Изображения страниц
PDF
EPUB

entirely ignore the facts, and address himself exclusively to the law. Some years ago, as I am told, a lawyer in Illinois, wbo thought he had been hardly dealt with in a criminal case, actually secured a statute which not only muzzles the judge with regard to the facts, but even prevents his charging the jury colloquially upon the law. The charge must be formulated by the counsel, and the judge is strictly confined to reading their written popositions. To complete such a system, the prisoner's counsel should have the last word to the jury, and appellate courts should be strictly enjoined not to disregard technicalities. There is a middle course between the heavy hand of English authority and the criminal Utopia of Illinois. A system under which the judge "sums up” for or against the prisoner would never be tolerated here, nor should it be. The mere code, or request, reader would be equally intolerable in the opposite direction. We are a practical people, and we realize that if theory is to work well, common sense must be applied to its working. Here, then, are twelve men, picked up at haphazard, strangers to each other, untrained in the weighing of testimony, and subjected to the subtlest forces of personal "magnetism ” and the fiercest flames of eloquence. They are made the exclusive judges of the facts. As such they must reach a unanimous conclusion, and that conclusion should be accurate. They naturally, almost necessarily, look to the judge for impartial guidance. If they look in vain, looseness, crude notions, and uncertainty are the almost certain outcome. If, however, the judge does his whole duty, the rest may well be left to their unfettered judgment. But the judge has not done his whole duty until he gives them a clear comprehension of theirs. He should instruct them upon the law, should present the real issue plainly, warn them against the pitfalls of false issues, state with precision the clashing contentions, group in compendious form the material facts bearing upon these contentions, sever the wheat of substance from the chaff of irrelevancy, point out the circumstances underlying the respective claims of probability or improbability, and finally admonish them against the possible influence of passion, prejudice, or sentiment. If such a charge ever seems to bear hard upon one side or the other, the reason will generally be found in the hard and troublesome facts; not in the unfairness of the charge, but rather in its perfect fairness and accuracy of presentation.

Juries are more frequently held responsible for miscarriages of justice than judges or prosecuting officers. But is this quite just? The citizen does not volunteer his services, nor is his will consulted. He is summoned without reference to his interest or convenience, and is held without heeding his entreaties or supplications. His position is not unlike Voltaire's characterization of birth, life, and death. He is brought into the jury box, kept there, and sent out of it, involuntarily. Yet he is twitted with his ignorance, satirized for his credulity, or denounced for his obstinacy. But are our own consciences always void of reproach in this connection? Was the judge's “impartial charge” mere colorless laisser aller? Did the prosecutor prepare the case carefully, and place it before the jury faithfully? Or was there but a one-sided presentation, that of the defense; and was the jury overwhelmed with its vigor, ability, and brilliancy? These are pertinent questions when juries are attacked for failures of justice. If the men are ignorant, whose fault is it that they are there? If intelligent and conscientious, think of the requirement of unanimity. Weak and ignorant juries are apt enough to agree; alas! to agree unwisely. But it is hard enough for twelve strong men, in this enlightened age, to agree upon almost any debatable subject. There never was a period when opinions were so varied and so firmly held. The time is coming when the principle of unanimity will have to be modified. The demand for such a change will be greater as the juries improve and as the difficulty in securing conscientious unanimity is found to increase. The presiding justice of this department lately made what seems to me a happy suggestion on this head. He advocated a constitutional amendment making a vote of nine jurors, when approved by the court, equivalent to unanimity. That would prevent disagreements in all but the most evenly balanced cases, while the requirement of judicial approval would operate upon the contending parties—the majority and the minority in the jury room--as a wholesome check and balance.

These suggestions are the result of experience and reflection. I have sought, without taking a rose-water view of the situation, to clear the atmosphere from loose notions as to miscarriages being the rule. They are certainly not the rule, but the exception. Still, the exception must be reduced to a minimum, and, in future efforts looking to that end, I trust that this discussion may not be found to be wholly unprofitable.

In conclusion let me say, that while these thoughts deal in the main with the machinery of justice, the motor has not been overlooked. Behind the machinery there must be power-power adequate to its efficient working. That power can be supplied only by an enlightened public opinion finding its highest expression in an able, upright, and vigilant press.

GEORGE C. BARRETT.

OBSTACLES TO GOOD CITY GOVERNMENT. .

THE question is sometimes asked why it is, when a man tries to do public business in the faithful manner in which he would manage private affairs, that he finds it difficult to do so. The answer is not a simple one, but it may be worth while, nevertheless, to try to make the reason clear. The first difficulty with which such a one must contend often has its beginnings prior to his election. Few people who have not come into contact with political methods from the bottom up, appreciate to what an extent an official may find himself embarrassed through his own mistakes as a candidate. It is not an unheard of thing for a man who wishes to secure a nomination, or who is a candidate, to bind himself to party leaders by distinct pledges. One so doing must recognize at the time, however, we may suppose, the restrictions he is placing upon his freedom when he shall be in office. But many men who have the good sense to avoid this error do not appreciate at its full strength the binding effect of circumstances apart from distinct pledges. I do not mean to imply that there are no honorable obligations resting upon a candidate, as toward the party which nominates him, in case of his election ; although such obligations are more clear, certainly, in the broader fields of politics in the State and in the nation, where parties divide to a greater extent on distinctive lines of public policy, than they are in municipal politics. The special obligation which it is essential for a candidate to avoid who wishes to be free to do the best he can as a public officer, is the assumed right of any man, any clique, or any body of men, whether large or small, to dictate to him whom he shall, or shall not, nominate or appoint to any office which the law makes it his duty to fill. The occasions are comparatively rare in municipal matters when, by the power of their influence, outsiders seek to control an official's relation to public questions which do not in. volve patronage.

Another difficulty in the way of good city government springs from the fact that the relation of the great parties to local affairs is an unnatural one. Party lines are drawn upon questions upon which local matters have no bearing. Parties, consequently, are related to the locality simply as organizations seeking to control the local offices. If there could be genuine municipal parties, representing divisions between citizens on questions of municipal concern only, one need have no special fear of party government in its application to a city any more than in its application to the State or the nation. Party government, even in cities, has this advantage over individual administration, that it offers to the community continuous responsibility. But when parties are formed upon lines which have nothing whatever to do with local affairs, the evils attaching to the government of cities by such parties often outweigh whatever advantages the system may claim.

This leads to the next difficulty which the mayor of a city must face under existing conditions, even if he be free from every obligation that restrains his freedom of decision and action. The duty of the mayor is toward the city. The concern of party managers is for the party. They feel no responsibility toward the city, but great responsibility toward the party. In their eyes the administration of the city should strengthen the party, whatever else it may fail to do. Few managing politicians are able to see that a man serves his party best who serves his city best. Their conception of party advantage is to reward with places as many as possible of the party workers, so that they may continue to put forth every effort on the party's behalf. The mayor, therefore, or, for that matter, any other officer, is exposed to constant pressure from those who are nearest to him, and in the midst of whom he passes his time; which pressure makes first of all for the good of the party, without regard to the effect this or that step may have either on the reputation of the officer or the welfare of the city. It requires courage and faith to resist this pressure, in the confidence that the unseen people will sustain their representative in doing right, as against any party magnates whom he may offend. Temptation comes also in most insidious ways. The mayor, for example, needs, to a certain extent, the

« ПредыдущаяПродолжить »