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+The Project Gutenberg EBook of Courts and Criminals, by Arthur Train
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+Title: Courts and Criminals
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+Author: Arthur Train
+
+Release Date: March, 2004 [EBook #5268]
+[Yes, we are more than one year ahead of schedule]
+[This file was first posted on June 21, 2002]
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+Edition: 10
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+Language: English
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+Character set encoding: ASCII
+
+*** START OF THE PROJECT GUTENBERG EBOOK COURTS AND CRIMINALS ***
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+COURTS AND CRIMINALS BY ARTHUR TRAIN
+
+
+
+______________________________________________________________
+
+These essays, which were written between the years 1905-1910
+are reprinted without revision, although in a few minor
+instances the laws may have been changed.
+______________________________________________________________
+
+
+
+
+
+
+CHAPTER I
+
+
+The Pleasant Fiction of the Presumption of Innocence
+
+
+There was a great to-do some years ago in the city of New York
+over an ill-omened young person, Duffy by name, who, falling
+into the bad graces of the police, was most incontinently
+dragged to headquarters and "mugged" without so much as "By
+your leave, sir," on the part of the authorities.  Having been
+photographed and measured (in most humiliating fashion) he was
+turned loose with a gratuitous warning to behave himself in
+the future and see to it that he did nothing which might gain
+him even more invidious treatment.
+
+Now, although many thousands of equally harmless persons had
+been similarly treated, this particular outrage was made the
+occasion of a vehement protest to the mayor of the city by a
+certain member of the judiciary, who pointed out that such
+things in a civilized community were shocking beyond measure,
+and called upon the mayor to remove the commissioner of police
+and all his staff of deputy commissioners for openly violating
+the law which they were sworn to uphold.  But, the
+commissioner of police, who had sometimes enforced the penal
+statutes in a way to make him unpopular with machine
+politicians, saw nothing wrong in what he had done, and, what
+was more, said so most outspokenly.  The judge said, "You
+did," and the commissioner said, "I didn't."  Specifically,
+the judge was complaining of what had been done to Duffy, but
+more generally he was charging the police with despotism and
+oppression and with systematically disregarding the sacred
+liberties of the citizens which it was their duty to protect.
+
+Accordingly the mayor decided to look into the matter for
+himself, and after a lengthy investigation came to the alleged
+conclusion that the "mugging" of Duffy was a most
+reprehensible thing and that all those who were guilty of
+having any part therein should be instantly removed from
+office.  He, therefore, issued a pronunciamento to the
+commissioner demanding the official heads of several of his
+subordinates, which order the commissioner politely declined
+to obey.  The mayor thereupon removed him and appointed a
+successor, ostensibly for the purpose of having in the office
+a man who should conduct the police business of the city with
+more regard for the liberties of the inhabitants thereof.  The
+judge who had started the rumpus expressed himself as very
+much pleased and declared that now at last a new era had
+dawned wherein the government was to be administered with a
+due regard for law.
+
+Now, curiously enough, although the judge had demanded the
+removal of the commissioner on the ground that he had violated
+the law and been guilty of tyrannous and despotic conduct, the
+mayor had ousted him not for pursuing an illegal course in
+arresting and "mugging" a presumptively innocent man (for
+illegal it most undoubtedly was), but for inefficiency and
+maladministration in his department.
+
+Said the mayor in his written opinion:
+
+
+"After thinking over this matter with the greatest care, I
+am led to the conclusion that as mayor of the city of New
+York I should not order the police to stop taking photographs
+of people arrested and accused of crime or who have been
+indicted by grand juries.  That grave injustice may occur
+the Duffy case has demonstrated, but I feel that it is 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 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 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) is all the other way,
+greater or less depending upon the particular attitude of mind
+and experience of the individual.
+
+This natural presumption of guilt from the mere fact of the
+charge is rendered all the more likely by reason of the
+uncharitable readiness with which we believe evil of our
+fellows.  How unctuously we repeat some hearsay bit of
+scandal.  "I suppose you have heard the report that Deacon
+Smith has stolen the church funds?" we say to our friends
+with a sententious sigh--the outward sign of an invisible
+satisfaction.  Deacon Smith after the money-bag?  Ha! ha!  Of
+course, he's guilty!  These deacons are always guilty!  And in
+a few minutes Deacon Smith is ruined forever, although the
+fact of the matter may well have been that he was but counting
+the money in the collection-plate.  This willingness to
+believe the worst of others is a matter of common knowledge
+and of historical and literary record.  "The evil that men do
+lives after them--"  It might well have been put, "The evil
+men are said to have done lives forever."  However unfair,
+this is a psychologic condition which plays an important part
+in rendering the presumption of innocence a gross absurdity.
