses to use his reason, will stumble into error.

A striking instance of this difference in the conceptions of justice between men and women came to the attention of the writer a few months ago. A group of ladies, some employed women and others housekeepers, were discussing a verdict of several thousand dollars given by a jury of men in favor of a maid against her mistress, a widow in comfortable circumstances in a western city. The maid had slipped and fallen on a hardwood floor which she herself had taken care of and polished for many years. The injustice of making the mistress liable for trying to keep her home beautiful in favor of one who was perfectly familiar with the surroundings and had herself prepared the floor and arranged the furnishings was so apparent to the women's sense of justice as to call for instant condemnation. We are inclined to believe that the ladies were right.

We are not alarmed at the new problems brought about by the enlargement of women's sphere of influence, at least, so far as the administration of the law is concerned. The embarrassments can easily be overcome; proper exemptions can and should be made. Mothers with little children to care for may, on proper showing, be excused. But the influence of women in the jury box cannot, on the whole, but prove wholesome and beneficial.

NOTES OF IMPORTANT DECISIONS

ATTRACTIVE NUISANCE DOCTRINE DEFINED.-Judicial nomenclature is not always logical or accurate and Judge Hough, in a recent case, takes exception to the word "nuisance" in the rule making the owner of a structure attractive to children liable for resulting injuries on the ground of maintaining

a nuisance. New York, N. H. & H. R. Co. v. Fruchter, 271 Fed. 419 (C. C. A., 2d Cir.).

The question arose in this way: The City of New York at 149th street, maintains a bridge over the railroad tracks of the defendant. To the top girder of this bridge the. defendant had, with the city's permission, fastened an electric wire. This top girder was 24 feet above the roadway and was strengthened and connected by trellis or lattice work with the beams and posts holding up the roadway. This metal lattice work made it possible for boys to climb to the top girder with no difficulty. Plaintiff, eight years old, climbed this lattice work to investigate a pigeon's nest. While reaching for one of the pigeons his hand came in contact with the company's live wire, from which he received the injuries for which he brings suit. The company contended that the bridge with the wire was not an attractive "nuisance" since it was a lawful structure and therefore could not be technically a nuisance. To this the Court replied:

"So it is too obvious to need comment that the court below treated the claim in suit as covered by what are known as the 'attractive nuisance,' 'lure,' or 'trap' cases. Since, so far as the courts of the United States are concerned, these cases are all assumed to rest on Railroad Co. v. Stout, 17 Wall. 657, 21 L. Ed. 745, the word 'nuisance' is inappropriate. A nuisance is that which 'unlawfully worketh hurt, inconvenience, or damage,' and neither the turntable of the Stout case nor the electric wire here to be considered was a nuisance; both were lawful enough. But many a lawful thing may be so negligently managed, handled, or maintained as to give rise to causes of action in tort. The true doctrine is that any composition of matter which lures or attracts the confiding ignorance of childhood to its own harm must be safeguarded as circumstances require, and of course the circumstances vary in almost every instance."

The defendant raised the question that it was the bridge and the lattice work on the bridge which was the "attraction" to children and not defendant's wire. To this the Court replied:

"It is noted that the defendant's structure was lawfully placed on top of the city bridge, and that probably the prime temptation for a boy was clambering up the bridge, which did not belong to defendant. But it was perfectly possible to physically protect the wire which did belong to defendant, while leaving the protection of the bridge to its own proprietor. This difference in ownership does not make any difference in the law. Electric, etc., Co. v. Healy, 65 Kan. 798, 70 Pac. 884."

THE PRESENT STATE OF INTERNATIONAL LAW.*

It is obvious that we cannot go on assuming that the laws and customs of war on land and at sea, the rules which regulate the rights and duties of neutral Powers and persons in case of war, retain the authority which we supposed them to possess in the month of July, 1914. These rules imposed their obligation upon all parties to the great conflict, and, when violated by one party, they could not reasonably be deemed to restrain the other belligerents. So, the world went on for several years without much reference to them; and the question now is: How far do they exist? In many ways the conditions which gave rise to these rules have been materially changed. The new modes of conducting war under which practically entire peoples are mobilized either for combat or supply have apparently destroyed the distinction. between enemy forces and non-combatant citizens, so that the differences which underlie the law of contraband disappear. The whole people would seem to be an enemy force, and all goods destined for their use would appear to be contraband. The historic declaration of Paris that "the neutral flag covers enemy goods with the exception of contraband of war" and that "neutral goods with the exception of contraband of war are not liable to capture under the enemy's flag" would seem to have been swallowed by the exception, and the doctrine that "free ships make free goods" and that "blockades in order to be binding must be effective" appear to have become idle phrases. The submarine, the Zeppelin and the airplane, wireless telegraphy, the newly achieved destructive power of high explosives and of poisonous gases, have created conditions affecting both belligerents and neutrals not contemplated when the old rules

A revision of an address of Hon. Elihu Root before the American Society of International Law, April 27, 1921.

were established, and in many respects the old rules are not adapted to deal with the new conditions.

