Juvenile Courts Today: Priorities, Organization, and Process 118
Priorities 118
LASTING IMPACT: ROPER V. SIMMONS 119
Organization 120 Process 122
COURTS IN THE NEWS: CYBERBULLYING 123
COURTS IN THE NEWS: THE STEUBENVILLE RAPE CASE 127
Treatment of Juveniles as Adults 128 Legislative Exclusion 128 Waivers 128
Concurrent Jurisdiction 130
Changing Landscape of Juvenile Justice 130
Increased Sanctions 130 More Accountability 130 Less Privacy 131
Summary 132
What Will You Do? 135
CHAPTER 6 Specialized Courts 139
Introduction 140
Origins and Distinguishing Features of Specialized Courts 140
Origins and Historical Milestones 141 Distinguishing Features 142
COURTS IN THE NEWS: NEWARK YOUTH COURT 144
Varieties of Specialized Courts 147
Drug Courts 147
Domestic-Violence Courts 149
Community Courts 151
Gun Courts 152
Sex Offense Courts 153
Homeless Courts 154
Mental Health Courts 155
Reentry Courts 156
Threats to and Keys to Success for Specialized Courts 157
Possible Threats 157
COURTS IN THE NEWS: SPECIAL VETERANS’ COURTS: BROOKLYN’S TREATMENT PROGRAM 158
Keys to Success 160
Summary 161
What Will You Do? 163
PART III THE PEOPLE INVOLVED
CHAPTER 7 Judges 167
Introduction 168
The Judicial Role and Functions 168
Federal Judges 169
Backgrounds 169
COURTS IN THE NEWS: JUDICIAL IMPARTIALITY 170 Qualifications 172
Appointment Process 173
Compensation 174
Judicial Career Stages 175
State Judges 178
Types and Qualifications 178
Selection Process 179
Merit Selection 180
Appointment Methods and Diversity on the Bench 181
Compensation 181 Retention 183
Retirement and Removal 183
Judicial Ethics 184
Professional Associations 184
State Commissions 184
Complaints about Judicial Conduct 185
Judicial Ethical Dilemmas 186
What Makes a Good Judge? 186
Judicial Decision Making 187
Personal Ideology and Attitudes 187
Election Considerations 187
COURTS IN THE NEWS: JUDICIAL MISCONDUCT 188
Public Opinion 188
Strategic Considerations 189
Consensus Seeking 190 Laws 190
Limits on Judicial Decisions 190
Importance of Impartiality 190
Decisions Limited to Actual Controversies 191
No Involvement with Political Questions 192
Laws Overturned on Narrow Grounds 192
No Rulings on the Wisdom of Legislation 192 Summary 193
What Will You Do? 196
CHAPTER 8 Prosecutors 200
Introduction 201
Types of Prosecutors 201
Federal Level 202
State Level 204
County Level 205
City Level 205
Prosecution Throughout History 206
Choices Shaping American Prosecution 206
Increased Prominence 207
Progressive Era 208
Discovery of Discretion 209
New Prosecution Paradigm 209
LASTING IMPACT: THE DUKE RAPE CASE: NORTH CAROLINA STATE BAR V. MICHAEL B. NIFONG (2007) 210
Charging Decisions 212
Prosecutorial Discretion 212
Alternatives to Traditional Prosecution 214
Protections for Prosecutors 216
Absolute Immunity 216
Qualified Immunity 217
Ethics 217
Rules of Professional Conduct 217
COURTS IN THE NEWS: PROSECUTORIAL MISCONDUCT 218
Key Ethical Dilemmas for Prosecutors 219
Prosecutors on The Job 220
Office Structure and Organization 220
Contrasting Goals and Styles 220 Retention and Pay 223
Threats and Violence against Prosecutors 224
Summary 224
What Will You Do? 227
CHAPTER 9 Defense Attorneys 232
Introduction 233
The Function of Defense Attorneys 233
LASTING IMPACT: MCDONALD V. CHICAGO: THE RIGHT TO BEAR ARMS 234
History of Criminal Defense 235
Growth of the Criminal Defense Bar 235
Criminal Defense Bar Today 236
Types of Defense Attorneys 236
Privately Retained Counsel 236
Indigent Defense Systems 238
Defense Attorneys on the Job 241
Craft of Defense Attorneys 241
COURTS IN THE NEWS: DOES YOUR LAWYER MAKE A DIFFERENCE? 242
Insider Justice 243
Myth of the Zealous Advocate 243
Defense Attorneys, Their Clients, and the Public 244
Defense Attorneys’ Perceptions of Their Clients 245
Defendants’ Perceptions of Their Attorneys 245
Public Perceptions of Defense Attorneys 246
Defense Attorneys’ Satisfaction with Their Work 247
Defense Ethics 248
Ethical Dilemmas for the Defense 248
Professional Organizations 248
Codes of Ethics and Conduct 249
Death-Row Volunteering 250
Summary 251
What Will You Do? 254
CHAPTER 10 Defendants and Victims: Their Roles and Rights 258
Introduction 259
Defendant Characteristics 259
Criminal Defendants’ Rights 261
Right to Counsel 261
LASTING IMPACT: GIDEON V. WAINWRIGHT (1963) 264
Right to Confrontation 267
COURTS IN THE NEWS: MENTAL INCOMPETENCY
RULINGS: A GROWING PROBLEM FOR U.S. COURTS 271
Right to Compulsory Process 272
The Defendant’s Marginal Role 274
Victim Characteristics 274
Victim–Offender Relationships 275
Victim Attitudes and Images 275
Victim Involvement in the Court Process 277
The Movement to Get Victims Involved 277
LASTING IMPACT: PAYNE V. TENNESSEE (1991) 278
Victims’ Assistance 279
COURTS IN THE NEWS: HELPING VICTIMS WHO CANNOT HELP THEMSELVES 280
Victims’ Rights 281
Summary 285
What Will You Do? 287
PART IV THE COURT PROCESS
CHAPTER 11
Pretrial Procedures 290
Introduction 291
Arrest and Probable Cause 291
Warrantless Arrests 292
COURTS IN THE NEWS: ARRESTING A RAPIST 293
Exclusionary Rule 295
Fruit of the Poisonous Tree 296
COURTS IN THE NEWS: INTERROGATING THE BOSTON MARATHON BOMBER 297
Arguments for and against the Exclusionary Rule 298
LASTING IMPACT: MAPP V. OHIO (1961) 298
Exceptions to the Exclusionary Rule 301
Initial Appearance 303
Pretrial Release 303
Pretrial Release Hearing 303
Mechanisms for Release (or Continued Detention) 304
Bail Decision Making 306
Charging the Offender 308
Charging in Grand Jury Jurisdictions 308
Preliminary Hearing 310
Double Jeopardy 311
Arraignment 312
Discovery 312
Forms of Discovery 313
Summary 315
What Will You Do? 319
CHAPTER 12 Plea Bargaining and Guilty Pleas 323
Introduction 324
Plea Bargaining 325
Definition of Plea Bargaining 325
COURTS IN THE NEWS: STEPHEN PARKS AND HIS COAL TAX SCHEME 326
History and Rise of Plea Bargaining 327
Arguments for and against Plea Bargaining 328
COURTS IN THE NEWS: LINDA WESTON AND THE BASEMENT OF HORRORS CASE 329
Attempts to Restrict Plea Bargaining 331
Supreme Court’s View on Plea Bargaining 332
The Plea Bargaining Process 333
Constitutional Rights during Plea Bargaining 333
LASTING IMPACT: SANTOBELLO V. NEW YORK (1971) 335
Acceptable Inducements 335
Questionable Inducements 337
Judicial and Statutory Inducements 337
Steps Following a Plea Agreement 338
Factors Affecting Plea Agreements 341
Guilty Pleas 341
Elements of a Valid Guilty Plea 341
Contesting a Guilty Plea 345
Summary 347
What will you Do? 349
CHAPTER 13 The Jury and the Trial 352
Introduction 353
The Jury 353
History of the Jury Trial 354
Jury Process 355
Situations When the Right to a Jury Trial Applies 355
Waiving of the Right to a Jury Trial 356
Selection of Impartial Jurors 356
Jury Consultants: Useful? 362
Jury Decision Making 362
Jury Size and Voting Requirements 362
COURTS IN THE NEWS: JURY CONVICTS CEO 363
Factors Affecting Jurors’ Decisions 364
Jury Nullification and Vilification 365
Do Jurors Tell the Truth? 366
Time for Professional Jurors? 366
The Trial 367
Speedy Trial 367
COURTS IN THE NEWS: FOR SOME, SERVING ON A JURY
CAN BE TRAUMATIC 368
Problem of Delays 369
Public Trial 370
Closing Trials 371
Alternatives to Trial Closure 372
The Trial Process 373
Opening Statements 374
Prosecutor’s Evidence 374
Cross-Examination 375
Defense Response 376
Final Motions and Closing Arguments 376
Juror Deliberations 377
Verdict 377
Postverdict Motions 377
Summary 379
What will you Do? 381
CHAPTER 14 Sentencing, Appeals, and Habeas Corpus 386
Introduction 387
After Trial 388
Goals of Sentencing 389
Rehabilitation 390 Retribution 390
Incapacitation 390 Deterrence 390
Types of Sentences 390
Monetary Penalties 391
Probation 391
Intermediate Sanctions 393
Shaming 393
Forfeiture 394
Prison Sentences 395
COURTS IN THE NEWS: LIFE SENTENCES FOR JUVENILES 396
LASTING IMPACT: FURMAN V. GEORGIA 398
LASTING IMPACT: GREGG V. GEORGIA 399
Death Penalty 399
Determination of the Appropriate Sentence 401
Constitutional Rights during Sentencing 401
Appeals 402
Types of Appeals 402
Consequences of Appeals 402
Appellate Process 403
Habeas Corpus 409
Is Habeas Corpus Important? 409
Limitations on Habeas Corpus 410
Antiterrorism and Effective Death Penalty Act of 1996 411
Summary 412
What Will You Do? 415
PART
V CURRENT ISSUES AND THE FUTURE OF COURTS
CHAPTER 15 Differential Treatment and Wrongful Convictions 418
Introduction 419
Differential Treatment 420
Offense Seriousness 420
Notoriety 420
Attorney Competence 421
Gender Differences 421
Race/Ethnicity 421
Research on Race, Ethnicity, and Case Processing 422
Police–Citizen Encounters 423
Pretrial Period 423
LASTING IMPACT: TERRY V. OHIO (1968) 425
Trial 426
LASTING IMPACT: CHICAGO V. MORALES (1999) 427
Sentencing 428
Imprisonment and Corrections 430
Capital Punishment 432
Gender Discrimination 434
Is Gender Discrimination a Problem? 434
The Rush to Judgment: Wrongful Convictions 435
Innocence Movement 436
Exonerations 438
COURTS IN THE NEWS: WRONGFUL CONVICTIONS 439
COURTS IN THE NEWS: REDUCE WRONGFUL CONVICTIONS? MODERNIZE THE TRIAL 441
Summary 442
What Will You Do? 444
CHAPTER 16 Technology, Alternatives, and the Future 450
Introduction 451
Technology in the Courts 451
Wired Courts 452
Uses for Technology 454
Demonstration Projects 455
Alternatives to Traditional Adjudication 455
COURTS IN THE NEWS: IMPROVING COURTROOM SECURITY WITH TECHNOLOGY 456
Alternative Dispute Resolution 457
Restorative Justice 458
Courtrooms of the Future 462
Redefinition of Courts and Roles 463
Withering of the Juvenile Justice System? 464
Customer Service 464
LASTING IMPACT: DAUBERT ET AL. V. MERRELL DOW
PHARMACEUTICALS, INC. (1993) 465
Emerging Problems and Pressing Issues 465
Human Trafficking 466
Elder Abuse and Neglect 467
Identity Theft 469
Immigration 469
Summary 471
What Will You Do? 473
Glossary 479
Table of Cases 496
Name Index 500
Subject Index 505
Preface
New to the third editioN
The third edition has been extensively revised. We have made a number of changes throughout the text:
Chapter 1. A new chapter opening story features the surge in court cases involving police shootings and excessive force, particularly in the wake of the 2014 Michael Brown incident in Ferguson, Missouri. A new Courts in the News box features the Texas lawsuit against the federal government that attempted to block the resettlement in the Lone Star State of 6 Syrian refugees following the Paris terror attacks. The Jodi Arias Courts in the News box was updated with the latest sentencing developments. Two new “What Will You Do?” exercises appear at the end of the chapter.
