Page:The Green Bag (1889–1914), Volume 01.pdf/291

254 ENIGMAS OF JUSTICE.

AUL FÉVAL, in one of his subtile and sensational romances, in which the intricate web woven by a "doctor in crime" is traced beneath an apparently tragic event, arraigns French justice and judges as too much absorbed in system and theory. The courts are the slaves of appearances; the "instruction" or preliminary examination of a crime moves in the narrow grooves to which it has been confined by tradition. The motif of Féval's remarkable novel, Le Dernier Vivant, is to show how easily, under the French system, a masterly conjuror in crime can divert the eyes of justice from the real criminal.

Indeed, the history of English and American as well as of French justice is almost as notable for its miscarriages as for its triumphs. It is true that in these days justice seldom errs in hanging or imprisoning the wrong man. Such cases as that of Bourne in Vermont, who was condemned to death for the murder of a man who opportunely turned up alive and well on the eve of the execution of his supposed assassin, are exceedingly rare. If justice arrests and tries an innocent person, the restrictions of the law are commonly sufficient to protect him by at least giving him the benefit of a doubt. The failures of justice more often consist in letting criminals free for want of evidence. Men of whose guilt the outer world have no moral doubt escape by the inadmissibility of evidence which would convict them, by the fine-spun reasonings and artificial theories of crafty counsel, and some times, doubtless, by the pity, the excessive timidity, and even the prejudices or corruption of juries.

Justice is human, and therefore prone to err. It would be treating justice unjustly were we not to recognize the various, intricate, bewildering difficulties by which, especially in cases of grave crimes, it is surrounded. While insisting that justice should do a wise and thorough work, we must not forget that the struggle between the blind goddess with the even scales and crime is always an uneven one. Crime is dark, tortuous, and crafty. It often chooses its own ground. It has ample opportunity, before it strikes, for concealment and defence. It is easier to propound a puzzle of which you have the key than to guess it out. It is easier for a man to hide a utensil—a pistol or a knife—than for forty men to find it. Before a criminal is taken he knows that he is suspected; he is aware, to some degree at least, of the steps that are being taken for his detection. He is more watchful than the most skilful detective; for if the detective is laboring to sustain a reputation, the criminal is defending life, or at least liberty.

So justice is almost always in presence of a puzzle which criminal ingenuity, sharpened in proportion to the stake at issue, makes as complicated as possible. Almost every mysterious case of crime is to be solved by what is called "circumstantial evidence;" that is, it is a crime which no eye except those of the criminal and his victim has seen committed, the guilt of which must be fastened by inferences from the proof of surrounding and accusing circumstances. In such cases the liability of justice to err is almost indefinite; the prospect of certainty is more or less dim; experience shows that often accusing circumstances envelope and close around an innocent man.

Yet the collection and array of circumstantial evidence have become, in process of time, a science. Not only authorities strictly technical and legal, but writers of