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Text enclosed by underscores is in italics (_italics_).
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COURTS, CRIMINALS, AND THE CAMORRA
* * * * * *
BOOKS BY ARTHUR TRAIN
=Courts, Criminals, and the Camorra= _net_ =$1.50=
=The Confessions of Artemas Quibble.= Illustrated _net_ =$1.30=
=The Butler’s Story.= Illustrated =$1.25=
=True Stories of Crime.= Illustrated =$1.50=
=McAllister and His Double.= Illustrated =$1.50=
=The Prisoner at the Bar.= New and Enlarged Edition =$1.50=
=Mortmain.= Illustrated =$1.50=
* * * * * *
COURTS, CRIMINALS AND THE CAMORRA
by
ARTHUR TRAIN
Formerly Assistant District Attorney, New York County
New York
Charles Scribner’S Sons
1912
Copyright, 1912, by
Charles Scribner’S Sons
Published September, 1912
[Illustration]
To
CHARLES ALBERT PERKINS
OF THE NEW YORK BAR
CONTENTS
I.—COURTS
PAGE
I. THE PLEASANT FICTION OF THE PRESUMPTION
OF INNOCENCE 3
II. PREPARING A CRIMINAL CASE FOR TRIAL 27
III. SENSATIONALISM AND JURY TRIALS 53
II.—CRIMINALS
IV. WHY DO MEN KILL? 67
V. DETECTIVES AND OTHERS 86
VI. DETECTIVES WHO DETECT 112
III.—THE CAMORRA
VII. THE CAMORRA IN ITALY 143
VIII. AN AMERICAN LAWYER AT VITERBO 184
IX. THE MALA VITA IN AMERICA 214
COURTS
CHAPTER I
THE PLEASANT FICTION OF THE PRESUMPTION OF INNOCENCE
THERE was a great to-do some years ago in the city of New York over
an ill-omened young person, Duffy by name, who, falling into the bad
graces of the police, was most incontinently dragged to head-quarters
and “mugged” without so much as “By your leave, sir,” on the part
of the authorities. Having been photographed and measured (in most
humiliating fashion) he was turned loose with a gratuitous warning to
behave himself in the future and see to it that he did nothing which
might gain him even more invidious treatment.
Now, although many thousands of equally harmless persons had been
similarly treated, this particular outrage was made the occasion of a
vehement protest to the mayor of the city by a certain member of the
judiciary, who pointed out that such things in a civilized community
were shocking beyond measure, and called upon the mayor to remove the
commissioner of police and all his staff of deputy commissioners for
openly violating the law which they were sworn to uphold. But, the
commissioner of police, who has sometimes enforced the penal statutes
in a way that has made him unpopular with machine politicians, saw
nothing wrong in what he had done, and, what was more, said so most
outspokenly. The judge said, “You did,” and the commissioner said, “I
didn’t.” Specifically, the judge was complaining of what had been done
to Duffy, but more generally he was charging the police with despotism
and oppression and with systematically disregarding the sacred
liberties of the citizens which it was their duty to protect.
Accordingly the mayor decided to look into the matter for himself, and
after a lengthy investigation came to the alleged conclusion that the
“mugging” of Duffy was a most reprehensible thing and that all those
who were guilty of having any part therein should be instantly removed
from office. He, therefore, issued a pronunciamento to the commissioner
demanding the official heads of several of his subordinates, which
order the commissioner politely declined to obey. The mayor thereupon
removed him and appointed a successor, ostensibly for the purpose of
having in the office a man who should conduct the police business of
the city with more regard for the liberties of the inhabitants thereof.
The judge who had started the rumpus expressed himself as very much
pleased and declared that now at last a new era had dawned wherein the
government was to be administered with a due regard for law.
Now, curiously enough, although the judge had demanded the removal
of the commissioner on the ground that he had violated the law and
been guilty of tyrannous and despotic conduct, the mayor had ousted
him not for pursuing an illegal course in arresting and “mugging” a
presumptively innocent man (for illegal it most undoubtedly was), but
for inefficiency and maladministration in his department.
Said the mayor in his written opinion:
“After thinking over this matter with the greatest care, I
am led to the conclusion that as mayor of the city of New
York I should not order the police to stop taking photographs
of people arrested and accused of crime or who have been
indicted by grand juries. That grave injustice may occur
the Duffy case has demonstrated, but I feel that it is not
the taking of the photograph that has given cause to the
injustice, but the inefficiency and maladministration of the
police department, etc.”