Chapter 2. A new chapter opening story features the New York case of the so-called “cannibal cop.” The case highlights the role of appellate review in the criminal process. A new “What Will You Do?” case at the end of the chapter features the lawsuit Oklahoma and Nebraska filed against Colorado, claiming that Colorado’s marijuana legalization scheme is unconstitutional (i.e., is preempted by federal law) and causes undue harm on its neighboring states.
Chapter 3. Learning objectives were revised and the chapter was reformatted. The latest federal court caseload data are included. A “courts in the news” box features the latest developments in federal drug sentencing, including the release of some 6,000 inmates in late 2015. A new “What Will You Do?” feature examines the Supreme Court’s choice not to decide on the constitutionality of a Chicago suburb’s assault weapons ban.
Chapter 4. The chapter has been updated with the latest data on state court workloads. The trends section near the end of the chapter was updated with the latest developments in state courts. A new “What Will You Do?” scenario at the end of the chapter explores use of the National Center for State Courts’ “CourTools” performance measures.
Chapter 5. A new chapter opening story discusses the role of implicit bias in juvenile justice decision-making. The latest juvenile court statistics (caseloads, case characteristics) are included, as are recent developments in juvenile justice. “Courts in the News” boxes from the previous edition were kept and updated. Learning objectives were revised and realigned with new chapter headings. A new “What Will You Do?” exercise features the cases of eight of the youngest murderers in history. Questions revolve around whether waiver was or should have been used.
Chapter 6. Learning objectives were revised. A new Courts in the News box features the Newark (New Jersey)
Youth Court. An updated exhibit features the King County (Washington) Regional Mental Health Court. A new “What Will You Do?” exercise at the end of the chapter discusses constitutional issues relating to forced Alcoholics Anonymous participation in a drug court context.
Chapter 7. New Chapter opening photo and chapter opening story are included. The table showing judicial salaries has been updated. Data and statistics have been updated throughout.
Chapter 8. A new photo opens the chapter. Data and statistics have been updated throughout. A new “What Will You Do” scenario rounds out the chapter.
Chapter 9. Felony offense statistics have been updated.
Chapter 10. A new chapter opening story and associated photograph open the chapter. Statistics and data have been updated throughout the chapter. An added “What Will You Do” scenario rounds out the chapter.
Chapter 11. A new chapter opening story on a Bitcoin exchange scam. A Courts in the News tracks the arrest of a rapist. Postarrest detention is covered in depth. A Courts in the News feature covers the interrogation of the Boston Marathon Bomber.
Chapter 12 begins with the case of Alexander Fishenko, who pled guilty to acting as an agent of the Russian government within the United States. A new Courts in the News covers Stephen Parks and his Coal Tax Scheme to sell nonexistent refined coal tax credits through a broker to investors. Another new Courts in the News covers Linda Weston and the Basement of Horrors Case.
Chapter 13. A new Courts in the News covers the trial of Don Blankenship, former Chief Executive Officer of Massey Energy who guilty on a federal charge of conspiracy to willfully violate mine health and safety standards. There is a new section on Jury Nullification Today.
Chapter 14 begins with an opening vignette on Thomas Sanders, 57, who was sentenced to death for the murder of Lexis Roberts. A new Courts in the News reviews Life Sentences for Juveniles. A new section on Race and Sentencing looks at this controversial issue. More than 60% of the people in prison are now racial and ethnic minorities. Does this mean that sentencing is biased?
Chapter 15 begins with the story of East Haven, Ct., Police Officer Dennis Spaulding, who was sentenced to 5 years of imprisonment for violating the civil rights of members of the East Haven community. The case of Hill v. US and Dorsey v. US is now included. A Courts in the News looks at the controversial topic of wrongful
convictions while another Courts in the News entitled reduce wrongful convictions? Modernize the Trial reviews an interesting solution to this pressing problem. Chapter 16. A new chapter opening story begins the chapter. New information on human trafficking has been added. An added “What Will You Do” scenario rounds out the chapter.
the GeNesis of this Book
In 2003, a woman was raped by an armed assailant who broke into her Salisbury, Maryland, home. Though she was not able to describe her attacker, the police did obtain a sample of the perpetrator’s DNA. Six years later, in 2009, Alonzo King was arrested in Wicomico County, Maryland, and charged with first- and second-degree assault for menacing a group of people with a shotgun. As part of a routine booking procedure for this serious offense, a DNA sample was taken by applying a cotton swab or filter paper—known as a buccal swab—to the inside of King’s mouth. The DNA was found to match the DNA taken six years earlier from the Salisbury rape victim. King was then tried and convicted for the rape. The key evidence used in gaining the rape conviction was the DNA taken at the time he was booked in 2009; this evidence is what linked him to the earlier rape. When the DNA sample was taken, the procedure conformed to the Maryland DNA Collection Act (1994). The act originally required all convicted sex offenders to submit DNA samples but has since undergone major expansion: In 1999, it was amended to include convicted offenders of violent crimes; in 2002, it began to include all felony convictions and some misdemeanor crimes; and as of January 1, 2009, the DNA law was expanded to include individuals arrested of crimes of violence and burglaries so that DNA samples could be matched with prior crimes, increasing the likelihood of offender identification.
After his conviction, King appealed, arguing that being required to give a DNA sample without a warrant being issued violated his Fourth Amendment right to be free from illegal searches and seizures. The Maryland Court of Appeals agreed, setting aside his conviction and finding unconstitutional the portions of the act authorizing DNA collection from felony arrestees.
On appeal, the U.S. Supreme Court reversed the Maryland court. It ruled in the case of Maryland v. King that when police officers make an arrest supported by probable cause and bring the suspect to the station to be detained in custody, taking and analyzing a cheek swab of the arrestee’s DNA is like fingerprinting and photographing, a legitimate police booking procedure that is reasonable
under the Fourth Amendment. They reasoned that DNA testing may significantly improve both the criminal justice system and police investigative practices by making it possible to determine whether a biological tissue matches a suspect with near certainty. They found it reasonable that Maryland’s act authorizes law enforcement authorities to collect DNA samples from persons charged with violent crimes, including first-degree assault. They also noted that a sample may not be added to a database before an individual is arraigned, and it must be destroyed if he or she is not convicted. Nor did the Court find that collecting a DNA overly intrusive: Taking a swab is quick and painless, requires no surgical intrusion beneath the skin, and poses no threat to the arrestee’s health or safety.
To some, the King case represents a breakthrough that will allow law enforcement agencies to use a relatively new technology to solve crimes and put dangerous criminals behind bars. To others, it creates a slippery slope with both legal and moral ramifications: It paves the way for the construction of a national database containing personal information on every citizen. Cases such as King, they warn, give the federal government unlimited power to monitor private citizens and keep track of their activities.
Regardless of which position you take, the King case illustrates the power of the courts to define the boundaries between legitimate and illegal behavior. If the Supreme Court had ruled for King, the prosecution would have been forbidden to use his DNA at trial, and he would never have been convicted; in essence, a rapist would have been set free. But because the Court ruled that taking King’s DNA was a legitimate exercise of government power, not only does his conviction stand but the ruling also gives a green light to police officers to take DNA swabs of arrestees in all subsequent cases. King creates a precedent that will shape law enforcement activities and trial outcomes for years to come.
We have written Courts and Criminal Justice in America because of cases such as King that illustrate the tremendous power the court system has to regulate citizens’ lives, to shape what is acceptable and what is forbidden, and to ensure that criminal justice policy balances both rights and liberties. It is therefore important for all students to understand the structure of the courts, how they operate, and how they use their power to control behavior ranging from rape to religious freedom and from the taking of a life to the celebration of Christmas.
ApproAch
We take a balanced, modern, and comprehensive approach in this book. It is balanced in the sense that we present all
sides of the most controversial issues facing courts today. We firmly believe that there are two sides to every story and that while there may be a convincing argument against a particular set of practices, it is also important to consider the opposing view. For example, the case of racial disparities is taken up in Chapter 15. Many researchers have found evidence of racial discrimination in criminal justice, but to accept such claims on their face leaves much unsaid. What is meant by discrimination? Depending on how it is defined, different conclusions can be reached. We do not take sides in this book; we simply present what is known about various issues confronting the courts and let the readers draw their own conclusions.
Our approach is modern in the sense that we cover a wide range of cutting-edge topics and novel practices. For example, we dedicate an entire chapter to so-called specialized courts, such as homeless courts. We situate them within the historical development of the court system and discuss strategies to solidify their place in the American judicial landscape well into the future. As another example, we also look at the problem of wrongful convictions and DNA-based exonerations, both of which have captured plenty of headlines in recent years. From the beginning of the book to the end, you will find a wide range of topics that stir controversy and enliven discussion as they relate to the courts.
