Where men are trivial and gold is great.
One of the most “sacred” rights of the ancient American was the trial of an accused person by “a jury of his peers.” This, in America, was a right secured to him by a written constitution. It was almost universally believed to have had its origin in Magna Carta, a famous document which certain rebellious noblemen of another country had compelled their sovereign to sign under a threat of death. That celebrated “bill of rights” has not all come down to us, but researches of the learned have made it certain that it contained no mention of trial by jury, which, indeed, was unknown to its authors. The words judicium parium meant to them something entirely different—the judgment of the entire community of freemen. The words and the practice they represented antedated Magna Carta by many centuries and were common to the Franks and other Germanic nations, amongst whom a trial “jury” consisted of persons having a knowledge of the matter to be determined—persons who in later times were called “witnesses” and rigorously excluded from the seats of judgment.
It is difficult to conceive a more clumsy and ineffective machinery for ascertaining truth and doing justice than a jury of twelve men of the average intelligence, even among ourselves. What, then, must this device have been among the half-civilized tribes of the Connected States of America! Nay, the case is worse than that, for it was the practice to prevent men of even the average intelligence from serving as jurors. Jurors had to be residents of the locality of the crime charged, and every crime was made a matter of public notoriety long before the accused was brought to trial; yet, as a rule, he who had read or talked about the trial was held disqualified to serve. This in a country where, when a man who could read was not reading about local crimes he was talking about them, or if doing neither was doing something worse!
To the twelve men so chosen the opposing lawyers addressed their disingenuous pleas and for their consideration the witnesses presented their carefully rehearsed testimony, most of it false. So unintelligent were these juries that a great part of the time in every trial was consumed in keeping from them certain kinds of evidence with which they could not be trusted; yet the lawyers were permitted to submit to them any kind of misleading argument that they pleased and fortify it with innuendoes without relevancy and logic without sense. Appeals to their passions, their sympathies, their prejudices, were regarded as legitimate influences and tolerated by the judges on the theory that each side’s offenses would about offset those of the other. In a criminal case it was expected that the prosecutor would declare repeatedly and in the most solemn manner his belief in the guilt of the person accused, and that the attorney for the defense would affirm with equal gravity his conviction of his client’s innocence. How could they impress the jury with a belief which they did not themselves venture to affirm? It is not recorded that any lawyer ever rebelled against the iron authority of these conditions and stood for truth and conscience. They were, indeed, the conditions of his existence as a lawyer, a fact which they easily persuaded themselves mitigated the baseness of their obedience to them, or justified it altogether.
The judges, as a rule, were no better, for before they could become judges they must have been advocates, with an advocate’s fatal disabilities of judgment. Most of them depended for their office upon the favor of the people, which, also, was fatal to the independence, the dignity and the impartiality to which they laid so solemn claim. In their decisions they favored, so far as they dared, every interest, class or person powerful enough to help or hurt them in an election. Holding their high office by so precarious a tenure, they were under strong temptation to enrich themselves from the serviceable purses of wealthy litigants, and in disregard of justice to cultivate the favor of the attorneys practicing before them, and before whom they might soon be compelled themselves to practice.
In the higher courts of the land, where juries were unknown and appointed judges held their seats for life, these awful conditions did not obtain, and there Justice might have been content to dwell, and there she actually did sometimes set her foot. Unfortunately, the great judges had the consciences of their education. They had crept to place through the slime of the lower courts and their robes of office bore the damnatory evidence. Unfortunately, too, the attorneys, the jury habit strong upon them, brought into the superior tribunals the moral characteristics and professional methods acquired in the lower. Instead of assisting the judges to ascertain the truth and the law, they cheated in argument and took liberties with fact, deceiving the court whenever they deemed it to the interest of their cause to do so, and as willingly won by a technicality or a trick as by the justice of their contention and their ability in supporting it. Altogether, the entire judicial system of the Connected States of America was inefficient, disreputable, corrupt.
The result might easily have been foreseen and doubtless was predicted by patriots whose admonitions have not come down to us. Denied protection of the law, neither property nor life was safe. Greed filled his coffers from the meager hoards of Thrift, private vengeance took the place of legal redress, mad multitudes rioted and slew with virtual immunity from punishment or blame, and the land was red with crime.
A singular phenomenon of the time was the immunity of criminal women. Among the Americans woman held a place unique in the history of nations. If not actually worshiped as a deity, as some historians, among them the great Sagab-Joffoy, have affirmed, she was at least regarded with feelings of veneration which the modern mind has a difficulty in comprehending. Some degree of compassion for her mental inferiority, some degree of forbearance toward her infirmities of temper, some degree of immunity for the offenses which these peculiarities entail—these are common to all peoples above the grade of barbarians. In ancient America these chivalrous sentiments found open and lawful expression only in relieving woman of the burden of participation in political and military service; the laws gave her no express exemption from responsibility for crime. When she murdered, she was arrested; when arrested, brought to trial—though the origin and meaning of those observances are not now known. Gunkux, whose researches into the jurisprudence of antiquity enable him to speak with commanding authority of many things, gives us here nothing better than the conjecture that the trial of women for murder, in the nineteenth century and a part of the twentieth, was the survival of an earlier custom of actually convicting and punishing them, but it seems extremely improbable that a people that once put its female assassins to death would ever have relinquished the obvious advantages of the practice while retaining with purposeless tenacity some of its costly preliminary forms. Whatever may have been the reason, the custom was observed with all the gravity of a serious intention. Gunkux professes knowledge of one or two instances (he does not name his authorities) where matters went so far as conviction and sentence, and adds that the mischievous sentimentalists who had always lent themselves to the solemn jest by protestations of great vraisemblance against “the judicial killing of women,” became really alarmed and filled the land with their lamentations. Among the phenomena of brazen effrontery he classes the fact that some of these loud protagonists of the right of women to assassinate unpunished were themselves women! Howbeit, the sentences, if ever pronounced, were never executed, and during the first quarter of the twentieth century the meaningless custom of bringing female assassins to trial was abandoned. What the effect was of their exemption from this considerable inconvenience we have not the data to conjecture, unless we understand as an allusion to it some otherwise obscure words of the famous Edward Bok, the only writer of the period whose work has survived. In his monumental essay on barbarous penology, entitled “Slapping the Wrist,” he couples “woman’s emancipation from the trammels of law” and “man’s better prospect of death” in a way that some have construed as meaning that he regarded them as cause and effect. It must be said, however, that this interpretation finds no support in the general character of his writing, which is exceedingly humane, refined and womanly.