+
+But let us press the history of Jones and Robinson a step
+further.  The next event in the latter's criminal history is
+his appearance in court before a magistrate.  Jones produces
+his evidence and calls his witnesses.  Robinson, through his
+learned counsel, cross-examines them and then summons his own
+witnesses to prove his innocence.  The proceeding may take
+several days or perhaps weeks.  Briefs are submitted.  The
+magistrate considers the testimony and finally decides that he
+believes Robinson guilty and must hold him for the action of
+the grand jury.  You might now, it would perhaps seem, have
+some reason for suspecting that Robinson was not all that he
+should be.  But no!  He is still presumed in the eyes of the
+law, and theoretically in the eyes of his fellows, to be as
+innocent as a babe unborn.  And now the grand jury take up and
+sift the evidence that has already been gone over by the
+police judge.  They, too, call witnesses and take additional
+testimony.  They likewise are convinced of Robinson's guilt
+and straightway hand down an indictment accusing him of the
+crime.  A bench warrant issues.  The defendant is run to earth
+and ignominiously haled to court.  But he is still presumed to
+be innocent!  Does not the law say so?  And is not this a
+"government of laws"?  Finally, the district attorney, who is
+not looking for any more work than is absolutely necessary,
+investigates the case, decides that it must be tried and
+begins to prepare it for trial.  As the facts develop
+themselves Robinson's guilt becomes more and more clear.  The
+unfortunate defendant is given any opportunity he may desire
+to explain away the charge, but to no purpose.
+
+The district attorney knows Robinson is guilty, and so does
+everybody else, including Robinson.  At last this presumably
+innocent man is brought to the bar for trial.  The jury scan
+his hang-dog countenance upon which guilt is plainly written.
+They contrast his appearance with that of the honest Jones.
+They know he has been accused, held by a magistrate, indicted
+by a grand jury, and that his case, after careful scrutiny,
+has been pressed for trial by the public prosecutor.  Do they
+really presume him innocent?  Of course not.  They presume him
+guilty.  "So soon as I see him come through dot leetle door in
+the back of the room, then I know he's guilty!" as the foreman
+said in the old story.  What good does the presumption of
+innocence, so called, do for the miserable Robinson?  None
+whatever--save perhaps to console him in the long days pending
+his trial.  But such a legal hypocrisy could never have
+deceived anybody.  How much better it would be to cast aside
+all such cant and frankly admit that the attitude of the
+continental law toward the man under arrest is founded upon
+common sense and the experience of mankind.  If he is the
+wrong man it should not be difficult for him to demonstrate
+the fact.  At any rate circumstances are against him, and he
+should be anxious to explain them away if he can.
+
+The fact of the matter is, that in dealing with practical
+conditions, police methods differ very little in different
+countries.  The authorities may perhaps keep considerably more
+detailed "tabs" on people in Europe than in the United States,
+but if they are once caught in a compromising position they
+experience about the same treatment wherever they happen to
+be.  In France (and how the apostles of liberty condemn the
+iniquity of the administration of criminal justice in that
+country!) the suspect or undesirable receives a polite
+official call or note, in which he is invited to leave the
+locality as soon as convenient.  In New York he is arrested by
+a plainclothes man, yanked down to Mulberry Street for the
+night, and next afternoon is thrust down the gangplank of a
+just departing Fall River liner.  Many an inspector has earned
+unstinted praise (even from the New York Evening Post) by
+"clearing New York of crooks" or having a sort of "round-up"
+of suspicious characters whom, after proper identification, he
+has ejected from the city by the shortest and quickest
+possible route.  Yet in the case of every person thus arrested
+and driven out of the town he has undoubtedly violated
+constitutional rights and taken the law into his own hands.
+
+What redress can a penniless tramp secure against a stout
+inspector of police able and willing to spend a considerable
+sum of money in his own defence, and with the entire force
+ready and eager to get at the tramp and put him out of
+business?  He swallows his pride, if he has any, and ruefully
+slinks out of town for a period of enforced abstinence from
+the joys of metropolitan existence.  Yet who shall say that,
+in spite of the fact that it is a theoretic outrage upon
+liberty, this cleaning out of the city is not highly
+desirable?  One or two comparatively innocent men may be
+caught in the ruck, but they generally manage to intimate to
+the police that the latter have "got them wrong" and duly make
+their escape.  The others resume their tramp from city to
+city, clothed in the presumption of their innocence.
+
+Since the days of the Doges or of the Spanish Inquisition
+there has never been anything like the morning inspection
+or "line up" of arrested suspects at the New York police
+head-quarters.*  (*Now abolished.)  One by one the unfortunate
+persons arrested during the previous night (although not
+charged with any crime) are pointed out to the assembled
+detective force, who scan them from beneath black velvet masks
+in order that they themselves may not be recognized when they
+meet again on Broadway or the darker side streets of the city.
+Each prisoner is described and his character and past
+performances are rehearsed by the inspector or head of the
+bureau.  He is then measured, "mugged," and, if lucky, turned
+loose.  What does his liberty amount to or his much-vaunted
+legal rights if the city is to be made safe?  Yet why does not
+some apostle of liberty raise his voice and cry aloud
+concerning the wrong that has been done?  Are not the rights
+of a beggar as sacred as those of a bishop?
+
+One of the most sacred rights guaranteed under the law is that
+of not being compelled to give evidence against ourselves or
+to testify to anything which might degrade or incriminate us.
