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have been reversed. Any system of law which, after agonizing consideration of a single case for seven years, results in a judgment unintelligible to the public, by a court not even empowered to consider the merits of the case in the way in which the amateur, the jury, had considered it, is bound to prove unsatisfactory. A system under which it becomes necessary for the executive of a state to reëxamine the facts of a trial through an unofficial board, because its judicial system has no adequate facilities for correcting its own errors, is impossible, unworkable, and archaic, and requires fundamental change.


It would be absurd, of course, to suggest that to the English courts or to the English criminal procedure alone is due the startling contrast between English statistics of crime and our own. The English police system deserves its large share of credit for a percentage of arrests and convictions per crimes committed which, as the recent report of our National Crime Commission shows, is also in startling contrast to

our own.

English criminal law is not perfect. With all its virtues and defects, however, it is perhaps a fair reflection of a vital aspect of England's political development—the extent of her success in the establishment and maintenance, over a homogeneous people, of her common law, in a country in which respect for law and observance of law are considered important.

Nor, if we are candid, can we deny that our own criminal law, its processes and results, are any less representative of the present character of our own civilization so far as it is expressed in government. Occasional outbursts of hysterical criticism on verdicts of acquittal like those in the recent Remus VOL. 142-NO. 2


and Sinclair cases, the world-wide agitation over the convictions and the ineptitudes of the trial of the SaccoVanzetti case, are, to be sure, indications of a healthy discontent with current conditions, which is a presage of progress.

What is really arousing us at last is the contemplation of the consequences which have followed the process by which American intelligence, imagination, and capacity for organization have been diverted from problems of government to problems of industry. We have neglected our political organization to perfect an organization of industry unparalleled in the worldto create a relation between capital, management, and our millions of workers in industry which will lay the firm foundation for a new ideal of a working world. This task is in its last phases. When we look to-day upon the neglected field of government, however, and view the weeds and tares of our neglect, it need not be with pessimism or discouragement. When we see crime rife, our courts disrespected, our cities and states bleeding with political mismanagement, we see the darker side and not the whole of the picture of our civilization - a civilization in transition to higher things. To these neglected tasks we shall in due course return, and soon. The same intelligence, the same organizing capacity, which have made American industry what it is to-day can, if they will, produce the same results in our political organization. To this field we must return, for the disgrace of its neglect has been with us too long.

In industry, mass production derives its success in a large measure from the development of machinery to take the place of men. Nothing to correspond with this can be applied to the problems of government. We ought to know, for we have tried and failed.

We are still trying, though our statute books are full of these failures.

Being busy in other and more alluring fields, we have tried to limit our prospective losses through corruption, incompetence, or sloth, in the neglected field of government, by enacting limitations upon the powers of public officers and particularly of judges. To prevent bad judges, chosen for political reasons only, from doing wrong, we have by a patchwork of prohibitions made it impossible for good judges to act effectively. We should not then complain when our chaotic system works as we ought to expect it to work. If we really think it is safer for us to place the centre of authority for law enforcement in a kaleidoscope of jurors, we should accept the logical results. As I write, however, Congress is trying to extend the judicial strait-jacket formula- the workings of which have proved such a disastrous failure in Chicago, for example-to the Federal courts.

In the business world the by-laws of a company have their purpose, function, and importance, but no business corporation has yet been heard of, even in America, whose success was due to the limitations imposed by its bylaws upon the brains of its management; or even one in which the by-laws were so skillfully drawn as to make

competent and experienced executives unnecessary. Some day, perhaps soon, we shall apply the lessons of industry to law.

We are to-day studying our criminal law more thoroughly, systematically, and on a wider scale than ever before. It is intolerably bad and we are ashamed of it. If I may continue to use the illustration, it needs new by-laws, but it must not depend upon them for success. It needs, not an articulated system of restraints upon power, but a system in which judges are trusted to do justice, are given power to do justice, and in which only those competent to meet the responsibility of such trust receive the dignity of the robe.

Nothing else will do. We must, in the political world as in the industrial world, put our main trust not in machinery but in men. We have for a decade been overbusy with the new problems and the new industrial opportunities which have come upon us following the war. We have neglected ancient tasks and obligations due the State. This period is passing. We are returning to neglected duties and the task of demonstrating to ourselves and to the world our capacity for creating and maintaining a nation which is not only industrially prosperous, but politically civilized.



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Is the widespread criticism of the jury system which has followed these verdicts justified? Are the juries primarily to blame for these apparent miscarriages of justice?

In each of these three outstanding cases, which I shall take as illustrative, a most careful weeding-out process attended the selection of the jury. The prosecution participated in this, as well as the defense. In two of the cases the jury throughout the trial was segregated in the custody of Federal marshals, so that sinister influence might have difficulty in reaching it. Upon each juror's every action and reaction the watchful gaze of government counsel, as well as the eye of a presumably vigilant court, was focused throughout the trial. These jurors were marked men from the moment they entered the courtroom as members of the panel from which they were chosen.

Had these trials all resulted in disagreements, it would be easy to suppose that an individual juror had been

'reached,' and that under our rule requiring unanimous verdicts his faithlessness had sufficed to obstruct the processes of justice. But in only one of the three cases was there a disagreement, and in that case the prosecution of Harry M. Daugherty, former Attorney-General of the United States

a second trial also terminated in a disagreement, with the result that the Government voluntarily dropped the indictment. In the other two cases twelve men fully conscious of their responsibility returned unanimous verdicts of 'not guilty.'

Is it reasonable to deem each member of each of these juries corrupt? Is it reasonable to suppose each member of each of these juries unintelligent? If we bear in mind that these cases are simply illustrative of what has happened time and again in the Federal courts, whenever competent counsel has represented defendants charged with crime under the conspiracy statutes, is it good common sense to blame primarily the jurors for the apparent miscarriage of justice? May not the law itself be primarily to blame?