In other words, the mayor set the seal of his official approval upon
the very practice which caused the injustice to Duffy. “Mugging” was
all right, so long as you “mugged” the right persons.
The situation thus outlined is one of more than passing interest.
Whatever the merely political outcome may be, and it may be
far-reaching, a sensitive point in our governmental nervous system has
been touched and a condition uncovered that sooner or later must be
diagnosed and cured.
For the police _have_ no right to arrest and photograph a citizen
unconvicted of crime, since it is contrary to law. And it is ridiculous
to assert that the very guardians of the law may violate it so long as
they do so judiciously and do not molest the Duffys. The trouble goes
deeper than that.
The truth is that we are up against that most delicate of situations,
the concrete adjustment of a theoretical individual right to a
practical necessity. The same difficulty has always existed and
will always continue to exist whenever emergencies requiring prompt
and decisive action arise or conditions obtain that must be handled
effectively without too much discussion. It is easy while sitting on
a piazza with your cigar to recognize the rights of your fellow-men,
but if you were starving on the high seas in an open boat—! You may
assert most vigorously the right of the citizen to immunity from arrest
without legal cause, but if you saw a seedy character sneaking down a
side street at three o’clock in the morning, his pockets bulging with
jewelry and silver—! _Que voulez vous, m’sieu?_ Would you have the
policeman on post insist on the fact that a burglary had been committed
being established beyond peradventure before arresting the suspect, who
in the meantime would undoubtedly escape? Of course, the worthy officer
sometimes does this, but his conduct in that case becomes the subject
of an investigation on the part of his superiors. In fact, the rules
of the New York police department require him to arrest all persons
carrying bags in the small hours who cannot give a satisfactory account
of themselves. Yet there is no such thing under the laws of the State
as a right “to arrest on suspicion.” No citizen may be arrested under
the statutes unless a crime _has actually been committed_. Thus, the
police regulations deliberately compel every officer either to violate
the law or to be made the subject of charges for dereliction of duty.
A confusing state of things, truly, to a man who wants to do his duty
by himself and by his fellow-citizens!
The present author once wrote a book dealing with the practical
administration of criminal justice, in which the unlawfulness of arrest
on mere “suspicion” was discussed at length and given a prominent
place. But when the time came for publication that portion of it was
omitted at the earnest solicitation of certain of the authorities on
the ground that as such arrests were absolutely necessary for the
enforcement of the criminal law a public exposition of their illegality
would do infinite harm. Now, as it seems, the time has come when the
facts, for one reason or another, must be faced. The difficulty does
not end, however, with “arrest on suspicion,” “the third degree,”
“mugging,” or their allied abuses. It really goes to the root of our
whole theory of the administration of the criminal law. Is it possible
that on final analysis we may find that our enthusiastic insistence
upon certain of the supposedly fundamental liberties of the individual
has led us into a condition of legal hypocrisy vastly less desirable
than the frank attitude of our continental neighbors toward such
subjects?
The Massachusetts Constitution of 1785 concludes with the now famous
words: “To the end that this may be a government of laws and not of
men.” That is the essence of the spirit of American government. Our
forefathers had arisen and thrown off the yoke of England and her
intolerable system of penal government, in which an accused had no
right to testify in his own behalf and under which he could be hung
for stealing a sheep. “Liberty!” “Liberty or death!” That was the note
ringing in the minds and mouths of the signers of the Declaration and
framers of the Constitution. That is the popular note to-day of the
Fourth of July orator and of the Memorial Day address. This liberty
was to be guaranteed _by laws_ in such a way that it was never to be
curtailed or violated. No mere man was to be given an opportunity to
tamper with it. The individual was to be protected at all costs. No
king, or sheriff, or judge, or officer was to lay his finger on a free
man save at his peril. If he did, the free man might immediately have
his “law”—“have the law on him,” as the good old expression was—for
no king or sheriff was above the law. In fact, we were so energetic
in providing safeguards for the individual, even when a wrong-doer,
that we paid very little attention to the effectiveness of kings or
sheriffs or what we had substituted for them. And so it is to-day.
What candidate for office, what silver-tongued orator or senator, what
demagogue or preacher could hold his audience or capture a vote if,
when it came to a question of liberty, he should lift up his voice in
behalf of the rights of the majority as against the individual? The
Republican party—“The Grand Old Party of Liberty!” The Democratic
party—“The Party of Liberty!” The Socialist-Labor party—“of Liberty.”