+Now, this is all very fine for the chap who has his lawyer at
+his elbow or has had some similar previous experience.  He may
+wisely shut up like a clam and set at defiance the tortures of
+the third degree.  But how about the poor fellow arrested on
+suspicion of having committed a murder, who has never heard of
+the legal provision in question, or, if he has, is cajoled or
+threatened into "answering one or two questions"?  Few police
+officers take the trouble to warn those whom they arrest that
+what they say may be used against them.  What is the use?  Of
+course, when they testify later at the trial they inevitably
+begin their testimony with the stereotyped phrase, "I first
+warned the defendant that anything which he said might be used
+against him."  If they did warn him they probably whispered it
+or mumbled it so that he didn't hear what they said, or, in
+any event, whether they said it or not, half a dozen of them
+probably took him into a back room and, having set him with
+his back against the wall, threatened and swore at him until
+he told them what he knew, or thought he knew, and perhaps
+confessed his crime.  When the case comes to trial the police
+give the impression that the accused quietly summoned them to
+his cell to make a voluntary statement.  The defendant denies
+this, of course, but the evidence goes in and the harm has
+been done.  No doubt the methods of the inquisition are in
+vogue the world over under similar conditions.  Everybody
+knows that a statement by the accused immediately upon his
+arrest is usually the most important evidence that can be
+secured in any case.  It is a police officer's duty to secure
+one if he can do so by legitimate means.  It is his custom to
+secure one by any means in his power.  As his oath, that such
+a statement was voluntary, makes it ipso facto admissible as
+evidence, the statutes providing that a defendant cannot be
+compelled to give evidence against himself are practically
+nullified.
+
+In the more important cases the accused is usually put through
+some sort of an inquisitorial process by the captain at the
+station-house.  If he is not very successful at getting
+anything out of the prisoner the latter is turned over to the
+sergeant and a couple of officers who can use methods of a
+more urgent character.  If the prisoner is arrested by
+headquarters detectives, various efficient devices to compel
+him to "give up what he knows" may be used--such as depriving
+him of food and sleep, placing him in a cell with a "stool
+pigeon" who will try to worm a confession out of him, and the
+usual moral suasion of a heart-to-heart talk in the back room
+with the inspector.
+
+This is the darker side of the picture of practical
+government.  It is needless to say that the police do not
+always suggest the various safeguards and privileges which the
+law accords to defendants thus arrested, but the writer is
+free to confess that, save in exceptional cases, he believes
+the rigors of the so-called third degree to be greatly
+exaggerated.  Frequently in dealing with rough men rough
+methods are used, but considering the multitude of offenders,
+and the thousands of police officers, none of whom have been
+trained in a school of gentleness, it is surprising that
+severer treatment is not generally met with on the part of
+those who run afoul of the criminal law.  The ordinary "cop"
+tries to do his duty as effectively as he can.  With the
+average citizen gruffness and roughness go a long way in the
+assertion of authority.  In the task of policing a big city,
+the rights of the individual must indubitably suffer to a
+certain extent if the rights of the multitude are to be
+properly protected.  We can make too much of small injustices
+and petty incivilities.  Police business is not gentle
+business.  The officers are trying to prevent you and me from
+being knocked on the head some dark night or from being
+chloroformed in our beds.  Ten thousand men are trying to do a
+thirty-thousand-man job.  The struggle to keep the peace and
+put down crime is a hard one anywhere.  It requires a strong
+arm that cannot show too punctilious a regard for theoretical
+rights when prompt decisions have to be made and equally
+prompt action taken.  The thieves and gun men have got to be
+driven out.  Suspicious characters have got to be locked up.
+Somehow or other a record must be kept of professional
+criminals and persons likely to be active in law-breaking.
+These are necessities in every civilized country.  They are
+necessities here.  Society employs the same methods of
+self-protection the world over.  No one presumes a person
+charged with crime to be innocent, either in Delhi, Pekin,
+Moscow, or New York.  Under proper circumstances we believe
+him guilty.  When he comes to be tried the jury consider the
+evidence, and if they are reasonably sure he is guilty they
+convict him.  The doctrine of reasonable doubt is almost as
+much of a fiction as that of the presumption of innocence.
+From the time a man is arrested until arraignment he is
+quizzed with a view to inducing him to admit his offence or
+give some evidence that may help convict him.  Logically, why
+should not a person charged with a crime be obliged to give
+what explanation he can of the affair?  Why should he have the
+privilege of silence?  Doesn't he owe a duty to the public the
+same as any other witness?  If he is innocent he has nothing
+to fear; if he is guilty--away with him!  The French have no
+false ideas about such things and at the same time they have a
+high regard for liberty.  We merely cheat ourselves into
+thinking that our liberty is something different from French
+liberty because we have a lot of laws upon our statute books
+that are there only to be disregarded and would have to be
+repealed instantly if enforced.
+
+Take, for instance, the celebrated provision of the penal laws
+that the failure of an accused to testify in his own behalf
+shall not be taken against him.  Such a doctrine flies in the
+face of human nature.  If a man sits silent when witnesses
+under oath accuse him of a crime it is an inevitable inference
+that he has nothing to say--that no explanation of his would
+explain.  The records show that the vast majority of accused
+persons who do not avail themselves of the opportunity to
+testify are convicted.  Thus, the law which permits a
+defendant to testify in reality compels him to testify, and a
+much-invoked safeguard of liberty turns out to be a privilege
+in name only.  In France or America alike a man accused of
+crime sooner or later has to tell what he knows--or take his
+medicine.  It makes little difference whether he does so under
+the legalized interrogation of a "juge d'instruction" in Paris
+or under the quasi-voluntary examination of an assistant
+district attorney or police inspector in New York.  It is six
+of one and half a dozen of the other if at his trial in France
+he remains mute under examination or in America refrains from
+availing himself of the privilege of testifying in his own
+behalf.
+
+Thus, we are reluctantly forced to the conclusion that all
+human institutions have their limitations, and that, however
+theoretically perfect a government of laws may be, it must be
+administered by men whose chief regard will not be the
+idealization of a theory of liberty so much as an immediate
+solution of some concrete problem.
