disease taught them that there was something wrong with the sea-water at Havana. La Roche says: "The water of the bay is often very offensive; all vessels pump their bilgewater into it, and it cannot be changed. It is so full of decomposing materials that the British naval service has a standing order not to use the water for any purpose on board. The United States ship-of-war Macedonian arrived from Boston at Havana, April 28, 1822, with a healthy crew. There was no yellow fever in Havana at the time. Water was let into the hold at intervals between the 28th of April and the 7th of May; when the captain, hearing of the standing rule in the English navy, discontinued the practice. A few days after being let in, the water in the bilges was found to be very filthy and offensive, so much so that, when it was being pumped out, all of the crew except the men required for the pumps were sent either to a distance in the boats or into the tops. The chain-cable, when hove in, was found covered with an offensive gelatinous substance. The first case of yellow fever on board occurred on the 8th of May, and the patient died on the 11th; another death occurred on the 19th, and then the disease spread rapidly and fatally among the crew and officers; and, although the vessel put to sea, she continued to be a source of infection for several months, one hundred and one out of a company of three hundred and seventy-six dying of yellow fever. In this case the putrid sea-water of Havana harbor was the source of yellow fever; and such putridity can have had no other origin than the accumulated filth of hundreds of slave-ships discharged into it for two centuries." Space does not permit me to give all the evidence that I have put together of this kind. The writings of Lind, Trotter, and Gillespie furnish graphic descriptions of the careenages of Port Royal, in Martinique; of English Harbor, in Antigua; of Bridgetown, in Barbadoes; of Port au Prince, in Hayti, and the like. There is always the sweltering mud, the noxious exhalations, the air kept stagnant by the inclosure of hills, and the English sailors dying on board the ships-of-war like rotten sheep. Speaking of yellow fever at Bridgetown, in 1694, Lind says: "Captain Thomas Sherman, of H. M. S. Tiger, in the two years that he lay there, buried out of her six hundred men, as he told me, though his complement was but two hundred." Again, the same writer says of English Harbor, in Antigua: "The stagnated air becomes so unwholesome that men, after being there a few days, are suddenly seized with violent vomitings, headaches, delirium, etc., and in two or three days more the dissolved mass of blood issues from every pore. In such places the water of the sea itself would probably become putrid, and destructive to the very fish, were it not kept in motion by a gentle flux and reflux, which may be perceived every day." Once more, Gillespie says of the yellow fever at Port Royal in 1794: "The disease did not make any rapid progress until the ship had remained some weeks in the bay of Trois Islets, where the sultry calms that reigned in August and continued all the hurricane months, the vitiated state of the internal air of the ship, from dampness, foul ballast, the steam of bilge-water, and the like, promoted the spreading of the disease. . The contagion, which had been remarked to be active on board, did not seem to be powerful in exciting the disease on shore; few, if any, persons were infected by it on land." But it wants a great deal more than the natural exhalations of even a tropical harbor, or the mangrove swamps around it, to produce yellow fever. Something has been added to the natural mud of some of those harbors, and that something was the filth pumped out or thrown overboard from every slaver that had arrived during a period of nearly two hundred years. The cleaning out of a slaver after a run from Africa was no ordinary business; white men could not be got to do it, probably because the effluvia did not agree with their health, and the blackest of Kroomen from Sierra Leone were set to the task. But the risk of the whites was by no means confined to the actual cleaning out of the ship's hold. The filth was not by any means got rid of when it was thrown into the water of a land-locked and almost tideless harbor; it entered into the composition of the mud, and even tainted the sea-water itself. The noxious exhalations, or miasmata, which have at all times and in every place been assigned as the cause of yellow fever, are not the natural exhalations of the soil or water, nor can they arise from soil and water fouled by ordinary sewage. The filth that breeds it is the filth of another race, and, furthermore, it is the peculiar filth of the "middle passage." How long that taint can linger in a harbor's mud, or in the alluvial foundations of houses along the shore, it would be hazardous to pronounce. Certain it is, that the soil of Philadelphia and the mud of the Delaware are long since clear of it, nor is it likely that it still exists to any considerable extent in the soil of Charleston; and we may assume that the Gulf and West Indian ports would not have retained it for so many years after