“Liberty forever!”
Accordingly in devising our laws we have provided in every possible way
for the freedom of the citizen from all interference on the part of the
authorities. No one may be stopped, interrogated, examined, or arrested
unless a crime has been committed. Every one is presumed to be innocent
until shown to be guilty by the verdict of a jury. No one’s premises
may be entered or searched without a warrant which the law renders it
difficult to obtain. Every accused has the right to testify in his
own behalf, like any other witness. The fact that he has been held
for a crime by a magistrate and indicted by a grand jury places him
at not the slightest disadvantage so far as defending himself against
the charge is concerned, for he must be proven guilty _beyond any
reasonable_ doubt. These illustrations of the jealousy of the _law_ for
the rights of citizens might be multiplied to no inconsiderable extent.
Further, our law allows a defendant convicted of crime to appeal to the
highest courts, whereas if he be acquitted the people or State have no
right of appeal at all.
Without dwelling further on the matter it is enough to say that in
general the State constitutions, their general laws, or penal statutes
provide that a person who is accused or suspected of crime must be
_presumed innocent_ and treated accordingly until his guilt has been
affirmatively established in a jury trial; that meantime he must not
be confined or detained unless a crime has in fact been committed and
there is at least reasonable cause to believe that he has committed
it; and, further, that if arrested he must be given an immediate
opportunity to secure bail, to have the advice of counsel, and must in
no way be compelled to give any evidence against himself. So much for
the _law_. It is as plain as a pikestaff. It is printed in the books in
words of one syllable. So far as the law is concerned we have done our
best to perpetuate the theories of those who, fearing that they might
be arrested without a hearing, transported for trial, and convicted in
a king’s court before a king’s judge for a crime they knew nothing of,
insisted on “liberty or death.” They had had enough of kings and their
ways. Hereafter they were to have “a government of laws and not of men.”
But the unfortunate fact remains that all laws, however perfect, must
in the end be administered by imperfect men. There is, alas! no such
thing as a government of laws and not of men. You may have a government
_more_ of laws and _less_ of men, or vice versa, but you cannot have
an auto-administration of the Golden Rule. Sooner or later you come
to a _man_—in the White House, or on a wool sack, or at a desk in
an office, or in a blue coat and brass buttons—and then, to a very
considerable extent, the question of how far ours is to be a government
of laws or of men depends upon _him_. Generally, so far as he is
concerned, it is going to be of _man_, for every official finds that
the letter of the law works an injustice many times out of a hundred.
If he is worth his salary he will try to temper justice with mercy. If
he is human he will endeavor to accomplish justice _as he sees it_
so long as the law can be stretched to accommodate the case. Thus,
inevitably there is a conflict between the theory of the law and its
application. It is the human element in the administration of the law
that enables lawyers to get a living. It is usually not difficult to
tell what the law is; the puzzle is how it is going to be applied in
any individual case. How it is going to be applied depends very largely
upon the practical side of the matter and the exigencies of existing
conditions.
It is pretty hard to apply inflexibly laws over a hundred years old.
It is equally hard to police a city of a million or so polyglot
inhabitants with a due regard to their theoretic constitutional rights.
But suppose in addition that these theoretic rights are _entirely_
theoretic and fly in the face of the laws of nature, experience, and
common-sense? What then? As the missionary said, “The cannibals are
coming behind, there is a lion in front, there are sharks in the water,
I can’t swim anyway—what in hell _am_ I to do?” What is a police
commissioner to do who has either got to make an illegal arrest or let
a crook get away, who must violate the rights of men illegally detained
by outrageously “mugging” them or egregiously fail to have a record
of the professional criminals in his bailiwick? He does just what all
of us do when we are “up against it,”—he “takes a chance.” But in
the case of the police the thing is so necessary that there ceases
practically to be any “chance” about it. They have got to prevent crime
and arrest criminals. If they fail they are out of a job, and others
more capable or less scrupulous take their places. The fundamental law
qualifying all systems is that of necessity. You can’t let professional
crooks carry off a voter’s silverware simply because the voter, being
asleep, is unable instantly to demonstrate beyond a reasonable doubt
that his silver has been stolen. You can’t permit burglars to drag
sacks of loot through the streets of the city at 4 A.M. simply because
they are presumed to be innocent until proven guilty. And if “arrest
on suspicion” were not permitted, demanded by the public, and required
by the police ordinances, away would go the crooks and off would go
the silverware, the town would be full of “leather snatchers” and
“strong arm men,” respectable citizens would be afraid to go out o’
nights, and liberty would degenerate into license. That is the point.