+
+Not that the matter, after all, is particularly important to
+most of us, but laws which exist only to be broken create a
+disrespect and disregard for law which may ultimately be
+dangerous.  It would be perfectly simple for the legislature
+to say that a citizen might be arrested under circumstances
+tending to create a reasonable suspicion, even if he had not
+committed a crime, and it would be quite easy to pass a
+statute providing that the commissioner of police might "mug"
+and measure all criminals immediately after conviction.  As it
+is, the prison authorities won't let him, so he has to do it
+while he has the opportunity.
+
+It must be admitted that this is rather hard on the innocent,
+but they now have to suffer with the guilty for the sins of an
+indolent and uninterested legislature.  Moreover, if such a
+right of arrest were proposed, some wiseacre or politician
+would probably rise up and denounce the suggestion as the
+first step in the direction of a military dictatorship.  Thus,
+we shall undoubtedly fare happily on in the blissful belief
+that our personal liberties are the subject of the most
+solicitous and zealous care on the part of the authorities,
+guaranteed to us under a government which is not of men but of
+laws, until one of us happens to be arrested (by mistake, of
+course) and learns by sad experience the practical methods of
+the police in dealing with criminals and the agreeable but
+deceptive character of the pleasant fiction of the presumption
+of innocence.
+
+
+
+
+CHAPTER II
+
+Preparing a Criminal Case for Trial
+
+
+When the prosecuting attorney in a great criminal trial arises
+to open the case to the impanelled jury, very few, if any, of
+them have the slightest conception of the enormous expenditure
+of time, thought and labor which has gone into the preparation
+of the case and made possible his brief and easily delivered
+speech.  For in this opening address of his there must be no
+flaw, since a single misstated or overstated fact may
+prejudice the jury against him and result in his defeat.  Upon
+it also depends the jury's first impression of the case and of
+the prosecutor himself--no inconsiderable factor in the
+result.  In a trial of importance its careful construction
+with due regard to what facts shall be omitted (in order to
+enhance their dramatic effect when ultimately proven) may well
+occupy the district attorney every evening for a week.  But if
+the speech itself has involved study and travail, it is as
+nothing compared with the amount required by that most
+important feature of every criminal case--the selection of the
+jury.
+
+For a month before the trial, or whenever it may be that the
+jury has been drawn, every member upon the panel has been
+subjected to an unseen scrutiny.  The prosecutor, through his
+own or through hired sleuths, has examined into the family
+history, the business standing and methods, the financial
+responsibility, the political and social affiliations, and the
+personal habits and "past performances" of each and every
+talesman.  When at the beginning of the trial they, one by
+one, take the witness-chair (on what is called the voir dire)
+to subject themselves to an examination by both sides as to
+their fitness to serve as jurors in the case, the district
+attorney probably has close fit hand a rather detailed account
+of each, and perchance has great difficulty in restraining a
+smile.  When some prospective juror, in his eagerness either
+to serve or to escape, deliberately equivocates in answer to
+an important question as to his personal history.
+
+"Are you acquainted with the accused or his family?" mildly
+inquires the assistant prosecutor.  "No--not at all," the
+talesman may blandly reply.
+
+The answer, perhaps, is literally true, and yet the prosecutor
+may be pardoned for murmuring
+
+"Liar!" to himself as he sees that his memorandum concerning
+the juror's qualifications states that he belongs to the same
+"lodge" with the prisoner's uncle by marriage and carries an
+open account on his books with the defendant's father.
+
+"I think we will excuse Mr. Ananias," politely remarks the
+prosecutor; then in an undertone he turns to his chief and
+mutters: "The old rascal!  He would have knifed us if we'd
+given him the chance!"  And all this time the disgruntled Mr.
+Ananias is wondering why, if he didn't "know the defendant or
+his family," he was not accepted as a juror.
+
+Of course, every district attorney has, or should have,
+information as to each talesman's actual capabilities as a
+juror and something of a record as to how he has acted under
+fire.  If he is a member of the "special" panel, it is easy to
+find out whether he has ever acquitted or convicted in any
+cause celebre, and if he has acquitted any plainly guilty
+defendant in the past it is not likely that his services will
+be required.  If, however, he has convicted in such a case the
+district attorney may try to lure the other side into
+accepting him by making it appear that he himself is doubtful
+as to the juror's desirability.  Sometimes persons accused of
+crime themselves, and actually under indictment, find their
+way onto the panels, and more than one ex-convict has appeared
+there in some inexplicable fashion.  But to find them out may
+well require a double shift of men working day and night for a
+month before the case is called, and what may appear to be the
+most trivial fact thus discovered may in the end prove the
+decisive argument for or against accepting the juror.
+
+Panel after panel may be exhausted before a jury in a great
+murder trial has been selected, for each side in addition to
+its challenges for "cause" or "bias" has thirty* peremptory
+ones which it may exercise arbitrarily.  If the writer's
+recollection is not at fault, the large original panel drawn
+in the first Molineux trial was used up and several others had
+to be drawn until eight hundred talesmen had been interrogated
+before the jury was finally selected.  It is usual to examine
+at least fifty in the ordinary murder case before a jury is
+secured.
+
+
+* In the State of New York.
+
+
+It may seem to the reader that this scrutiny of talesmen is
+not strictly preparation for the trial, but, in fact, it is
+fully as important as getting ready the facts themselves; for
+a poor jury, either from ignorance or prejudice, will acquit
+on the same facts which will lead a sound jury to convict.  A
+famous prosecutor used to say, "Get your jury--the case will
+take care of itself."
