The jury's action must have been due either to a wilful disregard of their oath or an entire misconception of it. Assuming that the jury deliberately declined to obey the law, the whole twelve elected to become, and thereby did become, lawbreakers. They disqualified themselves forever as talesmen. No prosecutor in his senses would move a case before a jury which numbered any one of them. They had arraigned themselves upon the side, and under the standard, of crime. They became accessories after the fact. If on the other hand they misconceived the purpose for which they were there the performance was a shocking example of what is possible under present conditions.
Just as there are three general classes of wrongs, so there are three general and varyingly effective forms of restraint against their perpetration. First there is the moral control exerted by what is ordinarily called conscience, secondly there is the restraint which arises out of the apprehension that the commission of a tort will be followed by a judgment for damages in a civil court, and lastly there is the restraint imposed by the criminal law. All these play their part, separately or in conjunction. For some men conscience is a sufficient barrier to crime or to those acts which, while equally reprehensible, are not technically criminal; for others the possibility of pecuniary loss is enough to keep them in the straight and narrow way; but for a large proportion of the community the fear of criminal prosecution, with implied disgrace and ignominy, forfeiture of citizenship, and confinement in a common jail is about the only conclusive reason for doing unto others as they would the others should do unto them. Were the criminal law done away with in our present state of civilization, religion, ethics and civil procedure would be absolutely inefficacious to prevent anarchy. It is as imperative to the ordinary citizen to know that if he steals he will be locked up as it is for the child to know that if he puts his hand into the fire it will be burned. The acquittal of every thief breeds another, and the unpunished murder is an incentive for a dozen similar homicides.
Crimes are either deliberate or the result of accident or impulse. The last class may rise to a high degree of enormity, such as manslaughter, but these crimes are rarely possible of restraint. The perpetrator does not stop to consider, even if he be sober enough to think at all, whether his act be moral, whether it will entail any civil liability, or what will be its consequences, if it be a crime. So far as such acts are concerned those who commit them are hardly criminals in the ordinary sense, and no influence in the world is able to prevent them.
The question is how far these different kinds of restraint operate upon the community as a whole in the prevention of deliberate crime. Clearly the fear of pecuniary loss through actions brought to judgment in the civil courts is practically nil. Most persons who set out to commit crime have no bank account, the absence of one being generally what leads them into a criminal career.
The writer has no intention of attempting to discuss or estimate the efficacy of religion or ethics as restraining influences. A certain limited proportion of the community would not commit crime under any circumstances. It is enough for them that the act is forbidden by the State even if it be not really wrong from their own personal point of view. Side by side with these very good people are a very large number who wear just as fashionable clothing, have the same friends, attend the same churches, but who would commit almost any crime so long as they were sure of not being caught. If we had no criminal law we should soon discover who were the hypocrites.
But for an overwhelming majority of the community something more practical than either religion, ethics, or philosophy is necessary to keep them in order. They must be convinced that the transgressor will surely be punished,—not some time, not next year or the year after, but now. Not, moreover, that his way will be merely hard; but that he will be put in stripes and made to break stones.
Hence the necessity for a vigorous and adequate criminal law and procedure which shall command the respect and loyalty of the community, administered by a fearless judiciary who will hold jurors to a rigid and conscientious obedience to their oath.
There is nothing sacred about an archaic criminal procedure which in some respects is less devised for the protection of the community than for the exculpation of the guilty. The portals of liberty would not fall down or the framers of the constitution turn in their graves if the peremptory challenges allowed to both sides in the selection of a jury were reduced to a reasonable number, or if persons found guilty of crime after due process of law were compelled to stay in jail until their appeals were decided, instead of walking the streets free as air under a certificate of "reasonable doubt" issued by some judge who personally knew nothing of the actual trial of the case. As things stand to-day, a thief caught in the very act of picking a pocket in the night-time may challenge arbitrarily the twenty most intelligent talesmen called to sit as jurors in his case. Does such a practice make for justice? It is even possible that the sacred bird of liberty would not scream if eleven jurors, instead of twelve, were permitted to convict a defendant or set him free, while the question of how far the right of appeal in criminal cases might properly be limited or, in default of such limitation, how far under certain conditions it might be correspondingly extended to the community, is by no means purely academic.* It is also conceivable that some means might be found to do away with the interminable technicalities which can now be interposed on behalf of the accused to prevent trials or the infliction of sentence after conviction.
* "Limitation of the Right of Appeal in Criminal Cases," by Nathan A.
Smythe, 17 Harvard Law Rev. 317 (1905).
Yet these considerations are of slight moment in contrast to that most crying of all present abuses,—the domination of the court-room by the press.* It is no fiction to say that in many cases the actual trial is conducted in the columns of yellow journals and the defendant acquitted or convicted purely in accordance with an "editorial policy." Judges, jurors, and attorneys are caricatured and flouted. There is no evidence, how ever incompetent, improper, or prejudicial to either side, excluded by the judge in a court of criminal justice, that is not deliberately thrust under the noses of the jury in flaring letters of red or purple the moment they leave the court-room. The judge may charge one way in accordance with the law of the land, while the editor charges the same jury in double-leaded paragraphs with what "unwritten" law may best suit the owner of his conscience and his pen. "Contempt of court" in its original significance is something known today only to the reader of text books.**