We Americans, or at least the newer ones of us, have a fixed idea that
“liberty” means the right to steal apples from our neighbor’s orchard
without interference. Now, somewhere or other, there has got to be a
switch and a strong arm to keep us in order, and the switch and arm
must not wait until the apples are stolen and eaten before getting
busy. If we come climbing over the fence sweating apples at every pore,
is Farmer Jones to go and count his apples before grabbing us?
The most presumptuous of all presumptions is this “presumption of
innocence.” It really doesn’t exist, save in the mouths of judges and
in the pages of law books. Yet as much to-do is made about it as if
it were a living legal principle. Every judge in a criminal case is
required to charge the jury in form or substance somewhat as follows:
“The defendant is presumed to be innocent until that presumption is
removed by competent evidence.”... “This presumption is his property,
remaining with him throughout the trial and until rebutted by the
verdict of the jury.”... “The jury has no right to consider the
fact that the defendant stands at the bar accused of a crime by an
indictment found by the grand jury.” Shades of Sir Henry Hawkins! Does
the judge expect that they are actually to swallow _that_? Here is a
jury sworn “to a true verdict find” in the case of an ugly looking
customer at the bar who is charged with knocking down an old man and
stealing his watch. The old man—an apostolic looking octogenarian—is
sitting right over there where the jury can see him. One look at the
plaintiff and one at the accused and the jury may be heard to mutter,
“He’s _guilty_,—all right!”
“Presumed to be innocent?” Why, may I ask? Don’t the jury and everybody
else know that this good old man would never, save by mistake, accuse
anybody falsely of crime? Innocence! Why, the natural and inevitable
presumption is that the defendant is _guilty_! The human mind works
intuitively by comparison and experience. We assume or presume with
considerable confidence that parents love their children, that all
college presidents are great and good men, and that wild bulls are
dangerous animals. We may be wrong. But it is up to the other fellow
to show us the contrary.
Now, if out of a clear sky Jones accuses Robinson of being a thief we
know by experience that the chances are largely in favor of Jones’s
accusation being well-founded. People as a rule don’t go rushing
around charging each other with being crooks unless they have some
reason for it. Thus, at the very beginning the law flies in the face
of probabilities when it tells us that a man accused of crime must be
presumed to be innocent. In point of fact, whatever presumption there
is (and this varies with the circumstances) is all the other way,
greater or less depending upon the particular attitude of mind and
experience of the individual.
This natural _presumption of guilt_ from the mere fact of the charge is
rendered all the more likely by reason of the uncharitable readiness
with which we believe evil of our fellows. How unctuously we repeat
some hearsay bit of scandal. “I suppose you have heard the report that
Deacon Smith has stolen the church funds?” we say to our friends with
a sententious sigh—the outward sign of an invisible satisfaction.
Deacon Smith after the money-bag? Ha! ha! Of course, he’s guilty!
These deacons are always guilty! And in a few minutes Deacon Smith is
ruined forever, although the fact of the matter is that he was but
counting the money in the collection-plate. This willingness to believe
the worst of others is a matter of common knowledge and of historical
and literary record. “The evil that men do lives after them—” It
might well have been put, “The evil men are said to have done lives
forever.” However unfair, this is a psychologic condition which plays
an important part in rendering the presumption of innocence a gross
absurdity.
But let us press the history of Jones and Robinson a step further.
The next event in the latter’s criminal history is his appearance
in court before a magistrate. Jones produces his evidence and calls
his witnesses. Robinson, through his learned counsel, cross-examines
them and then summons his own witnesses to prove his innocence.
The proceeding may take several days or perhaps weeks. Briefs are
submitted. The magistrate considers the testimony at great length and
finally decides that he believes Robinson guilty and must hold him
for the action of the grand jury. You might now, it would perhaps
seem, have some reason for suspecting that Robinson was not all that
he should be. But no! He is still presumed in the eyes of the law,
and theoretically in the eyes of his fellows, to be as innocent as
a babe unborn. And now the grand jury take up and sift the evidence
that has already been gone over by the police judge. They, too, call
witnesses and take additional testimony. They likewise are convinced
of Robinson’s guilt and straightway hand down an indictment accusing
him of the crime. A bench warrant issues. The defendant is run to
earth and ignominiously haled to court. But he is still presumed to be
innocent! Does not the law say so? And is not this a “government of
laws”? Finally, the district attorney, who is not looking for any more
work than is absolutely necessary, investigates the case and begins to
prepare it for trial. As the facts develop themselves Robinson’s guilt
becomes more and more clear. The unfortunate defendant is given any
opportunity he may desire to explain away the charge, but to no purpose.
