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The Criminal Law as a Means to Enforce the People's Will

President, National Municipal League

A candidate for the presidency, in his speech of acceptance, declared the issue of the late National election to be: "Shall the people rule?" As with many other sayings of men prominent in politics, these words have been since repeated on innumerable occasions, admiringly or with ridicule, according to the standpoint of the speaker or writer, but apparently very seldom with any clear consciousness of their meaning: to the spellbinders on either side, if not to its author, the phrase seems to have been a matter rather of sound than of sense. Nevertheless, the question is pertinent and of moment in our country: it implies at least a doubt whether our form of government, our institutions and our laws are such that the people's will is, in last resort, the decisive factor in all public problems; whether with us the people can do, at all times and everywhere, what the people may see fit to do.

Shall the
People Rule?

In dealing with this question we must, of course, remember that when a sovereign is made up of an immense multitude of individuals the mere ascertainment and expression of that sovereign's will is necessarily a cumbrous and intricate process: if a man can say truthfully, with Louis XIV: "L'Etat c'est Moi," one finds out what is the nation's will, or, in other words, what is the law, by merely asking him; if his answer differs from what was said before by himself or by an earlier prince of like powers, the Nation has simply changed its mind, the old law has been amended or repealed. But when the office he holds is put in commission, and its powers are entrusted to thousands,

even to millions of citizens equal before the law, it takes time and effort and needs much complicated legal machinery to merely discover and publish what is the people's will, to formulate the law and, when needful, to change it.

Moreover, we must not forget that, ever since the days of the Three Tailors of Tooley Street, the query: "What is" or "Who are 'the People'?" has been matter of debate and often of dispute; and that, although it has received, for practical purposes, many different answers in different countries or at different times, the legal "people," that is to say that part of the community empowered by law to speak and act for the whole, has been always and everywhere a minority, indeed a decided minority of all the human beings subject to that "people's" will. In the most democratic communities the world has known, political power has ever been a trust and the legal rulers a minor fraction of the number ruled.

In my trespass on your attention this evening, I shall not trouble you with any discussion of either of the two topics lastly mentioned. Assuming that the people's will has been definitely and regularly expressed in the form of law, how may the people make sure that this will, as expressed, shall be obeyed? Or, in other words, how is the law to be enforced? For any fruitful consideration of this subject it must be further assumed that, in the first place, obedience to law is essential to the life of civilized society and, secondly, that, to assure such obedience, compulsion in some form is indispensable: passion or self-interest will always tempt and often persuade individuals to resist or evade rules ordained for the good of all.

Neglecting exceptional contingencies, it may be said that the forms of compulsion available to a community against its rebellious members are limited to four, namely (1) threats of supernatural penalties, (2) social degradation, (3) the exercise of military or quasi military force, and (4) punishment through the criminal law. Of these all four are constantly and extensively employed in all civilized countries at the present day, and it may be doubted whether civilization, as we know it,

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could continue to exist were any one of them abandoned; but only the last two are within the sphere of political and legal action. The distinction between direct exercise of public force. and the administration of criminal law appears to us so essential and so obvious that it sounds strange to say the latter is fundamentally a mere highly specialized development of one feature of the former. Before a policeman clubs a recalcitrant tough or an officer of militia orders his command to fire on a mob, each, as the representative of the community, must be satisfied that the prisoner is really resisting arrest or the rioters are in truth disturbing the public peace and threatening injury to persons or property. Before a murderer shall be hung or a burglar imprisoned officers empowered to that end must be satisfied that he is truly a murderer or a burglar. The question to be determined is, in both instances, the same, namely, whether the necessity has in fact arisen to treat certain individuals as public enemies, but while, in the one case, this is settled by simple inspection on the part of the executive, in the other the process of ascertaining the material facts has been with us expanded by ancient custom and many statutes into an elaborate and intricate system of jurisprudence, containing highly artificial rules of procedure and proof so as to furnish in itself a subject of study of no little difficulty.

What I have just said may seem to some open to criticism because the action of the supposed policeman or militia officer is, in purpose, preventive, while that of a criminal court is punitory; this distinction, however, is of the surface. Our policeman does not aim to so cripple his unruly captive that the latter really cannot struggle longer; if this happens, it is from accident or sheer necessity. What he has in mind is to teach the tough, through the persuasive object-lesson of a broken head, the unwisdom of resistance to the law. So the colonel or captain who clears the street by a volley has no wish or purpose to make it physically impossible, through death or wounds, for all members of the mob he disperses to continue their disturbance of public order: he hopes, and usually with reason, that the unpleasant but wholesome spectacle of one rioter lying in his blood may bring back ninety-nine others to their senses and the obedience

of good citizens. On precisely the same principle, a man found guilty of crime is punished by fine or imprisonment or death that others tempted to commit a like crime may be strengthened to withstand the temptation, and likewise, in the first two contingencies, that he too may be the wiser another time, and, in the last, that he may be made harmless for the future.

The legitimate problems of the criminal law are therefore two: first, to find out when and by whom the people's will, that is to say, the law, has been disobeyed; second, to so deal with the one guilty of such disobedience that others, and ordinarily himself as well, may be taught to obey in future. As an instrument to these ends, I think American criminal law today has very serious defects, in fact that, in a large measure, it fails of its purpose. A principal cause of this failure, to my mind, is its anxiety to guard against a danger which was once very serious, but has now become remote and almost chimerical: I mean the danger lest men really innocent be convicted of crime. Of all the many applications for pardon which I have had to consider since I held my present office, only an infinitesimal number, not more than perhaps a half dozen, have suggested any reasonable ground to even doubt the prisoner's guilt; and while, of course, a possibility of error must always attend any determination of the human mind, the risk that any man trying in good faith to obey the law shall be punished as a criminal is almost inconceivably small: I question whether it is one-hundredth part as great as the risk he runs of being killed or mained by an automobile. Nevertheless, I would not have the law so changed as to remove any substantial safeguard of true innocence which it now affords; for, however slight the danger of unjust conviction may be in fact, this danger appeals so strongly to the imagination as to gravely affect human happiness: I would, however, see the law purged of various obsolete and obstructive rules of procedure or proof which, in practice, serve only to provide loopholes of escape for conscious and often brazen guilt.

For example, I think grand juries should not be abolished, for to a man of good repute, it may be a grave injury to be even formally accused of certain crimes, an injury which a sub

The Problems of the Criminal Law

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