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sequent acquittal may by no means fully repair; and it may well be a wise precaution that twelve out of twentythree of his fellow citizens should say the charge against him is credible before he is called upon to face it. But the practice which has grown up in certain jurisdictions of minutely revising the action of grand juries, and quashing indictments because evidence technically inadmissible was submitted, or this or that comparatively trivial matter of form was inadvertently neglected before the grand jury, is, to my mind, both unreasonable and mischievous: such inquiries destroy the secrecy of the grand jury's proceedings and enable guilty men to delay, too often to defeat, their just conviction and merited punishment; they have no practical usefulness and should be everywhere forbidden by statute.
Again, no one would have a man once fairly and properly tried for a crime and either convicted or acquitted brought to trial again for the same offense: interest rei publicae ut sit finis litium, and no more fitting occasion could arise for the application of this wise and salutary maxim. But if the trial has been unfair or otherwise improper, whether through misconduct of the jury or error of the judge, it is the dictate of common sense that this miscarriage should be duly corrected and the man re-tried. This can be and is daily done when he has been convicted; but if he has been acquitted, no matter how erroneously and with what evident injustice, there is no remedy, because of an old and arbitrary rule against what is called "double jeopardy," a rule originating under circumstances utterly unlike those of today and which has been generally embodied in our Constitutions and statutes to the great profit of lawbreakers.
The common law of England, unlike most other systems of mediæval law, never sanctioned torture, whether of defendants or witnesses. In this the common law showed itself both wise and humane, for human experience has shown that the use of torture tends, not to secure but to hinder the discovery of the truth; but, by reason of the strong and reasonable repugnance thus fostered towards confessions and testimony extorted by physical pain, there grew up in England rules against admit
ting in evidence confessions procured under highly conventional duress and against obliging prisoners to incriminate themselves, which rules in America have crystallized into numerous constitutional and statutory provisions, and these have been, in turn, so construed in some judicial decisions as to extend the prohibitions, in my judgment, beyond the bounds of reason and public policy: we have seen convictions set aside because juries. were told of remarks by the prisoner made under no obvious compulsion and which contained no intelligible admission of guilt. One of the most enlightened changes made by modern statutes in the rules of evidence permits the accused to testify in his own behalf: this privilege is invaluable to an innocent man, and it is therefore simply impossible for a rational mind to avoid an unfavorable opinion as to the probable guilt of one who refuses to avail himself of it. Yet in the great majority of our States the statute law gravely requires this impossibility of a jury, and even obliges the court to so instruct them, while forbidding the public prosecutor to tell them what everybody knows they must think anyhow.
The foregoing criticisms are illustrative only: to comment fully on all those peculiarities of our modern criminal law which are helpful to "undesirable citizens" and harmful to the public would take more time than I can either give myself or ask, in reason, of you; but, in my view, its gravest and least excusable deficiency is found in its endless delays. A hotel thief recently attempted to rob an English traveler and the latter's wife at a New York hotel. He was captured by his intended victims and, as they were to sail for their home within some thirty-six hours, Dame Justice, for once, got a hustle on her. A single day saw the culprit committed, indicted, arraigned, tried, convicted and sentenced; and, as the English couple started down the harbor their new acquaintance started for Sing Sing. If this was done in one case, why cannot something like it be done in any case? Why need there be a foretaste of eternity between arrest and indictment, another between indictment and trial, yet another between trial and actual punishment? Partly because the Bench and professional opinion among the Bar tolerate all kinds of dilatory, frivolous and often ridiculous proceedings on the part
of unscrupulous counsel intended to cheat Justice of her plain due; partly because our law makers afford almost infinite facilities for review of judicial action to the criminal, although very stingy in allowing them to the Government; mainly because our laws show little sense of the value to society of a speedy administration of justice. We have small judicial districts, intermittent sessions of our criminal courts, judges sometimes overworked, sometimes indolent; prose
cutors sometimes overburdened by their duties, sometimes politicians rather than lawyers. All this makes for delay, and all that makes for delay makes against the efficacy of the criminal law. When Richard III exclaimed: "Off with his head! So much for Buckingham!" not only Buckingham himself, but all who had ears to hear the words and eyes to se what followed them knew that the King meant business. When the people of an American State or the American Nation decrees death to whomsoever shall do thus or thus, and then lets the transgressor live for months and years while lawyers wrangle and juries disagree and judges reverse each other, there is room for doubt, and doubt in fact, whether the State or Nation does, in truth, mean business.
Mere lapse of time is, in itself, disastrous to that righteous anger which bodes ill to evil-doers. While the memory of a crime is yet fresh, while we see all the suffering it has caused and feel how base and wicked is the criminal, we have little patience with that morbid sympathy which would blunt the sword of Justice and rob punishment of its terrors. But when years have rolled by and offense and offenders are alike well-nigh forgotten, grave danger exists lest in the ever-present ocean of milk and water there be drowned our hatred of wrong-doing and our purpose to compel obedience to the people's will.
It may be that in this world or the one adjoining to the netherward one could find some criminal so odious and so noxious that none will ask for his pardon; but I, at least, know of none such. That sovereign punishes with double efficacy and triple certainty who punishes while the crime is rank and recent.
"Shall the people rule?" Yes, if and insofar as the people shall be in earnest in the wish and purpose to rule. If the people
shall demand prompt and unquestioning obedience to the people's laws, and shall give to this demand an ample sanction in swift, sure and grievous retribution for all rebellious to those laws, the people's rule will be real. And to show this earnestness of purpose, to assure this genuine and lasting supremacy, the American people must thoroughly, rationally and honestly recast its criminal law.
American Municipal Tendencies
CLINTON ROGERS WOODRUFF, Philadelphia
In response to a recent inquiry, an intelligent and thoughtful correspondent in a middle Western capital replied in regard to the Merchants Association there, that it was founded about a dozen years ago primarily to promote excursions to benefit the retail trade. After that, it took up and organized a credit system, with ratings of customers; then interested itself in such matters as the suppression of the smallpox epidemic and the elevation of railroad tracks. Next it organized and built an independent system to heat and light the business portion of the city, in competition with the old company. Finally, however, it was stirred up by the revelation of outrageous frauds in city and county business, that had been brought to the surface by small and weak reform organizations, and this Association, backed as it is by great wealth and animated by a growing patriotic spirit, has undoubtedly become one of the foremost reform agencies in the state.
It has had a curious evolution. Six or eight years ago when a devoted handful of public-spirited men were spending their time and money to oust thieves from office and put honest men in, they were unable to do more than obtain patronizing smiles from the men composing the Merchants Association. Now, however, to quote my correspondent: "It has been baptized as by fire, and they are feeling the awakening of the public conscience and the sense of responsibility now prevailing in the United States."
The Missouri legislature, composed of many men who had been
and the Civic Awakening