The district attorney knows Robinson is guilty, so does everybody else,
including Robinson. At last this presumably innocent man is brought to
the bar for trial. The jury scan his hang-dog countenance upon which
guilt is plainly written. They contrast his appearance with that of
the honest Jones. They know he has been accused, held by a magistrate,
indicted by a grand jury, and that his case, after careful scrutiny,
has been pressed for trial by the public prosecutor. Do they really
presume him innocent? Not much! They presume him _guilty_. And if
by any chance Robinson puts in any defence, they require him, as a
practical matter, to prove himself innocent. “So soon as I see him
come through dot leetle door in the back of the room, then I _know_
he’s guilty!” as the foreman said in the old story. What good does the
presumption of innocence, so-called, do for the miserable Robinson?
None whatever—save perhaps to console him in the long days pending his
trial. But such a legal hypocrisy could never have deceived anybody.
How much better it would be to cast aside all such cant and frankly
admit that the attitude of the continental law toward the man under
arrest is founded upon common-sense and the experience of mankind. If
he is the wrong man it should not be difficult for him to demonstrate
the fact. At any rate circumstances are against him, and he should be
ready to explain them away if he can.
The fact of the matter is, that in dealing with practical conditions,
police methods differ very little in different countries. The
authorities may perhaps keep considerably more detailed and obvious
“tabs” on us in Germany and Russia than in the United States, but if we
are once caught in a compromising position we experience about the same
treatment wherever we happen to be. In France (and how the apostles
of liberty condemn the iniquity of the administration of criminal
justice in that country!) the suspect or undesirable receives a polite
official call or note, in which he is invited to leave the locality as
soon as convenient. In New York he is arrested by a plain-clothes man,
yanked down to Mulberry Street for the night, and next afternoon is
thrust down the gangplank of a just departing Fall River liner. Many an
inspector (without mentioning names) has earned unstinted praise (even
from the _New York Evening Post_) by “clearing New York of crooks”
or having a sort of “round-up” of suspicious characters whom, after
proper identification, he has ejected from the city by the shortest and
quickest possible route. Yet in the case of every person thus arrested
and driven out of the town he has undoubtedly violated constitutional
rights and taken the law into his own hands. What crimes are committed
in the name of law, O Liberty!
What redress can a penniless tramp secure against a stout inspector of
police able and willing to spend a considerable sum of money in his own
defence, and with the entire force ready and eager to get at the tramp
and put him out of business? He swallows his pride, if he has any, and
ruefully slinks out of town for a period of enforced abstinence from
the joys of metropolitan existence. Yet who shall say that, in spite of
the fact that it is a theoretic outrage upon liberty, this cleaning out
of the city is not highly desirable? One or two comparatively innocent
men may be caught in the ruck, but they generally manage to intimate to
the police that the latter have “got them wrong” and duly make their
escape. The others resume their tramp from city to city, clothed in the
presumption of their innocence.
Since the days of the Doges or of the Spanish Inquisition there has
never been anything like the morning inspection of arrested suspects
at the New York police head-quarters.[1] One by one the unfortunate
persons arrested during the previous night (although not charged with
any crime) are pointed out to the assembled detective force, who scan
them from beneath black velvet masks in order that they themselves may
not be recognized when they meet again on Broadway or the darker side
streets of the city. Each prisoner is described and his character and
past performances are rehearsed by the inspector or head of the bureau.
He is then measured, “mugged,” and, if lucky, turned loose. What
does his liberty amount to or his much-vaunted legal rights if the city
is to be made safe? Yet why does not some apostle of liberty raise his
voice and cry aloud concerning the wrong that has been done? Are not
the rights of a beggar as sacred as those of a bishop? Yea, verily, and
the statutes say plainly and have said plainly for years that no one
shall be arrested _unless a crime has been committed_.