Finally, ours is arguably the most comprehensive introduction to America’s courts you will find. Courts and Criminal Justice in America covers not only the basics about courts and the personnel who bring them to life but also the context in which they operate and the complexities of human interaction found at every level. This book is also comprehensive in that it does not presuppose any knowledge about the courts or how they operate. We begin with a basic definition of courts and discuss why it is important to have government courts. Then we delve more deeply into the constant struggle for control over the courts that takes place, the many types of courts and the cases that they adjudicate, and the myriad persons and interests that compete for the courts’ attention on a daily basis. Rest assured that no stone has been left unturned.
Goals
Our goal is for each reader of Courts and Criminal Justice in America to understand the following:
▪ The importance that courts have in modern society
▪ Pressures that courts face and the context in which they operate
▪ Various types of courts that range from the allpowerful U.S. Supreme Court to limited jurisdiction courts
▪ Professionals who are involved at all stages of the court process (including judges, prosecutors, and defense attorneys)
▪ The role of victims who participate in the court process
▪ The role of criminal defendants who are tried in the courts
▪ Rights that are enjoyed by accused persons (such as the rights to counsel and a jury trial)
▪ The court process that goes from arrest all the way through to conviction (whether by trial or plea bargaining), sentencing, and appeal
▪ Reasons that not every case or person is treated the same
▪ The role of technology that is used in the courts today
▪ Alternatives to trials that are available
▪ Difficult issues that courts are likely to face as time goes by
Topical Coverage
Courts and Criminal Justice in America is divided into five parts. Part 1 (Chapters 1 and 2) discusses the legal foundations of America’s court system and the many different efforts to control the courts from the outside. Part 2 (Chapters 3–6) presents the main types of courts, beginning with federal and state courts and then moving to juvenile and specialized courts. Part 3 (Chapters 7–10) introduces the people involved in the court process. We begin with the members of the courtroom work group: judges, prosecutors, and defense attorneys. Then we discuss the roles and rights of defendants and victims. Part 4 (Chapters 11–14) takes a close look at the court process, starting with the arrest, the initial appearance, the bail decision, the charges, and the process of discovery; we also look at plea bargaining, guilty pleas, the jury, the trial, the sentencing process, the types of appeals, and even habeas corpus. Finally, Part 5 (Chapters 15 and 16) examines current issues and the future of U.S. courts. Topics covered include differential treatment, wrongful convictions, technology, alternatives to courts, and both emerging problems and pressing issues that courts will continue to face.
pedAGoGicAl feAtures
Courts and Criminal Justice in America includes a number of special learning features that are designed to
enhance student comprehension of key concepts and issues in the study of American courts. “Courts in the News” features contain contemporary feature stories of interest to anyone studying the courts, along with thought-provoking questions that build on each story. One box, for example, discusses federal courts that offer digital audio recordings of their proceedings online; another reviews the 2008 U.S. Supreme Court case of District of Columbia v. Heller [WJ2], in which the right to individual gun ownership was upheld; a third covers the issues involved in paying for America’s courts; and another examines alternative courts and their possible future.
A second important learning feature is the “Lasting Impact” features found throughout the text that highlight the continued significance of important court cases such as Mapp v. Ohio , Gideon v. Wainright , Terry v. Ohio, Gregg v. Georgia, In re Gault, Payne v. Tennessee, and Daubert v. Merrell Dow Pharmaceuticals
The “What Will You Do?” features provide scenariobased activities that bring focus to issues such as Webbased conferencing in virtual courtrooms, the notion of precedent as it applies to police decision making, and the issue of victim advocacy.
A fourth feature, “Learning Objectives,” is located at the beginning of each chapter. These questions are linked to bulleted summary items that refresh students’ memory about the chapter’s key points. “Review Questions” at the end of each chapter relate back to the “Learning Objectives” posed at the chapter’s start.
Instructor Supplements
Instructor’s Manual with Test Bank. Includes content outlines for classroom discussion, teaching suggestions, and answers to selected end-of-chapter questions from the text. This also contains a Word document version of the test bank.
TestGen. This computerized test generation system gives you maximum flexibility in creating and administering tests on paper, electronically, or online. It provides state-of-the-art features for viewing and editing test bank questions, dragging a selected question into a test you are creating, and printing sleek, formatted tests in a variety of layouts. Select test items from test banks included with TestGen for quick test creation, or write your own questions from scratch. TestGen’s random generator provides the option to display different text or calculated number values each time questions are used.
PowerPoint Presentations. Our presentations offer clear, straightforward. Photos, illustrations, charts, and tables from the book are included in the presentations when applicable.
To access supplementary materials online, instructors need to request an instructor access code. Go to www. pearsonhighered.com/irc, where you can register for an instructor access code. Within 48 hours after registering, you will receive a confirming email, including an instructor access code. Once you have received your code, go to the site and log on for full instructions on downloading the materials you wish to use.
Alternate Versions
eBooks This text is also available in multiple eBook formats. These are an exciting new choice for students looking to save money. As an alternative to purchasing the printed textbook, students can purchase an electronic version of the same content. With an eTextbook, students can search the text, make notes online, print out reading assignments that incorporate lecture notes, and bookmark important passages for later review. For more information, visit your favorite online eBook reseller or visit www. mypearsonstore.com.
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Acknowledgments
The authors sincerely thank the following reviewers of this edition: Mary Boland, Roosevelt University; Chris Carmean, Houston Community College; Tyler Gayan, Georgia Northwestern Technical College; David Jones, University of Wisconsin—Oshkosh; and Jacqueline Mullany, Triton College.
We would also like to thank the following reviewers of the previous editions: Larry D. Creason, Campbellsville University; Thomas A. Dreffein, Triton College; Wendy P. Guastaferro, Georgia State University; Jacqueline M. Mullany, Triton College; Emmanuel Onyeozili, University of Maryland Eastern Shore; Steven Philbrick, Northwest Vista College; Julie Raines, Marist College; Lisa Ratliff-Villarreal, San Antonio College; Douglas D. Shuler, Paris Junior College; and Jason B. Waller, Tyler Junior College; Beth Bjerregaard, University of North Carolina at Charlotte; Alton Braddock, University of Louisiana, Monroe; Don Bradel, Bemidji State University; Paul H. Clarke Jr., Northcentral Technical College; Amy Craddock, Fayetteville State University; Chris De Lay, University of Louisiana, Lafayette; Joe D. Dillsaver, Northeastern State University; Robert D. Hanser, University of Louisiana, Monroe; David M. Jones, University of Wisconsin, Oshkosh; Sharon Jumper, Northwestern State University; Michael J. McCrystle, California State University, Sacramento; Elvage G. Murphy, Edinboro University of Pennsylvania; Karen Nielson, Ivy Tech Community College; James J. Ross, The College at Brockport, State University of New York; John Tahiliani, Worcester State College; Cort Tanner, Western Texas College; David Tate, Purdue University; Sarah E. Uselding, Amarillo College; and Elvira M. White, Fayetteville State University. Thank you Gary Bauer and Lynda Cramer at Pearson; Robyn Alvarez and Manas Roy at iEnergizer Aptara; and Susan Hannahs at SPi Global for you support during the revision of this edition.
About the Authors
Larry J. Siegel was born in the Bronx and graduated from Christopher Columbus High School in 1964. After attending City College of New York in the 1960s, he pursued his interest in social forces and human behavior when, in 1968, he became a member of the first class of the newly created graduate program in criminal justice at the State University of New York at Albany. After earning his M.A. and Ph.D., Dr. Siegel began his teaching career at Northeastern University; he also has held teaching positions at the University of Nebraska, Omaha, and Saint Anselm College in New Hampshire. In 1988 he joined the faculty at the School of Criminology and Justice Studies at the University of Massachusetts, Lowell, where he now serves as a professor emeritus. Professor Siegel has published books on juvenile law, delinquency, criminology, and criminal procedure. The father of four, grandfather of three, Larry and his wife, Terry, reside in Naples, Florida, with their two cockapoos, Watson and Cody.
University in St. Louis, Missouri, he helped develop the university’s graduate program in security administration and loss prevention and taught courses in that curriculum for more than a decade. An avid Web user and website builder, Professor Schmalleger is also the creator of a number of award-winning websites
Dr. Schmalleger is the author of numerous articles and more than 30 books, including the widely used Criminal Justice Today (Pearson, 2017), Criminal Justice: A Brief Introduction (Pearson, 2016), Criminology Today (Pearson, 2017), and Criminal Law Today (Prentice Hall, 2017).
Professor Schmalleger is the founding editor of the journal Criminal Justice Studies. He has also served as editor for the Prentice Hall series Criminal Justice in the Twenty-First Century and as imprint adviser for Greenwood Publishing Group’s criminal justice reference series.
Dr. Schmalleger’s philosophy of both teaching and writing can be summed up in these words: “In order to communicate knowledge, we must first catch, then hold, a person’s interest—be it student, colleague, or policy maker. Our writing, our speaking, and our teaching must be relevant to the problems facing people today, and they must in some way help solve those problems.” Follow the author’s tweets @schmalleger.
Frank Schmalleger is Distinguished Professor Emeritus at the University of North Carolina at Pembroke. He holds degrees from the University of Notre Dame and The Ohio State University, having earned both a master’s (1970) and a doctorate (1974) in sociology (with a special emphasis in criminology) from The Ohio State University. From 1976 to 1994, Dr. Schmalleger taught criminology and criminal justice courses at the University of North Carolina at Pembroke; for the last 16 of those years, he chaired the university’s Department of Sociology, Social Work, and Criminal Justice. The university named him Distinguished Professor in 1991.
Dr. Schmalleger has taught in the online graduate program of the New School for Social Research, helping to build the world’s first electronic classrooms in support of distance learning through computer telecommunications. As an adjunct professor with Webster
John L. Worrall is a professor of criminology at the University of Texas at Dallas. A Seattle native, he received a B.A. (with a double major in psychology as well as law and justice) from Central Washington University in 1994. Both his M.A. (criminal justice) and Ph.D. (political science) were received from Washington State University, where he graduated in 1999. From 1999 to 2006, Professor Worrall was a member of the criminal justice faculty at California State University, San Bernardino. He moved to Texas in the fall of 2006.
Dr. Worrall has published articles and book chapters on a wide variety of topics ranging from legal issues in policing to community prosecution. He is also the author of several textbooks, including Crime Control in America: What Works? (3rd ed., Pearson, 2015) and Criminal Procedure: From First Contact to Appeal (5th ed., Pearson, 2015). He is also editor of the journal Police Quarterly.