As Special Assistant to the AttorneyGeneral, I prosecuted one of these outstanding cases myself, and after the acquittal discussed it at length with two jurors whose intelligence and fairmindedness no one could doubt. This was the prosecution of Charles A. Stoneham, owner of the New York Giants Baseball Club, Elmore D. Dier, and others, for conspiracy and

fraudulent use of the mails in a brokerage transaction.

One of the jurors in the first Daugherty trial a college graduate with a highly trained, alert mind was a client of mine, and when the case was over he recounted to me in detail the long and grueling struggle of the jurors to reach a verdict.

In the Sinclair trial, which has brought this subject up once more so vividly, we have the benefit of an unusually informative statement from one of the jurors, Kenneth Carter, a bank employee, published in the newspapers the day after the verdict was announced.

It is impossible for a fair-minded man to study the story of these verdicts and lay any considerable part of the responsibility for the outcome upon the jurors. From several hundred jury cases which I have personally tried, the conviction has come that the average American jury, when properly made aware of the seriousness of its task, is intelligent, conscientious, fair-minded, and frequently amazingly able to comprehend complicated situations of fact and pass upon them. Corruption in juries is a rare and uncommon thing, and, because of the rule of law that verdicts must be unanimous, exceedingly difficult of successful accomplish


If we regard the Stoneham, Daugherty, and Sinclair cases as illustrative, their careful study will serve to establish, so far as the juries' part in the verdicts is concerned, a high sense of fairness, an almost astonishing ability to comprehend and digest the facts, and a discriminating intelligence of the highest order in applying them to the law as expounded by the court. What is more, it will disclose a sturdy readiness, which is fundamentally laudable, to resist popular clamor and hue

and cry.


I know that the foregoing is contrary to opinion frequently voiced of late in even well-informed circles, but to my mind these conclusions are inescapable. The fault for miscarriages of justice lies primarily, I am convinced, not with the juries, but with the antiquated concepts of law with which they are shackled in arriving at their verdicts. Within the limitations of these shackles, the average American jury is as competent a tribunal for the finding of fact and the even-handed doing of justice as any that mankind has yet devised. It remains the impregnable bulwark of our liberties which the founders of the Republic conceived that it would be. Not lightly should it be shorn of its power.

To establish by a study of the Stoneham, Daugherty, and Sinclair cases the broad generalizations which I have made regarding the competency of juries must seem like a large undertaking. Yet let us examine the facts.

Each of these cases involved charges of conspiracy.

In the common acceptance of the term, a conspiracy suggests a clandestine meeting together for the purpose of scheming some illicit design. Under our law, the mere act of scheming is not sufficient to constitute a crime; it is necessary that some act be done to effectuate the scheme. This is what the language of the criminal law terms an 'overt act'; and, in order to convict of conspiracy, an overt act must be both charged and proved.

The wording of the section of the United States Criminal Code making conspiracy a crime is as follows:

If two or more persons conspire either to commit any offense against the United States, or to defraud the United States in any manner or for any purpose, and one or more of such parties do any act to effect the

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Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises . . . shall, for the purpose of executing such scheme or artifice or attempting so to do, place, or cause to be placed, any letter, postal card, package, writing, circular, pamphlet, or advertisement . . . in any post office ... or authorized depository for mail matter, to be sent or delivered by the post-office establishment of the United States . . . shall be fined not more than one thousand dollars, or imprisoned not more than five years, or both.

Under these statutes the great majority of Federal fraud prosecutions are instituted. What is the legal burden which they impose upon the prosecutor

- the burden which I have stated is largely responsible for so many miscarriages of justice?

The courts have held- and the conclusion seems inescapable — that under the wording of these statutes the prosecution must prove, in order to convict, that there has been (1) a plotting, a conspiracy, a scheming together to accomplish, (2) an unlawful purpose (or a lawful purpose in an unlawful manner), and (3) an act done to effectuate the plot.

Note that the plot must in point of time precede the act in the case of the mail-fraud statute, the mailing of the letter. Note that the plotting must be proved, as well as the unlawful object intended or accomplished, and the overt act. Note also that each of these elements must, in the familiar


language of our criminal law, be 'proved beyond a reasonable doubt.' This is the law of the land, and when the judge so charges the jury, -as he is in duty bound to do, under its oath the jury is bound conscientiously to search the record for evidence establishing 'beyond a reasonable doubt' (1) a plotting or scheming together, (2) an act thereafter done to effectuate the plot, and (3) the fraud intended or accomplished.

Now, what is the situation which the jury almost invariably finds?

In the type of fraud case which comes before the Federal courts, direct evidence of plotting or scheming together, of conspiracy in the usual acceptance of the term, is practically unprocurable, if not in fact nonexistent. No less an authority than Martin T. Manton, Senior Judge of the United States Circuit Court of Appeals for the Second Circuit, declares in a recent opinion (the appeal of Thomas W. Miller, former Alien Property Custodian):

In charges of conspiracy to defraud, there is usually no direct evidence of the corrupt arrangement. . . .

It is possible that the uncouth type of thug, gangster, or safe-cracker congregates with his 'mob' over a table in the back room of a saloon or 'speakeasy' and deliberately plans with his comrades in crime their next 'job.' And an informer or stool pigeon, present at such a gathering, can later give direct testimony thereof.

'White collar' banditry does not design so crudely. Rare the scheme. which when offered is not fair on its face. The fraudulent design is insidious and implicit; not often are conferences held at which it is disclosed. In point of fact, the plan may be, and most frequently is, entirely fair, guileless, and promising on its face, and only in the last stages of its execution, after the

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