More important still is a fact which threatens the foundation of all international law. The doctrine of kriegsraison has not been destroyed. It was asserted by Bethman Hollweg at the beginning of the war when he sought to justify the plain and acacknowledged violation of international law in the invasion of Belgium upon the ground of military necessity. The doctrine practically is that if a belligerent deems it necessary for the success of its military operations to violate a rule of international law, the violation is permissible. As the belligerent is to be the sole judge of the necessity, the doctrine really is that a belligerent may violate the law or repudiate it or ignore it whenever that is deemed to be for its military advantage. The alleged necessity in the case of the German invasion of Belgium was simply that Belgium was deemed to be the most advantageous avenue through which to attack France. Of course, if that doctrine is to be maintained, there is no more international law, for the doctrine can not be confined to the laws specifically relating to war on land and sea. With a nation at liberty to declare war, there are few rules of peaceful intercourse, the violation of which may not be alleged to have some possible bearing upon a military advantage, and a law which may rightfully be set aside by those whom it is intended to restrain is no law at all.

The doctrine has not been abandoned. It was formally and authoritatively declared by the German Government and acted upon throughout the war. We can find no ground to justify the conclusion that a plainly unrepentant Germany does not still maintain the soundness of the doctrine as a part of its historic justification, nor has there been any renunciation. by the allies of Germany. We must, therefore, face the fact that the law which during the course of three centuries had

become apparently firmly established upon the universal acceptance and consent of all the members of the community of civilized nations is shaken to its foundation by the repudiation of its moral obligation on the part of the four Central Powers Germany, Austria-Hungary, Turkey, and Bulgaria, which at the outbreak of the war had over 144,000,000 inhabitants.

Few more futile public performances can be found in the history of interna

tional intercourse than the long diplomatic discussions which accompanied the earlier year of the war between neutral nations and Germany, about the rules of international law and their application to the conduct of Germany's military and naval proceedings, while Germany had already publicly declared that she would not deem herself bound by any rules she found to be disadvantageous to herself. The same will be true in the future if the same condition exists. It will be impossible to maintain the restraint upon national conduct afforded by the rules of international law so long as so great a part of the civilized world asserts the right to disregard those rules whenever it sees fit. Either the doctrine of kriegsraison must be abandoned definitely and finally, or there is an end of international law, and in its place will be left a world without law, in which alliances of sorie nations to the extent of their power enforce their ideas of suitable conduct upon other nations.

Another threatening obstacle to international law exists in the rapid development of Internationalism. This is presented by the avowed purposes of the Third Internationale aiming at the destruction of national governments and the universal empire of the proletariat; by the fact that the brutal and cruel despotisms of Lenin and his associated group has been able to maintain its ascendency over the vast territory and

population of Russia, calling itself a dictatorship of the proletariat but making itself a dictatorship over the proletariat as well as all other classes, and ruling in the name of a world revolution for the accomplishment of the purposes of the Third Internationale. It is presented also by the universal propaganda carried on with almost religious fervor in all countries and seriously affecting the leadership of labor in many countries. That propaganda, exceedingly subtle and ingenious, through the world has toppled over the wits of parlor Socialists from their insecure foundations of education

Superior to their intelligence, and is making them the unconscious agents of promoting political principles which they would abhor if they understood them and in aiding sinister projects for profit in which they personally have no part. The organization of the civilized world in nations is confronted since the war with a vigorous and to some degree prevailing assertion that a much better organization would be that of government by class existing in all nations and superior to all.

International law, of course, is based upon the existence of nations. There is no common ground upon which one can discuss the obligations of international law with the Third Internationale, and just so far as the ideas of Lenin and Trotsky influence the people of a civilized country just so far the government of that country is weakened in the performance of its international obligations.

The existence of nations is not an accident of locality or of language or of race. It is one phase of the struggle of mankind for liberty. The independence of nations is an assertion of the rights of different groups of men having in the main different customs, traditions, habits of thought and action, ideas of propriety and of right, to have local self-government. This is true whatever the form of government; whether it be a monarchy or an aristocracy permitted by the peo