Legal Foundations
LEARNING OBJECTIVES
1. Explain the purpose and functions of courts and the dual court system.
2. Outline the history and development of law and the courts.
3. Summarize the guiding legal principles underlying the U.S. court system.
4. Explain the nature of disputes.
Mdgn/Shutterstock
IntroductIon
Since the 2014 police shooting of an unarmed black teenager, Michael Brown, in Ferguson, Missouri, claims of police violence and excessive force are piling up in courts across the nation.1 In White Bessemer, Alabama, police were sued for shooting a black man five times after responding to a noise complaint. In Sacramento, California, officers allegedly dragged a triplegic black man from his car to a police car, breaking his wrist. In Honolulu, police used Tasers in their efforts to apprehend a schizophrenic man and then shot him nine times, killing him. In Colorado, a man who tried to scare officers away with a child-size baseball bat was allegedly shot in the back. Then there was the infamous shooting of Laquan McDonald in Chicago, a video of which was released in 2015 and led to the resignation of the city’s police superintendent (https://www.youtube.com/watch?v=Ow27I3yTFKc). The officer involved in that case was charged with first-degree murder. In yet another case, Philando Castile was shot in 2016 after reaching for his driver’s license. He had informed a Minnesota police officer that he was licensed to carry a concealed weapon and was doing so. As of this writing, the officer had not been charged with an offense.
While these incidents may be construed as “police problems,” they are also the courts’ problems. Courts must decide whether lawsuits against police move forward and, if so, who prevails. Likewise, officers charged with criminal offenses face their days in court just like ordinary citizens. And because of the sensitive and high-profile nature of these cases, court proceedings take considerable time and can become a drain on courts’ already limited resources. It is not uncommon for jury trials in these cases to drag out for weeks, if not months. Appeals and other legal challenges can delay closure for years, costing millions of dollars in the process.
Learning Objective 1
Explain the purpose and functions of courts and the dual court system.
courts and theIr Importance
The court represents the collective conscience of society, serving as an instrument for expressing the revulsion people feel for those who commit particularly heinous crimes. Because they are given the task of punishing wrongdoers, courts serve as an agency of social control, determining which behaviors may be acceptable and which deserve severe sanction. This role is not without ambiguity: What is fair? What is just? How can we determine who should be punished, for how long, and for what?
The courts are a critical component of American criminal justice because they determine what happens to people charged with violating the law. Courts are important beyond criminal justice, too. Disputes that arise between private parties, businesses, government officials, and the like are brought to court in order to ensure that they are heard in a neutral forum.
court
“[A]n agency or unit of the judicial branch of government, authorized or established by statute or constitution, and consisting of one or more judicial officers, which has the authority to decide upon cases, controversies in law, and disputed matters of fact brought before it.”i
What Is a Court?
Despite the fact that courts predate other components of the justice system by thousands of years (police are a nineteenth-century creation, and corrections began in the eighteenth), coming up with a concise yet all-encompassing description of their structure and function is difficult. Even so, the U.S. Justice Department has defined a court as “an agency or unit of the judicial branch of government, authorized or established by statute or constitution, and consisting of one or more judicial officers, which has
Questions surrounding the legality of police shootings must sometimes be answered in court.
the authority to decide upon cases, controversies in law, and disputed matters of fact brought before it.”2
This definition emphasizes three distinct elements:
1. To be considered a court, it must have proper legal authority, as spelled out in constitutions or statutes.
2. Courts are generally found in the judicial as opposed to legislative and executive branches of government (there are some exceptions, as we will see in Chapter 3).
3. Courts are empowered to make decisions that are binding. The notion of “[deciding] upon cases, controversies in law, and disputed matters of fact” is known as adjudication, or “the process by which a court arrives at a decision regarding a case.”3
It is important to distinguish between civil and criminal courts, the latter being the primary focus of this book. Civil courts generally resolve disputes between private parties. Criminal courts deal with suspected law violators and thus serve as a mechanism by which society establishes and maintains social norms.
Courts in American Government
It makes sense to have courts be both authorized and limited by the statute. To do otherwise would put control over the courts in the hands of nongovernmental authorities. But why do we have government courts as opposed to private courts? This question is rarely asked, but its answer is important.
In prehistory, prior to the emergence of formal governments and during the time of tribal civilizations such as those of the Goths, Celts, and Franks, disputes were often resolved informally and privately. A person who felt that his or her privacy interests were compromised may have taken steps to confront the alleged violator and resolve the dispute with violence. Similarly, to the extent there was any need to preserve order, this was often accomplished informally.
This all changed during the rise of the Greek city-states and the Roman Empire. The shift moved law enforcement from what was essentially a private affair to a public one. As law enforcement and criminal justice moved in the public direction, formalized courts and other criminal justice institutions came into being.
We have now moved to a point in history where serious conflict is resolved with formal processes, whether that be court proceedings or a suitable alternative. Not everyone buys into the idea completely, but one of the hallmarks of modern society is a more civilized set of procedures for resolving matters of human conflict. The reason we have government courts, therefore, is to deal with conflict in a civilized manner.
Also, there have been changing conceptions throughout history about whom disputes and conflict ultimately affect. Thinking about crime specifically, there is a general consensus today that victims are not just individuals but the state as well. More than 80 years ago, in the case of Mallery v. Lane, 4 the presiding judge stated,
The offenses are against the state. The victim of the offense is not a party to the prosecution, nor does he occupy any relation to it other than that of a witness, an interested witness [perhaps, but nonetheless,] only a witness. . . . It is not necessary for the injured party to make complaint nor is he required to give bond to prosecute. He is in no sense a relator. He cannot in any way control the prosecution and whether reluctant or not, he can be compelled like any other witness to appear and testify.5
adjudication
“[T]he process by which a court arrives at a decision regarding a case.”ii
dual court system
A judicial system comprising federal- and state-level judicial systems.
dual federalism
A system of government wherein the only powers of the federal government are those explicitly listed, with the rest being left to the states.
cooperative federalism
A system of government wherein some of the lines between federal and state power are blurred.
Dual Court System Ours is a dual court system that separates federal and state courts. The dual court system is advantageous and desirable because it parallels federalism, a system of government where power is constitutionally divided between a central governing body (i.e., the federal government) and various constituent units (i.e., the states). Federalism requires that laws are made by the central governing authority and by the constituent units. In the United States, the federal government makes law, but federalism also gives the states power to make their own laws.
A quick glance at the U.S. Constitution reveals a system of dual federalism, where the only powers of the federal government are those explicitly listed, with the rest being left to the states. In reality, though, ours is more of a system of cooperative federalism, meaning that some of the lines between federal and state power are blurred. Article I, Section 8, of the U.S. Constitution gives the federal government the power to regulate interstate commerce, but this authority has been interpreted broadly such that the federal government can control much of what happens at the state level.
While a dual court system is desirable from a federalism standpoint, it also promotes complication and confusion. It would be neat and tidy if the federal criminal law were separate and distinct from state criminal law, but in reality both overlap. For example, certain criminal acts, such as those involving firearms, are violations of both federal and state criminal law. This leads to confusion over where it would be best to try offenders or whether they should be tried twice in the two different systems.
The dual court system is only part of the story. At each level, there is a distinct court hierarchy. States often have limited jurisdiction courts (such as traffic courts), trial courts, appellate courts, and supreme courts. At the federal level, there are trial courts, appellate courts, and the U.S. Supreme Court. Each trial court adjudicates different offenses. Appellate courts consider different matters depending on where they lie in the court hierarchy. Appeals from state courts can sometimes be heard in the federal courts. Higher-level courts can control the actions and decisions of lower courts but not the other way around. Despite the apparent complexity, each court has its place.
Functions of the Court System With a definition of the courts in place and an understanding of the need for government courts, we can now think in more detail about the main functions of the courts. Four stand out: upholding the law, protecting individuals, resolving disputes, and reinforcing social norms.
1. Upholding the law. Not only are courts authorized by law, but they are called on to uphold the law . What is the law, and what is the legal basis for the courts? Throughout history, the concept of “law” has been fluid and changing. Early legal codes, the common law, modern statutes, constitutions, and the like have all built a legal foundation for the justice system (we will look at these in more detail shortly).
Today, the criminal courts are tasked primarily with upholding criminal codes. Found at the federal and state levels, these codes identify actions that are not acceptable in contemporary society because they cause social harm. The police arrest people for violating them, prosecutors then decide which arrestees should be charged, but courts ultimately decide whether those charged with violations of the criminal law should be held to answer for their actions.
2. Protecting individuals. One of the hallmarks of our system of government is a concern with people’s freedom and liberties. No less than the preamble to the U.S. Constitution makes this clear:
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the
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The Woodthrush of Wilson, (Turdusmustelinus, Gm.,) a delightful songster, is a regular annual visitor in the neighbourhood of Spanish Town, but I have not seen it.
1⁴⁄₁₀ middle toe 1. Intestine 8 inches, two minute, rudimentary cæca.
One of the very commonest of birds in Jamaica, bold and forward in his manners, inviting rather than avoiding notice, of striking though not showy colours, the Mocking-bird would be sure to attract the attention of a stranger, even were he destitute of those unrivalled powers of song that have commanded the praise of all auditors. The faculty of imitating the voices of other birds, which has given to this species its ordinary appellation, has been ably described by Wilson and others, as well as the variety of notes, apparently original, which it commands. The former has often caused me no small disappointment; hearing the voice of, as I supposed, some new bird, or some that I was in want of, I have found, after creeping cautiously and perhaps with some difficulty to the spot, that it proceeded from the familiar personage before us. With respect to the latter, I have been assured by an observant friend, George Marcy, Esq., of the Kepp, that he, on one occasion, counted no less than eighteen different notes, proceeding from a Mocking-bird perched on a tree in his garden.
It is in the stillness of the night, when, like his European namesake, he delights
“—— with wakeful melody to cheer The livelong hours,”
that the song of this bird is heard to advantage. Sometimes, when, desirous of watching the first flight of Urania Sloaneus, I have ascended the mountains before break of day, I have been charmed with the rich gushes and bursts of melody proceeding from this most sweet songster, as he stood on tiptoe on the topmost twig of some sour-sop or orange tree, in the rays of the bright moonlight. Now he is answered by another, and now another joins the chorus, from the trees around, till the woods and savannas are ringing with the delightful sounds of exquisite and innocent joy. Nor is the season of song confined, as in many birds, to that period when courtship and incubation call forth the affections and sympathies of the sexes towards each other. The Mocking-bird is vocal at all seasons; and it is probably owing to his permanency of song, as well as to his incomparable variety, that the savannas and lowland groves of Jamaica are almost always alive with melody, though our singing birds are so few.