+
+But as the examination of the panel and the opening address
+come last in point of chronology it will be well to begin at
+the beginning and see what the labors of the prosecutor are in
+the initial stages of preparation.  Let us take, for example,
+some notorious case, where an unfortunate victim has died from
+the effects of a poisoned pill or draught of medicine, or has
+been found dead in his room with a revolver bullet in his
+heart.  Some time before the matter has come into the hands of
+the prosecutor, the press and the police have generally been
+doing more or less (usually less) effective work upon the
+case.  The yellow journals have evolved some theory of who is
+the culprit and have loosed their respective reporters and
+"special criminologists" upon him.  Each has its own idea and
+its own methods--often unscrupulous.  And each has its own
+particular victim upon whom it intends to fasten the blame.
+Heaven save his reputation!  Many an innocent man has been
+ruined for life through the efforts of a newspaper "to make a
+case," and, of course, the same thing, though happily in a
+lesser degree, is true of the police and of some prosecutors
+as well.
+
+In every great criminal case there are always four different
+and frequently antagonistic elements engaged in the work of
+detection and prosecution--first, the police; second, the
+district attorney; third, the press; and, lastly, the personal
+friends and family of the deceased or injured party.  Each
+for its own ends--be it professional pride, personal
+glorification, hard cash, or revenge--is equally anxious to
+find the evidence and establish a case.  Of course, the police
+are the first ones notified of the commission of a crime, but
+as it is now almost universally their duty to inform at once
+the coroner and also the district attorney thereof, a
+tripartite race for glory frequently results which adds
+nothing to the dignity of the administration of criminal
+justice.
+
+The coroner is at best no more than an appendix to the legal
+anatomy, and frequently he is a disease.  The spectacle of a
+medical man of small learning and less English trying to
+preside over a court of first instance is enough to make the
+accused himself chuckle for joy.
+
+Not long ago the coroners of New York discovered that, owing
+to the fact that the district attorney or his representatives
+generally arrived first at the scene of any crime, there was
+nothing left for the "medicos" to do, for the district
+attorney would thereupon submit the matter at once to the
+grand jury instead of going through the formality of a hearing
+in the coroner's court.  The legal medicine men felt
+aggrieved, and determined to be such early birds that no worm
+should escape them.  Accordingly, the next time one of them
+was notified of a homicide he raced his horse down Madison
+Avenue at such speed that he collided with a trolley car and
+broke his leg.
+
+Another complained to the district attorney that the
+assistants of the latter, who had arrived at the scene of an
+asphyxiation before him, had bungled everything.
+
+"Ach, dose young men!" he exclaimed, wringing his hands--"Dose
+young men, dey come here and dey opened der vindow and let out
+der gas and all mine evidence esgaped."
+
+It is said that this interesting personage once instructed his
+jury to find that "the diseased came to his death from an
+ulster on the stomach."
+
+These anecdotes are, perhaps, what judges would call obiter
+dicta, yet the coroner's court has more than once been
+utilized as a field in the actual preparation of a criminal
+case.  When Roland B. Molineux was first suspected of having
+caused the death of Mrs. Adams by sending the famous poisoned
+package of patent medicine to Harry Cornish through the mails,
+the assistant district attorney summoned him as a witness to
+the coroner's court and attempted to get from him in this way
+a statement which Molineux would otherwise have refused to
+make.
+
+When all the first hullabaloo is over and the accused is under
+arrest and safely locked up, it is usually found that the
+police have merely run down the obvious witnesses and made a
+prima facie case.  All the finer work remains to be done
+either by the district attorney himself or by the detective
+bureau working under his immediate direction or in harmony
+with him.  Little order has been observed in the securing of
+evidence.  Every one is a fish who runs into the net of the
+police, and all is grist that comes to their mill.  The
+district attorney sends for the officers who have worked upon
+the case and for the captain or inspector who has directed
+their efforts, takes all the papers and tabulates all their
+information.  His practiced eye shows him at once that a large
+part is valueless, much is contradictory, and all needs
+careful elaboration.  A winnowing process occurs then and
+there; and the officers probably receive a "special detail"
+from headquarters and thereafter take their orders from the
+prosecutor himself.  The detective bureau is called in and
+arrangements made for the running down of particular clues.
+Then he will take off his coat, clear his desk, and get down
+to work.
+
+Of course, his first step is to get all the information he can
+as to the actual facts surrounding the crime itself.  He
+immediately subpoenas all the witnesses, whether previously
+interrogated by the police or not, who know anything about the
+matter, and subjects them to a rigorous cross-examination.
+Then he sends for the police themselves and cross-examines
+them.  If it appears that any witnesses have disappeared he
+instructs his detectives how and where to look for them.
+Often this becomes in the end the most important element in
+the preparation for the trial.  Thus in the Nan Patterson case
+the search for and ultimate discovery of Mr. and Mrs. Morgan
+Smith (the sister and brother-in-law of the accused) was one
+of its most dramatic features.  After they had been found it
+was necessary to indict and then to extradite them in order to
+secure their presence within the jurisdiction, and when all
+this had been accomplished it proved practically valueless.