One of the most sacred rights guaranteed to those of us who can afford
to pay for it under the law is that of not being compelled to give
evidence against ourselves or to testify to anything which might
degrade or incriminate us. “I’se not compelled to discriminate against
myself!” as the old darkey, who knew his rights very well, said. Now,
this is all very fine for the chap who has his lawyer at his elbow
or has had some similar previous experience. He may wisely shut up
like a clam and set at defiance the tortures of the third degree. But
how about the poor fellow arrested on suspicion of having committed
a murder, who has never heard of the legal provision in question,
or, if he has, is cajoled or threatened into “answering one or two
questions”? Few police officers take the trouble to warn those whom
they arrest that what they say may be used against them. What is the
use? Of course, when they testify later at the trial they inevitably
begin their testimony with the stereotyped phrase, “I first warned the
defendant that anything which he said would be used against him.” If
they did warn him they probably whispered it or mumbled it so that he
didn’t hear what they said, or, in any event, whether they said it
or not, half a dozen of them probably took him into a back room and,
having set him with his back against the wall, threatened and swore at
him until he told them what he knew, or thought he knew, and perhaps
confessed his crime. When the case comes to trial the police give the
impression that the accused quietly summoned them to his cell to make
a voluntary statement. The defendant denies this, of course, but the
evidence goes in and the harm has been done. No doubt the methods of
the inquisition are in vogue the world over under similar conditions.
Everybody knows that a statement by the accused immediately upon his
arrest is usually the most important evidence that can be secured in
any case. It is a police officer’s _duty_ to secure one if he can do
so by legitimate means. It is his _custom_ to secure one by any means
in his power. As his oath, that such a statement was voluntary, makes
it _ipso facto_ admissible as evidence, the statutes providing that
a defendant cannot be compelled to give evidence against himself are
practically nullified.
The beneficent provisions to be found in most codes of criminal
procedure, and particularly in that of the State of New York, while
highly valuable under some circumstances, are of no avail to a
defendant who has never heard of them. These are to the effect that the
police must convey a message free of charge to the family or lawyer of
every person arrested, that each prisoner is entitled as matter of law
to a reasonable delay before being compelled to submit to a hearing,
that he has the right to the services of counsel, and the further
right to have a stenographic report of the evidence taken before the
magistrate. The ordinary petty criminal is arrested without a warrant,
often illegally, hustled to the nearest police court, put through a
species of examination composed largely of invective and assertion on
the part of the officer, found guilty, and “sent away” to the Island,
without lawyer, adjournment, or notice to his family. “Off with his
head!”—just like that! He isn’t presumed to be innocent at all. The
“cop” tells him “to shut his mouth or he will knock his block off.” “I
caught this feller doin’ so-and-so! He’s a lazy loafer, judge,” he says
to the magistrate. The latter takes a look at the defendant, concludes
that the officer is right, and off goes the prisoner to the workhouse.
When it comes to the more important cases the accused is usually put
through some sort of an inquisitorial process by the captain at the
station-house. If he is not very successful at getting anything out of
the prisoner the latter is turned over to the sergeant and a couple
of officers who can use methods of a more urgent character. If the
prisoner is arrested by head-quarters detectives, various efficient
devices to compel him to “give up what he knows” may be used—such
as depriving him of food and sleep, placing him in a cell with a
“stool-pigeon” who will try to worm a confession out of him, and the
usual moral suasion of a heart-to-heart(!) talk in the back room with
the inspector.
This is the darker side of the picture of practical government. It is
needless to say that the police do not usually suggest the various
safeguards and privileges which the law accords to defendants thus
arrested, but the writer is free to confess that, save in exceptional
cases, he believes the rigors of the so-called third degree to be
greatly exaggerated. Frequently in dealing with rough men rough methods
are used, but considering the multitude of offenders, and the thousands
of police officers, none of whom have been trained in a school of
gentleness, it is surprising that severer treatment is not met with on
the part of those who run foul of the criminal law. The ordinary “cop”
tries to do his duty as effectively as he can. With the average citizen
gruffness and roughness go a long way in the assertion of authority.
Policemen cannot have the manners of dancing-masters. The writer is
not quarrelling with the conduct of police officers. On the contrary,
the point he is trying to make is that in the task of policing a big
city, the rights of the individual must indubitably suffer to a certain
extent if the rights of the multitude are to be properly protected. We
can make too much of small injustices and petty incivilities. Police
business is not gentle business. The officers are trying to prevent
you and me from being knocked on the head some dark night or from
being chloroformed in our beds. Ten thousand men are trying to do a
thirty-thousand-man job.