“It is remarkable,” observes Mr. Hill, “that in those serenades and midnight solos, which have obtained for the Mocking-bird the name of the Nightingale, and which he commences with a rapid stammering prelude, as if he had awaked, frightened out of sleep, he never sings his songs of mimicry; his music at this time is his own. It is full of variety, with a fine compass, but less mingled and more equable than by day, as if the minstrel felt that the soberseeming of the night required a solemnity of music peculiarly its own. The night-song of the Mocking-bird, though in many of its modulations it reminds us of that of the Nightingale of Europe, has less of volume in it. There is not more variety, but a less frequent repetition of those certain notes of extacy, which give such a peculiar character, and such wild, intense, and all absorbing feeling to the midnight song of the European bird. Though the more regulated quality of the song of our Nightingale is less calculated to
create surprise, it is the more fitted to soothe and console; and that sensation of melancholy which is said to pervade the melody of the European minstrel, is substituted in the midnight singing of our bird by one of thoughtful and tranquil delight.”
The nest of the Mocking-bird is not so elaborate a structure as that of many birds. It is built with little attempt at concealment in some bush or low tree, often an orange near the dwelling-house. One now before me, was built in a bunch of plantains. It consists of a rude platform of loose twigs, in which are interlaced many shreds of old rags; this frame supports and encloses a rather neat cup, composed entirely of fine fibrous roots. Another has the frame almost wholly of rags, from canvas to lace; and the cup of thatchthreads, and horse-hair. Three eggs are commonly laid, measuring ¹⁹⁄₂₀ by ⁷⁄₁₀ inch, of a pale bluish-green, dashed with irregular blotches of pale reddish-brown: they are not perfectly regular in form, their oval having more or less tendency to a cylindrical shape, rather abruptly flattened at the ends. When young are in possession, their presence is no secret; for an unpleasant sound, half hissing, half whistling, is all day long issuing from their unfledged throats; delightful efforts, I dare say, to the fond parents. At this time the old birds are watchful and courageous. If an intruding boy or naturalist approaches their family, they hop from twig to twig, looking on with outstretched neck, in mute but evident solicitude; but any winged visitant, though ever so unconscious of evil intent, and though ever so large, is driven away with fearless pertinacity. The saucy Ani and Tinkling instantly yield the sacred neighbourhood, the brave Mocking-bird pursuing a group of three or four, even to several hundred yards’ distance; and even the John-crow, if he sail near the tree, is instantly attacked and driven from the scene. But the hogs are the creatures that give him the most annoyance. They are ordinarily fed upon the inferior oranges, the fruit being shaken down to them in the evenings; hence they acquire the habit of resorting to the orange-trees, to wait for a lucky windfall. The Mocking-bird feeling nettled at the intrusion, flies down and begins to peck the hog with all his might:—Piggy, not understanding the matter, but
pleased with the titillation, gently lies down and turns up his broad side to enjoy it; the poor bird gets into an agony of distress, pecks and pecks again; but only increases the enjoyment of the luxurious intruder, and is at last compelled to give up the effort in despair.
In St. Domingo the Mocking-bird is no less common than in Jamaica: it is there called by the French inhabitants Rosignol, which is but a modification of Rosignor, or lord of the rose, the Spanish name of the Nightingale, probably of Moorish origin.
We have now arrived at an extensive group of birds of small size, and delicate form, mostly known by the name of Warblers. All of them are merely winter visitants in Jamaica, the greater number retiring to the Northern continent to breed and spend the summer. To Wilson’s and Audubon’s descriptions, I refer the reader, as I have scarcely anything to add to their accounts of these birds.
The Yellow-throat, one of the most beautiful of them, was first seen by me on the 8th of October, on which day I obtained two males, in distinct localities. I do not think the species had arrived long, though some of the Sylvicolæ had been with us nearly two months, for I and my servants were in the woods every day seeking for birds, and this species is too striking to be easily overlooked. In the latter autumn months it was quite common, particularly in
marshy places: I have seen it in some numbers hopping busily about the bulrushes in a pond, even descending down the stems to the very surface of the water, and picking minute flies from thence. The stomachs of such as I have examined, contained fragments of beetles and other insects.
In the spring, it seems to linger longer than its fellows; for the last warbler that I saw was of this species, on the 1st of May. Yet Wilson mentions that it habitually appears in Pennsylvania about the middle, or last week, of April; and that it begins to build its nest about the middle of May. The migration of the short-winged birds is probably performed in straggling parties, and extends over a considerable period of time; individuals remaining some time after the greater number have departed.
This is a scarce bird with us. Some three or four specimens are all that have occurred to my observation. It seems, however, to spread rather widely over the diversities of mountain and lowland; for, while the first was obtained on the top of the Bluefields Peak, the next was found close to the sea-shore. Its habits are constant: for we have always observed it perched transversely on the dry trunks of slender dead trees, engaged in peeping into, and picking from, the crevices of the bark. In the stomachs of those which I have examined, I have found comminuted insects. Spiders and caterpillars form the chief portion of its food, according to Wilson.
It is too rare to warrant an opinion as to the period of its arrival or departure: I first met with it on the 7th of October.
I first saw this amusing species about the end of August, around the muddy margins of ponds in St. Elizabeth and Westmoreland; and immediately afterward they became so abundant, that individuals were to be seen running here and there on the road, all the way from Bluefields to Savanna-le-Mar, especially along the sea-shore, and by the edges of morasses; not at all associating, however. They run rapidly; often wade up to the heel in the water, or run along the twigs of a fallen tree at the brink, now and then flying up into the pimento and orange trees. When walking or standing, the tail is continually flirted up in the manner of the Wagtails, whence the local name of Kick-up, though, perhaps, none but a negro would consider a motion of the tail, kicking. The resemblance of this bird to the Wagtail, Wilson has noticed, and it is very striking in many respects. It walks among the low grass of pastures, picking here and there, wagging the tail, and uttering a sharp chip. Now and then it runs briskly, and snatches something, probably a winged insect, from the grass. Wilson praises its song very highly; in its winter residence with us it merely chipsmonotonously. The stomachs of several that I have dissected contained water-insects in fragments, and one or two small pond shells.
There is a remarkable analogy in the Water Thrushes to the Snipes and Plovers, in their habits of running by the side of water, of wading, and of flirting up the hinder parts; in the height of the tarsi; and in the elongation of the tertials. The Pea-Dove, which frequents water more than any other of our Doves, has longer tertials than any. Is there any connexion between the lengthening of these feathers, and aquatic habits?
The speckled breast, rich fulvous crown, and warm olive back, make this a very pretty bird. His manners are much like those of his cousin Bessy, running along with much wagging of the tail, and chirping tsip, tsip, incessantly. He is, however, less aquatic in his predilections. I first observed the species about the middle of September; it was on a low part of the road by the side of a morass. Its attitude struck me, as it was running on the ground with the tail held almost perpendicularly upwards. In the stomach, a muscular gizzard, I have occasionally found various seeds, gravel, mudinsects, caterpillars, and small turbinate shells. I was one day amused by watching two, unassociated, walking about a place covered with dry leaves, beneath some trees. I was unseen by them, though quite close. The tail of each was carried quite perpendicular as they walked, which gave a most grotesque effect; but, as if this elevation were not sufficient, at almost every step they jerked it up
still higher, the white under-coverts projecting in a puffy globose form.
Though this species arrives in Jamaica rather later than the preceding, they depart together, about the 20th of April: and soon after this their appearance in the United States is recorded. Unlike the preceding, the present species is said to be, even in summer, destitute of song.
BLUE YELLOW-BACK WARBLER.[35]
ParulaAmericana.
Parus Americanus, LINN. Sylvia Americana, LATH.—Aud. pl. 15. Sylviapusilla, WILS.
This pretty little species, so much in habits and appearance like the European Tits, arrives in Jamaica early in September, and retires late in April, for we last saw it on the 20th. During the autumn and winter it was among the most common of our warblers. In the morasses, especially, they were to be seen in numbers, yet not in company, making the sombre mangrove-woods lively, if not vocal. They are active and restless, hopping perpendicularly up the slender boles, and about the twigs, peeping into the bases of the leaves, and crevices of the bark, for insects.
The female, identified by dissection, has all the colours paler, but agrees with the male in their variety and distribution. Individuals, however, were found in September, which had the blue plumage of the head and of the rump, tipped with yellow, imparting a green tinge to those parts.
I have little to say of this changeable species. It occurs but sparsely with us, coming rather late in the autumn, when the plumage is undergoing its transformation, so well detailed by Wilson. On only one occasion have I observed them numerous; towards the latter part of March, on the estate called Dawkins’ Saltpond, near Spanish town, many were hopping about the Cashaw trees (Prosopis juliflora) that abound there. All of these that I examined, had the yellow of the crown obscured, and some almost obliterated. One which I shot in October did not display it at all, while one in January had the hue very brilliant, but only at the bases of the coronal feathers; exposed or concealed as in some of the Tyrants. As far as I have observed, the manners of this bird are those of a Flycatcher, capturing minute insects on the wing, and returning to a twig to eat them. The stomach is usually filled with a black mass of minute flies.
Wilson has justly observed that the habits of this lovely bird are those of a Tit or a Creeper. I have usually observed it creeping about the twigs of trees, or among the blossoms. The first I met with was thus engaged, creeping in and out, and clinging to the beautiful and fragrant flowers that grew in profuse spikes from the summit of a papaw-tree. It is one of the earliest of our visitors from the north, for this was on the 16th of August; and it remains until April among the sunny glades of our magnificent island. The stomach of such as I have examined was large, and contained caterpillars of various sizes and species. An individual in March, which I proved by dissection to be a female, did not differ in intensity of colouring, or any other appreciable respect, from the male. The eggs in the ovary at that season, were distinguishable, but minute.
Of this very beautiful species, which has been described under so many names, I have specimens in much diversity of plumage, from that in which the chestnut crown, and spots of the breast are deep and conspicuous, to that in which there is no trace either of the one or the other. There is little in their manners to distinguish them from others of this pretty family. They arrive in Jamaica in September, and depart in April; and, like their fellows, hop about low trees, feeding on small insects. In March, I observed it rather numerous, hopping about the Cleome pentaphylla, and other low shrubs which were
then in flower, on the banks of the new cut of the Rio Cobre, not half a mile from the sea of Kingston Harbour. Whenever I have seen it, it has been very near the sea.
