Courts and Criminals | Page 4

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?
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 under similar conditions--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 some of the newer ones of
us, have an 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 the 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? Do not 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)