they ceased to receive its annual accretions, but for the sluggishness of their waters. The plunging tides of the Atlantic have almost washed away the traces of a cruel traffic that once visited every American port from Cape Cod to the Cape of Florida, a traffic that brought in its train the far-reaching Nemesis that wrong-doing never fails to bring. It may take long to remove the last traces of slave-ships in the bay of Havana, and efface the memory of wrongs that even the deep water of the sea refuses to hide; but the ministers of Nature are silently working to preserve both the physical and the moral order, and even along the Spanish main there is something to hope from "The moving waters at their priest-like task C. CREIGHTON. SHALL THE JURY SYSTEM BE ABOLISHED? IN a recent number of this magazine appeared an article on "Juries and Jurymen." The writer, Judge Pitman, of Massachusetts, took the ground that, while some improvements could be made, the jury system was good in the main, and should be retained. With reference to the improvements suggested, I have nothing to say. Some of them, as, for instance, allowing three-fourths of the jury to find a verdict in civil cases, have been tried in California, and possibly in other States, and have been found to work well enough. But they are subordinate to the main question, and can have but little interest for general readers. I believe the main question-whether the system itself is good-to be worthy of discussion; and as I cannot agree with the learned writer of the article referred to, I will briefly examine the reasons that he adduces in support of the system, and then set forth my objections to it. His opening argument is, that serving on juries has an educating influence upon the citizen, and, while not going so far as De Tocqueville, he agrees with that writer in the following: "It teaches men to practice equity; every man learns to judge his neighbor as he would himself be judged, . . . and this is the soundest preparation for free institutions." I doubt whether this is practically true. But let us assume that it is true. The answer is, that to teach men equity, or to be good citizens, is not the purpose of the jury system. Its purpose is to assist in the administration of justice; and if it does not do that, it is manifestly a failure. Any educating influence that it may have is wholly incidental and collateral. If it fails in its purpose, it is no argument for its continuance that it has some incidental effect that is beneficial. As well might it be said in defense of a legislature that passed nothing but bad laws, that its sessions afforded splendid practice for the members, and that, if they should only be reëlected a sufficient number of times, they would develop into a body of Solons who would do honor to the country. He next says: "The common law itself has grown up alongside of, and has been established in its principles with a reference to, trial by jury; so that the latter has become a congruous part of the former. Certain elementary rules of law are so closely associated with this system of procedure that change in one would require alteration in the other." The inference evidently intended is, that any such change would be bad. But it is not perceived how a change would be required. The learned writer has not mentioned any rule of substantive law which, so far as I can see, would be changed by the abolition of the jury system. He gives but two illustrations of the change he apprehends, viz., the rule that in criminal prosecutions the jury are to give the accused the benefit of a reasonable doubt, and the rule that in actions for negligence they are to ascertain what was 66 such care as men of ordinary prudence and capacity would take under like circumstances in the conduct and management of their own affairs." But how are these rules different when applied by a judge from what they are when applied by a jury? The rules of law are the same in each case, and would be laid down in precisely the same language by courts and text-book writers. Is it not apparent that the only difference is in the instruments through which they are applied? In one sense it may be said that the reasonable doubt of twelve men is a different thing from the reasonable doubt of one man; but in precisely the same sense it may be said that the reasonable doubt of one jury is a different thing from that of another jury. Surely the learned writer would not say that the law is changed every time a case goes before a different jury! What he evidently means is, that the rules mentioned would be better applied by a jury than by a judge. But this is assuming the question at issue. No other instances than the two referred to are given by Judge Pitman, and it is therefore difficult to appreciate the nature of the change he apprehends; and until the nature of any particular change is known, it cannot be determined whether such change is desirable or not. Several of the rules of the common law itself were simply barbarous. Equity jurisprudence is nothing but the body of rules devised by enlightened chancellors during several centuries, for the purpose of evading the harsh VOL. CXXXIX.-NO. 335. 26 |