Page:The Green Bag (1889–1914), Volume 02.pdf/104

 The Verdict of Public Opinion v. the Verdict of the yury.

87

THE VERDICT OF PUBLIC OPINION v. THE VERDICT OF THE JURY. By Raphael Benoni. THE lessons which experience has taught should not be forgotten when a par ticular instance arises tending to make us doubt the wisdom of laws, the real purpose of which is the protection of the rights of the people against the constant encroach ment of the Government. England learned the lesson that the enforcement of the crim inal law is the safest and surest means of destroying a people's freedom. The mass of technicalities which at one time, and in a measure still, surrounds and hampers the ad ministration of her criminal justice, coercing deliberation and care, is the exaggerated out growth, the extreme reaction, the over-abun dance of caution, against a potential power of injury to the people in the deprivation of life, liberty, and property. The tyranny which can hide itself under the forms of law, which can use the instru ments of justice to do injustice, is by far the worse. In some of the States a few of these tech nicalities have been removed, and in others most of them. The men who did the work of abrogation were thoroughly acquainted with the purpose of their enactment, and endeavored, wherever they saw the neces sity, to find a substitute. In some instances, while they have cut the strings which bound the trial judge and the State, they have cur tailed the judge's power and lessened the scope of his authority. There has been en acted a corrective and balancing system of making the jury judges of the law as appli cable to the facts as well as of the facts. In Louisiana, for instance, the slightest allu sion by the trial judge to the facts which could possibly affect the jury in reaching a conclusion, results in reversing his judgment and ordering a new trial. The chances of a criminal's escape are and should be nothing, in comparison to an easy,

a ready, and a tempting avenue to tyranny and injustice. The foundation, the prevalent and per meating principle, of the administration of criminal justice should be not so much, " It would be better that a crime should go un punished than that the innocent should suf fer," but, " It would be better that a criminal should escape than that any man or set of men should for any purpose have the power to make the innocent appear guilty." Crim inal justice should not be so administered; it would give the power of persecution, the power of pursuing the forms of law to de prive the citizen of life, liberty, or property. Criminal justice is a necessity. The deli cate task of the legislator, in framing it to attain its end, — the protection of society, — must be carefully performed, if he would avoid its prostitution to purposes which make it a ready instrument in the hands of the governing power to injure society or parties against whom it has enmities. Take away all these technicalities against which a sen timental public opinion hurls its anathemas, and it would not be saying too much to as sert that the law would become a means to the accomplishment of an end directly op posite to the object of its enactment, — pro tection. The same sentiment which entices public opinion to upbraid the administration of criminal justice as inadequate, as so tech nical that shrewd and learned counsel take advantage of it, would rise in revolution and elect legislators to enact them back again, should they be abolished to-morrow. There is not, from the requirement that the State in murder cases shall prove not only death, but death by violence, to the service on the accused of a list of the ju rors, a single technicality of the criminal law which is not as well founded as these in humanity and justice, or which did not at