The struggle to keep the peace and put down crime is a hard one
anywhere. It requires a strong arm that cannot show too punctilious
a regard for theoretical rights when prompt decisions have to be made
and equally prompt action taken. The thieves and gun men have got to
be driven out. Suspicious characters have got to be locked up. Somehow
or other a record must be kept of professional criminals and persons
likely to be active in law-breaking. These are necessities in every
civilized country. They are necessities here. Society employs the same
methods of self-protection the world over. No one presumes a person
charged with crime to be innocent, either in Delhi, Pekin, Moscow,
or New York. Under proper circumstances we believe him guilty. When
he comes to be tried the jury consider the evidence, and if they are
pretty sure he is guilty they convict him. The doctrine of reasonable
doubt is almost as much of a fiction as that of the presumption of
innocence. From the time a man is arrested until arraignment he is
quizzed and interrogated with a view to inducing him to admit his
offence or give some evidence that may help convict him. Logically,
why _should_ not a person charged with a crime be obliged to give
what explanation he can of the affair? Why _should_ he have the
privilege of silence? Doesn’t he owe a duty to the public the same as
any other witness? If he is innocent he has nothing to fear; if he is
guilty—away with him! The French have no false ideas about such things
and at the same time they have a high regard for liberty. They merely
recognize the fact that there is a point at which the interest of the
public and its liberty is bound to conflict with the interest of the
individual and _his_ freedom to do as he likes. And we instinctively
recognize this, too, just as everybody does. We merely cheat ourselves
into thinking that _our_ liberty is something different from French
liberty because we have a lot of laws upon our statute books that are
there only to be disregarded and would have to be repealed instantly if
enforced.
Take, for instance, the celebrated provision of the penal laws that the
failure of an accused to testify in his own behalf shall not be taken
against him. Such a doctrine flies in the face of human nature. If a
man sits silent when witnesses under oath accuse him of a crime it is
an inevitable inference that he has nothing to say—that no explanation
of his would explain. The records show that the vast majority of
accused persons who do not avail themselves of the opportunity to
testify are _convicted_. Thus, the law which _permits_ a defendant
to testify in reality _compels_ him to testify, and a much-invoked
doctrine of liberty turns out to be a privilege in name only. In France
or America alike a man accused of crime sooner or later has to tell
what he knows—or take his medicine. It makes little difference whether
he does so under the legalized examination of a “juge d’instruction”
in Paris or under the quasi-voluntary interrogations of an assistant
district attorney or police inspector in New York. It is six of one and
half a dozen of the other if at his trial in France he remains mute
under examination or in America refrains from availing himself of the
privilege of testifying in his own behalf.
Thus, we are reluctantly forced to the conclusion that all human
institutions have their limitations, and that, however theoretically
perfect a government of laws may be, it must be administered by men
whose chief regard will not be the idealization of a theory of liberty
so much as an immediate solution of some concrete problem. And, of
course, we have known this all along, but instead of doing away with
impossible laws we have preferred to have prohibition on Main Street
and free liquor at the hotel side doors, closed Sundays on the statute
books and a wide-open town in practice, immunity from arrest in theory
under cover of the agreeable delusion that America is the freest
country in the world, and in reality the same situation that exists in
continental countries.
Not that the matter, after all, is particularly important to most
of us, but laws which exist only to be broken create a disrespect
and disregard for law which may ultimately be dangerous. It would be
perfectly simple for the legislature to say that a citizen _might_ be
arrested under circumstances tending to cause a reasonable suspicion,
even if he had not committed a crime, and it would be quite easy to
pass a statute providing that the commissioner of police might “mug”
and measure all criminals immediately after conviction. As it is, the
prison authorities won’t let him, so he has to do it while he has the
opportunity.
It must be admitted that this is rather hard on the innocent, but
they now have to suffer with the guilty for the sins of an indolent
and uninterested legislature. Moreover, if such a right of arrest
were proposed, some wiseacre or politician would probably rise up
and denounce the suggestion as the first step in the direction of a
military dictatorship. Thus, we shall undoubtedly fare happily on in
the blissful belief that our personal liberties are the subject of
the most solicitous and zealous care on the part of the authorities,
guaranteed to us under a government which is not of men but of laws,
until one of us happens to be arrested (by mistake, of course) and
learns by sad experience the practical methods of the police in dealing
with criminals and the agreeable but deceptive character of the
pleasant fiction of the presumption of innocence.