Judge or Jury?

...Incompatibles reject compromise and impose a choice...

...The men of the revolutionary epoch had not the same respect as they for English law, for the very good and sufficient reason that English law was not then respectable...

...Practically, very few, even in democratic countries such as our own, where the law may be said to be their own creation, feel a very conscious glow when they see its sword unsheathed and poised to strike...

...When a federal judge, impatient at the clogging of the prohibition docket, can describe the claims for jury trial on the part of the accused as "folderol," it cannot be pretended that the danger is an imaginary or spectral one...

...The statement must be amended slightly to exclude cases where the feeling of outrage seizes upon an entire community, and when the law that has been infringed is vindicated* roughly and speedily, by corporate action in hot blood...

...What is being referred to now is the feeling of the average citizen, who has not felt the immediate reactions of the crime, who knows its details only through reports that reach him in the press, or, if he be a juryman, only by the evidence given in the detached atmosphere of the court-room, where the culprit stands with the power to harm stricken from his hands...

...Lawrence Veiller in the April issue of the World's Work, make one, not unfamiliar with England, rub his eyes, and wonder whether a perfect instrument of justice has not at last been forged in an imperfect world, whether the stories of misdirection and miscarriage, whose echoes never seem to reach across the Atlantic, are unsubstantial things, and whether statements not infrequently heard that it is as impossible for a rich man to be convicted in England as for a camel to pass through a needle's eye, are not so many slanders, coined by the disloyal for the besmirching of their country's fair fame abroad...

...Without any intention of being a devil's advocate, however, it might be worth one's while to examine such tendencies a little more closely, and to see whether they may not be part of the price (the "ransom," in French phrase) which we in America pay for the democratic contexture of our laws—the reverse side to a good deal for lack of which our commonwealths would be the poorer...

...They had probably read the state trials of the seventeenth and eighteenth centuries and were familiar with exhibitions of browbeating, tyranny and subservience to government which could hardly be excelled by the notorious tribunal of the farmers-general in pre-revolutionary France...

...But, also, nothing needs more careful watching than proposals, however plausibly advanced, that tend to take the popular element out of law to the profit of the professional and technical...

...The story is interesting...

...Owing to a sudden movement it chanced that one of these last was forced out of his place and for one terrible moment actually formed part of the crowd...

...Those who blame the impartial spirit of the average citizen toward the law, which may range from a perverse sympathy with the accused to a detached spirit of an onlooker at a game of skill in which his own interests are not involved, are fond of referring to the differences observed in English law and popular respect for its enforcement...

...No one disputes that abuses have crept into the largehearted American conception of justice...

...M GEORGES LENOTRE, in one of those fas_ __# cinating narratives of his which give us what might be called the "underside" of the French Revolution, relates an amazing story...

...Everything human has the defects of its qualities...

...Those who lay these tributes of appreciation upon the fabric of English law, fragrant as the posies of sweet-smelling herbs that are still put upon the desks of judges at assize time in some old-fashioned cities, probably give little thought to the spirit in which their own law, so lavishly Jblamed for its failings and loopholes, was conceived...

...Vigilance is proverbially the price of liberty...

...One may assert that social complexities in America have reached a stage that leaves no room for this "folksy" conception of jurisprudence...

...It did mark a step toward humanizing justice at the same time that it democratized judges...

...English speed in securing conviction, English disregard of whether the culprit be rich or poor, the authority of English judges, the docility of English juries under judicial direction, even the solid and stolid virtues of the English policeman, come in for lavish and envious praise...

...The quarters from which it is proceeding will repay close attention...

...Theoretically, all men, except those who are in chronic revolt, respect and esteem the law, without whose protection they could not live out their lives for twenty-four hours in safety or comfort...

...It not only tells the tale of what is believed to be the sole escape from death of a victim once sentenced by the terrible revolutionary tribunal, but also features, far more eloquently than any psychological dissertation could do, the strange dualism of the average man, face to face with the law and face to face with the individual who has incurred its penalties...

...Their decision to make the state judicial bodies elective ones may or may not have derived from a familiarity with the darker side of the English judiciary by royal appointment...

...But before securing it by legislation we should be very sure that it is in line with feeling in a country which one sometimes needs to be reminded is not England, and has problems other than England's to solve...

...It is rather amusing, in the World's Work article to which reference has been made, and which, by the way, makes many valuable suggestions, to find its author pleading, in the same breath, for swift justice on the English model and for the retention of such luxuries as the differentiation "between the professional criminal and the casual one, between crime that is practised as a business and crimes of emotion or passion...

...In all the editorial and magazine articles that are being penned upon the swollen crime statistics in the 6i8 THE COMMONWEAL April 14, 1926 United States, this lack of enthusiasm for seeing law carried out speedily and ruthlessly, this failure to register indignation at the obstacles which legal chicanery can throw in its way, is seldom mentioned except to be deplored...

...But it did mark a departure from the conception of law as an impersonal engine, to be administered, when necessary, in the teeth of popular sentiment...

...Stepping forward to resume his place, he was amazed to find himself not only restrained back but actually pulled back, while the throng as if some secret signal had been given, opened their ranks to let him pass, closing them upon him as, with a coat hurriedly thrown over his shoulders and his hands unbound, he was hurried to a place of safety...

...There are times when such eulogies as that, for example, pronounced by Mr...

...During the last days of the Reign of Terror, at a time when the daily fournees for the guillotine had attained appalling proportions, it happened that a double rank of victims, awaiting their turn to mount the scaffold in what is now called the Place de la Concorde, were so pressed upon by the crowd who had come to see (and to applaud) the spectacle, that the foremost fringe of sightseers touched the backs of the doomed...

...There is no doubt that the speed and efficiency of our own law would gain greatly by an adherence to English practice...

...These are complications that English law avoids by the simple process of disregarding them...

...The men who wrote state constitutions were not to be impressed by horsehair wigs and fur tippets...

...Steady pressure is at work whose result, if successful, would be to heighten the power of judges and depress the power of juries...

...But one cannot, at this stage of the game, call into question such inherent parts of it as election of state judges and district-attorneys (or prosecutors) and the power of juries to signify by a verdict in contradiction with the letter of the law what they conceive to have been its spirit and intention, without, at the same time, questioning the wisdom of the fathers of the republic, who willed that in the sovereign states at least, bench and bar should never assume the quality of close and tradition-bound corporations over which the people at large had abdicated their control, or that the fabric of laws should become for the layman something that, like David's sins, had gone over his head and pressed heavy upon him...

...One may deplore the lengths to which this humanizing spirit has been carried...