AURORA WARBLER.[39]
Sylvicolaeoa.—MIHI.
[39] Length 5 inches, expanse 7⁶⁄₁₀, flexure 2⁷⁄₂₀, tail 1⁹⁄₁₀, rictus ⁶⁄₁₀, (nearly), tarsus ⁹⁄₁₀, middle toe ½. Irides dark hazel; feet horncolour; beak pale horn, culmen and tip darker. Male. Upper parts olive, approaching to yellow on the rump: sides of head marked with a band of orange, extending from the ear to the beak, and meeting both on the forehead and on the chin. Wing quills and coverts blackish with yellowish edges. Tail blackish olive, with yellow edges; the outermost two feathers on each side, have the greatest portion of the inner webs pale yellow. Under parts pale yellow. The crown, rump, tertials, belly, and under tailcoverts, are sparsely marked with undefined patches of pale orange. Female. Nearly as the male, but the deep orange is spread over the whole cheeks, chin, throat, and breast. The head and back are dusky grey, tinged with olive, and patched with the fulvous, much more largely, but irregularly, and as if laidupon the darker hue.
The pair of singularly marked Warblers which I describe below, were shot on the 21st and 24th of January at Crabpond. That the male in summer plumage would be much more brilliant than my specimen, I have no doubt, for the latter is inferior to the female, and the patched character of the plumage indicates that a seasonal change was then proceeding. If it has been described in its nuptial livery I have failed to recognise it. The male, which was the first obtained, was hopping about the mangroves, which are abundant at the marshy place named, from the summits down to the very surface of the water; and the female was one of a pair that were toying, and chasing each other through the branches of the same trees. At this time, the ovary was scarcely developed, the ova being distinguishable only with a lens. The stomach, in each case, was filled with a black mass of insects.
It is before the fierce heat of summer has begun to abate in the prairies of the west, that this little bird seeks its winter quarters. On the 18th of August I first met with it, on which day I shot two in different localities. One was hopping hurriedly about low bushes, and herbaceous weeds, not a foot from the ground, examining every stalk and twig, as it proceeded regularly but rapidly along the roadside, for insects. The other was differently engaged. It flew from a bush by the way-side as far as the middle of the road, when hovering in the air a few feet from the ground, it fluttered and turned hither and thither, and then flew back to nearly the same spot as that whence it had started. In a second or two it performed exactly the same manœuvres again; and then a third time, preventing, by the irregularity of its contortions, my taking aim at it, for some time. I have no doubt it was capturing some of the minute dipterous flies which were floating in the declining sun, in numerous swarms; but in a manner not usual with the Warblers. The stomach, in each specimen, was full of small fragments of insects. From that period to April, on the 11th of which month I last saw it, it was a very common resident in the bushes and low woods.
Wilson describes the markings of the female as less vivid than those of the male; but two of that sex, which I shot in January, were in no respect inferior to the brightest males. Some have the red spots of the back almost, or even quite, obliterated; but this is not a sexual distinction.
In its winter residence with us, the Black-throat prefers the edges of tall woods, in unfrequented mountainous localities. I have scarcely met with it in the lowlands. The summits of Bluefields Peaks, Bognie and Rotherwood, are where I have been familiar with it. It was there that Sam shot the first specimen that I obtained, on the 7th of October, and at the same lofty elevation. I afterwards saw it repeatedly. Three or four of these lovely birds frequently play together with much spirit, for half an hour at a time, chasing each other swiftly round and round, occasionally dodging through the bushes, and uttering, at intervals, a pebbly chip. They often alight, but are no sooner on the twig than off, so that it is difficult to shoot them. I have observed one peck a glass-eye berry, and in the stomachs of more than one, I have observed many hard shining black seeds. But more frequently it leaps up at flies and returns to a twig. At other times I have noticed it flitting and turning about in the woods, apparently pursuing insects, and suddenly drop perpendicularly fifteen or twenty feet, to the ground, and there hop about. Restlessness is its character: often it alights transversely on the long pendent vines and withes, or on slender dry trees, hopping up and down them without a moment’s intermission, pecking at insects. It is generally excessively fat, and what is rather unusual, the fat is as white as that of mutton.
In the middle of March I met with it in the neighbourhood of Spanish town, and, on the 9th of April, Sam found it at Crabpond, for the last time, soon after which it, no doubt, deserted its insular for a continental residence.
The form of the beak as well as the habits, of this bird, indicate an approach to the Flycatchers.
In the Ornithology of M. Ramon de la Sagra’s Cuba, this species is figured, under the name of Bijirita, which, however, appears to be common to the Warblers. “Though migratory, it seems to breed occasionally in the Antilles, for M. de la Sagra has killed in Cuba, young ones, which were doubtless hatched in the island.”
⁵⁄₁₀, tarsus ⁹⁄₁₀, middle toe ⁶⁄₁₀. Irides dark brown; feet dark horn; beak black. Upper parts dull olive; wing-quills blackish with olive edges; the second, third, fourth, and fifth, have a white spot at the base of the outer web, forming a short band. Tail greyish-black. Cheeks blackish-ash. Upper parts yellowish-white, tinged on the breast and sides with dingy olive.
The bird described below, a sombre exception to a particularly brilliant family, I cannot refer to any species with which I am familiar; it may, however, be the female of a recorded species. I regret that I did not ascertain the sex of the individual described, the only one that ever fell into my hands. Nor can I give any information concerning it, but that it was shot by Sam, at Basin-spring, on the 8th of October, hopping about low bushes.
ARROW-HEADED WARBLER.[43]
Sylvicolapharetra.—MIHI.
[43] Length 5⁴⁄₁₀ inches, expanse 8 (nearly), flexure 2¹¹⁄₂₀, tail 2, rictus about ⁶⁄₁₀? tarsus ⁷⁄₁₀, middle toe ⁵⁄₁₀. Irides hazel; beak black above, suture and lower mandible grey; feet purplish horn, with pale soles.
OLIVE
Head, neck, back, less coverts, chin, throat and breast, mottled with black and white, each feather being grey at the base, and black, bounded on each side by white, at the tip. The black preponderates on the upper parts, the white on the breast, where the black spots take arrow-headed forms. Wing-quills and coverts black; the first primaries have the middle portion of their outer edge narrowly white, and those from the third to the seventh inclusive have a more conspicuous white spot at the basal part of the outer edge. The secondary greater coverts are tipped outwardly with white, the medial coverts more broadly; and these form two bands, but not very notable. Plumage of rump and tail-coverts unwebbed, brownish-grey. Tail-feathers black, with paler edges, the outmost two or three tipped inwardly with white. Sides, thighs, and under tail-coverts grey, with indistinct black centres. Belly greyish white.
This is another species, of which I have but a single specimen. It was shot on the 9th of February, in Bognie woods, on the top of Bluefields Peak. I know nothing of its manners, but that it was engaged, as Warblers commonly are, hopping on trees, and peeping for insects. The specimen was a male. Its general aspect is like that of the Black and white Creeper, but it may be distinguished at once by comparison; the colours in that being distributed in greater masses, and disposed in broad stripes; in this, in small mottlings, or thick spotting, which difference is especially observable on the head. The beak, also, though partly shot away in my specimen, is decidedly that of a Sylvicola.
The great family of Flycatchers are distinguished by their depressed beak and rictal bristles, and by their general habit of capturing flying insects on the wing, and returning to a resting place to swallow them. The species, before us, however, a bird of remarkable elegance, both of form and colour,—combines with this habit, those of the Warblers; Wilson’s assertion to the contrary notwithstanding. It is particularly restless, hopping from one twig to another through a wood, so rapidly, that it is difficult to keep it in sight, though conspicuous from its brilliant contrast of colours; yet it is not a shy bird. A good deal of its insect food it obtains by picking it from the twigs and flowers. About the end of the year, a male was in the habit of frequenting the lawn of Bluefields House, day after day. In the early morning, while the grass was yet wet with dews, it might be seen running on the ground, at which time its long tail being raised at a small angle, and the fore parts of its body depressed, it had much of the aspect of a Wagtail. It ran with great swiftness hither and thither, a few feet at a time, and during each run, the wings were opened and vibrated in a peculiar flutter with great rapidity. It was, I am sure, taking small insects, as now and then it turned short. Sometimes, instead of running, it took a short flight, but still close to the turf.
One which was wounded in the wing, I put into a cage; on the floor of which it sat, looking wildly upwards, the beautiful tail being expanded like a fan, so as to display the orange-colour on each side. All the while it chirped pertinaciously, producing the sharp sound of two quartz pebbles struck together.
This was the very first of the migrant visitors from the North that I met with, a female having been killed in the mountains of St. Elizabeth as early as the 10th of August. We lost sight of it again about the 20th of April; so that this species remains in the islands upwards of eight months. Yet nearly four weeks before this, I observed a pair engaged in amatory toying, pursuing each other to and fro among the pimento trees.
On the 8th of May, 1838, being at sea in the Gulf of Mexico, not far from the Dry Tortugas, a young male of this lovely species flew on board. It would fly from side to side, and from rope to rope, as if unwilling to leave the vessel, but occasionally it would stretch off to a long distance, then turn round, and fly straight back again; it was not at all exhausted. While I held it, it squeaked and bit at my hand violently and fiercely.
¹³⁄₂₀, breadth at base ⁷⁄₂₀, tarsus ⁶⁄₁₀, middle toe ⁴⁄₁₀. Irides hazel; feet black; beak very depressed, lateral margin convex, upper mandible black, lower pale fulvous, dark at tip. Upper parts olive-brown; wing-quills black, third longest; greater coverts, secondaries, and tertiaries edged with pale brown. Tail blackish, emarginated. Throat ashy, tinged with yellow. Breast, belly, sides, and under tail-coverts, yellowish-brown. Under wing-coverts dull-buff.
There is much resemblance between this species and the Tyrannulamegacephalaof Swainson’s Birds of Brazil, pl. 47; but they are manifestly distinct.
In unfrequented mountain roads, bordered by deep forests, the Flat-bill is very common, and from its fearlessness easily obtained. In the autumn months, the traveller may observe a dozen or more in the course of a mile, sitting on the projecting branches of the wayside woods. There is, however, nothing like association of one with another; like the other Tyrants, it is quite solitary, at least in its occupation. It flies very little, the wings being short and hollow; but sits on a twig, and leaps out at vagrant flies, which it catches with a loud snap, and returns; it utters a feeble squeak as it sits. Sometimes it emits a weak wailing cry, as, it flits from one tree to another.
The analogies often observed between animals possessing no affinity, is curious. The flat, weak bill, darker above than below, the general form, the hollow wings, the loose plumage, and the habit of sitting on a low twig unmoved by the presence of man, this species possesses in common with the Tody.