+
+It frequently happens that an entire case will rest upon the
+testimony of a single witness whose absence from the
+jurisdiction would prevent the trial.  An instance of such a
+case was that of Albert T. Patrick, for without the testimony
+of his alleged accomplice--the valet, Jones--he could not have
+been convicted of murder.  The preservation of such a witness
+and his testimony thus becomes of paramount importance, and
+rascally witnesses sometimes enjoy considerable ease, if not
+luxury, at the expense of the public while waiting to testify.
+Often, too, a case of great interest will arise where the
+question of the guilt of the accused turns upon the evidence
+of some one person who, either from mercenary motives or
+because of "blood and affection," is unwilling to come to the
+fore and tell the truth.  A striking case of this sort
+occurred some ten years ago.  The "black sheep" of a prominent
+New York family forged the name of his sister to a draft for
+thirty thousand dollars.  This sister, who was an elderly
+woman of the highest character and refinement, did not care to
+pocket the loss herself and declined to have the draft debited
+to her account at the bank.  A lawsuit followed, in which the
+sister swore that the name signed to the draft was not in her
+handwriting.  She won her case, but some officious person laid
+the matter before the district attorney.  The forger was
+arrested and his sister was summoned before the grand jury.
+Here was a pleasant predicament.  If she testified for the
+State her brother would undoubtedly go to prison for many
+years, to say nothing of the notoriety for the entire family
+which so sensational a case would occasion.  She, therefore,
+slipped out of the city and sailed for Europe the night before
+she was to appear before the grand jury.  Her brother was in
+due course indicted and held for trial in large bail, but
+there was and is no prospect of convicting him for his crime
+so long as his sister remains in the voluntary exile to which
+she has subjected herself.  She can never return to New York
+to live unless something happens either to the indictment or
+her brother, neither of which events seems likely in the
+immediate future.
+
+Perhaps, if the case is one of shooting, the weapon has
+vanished.  Its discovery may lead to the finding of the
+murderer.  In one instance where a body was found in the woods
+with a bullet through the heart, there was nothing to indicate
+who had committed the crime.  The only scintilla of evidence
+was an exploded cartridge--a small thing on which to build a
+case.  But the district attorney had the hammer marks upon the
+cap magnified several hundred times and then set out to find
+the rifle which bore the hammer which had made them.
+Thousands of rifles all over the State were examined.  At last
+in a remote lumber camp was found the weapon which had fired
+the fatal bullet.  The owner was arrested, accused of the
+murder, and confessed his crime.  In like manner, if it
+becomes necessary to determine where a typewritten document
+was prepared the letters may be magnified, and by examining
+the ribbons of suspected machines the desired fact may be
+ascertained.  The magnifying glass still plays an important
+part in detecting crime, although usually in ways little
+suspected by the general public.
+
+On the other hand, where the weapon has not been spirited away
+the detectives may spend weeks in discovering when and where
+it was purchased.  Every pawnshop, every store where a pistol
+could be bought, is investigated, and under proper
+circumstances the requisite evidence to show deliberation and
+premeditation may be secured.
+
+These investigations are naturally conducted at the very
+outset of the preparation of the case.
+
+The weapon, in seven trials out of ten, is the most important
+thing in it.  By its means it can generally be demonstrated
+whether the shooting was accidental or intentional--and
+whether or not the killing was in self-defence.
+
+Where this last plea is interposed it is usually made at once
+upon the arrest, the accused explaining to the police that he
+fired only to save his own life.  In such a situation, where
+the killing is admitted, practically the entire preparation
+will centre upon the most minute tests to determine whether or
+not the shot was fired as the accused claims that it was.  The
+writer can recall at least a dozen cases in his own experience
+where the story of the defendant, that the revolver was
+discharged in a hand-to-hand struggle, was conclusively
+disproved by experimenting with the weapon before the trial.
+There was one homicide in which a bullet perforated a felt cap
+and penetrated the forehead of the deceased.  The defendant
+asserted that he was within three feet of his victim when he
+fired, and that the other was about to strike him with a
+bludgeon.  A quantity of felt, of weight similar to that of
+the cap, was procured and the revolver discharged at it from
+varying distances.  A microscopic examination showed that
+certain discolorations around the bullet-hole (claimed by the
+defence to be burns made by the powder) were, in fact, grease
+marks, and that the shot must have been fired from a distance
+of about fifteen feet.  The defendant was convicted on his own
+story, supplemented by the evidence of the witness who made
+the tests.
+
+The most obvious and first requirement is, as has been said,
+to find the direct witnesses to the facts surrounding the
+crime, commit their statements under oath to writing, so that
+they cannot later be denied or evaded, and make sure that
+these witnesses will not only hold no intercourse with the
+other side, but will be on hand when wanted.  This last is not
+always an easy task, and various expedients often have to be
+resorted to, such as placing hostile witnesses under police
+surveillance, or in some cases in "houses of detention," and
+hiding others in out-of-the-way places, or supplying them with
+a bodyguard if violence is to be anticipated.  When the proper
+time comes the favorable witnesses must be duly drilled or
+coached, which does not imply anything improper, but means
+merely that they must be instructed how to deliver their
+testimony, what answers are expected to certain questions, and
+what facts it is intended to elicit from them.  Witnesses are
+often offended and run amuck because they are not given a
+chance upon the stand to tell the story of their lives.  This
+must be guarded against and steps taken to have their
+statements given in such a way that they are audible and
+intelligible.  A few lessons in elementary elocution are
+generally vitally necessary.  The man with the bassoon voice
+must be tamed, and the birdlike old lady made to chirp more
+loudly.  But all this is the self-evident preparation which
+must take place in every case, and while highly important is
+of far less interest than the development of the
+circumstantial evidence which is the next consideration of the
+district attorney.
