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A defendant waiting for trial was either locked up or set free on bail. Bail was an old institution; the Eighth Amendment to the Constitution mentions it specifically and forbids “excessive” bail. State constitutions had similar provisions. Under the Alabama Constitution of 1875, it was provided that “all persons shall, before conviction, be bailable by sufficient sureties.” The exception was “capital offenses, when the proof is evident, or the presumption great.”24

Bail cost money. The point was to make sure the defendant showed up for trial. Courts had wide discretion in setting bail. To “make bail,” the defendant usually filed a bail bond, which was signed or vouched for by family or friends, respectable citizens. If the defendant skipped town, bail was forfeited.25 Toward the end of the century, professional bail bondsmen begin to appear: individuals or firms in the business of financing bail.26

State and federal constitutions guaranteed the right of trial by jury. Jurors were, of course, always men; and they were, practically speaking, always white. Even after the Civil War, blacks were generally excluded from juries. In Strauder v. West Virginia (1879),27 the U.S. Supreme Court struck down a statute that restricted jury service to “white male persons.” There was a certain irony here: West Virginia was a state made up of breakaway, Unionists counties that refused to join Virginia in seceding. The southern states learned a lesson from Strauder: open, formal exclusion of blacks would not work. They found more sinister ways to keep blacks off their juries. The proud words of the Strauder case, boasting that the law would be “the same for the black as for the white,” were written on the wind.

Jurors were supposed to be average citizens (or at least average white men) chosen at random. In Massachusetts, their names were “drawn by lot from boxes, in which are deposited the names of all citizens who are qualified for the service.”28 State laws listed classes of people who were excluded, or entitled to wriggle out of this duty. Attorneys and judges were quite generally excused; so were senior citizens (those over sixty or sixty-five, depending on the statute), plus a motley assortment of others. In Florida in the 1890s, these included “officers of colleges,” teachers of various sorts, doctors and pharmacists, “ministers of the gospel, one miller to each grist mill, one ferryman to each licensed ferry, telegraph operators,” train engineers, “ten active members of any hand fire company, six active members of any hose company, twenty active members of any hook and ladder company.”29

There was, then as now, considerable fidgeting and squirming to get out of jury service. People claimed to be suddenly sick, or indispensable, or pleaded dreadful personal hardship. In the end, there were always enough fish caught in the net. The canonical number was twelve.30 To serve, however, a juror also had to survive the voir dire process. Lawyers for either side could “challenge” jurors. They had a certain number of “peremptory challenges”—this was the privilege of excusing a prospect for no explicit reason. If the defendant’s lawyer thought a man looked too sour, or if he thought Swedish-Americans were too prone to convict, he could use one of his precious stock of peremptory challenges. In California, the prosecution had five of these, the defendant ten, except in capital cases, where the numbers were doubled. In Colorado, each side had fifteen in a capital case, ten in cases where the defendant could wind up in the penitentiary, three in all other cases.31

The lawyers also had at their disposal an unlimited number of challenges “for cause.” This eliminates people likely to be biased: relatives of the defendant, for example. In Ohio, kin of the victim or defendant could be challenged up to the “fifth degree” (for example, the children of first cousins). Lawyers could also challenge, for cause, “habitual” drunkards, and anybody who had “formed and