BLACK-BILLED FLAT-BILL.[46]
Myiobiustristis.—MIHI.
[46] Length 6¾ inches, expanse 9¼, flexure 2⁹⁄₁₀, tail 2¾, rictus ¹⁷⁄₂₀, breadth at base ⁴⁄₁₀, tarsus ¾, middle toe ¹¹⁄₂₀. Irides dark hazel; beak black above, dark brown beneath, formed as that of the preceding. Feet greyish black. Crown deep bistre-brown, softening on the back to a paler hue, slightly tinged with olive; tail-coverts dark umber. Wings black; greater and mid coverts, and secondaries edged with pale umber; the tertials have still paler edges. Tail smoky black, each feather narrowly edged with umber. Sides of head and neck, pale bistre. Chin, throat, and fore neck, ashy-grey, blending on the breast with the pure straw-yellow, which is the hue of the belly, sides, vent, and under tail-coverts. Edge of shoulder pale buff.
A very common species, frequenting the edges of high woods and road-sides, like the preceding, the manners of these birds being nearly the same. It is a skilful fly-catcher, and a voracious one. I have taken a Libellulaof considerable size from the stomach of one, which not only filled that organ, but extended through the proventriculus to the œsophagus: the head was downward, which position was of course the most favourable for being swallowed.
When taken in the hand, it erects the crown-feathers, and snaps the beak loudly and often, uttering shrill squeaks also, at intervals. Its note is one of the very earliest; even before the light of day has begun to dim the brilliancy of the morning star, this little bird is vocal. A single wailing note, somewhat protracted, is his ordinary voice, particularly sad to hear, but sometimes followed by one or two short notes in another tone.
I have never met with the nest of either this or the preceding species, but Robinson (MSS. ii. 98,) describing this bird as “the Lesser Loggerhead of Jamaica,” says, “they have three young, generally reared in any hollow place of a tree in June.” He adds, “they have no note;” but in this he was in error.
FOOLISH PETCHARY.[47]
Little Tom-fool.
Myiobiusstolidus.—MIHI.
[47] Length 7½ inches, expanse 10½, flexure 3¼, tail 3, rictus 1, tarsus ⁹⁄₁₀, middle toe ¹¹⁄₂₀. Irides dark hazel; beak black; feet blackish grey. Upper parts bistre-brown, rather paler on the back. Wing primaries have the basal part of their outer edge, narrowly chestnut; greater and mid coverts, secondaries and tertiaries, edged and tipped with whitish. Tail even, the feathers broadly edged inwardly with chestnut. Cheeks grey, mottled; chin, throat, and fore-breast, greyish white; breast, belly, vent under-tail-coverts, and interior of wings pale yellow. Head feathers erectile. Female has the primaries and tail-feathers edged with whitish, instead of chestnut. Two minute cæca.
For a time I considered this to be the Pewee of Wilson, but its superior size, grey throat, and rufous edges of the wing and tail, have convinced me that it is quite distinct. I have little information to give concerning it that would distinguish it from the other Tyrants. It resides in Jamaica permanently, and is of rather common occurrence, at the edges of woods; it manifests, perhaps, less fear of man than even its congeners, often pursuing its employment of catching insects though a person stand beneath the twig which it has chosen as a station. If it does remove it usually perches again a few yards off, and sits looking at the stranger.
I have not found its nest; but near the end of August, I met some negro boys who had three young ones of this species, which they had just taken from the nest, situated, as they described, in a hollow stump.
GREY PETCHARY.[48]
TyrannusDominicensis.
Muscicapa Dominicensis, LINN.—Aud. pl. 170.
Tyrannusgriseus, VIEILL. Ois. de l’Am. 46.
Tyrannus Dominicensis, BONAP.
[48] Length 9½ inches, expanse 14½, tail 3⁸⁄₁₀, flexure 4⁵⁄₈, rictus 1¼, tarsus ⁹⁄₁₀, middle toe ¾. Irides dark hazel. Intestine 8 inches: two cæca very minute, about ¹⁄₈ inch long, and no thicker than a pin, at 1 inch from the cloaca. Sexes exactly alike.
The history of this bird shall be mainly told by my valued friend Mr. Hill. “It is along the sea-side savannas and pastures, and among the adjacent hills and valleys, that the migratory flocks of the Grey Petchary swarm at the beginning of September. Occasional showers have given a partial freshness to the lowland landscape; the fields have begun to look grassy and green, and the trees to brighten with verdure, when numbers of these birds appear congregated on the trees around the cattle ponds, and about the open meadows, hawking the insect-swarms that fill the air at sun-down. No sooner do the migrant visitors appear on our shores, than the several birds of the species, that breed with us, quit their nestling trees, and disappear from their customary beat. They join the stranger flocks, and gather about the places to which the migratory visitors resort, and never resume their ordinary abodes till the breeding season returns.
The migrant visitors do not appear among us many days before they become exceedingly fat: they are then eagerly sought after by the sportsman, who follows the flocks to their favourite haunts, and slaughters them by dozens. The Petchary is not exclusively an insect-feeder;—the sweet wild berries tempt him. In September the pimenta begins to fill and ripen, and in these groves the birds may always be found, not so much gathered in flocks as thickly dispersed about. It is, however, at sunset that they exclusively congregate;
when insect life is busiest on the wing. Wherever the stirring swarms abound, they may be seen ranged in dense lines on the bare branch of some advantageous tree. By the end of September, the migrant Petcharies quit us, leaving with us most of those which bred with us.”
“The Petchary is among the earliest breeders of the year. As early as the month of January the mated pairs are already in possession of some lofty and commanding tree, sounding at day-dawn that ceaseless shriek, composed of a repetition of some three or four shrill notes, very similar to the words pecheery—pecheery—pechēēr-ry, from which they receive their name. To this locality they remain constant till the autumn. They then quit these haunts, and congregate about the lowland ponds. At some hour or two before sunset, they assemble in considerable numbers to prey upon the insects that hover about these watering-places. They are then observed unceasingly winging upward and downward, and athwart the waters, twittering and shrieking, but never flying far. They dart off from some exposed twig, where they had sat eight or ten in a row, and return to it again, devouring there, the prey they have caught. Their evolutions are rapid; their positions of flight are constantly and hurriedly changing; they shew at one while all the outer, and at another all the inner plumage; and they fly, checking their speed suddenly, and turning at the smallest imaginable angle. There are times when the Petchary starts off in a straight line from his perch, and glides with motionless wings, as light and buoyant as a gossamer, from one tree to another. When he descends to pick an insect from the surface of the water, his downward course is as if he were tumbling, and when he rises in a line upward, he ascends with a curious lift of the wings, as if he were thrown up in the air, and were endeavouring to recover himself from the impetus.
“The congregated flocks disappear entirely before the month of October is out. It is only in some five or six weeks of the year that they are reconciled to association in communities. At all other times they restrict their company to their mates, and permit no other bird to divide with them their solitary trees.
“From the window of the room in which I am writing, I look out upon a very lofty cocoa-nut tree, in the possession of a pair of Petcharies. Long before the voice of any other bird is heard in the morning, even when daylight is but faintly gleaming, the shrill unvarying cry of these birds is reiterated from their aerie on the tree-top. Perched on this vantage-height, they scream defiance to every inhabitant around them, and sally forth to wage war on all the birds that venture near. None but the Swallow dares to take the circuit of their nestling tree. At a signal from one of the birds, perhaps the female, when a Carrion Vulture is sweeping near, or a Hawk is approaching, the mate flings himself upwards in the air, and having gained an elevation equal to that of the bird he intends to attack, he starts off in a horizontal line, with nicely balanced wings, and hovering for a moment, descends upon the intruder’s back, shrieking all the while, as he sinks and rises, and repeats his attacks with vehemence. The Carrion Vulture, that seldom courses the air but with gliding motion now flaps his wings eagerly, and pitches downward at every stroke his assailant makes at him, and tries to dodge him. In this way he pursues him, and frequently brings him to the ground.
“The Hawk is beset by all birds of any power of wing, but the boldest, and, judging from the continued exertion he makes to escape, the most effective of his assailants is the Petchary. It is not with feelings of contempt the Hawk regards this foe:—he hurries away from him with rapid flight, and hastily seeks to gain some resting place; but as he takes a direct course from one exposed tree to another equally ill-suited, he is seen again submitting to the infliction of a renewed visit from his pertinacious assailant, till he is constrained to soar upward, and speed away, wearied by the buffets of his adversary.
“The appearance of the Petchary, when he erects the feathers of his crest, or opens those of his forehead, and shews glimpses of his fiery crown is fierce, vindictive, and desperate. His eye is deeply dark, and his bill, although it greatly resembles, in its robust make,
that of the Raven, is even of sturdier proportions than that bird’s; the bristles are black, and amazingly strong.
“The Petchary has been known to make prey of the Hummingbird, as it hovers over the blossom of the garden. When he seizes it, he kills it by repeated blows, struck on the branch where he devours it. I have remarked him, beside, beating over little spaces of a field, like a Hawk, and reconnoitring the flowers beneath him; searching also along the blossoms of a hedge-bank, and striking so violently into the herbage for insects, that he has been turned over as he grabbed his prey, and seemed saved from breaking his neck in his vehemence, only by the recoil of the herbage.
“His nest in this part of the island has seldom been found in any other trees than those of the palm-kind. Amid the web of fibres that encircle the footstalk of each branch of the cocoa-nut, he weaves a nest, lined with cotton, wool, and grass. The eggs are four or five, of an ivory colour, blotched with deep purple spots, intermingled with brown specks, with the clusters thickening at the greater end. The Eagle, flapping his pinions as he shrieks from his rock when the tempest-cloud passes by, is not a more striking picture than this little bird, when, with his anxieties all centred in the cradle of his young ones, he stands in ‘his pride of place,’ on the limb of his palm, towering high above all other trees, and battling with the breeze that rocks it, and, rush after rush as the wind sweeps onward, flutters his wings with every jerk of the branches, and screams like a fury.”