+
+The discovery and proper proof of minute facts which tend to
+demonstrate the guilt of an accused are the joy of the natural
+prosecutor, and he may in his enthusiasm spend many thousands
+of dollars on what seems, and often is, an immaterial matter.
+Youthful officials intrusted with the preparation of important
+cases often become unduly excited and forget that the
+taxpayers are paying the bills.  The writer remembers sitting
+beside one of these enthusiasts during a celebrated trial.  A
+certain woman witness had incidentally testified to a remote
+meeting with the deceased at which a certain other woman was
+alleged to have been present.  The matter did not seem of much
+interest or importance, but the youth in question seized a
+yellow pad and excitedly wrote in blue pencil, "Find Birdie"
+(the other lady) "at any cost!"  This he handed to a
+detective, who hastened importantly away.  It is to be hoped
+that "Birdie" was found speedily and in an inexpensive manner.
+
+When the case against Albert T. Patrick, later convicted of
+the murder of the aged William M. Rice, was in course of
+preparation, it was found desirable to show that Patrick had
+called up his accomplice on the telephone upon the night of
+the murder.  Accordingly, the telephone company was compelled
+to examine several hundred thousand telephone slips to
+determine whether or not this had actually occurred.  While
+the fact was established in the affirmative, the company now
+destroys its slips in order not to have to repeat the
+performance a second time.
+
+Likewise, in the preparation of the Molineux case it became
+important to demonstrate that the accused had sent a letter
+under an assumed name ordering certain remedies.  As a result,
+one of the employees of the patent-medicine company spent
+several months going over their old mail orders and comparing
+them with a certain sample, until at last the letter was
+unearthed.  Of course, the district attorney had to pay for
+it, and it was probably worth what it cost to the prosecution,
+although Molineux's conviction was reversed by the Court of
+Appeals and he was acquitted upon his second trial.
+
+The danger is, however, that a prosecutor who has an unlimited
+amount of money at his disposal may be led into expenditures
+which are hardly justified simply because he thinks they may
+help to secure a conviction.  Nothing is easier than to waste
+money in this fashion, and public officials sometimes spend
+the county's money with considerably more freedom than they
+would their own under similar circumstances.
+
+The legitimate expenses connected with the preparation of
+every important case are naturally large.  For example,
+diagrams must be prepared, photographs taken of the place of
+the crime, witnesses compensated for their time and their
+expenses paid, and, most important of all, competent experts
+must be engaged.  This leads us to an interesting aspect of
+the modern jury trial.
+
+When no other defence to homicide is possible the claim of
+insanity is frequently interposed.  Nothing is more confusing
+to the ordinary juryman than trying to determine the probative
+value of evidence touching unsoundness of mind, and the
+application thereto of the legal test of criminal
+responsibility.  In point of fact, juries are hardly to be
+blamed for this, since the law itself is antiquated and the
+subject one abounding in difficulty.  Unfortunately the
+opportunity for vague yet damaging testimony on the part of
+experts, the ease with which any desired opinion can be
+defended by a slight alteration in the hypothetical facts, and
+the practical impossibility of exposure, have been seized upon
+with avidity by a score or more of unscrupulous alienists who
+are prepared to sell their services to the highest bidder.
+These men are all the more dangerous because, clever students
+of mental disease and thorough masters of their subject as
+they are, they are able by adroit qualifications and skilful
+evasions to make half-truths seem as convincing as whole ones.
+They ask and receive large sums for their services, and their
+dishonest testimony must be met and refuted by the evidence of
+honest physicians, who, by virtue of their attainments, have a
+right to demand substantial fees.  Even so, newspaper reports
+of the expense to the State of notorious trials are grossly
+exaggerated.  The entire cost of the first Thaw trial to the
+County of New York was considerably less than twenty thousand
+dollars, and the second trial not more than half that amount.
+To the defence, however, it was a costly matter, as the recent
+schedules in bankruptcy of the defendant show.  Therein it
+appears that one of his half-dozen counsel still claims as
+owing to him for his services on the first trial the modest
+sum of thirty-five thousand dollars.  The cost of the whole
+defence was probably ten times that sum.  Most of the money
+goes to the lawyers, and the experts take the remainder.
+
+It goes without saying that both prosecutor and attorney for
+the defence must be masters of the subject involved.  A trial
+for poisoning means an exhaustive study not only of analytic
+chemistry, but of practical medicine on the part of all the
+lawyers in the case, while a plea of insanity requires that,
+for the time being, the district attorney shall become an
+alienist, familiar with every aspect of paranoia, dementia
+praecox, and all other forms of mania.  He must also reduce
+his knowledge to concrete, workable form, and be able to
+defeat opposing experts on their own ground.  But such
+knowledge comes only by prayer and fasting--or, perhaps,
+rather by months of hard and remorseless grind.
+
+The writer once prosecuted a druggist who had, by mistake,
+filled a prescription for a one-fourth-grain pill of calomel
+with a one-fourth-grain pill of morphine.  The baby for whom
+the pill was intended died in consequence.  The defence was
+that the prescription had been properly filled, but that the
+child was the victim of various diseases, from acute gastritis
+to cerebro-spinal meningitis.  In preparation the writer was
+compelled to spend four hours every evening for a week with
+three specialists, and became temporarily a minor expert on
+children's diseases.  To-day he is forced to admit that he
+would not know a case of acute gastritis from one of mumps.
