Courts and Criminals | Page 2

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 was one of more than passing interest. A
sensitive point in our governmental nervous system had 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 the
piazza with your cigar to recognize the rights of your fellow-men, 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! 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, should 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