Courts and Criminals | Page 3

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?
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 of New York 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
autoadministration 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
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