I have little to add to the above detail. With us at the western end of the Island, the Grey Petchary is wholly migratory, not one having been seen by us from October to April. If its migrations be, as I have reason to think, not northward and southward, but eastward and westward, this fact is easily accounted for, from the greater nearness of our part to Central America, where they probably winter. This species is found in St. Domingo, but not, as it appears, in Cuba, where it seems to be represented by T . Magnirostris, D’Orb., nor has it been recognised, except accidentally, in North America. Even its wintering about Spanish Town, seems to be not constant, for from
communications made to me by Mr. Hill, the present spring, I infer none had been seen through the winter. In Westmoreland, I observed the first individual after the winter, on the 30th of March, at the Short Cut of Paradise-morass; and a day or two afterwards they were numerous there, and were advancing to the eastward. Yet on the 16th of April, Mr. Hill writes me, “It is worth remarking that, although Grey Petcharies have been several days now with you, they have not made their appearance here yet.” He adds the interesting note, afforded by some friends who had in March visited the Pedro kays, that “the Grey Petchary, was seen making its traverse by those rocks,” and that “the migratory birds that visited those islets came from the west and departed to the eastward, or, as it was otherwise expressed, they came from the Indian coast, and proceeded on to the coast of Jamaica, coursing from southward and westward to northward and eastward.” The dispersion of the arrived migrants along the groves of Jamaica, seems to be very leisurely, for a month after their appearance with us, Mr. Hill writes, on the 28th of April, “This morning the Grey Petchary made his appearance on the lofty cocoa-nut, for the first time this season. He is there now, shivering his wings, on its flaunting limbs, unceasingly screaming pi-chee-reee. He is turning about and proclaiming his arrival to every quarter of the wind. He is Sir Oracle, and no dog must bark in his neighbourhood.”
I have not observed in the vicinity of Bluefields, the predilection alluded to by my friend of this bird for the Palm-tribe. Several pairs have nested under my notice, but none of them were in palm-trees. Of two which I procured for examination, one was from an upper limb of a bitterwood-tree, of no great height, close to a friend’s door. It was a cup made of the stalks and tendrils of either a small passion-flower or a bryony, the spiral tendrils prettily arranged round the edge, and was very neatly and thickly lined with black horse-hair. It contained three young, newly hatched, and thinly clothed with a buff-coloured down, and one egg. The other was from a hog-plum (Spondias). It was a rather loose structure, smaller and less compact, composed almost entirely of tendrils, which gave it a
crisped appearance; a few stalks entered into the frame, but there was no horse-hair within; but one or two of the shining black frondribs of a fern, scarcely thicker than hair. The eggs, three in number, were round-oval, 1 inch by ¾; dull reddish-white, handsomely marked with spots and angular clouds of red-brown, much resembling the sinuous outline of land on a terrestrial globe.
D’Orbigny in the Ornithology of Ramon de la Sagra’s work on Cuba, has described and figured this species, which in its appearance and manners very much resembles the King-bird of the United States, as it does also the preceding species. It is, however, a permanent inhabitant of Jamaica. In Westmoreland and St. Elizabeth’s, the name Petchary is applied indifferently to this and the grey species, as the equivalent term Pitirre, in Cuba seems to indicate any species of Tyrannus. Vieillot has described a closely allied bird, if not identical with ours, by the name of Tyr. Pipiri. But in the neighbourhood of Spanish Town, this species is distinguished from the grey, to which the name Petchary is there confined, by the term Loggerhead, which, with us to leeward, is applied to the rufous species, T . Crinitus. It is well to be aware of this confusion of local names, or we may be liable to predicate of one species, what is true only of another.
It is one of the commonest birds of Jamaica, both in the lowlands and the hilly districts, nor is it rare even at the elevation of the Bluefields Peaks. It seems to delight in the fruit and timber-trees, which are thickly planted in the pens, and around the homesteads of
the southern coast, and everywhere, in fact, where insects are numerous. The larger kinds of insects form the prey of this species as of the former. I have seen one pursue with several doublings a large Cetonia, which, however, having escaped, the bird instantly snapped up a Cicadaof still greater bulk, and began to beat it to kill it, while the poor insect sung shrilly as it was being devoured. It frequently resorts to a tree that overhangs still water, for the purpose of hawking after the dragon-flies that skim over the surface. The size of these insects, and their projecting wings, would seem to make the swallowing of them a matter of some difficulty; for I have noticed that the bird jerks the insect round by little and little, without letting it go, till the head points inward, when it is swallowed more readily. Mr. Hill has noticed a very interesting trait in this bird, so frequently as to be properly called a habit. It will play with a large beetle as a cat with a mouse, no doubt after its appetite has been sated. Sitting on a twig, and holding the beetle in its beak, it suddenly permits it to drop, then plunging downward, it gets beneath the insect before it has had time to reach the ground, and turning upward catches it as it falls. It sometimes continues this sport a quarter of an hour.
In the winter season, the seeds of the Tropic-birch (Bursera) appear to constitute a large portion of the food of our Tyrannidæ. One day in January, I observed two Petcharies on a birch-tree, fluttering in an unusual manner, and stood to watch their proceedings. I found they were feeding on the ripe berries, which they plucked off in a singular manner. Each bird sitting on a twig, seized a berry in his beak, then throwing back his head till he was in a perpendicular position, tugged till the stalk gave way, his wings being expanded, and vibrated all the while to prevent him from falling. Yet, even at this season, they contrive to fill their craws with insects; for one which I dissected the next day, had its stomach filled with hymenoptera and coleoptera, among which were the fragments of a most brilliant little Buprestis, the possession of which I envied it. I observed that the stomach was protuberant below the sternum, as in the cuckoos. At this early season, the time of incubation was near;
for the ovary of this specimen contained an egg as large as a small marble; and my lad who shot it, told me that this one and its mate were toying and pursuing each other around a tall manchioneel-tree, on one of whose upper limbs he discovered a nest nearly finished.
The nest consists of a loose basket of dry stems of yam, and tendrils of passion-flower, lined with a slight cup of horse-hair and fibres from palmetto-leaves. Four or five eggs are laid, of a drab hue or reddish-white, with blotches of reddish-brown and bluish irregularly intermixed, but chiefly arranged in the form of a crown around the larger end.
In the month of September they become, in common with their grey congeners, a mere mass of fat, and are at this time in much request for the table. They are supposed to acquire this fatness by feeding on the honey-bees, which then resort in great numbers to the magnificent bloom-spike of the cabbage-palm. Hither the Petchary also resorts, and sitting on a frond captures the industrious insects as they approach. At this time the large and branching spike of blossom, projecting and then curving gracefully downwards, and looking as if exquisitely moulded in white wax, is a very beautiful object; and the pollen from the flowers is diffused so abundantly, that the ground beneath the tree, appears exactly as if it had been visited by a snow-shower.
This appears to be the species alluded to by Robinson in the following note. “They [the Tyrants, Baristi, as he calls them,] are all very bold birds, especially the largest species called the Loggerhead, who beats all kinds of birds indiscriminately; he is also the harbinger of the morning, constantly giving notice of the approach of day by his cry. When he is beating a Carrion Crow or other birds, he snaps his bill very frequently; he is a very active, bold bird, and feeds upon insects and lizards. I have seen him give chase to a lizard round the trunk of a small tree, flying in circles with surprising activity. In beating any large bird, both cock and hen (if both are in the way,) join in the quarrel or scuffle.”[50] In these assaults, the intrepid Petchary does not always come off scathless. “And here,” says
Robinson in speaking of the Red-tailed Buzzard, “I cannot help recollecting an unhappy though deserved ill-fate, which sometimes befalls the large Loggerhead. Everybody is acquainted with the pugnacious nature of this little bird; for he attacks and buffets every large bird that happens to fall in his way, snapping his beak and pursuing him with great violence; and among others this great Hawk is often disturbed and beaten by him.
[50] Robinson’s MSS. ii. 102.
“At Chestervale, in the cultivated ground, it is common for this Hawk to perch upon the top of some dry tree. This situation he chooses that he may the better view the ground beneath, and observe if a rat or other animal should make its appearance. While he sits here upon the watch, ’tis ten to one but he is attacked by the Loggerhead, whom he suffers to buffet and beat him with great patience, without offering to stir once from his place; till, his assailant being quite tired and spent with the violence of his exercise, inadvertently sits down on some twig not far distant from his passive, and, as he may think, inoffensive enemy. That enemy, however, now keeps his eye fixed on him, and no sooner does he begin to preen his feathers, or look carelessly about him, than down pounces the Hawk suddenly upon him, seizes the unwary bird in his talons, and devours him.”[51]
[51] MSS.
The courage of the Tyrants in defence of their nests, is well known; but it seems at times to become almost a mania. The late proprietor of Mount Airy, in his daily walks about the estate, was attacked with such virulence by a Petchary that was nesting, the bird actually pecking his head, that he was compelled to take out a stick in defence, with which he at length struck down the too valiant bird. Dogs seem especially obnoxious to it, and this not only during incubation; at any time a passing dog is likely to be assaulted by this fierce bird, and if he be so unfortunate as to have any sore on his body, that is sure to be the point of attack. One of my youths, a veracious lad, narrated to me the following circumstance, to which
he was witness. A large dog was following his mistress through Mount Edgecumbe Pen, when a Petchary flew virulently at him: on the shoulder of the dog was a large running sore; to this the bird directed his attention: suspending himself over the wound, he clutched with his extended feet as if he wished to seize it thus, snapping angrily with his beak; then suddenly he pecked the wound, while the dog howled in agony. The bird, however, repeated its assaults exactly in the same manner, until the blood ran down the shoulder from the wound; the dog all the while seemingly cowed and afraid to run, but howling most piteously, and turning round to snap at the bird. The woman was at some distance ahead, and took no notice; and the war continued until my informant left. The Petchary continued, in this case, on the wing; but frequently he alights on the dog to peck him.
Both this and the Grey Petchary, when excited, open and shut the coronal feathers alternately. When opened, the appearance is as if a deep furrow had been ploughed through the plumage of the head, the sides of which are vividly coloured. Occasionally this furrow is opened in death, and remains so: one or two birds being brought me in this condition, when my acquaintance with the species was slight, I suspected that some of the feathers had been plucked out, in order to enhance the value of the specimens by displaying the gayer colour. A male of the present species, which I wounded one day in April, on my taking it up, began to scream passionately, and to open and shut the crown, biting ferociously; another from the same tree, probably his mate, attracted by his cries, pursued me, endeavouring to peck me: and when repelled, continued to gaze, stretching its neck anxiously, whenever the screams were repeated.
In the quotation from Robinson’s MSS., page 180, the early habits of this bird were noticed. On the same subject, Mr. Hill writes me, “I know no bird-voice, not excepting ‘the cock’s shrill clarion,’ that is earlier heard than the pi-pi-pihou of the Loggerhead Tyrant. In my neighbourhood several of the yards are planted with cocoa-nut trees. On a very lofty cocoa palm to the north of me, a pair of Grey Petcharies annually nestle in the month of April. On half a dozen less