+But the druggist was convicted.
+
+Yet it is not enough to prepare for the defence you believe
+the accused is going to interpose.  A conscientious
+preparation means getting ready for any defence he may
+endeavor to put in.  Just as the prudent general has an eye
+to every possible turn of the battle and has, if he can,
+re-enforcements on the march, so the prosecutor must be ready
+for anything, and readiest of all for the unexpected.  He must
+not rest upon the belief that the other side will concede any
+fact, however clear it may seem.  Some cases are lost simply
+because it never occurs to the district attorney that the
+accused will deny something which the State has twenty
+witnesses to prove.  The twenty witnesses are, therefore, not
+summoned on the day of trial, the defendant does deny it, and
+as it is a case of word against word the accused gets the
+benefit of the doubt and, perhaps, is acquitted.
+
+No case is properly prepared unless there is in the court-room
+every witness who knows anything about any aspect of the case.
+No one can foretell when the unimportant will become the
+vital.  Most cases turn on an unconsidered point.  A
+prosecutor once lost what seemed to him the clearest sort of a
+case.  When it was all over, and the defendant had passed out
+of the courtroom rejoicing, he turned to the foreman and asked
+the reason for the verdict.
+
+"Did you hear your chief witness say he was a carpenter?"
+inquired the foreman.
+
+"Why, certainly," answered the district attorney,
+
+"Did you hear me ask him what he paid for that ready-made pine
+door he claimed to be working on when he saw the assault?"
+
+The prosecutor recalled the incident and nodded.
+
+"Well, he said ten dollars--and I knew he was a liar.  A door
+like that don't cost but four-fifty!"
+
+It is, perhaps, too much to require a knowledge of carpentry
+on the part of a lawyer trying an assault case.  Yet the juror
+was undoubtedly right in his deduction.
+
+In a case where insanity is the defence, the State must dig up
+and have at hand every person it can find who knew the accused
+at any period of his career.  He will probably claim that in
+his youth he was kicked in a game of foot-ball and fractured
+his skull, that later he fell into an elevator shaft and had
+concussion of the brain, or that he was hit on the head by a
+burglar.  It is usually difficult, if not impossible, to
+disprove such assertions, but the prosecutor must be ready, if
+he can, to show that foot-ball was not invented until after
+the defendant had attained maturity, that it was some other
+man who fell down the elevator shaft, and to produce the
+burglar to deny that the assault occurred.  Naturally,
+complete preparation for an important trial demands the
+presence of many witnesses who ultimately are not needed and
+who are never called.  Probably in most such cases about half
+the witnesses do not testify at all.  Most of what has been
+said relates to the preparation for trial of cases where the
+accused is already under arrest when the district attorney is
+called into the case.  If this stage has not been reached the
+prosecutor may well be called upon to exercise some of the
+functions of a detective in the first instance.
+
+A few years ago it was brought to the attention of the New
+York authorities that many blackmailing letters were being
+received bearing the name of "Lewis Jarvis."  These were of a
+character to render the apprehension of the writer of them a
+matter of much importance.  The letters directed that the
+replies be sent to a certain box in the New York post-office,
+but as the boxes are numerous and close together it seemed
+doubtful if "Lewis Jarvis" could be detected when he called
+for his mail.  The district attorney, the police, and the
+post-office officials finally evolved the scheme of plugging
+the lock of "Lewis Jarvis's" box with a match.  The scheme
+worked, for "Jarvis," finding that he could not use his key,
+went to the delivery window and asked for his mail.  The very
+instant the letters reached his hand the gyves were upon the
+wrists of one of the best-known attorneys in the city.
+
+When the district attorney has been apprised that a crime has
+been committed, and that a certain person is the guilty party,
+he not infrequently allows the suspect to go his way under the
+careful watch of detectives, and thus often secures much new
+evidence against him.  In this way it is sometimes established
+that the accused has endeavored to bribe the witnesses and to
+induce them to leave the State, while the whereabouts of
+stolen loot is often discovered.  In most instances, however,
+the district attorney begins where the police leave off, and
+he merely supplements their labors and prepares for the actual
+trial itself.  But the press he has always with him, and from
+the first moment after the crime up to the execution of the
+sentence or the liberation of the accused, the reporters dog
+his footsteps, sit on his doorstep, and deluge him with advice
+and information.
+
+Now a curious feature about the evidence "worked up" by
+reporters for their papers is that little of it materializes
+when the prosecutor wishes to make use of it.  Of course,
+some reporters do excellent detective work, and there are one
+or two veterans attached to the criminal courts in New York
+City who, in addition to their literary capacities, are
+natural-born sleuths, and combine with a knowledge of criminal
+law, almost as extensive as that of a regular prosecutor, a
+resourcefulness and nerve that often win the case for
+whichever side they espouse.  I have frequently found that
+these men knew more about the cases which I was prosecuting
+than I did myself, and a tip from them has more than once
+turned defeat into victory.  But newspaper men, for one reason
+or another, are loath to testify, and usually make but poor
+witnesses.  They feel that their motives will be questioned,
+and are naturally unwilling to put themselves in an equivocal
+position.  The writer well remembers that in the Mabel Parker
+case, where the defendant, a young and pretty woman, had
+boasted of her forgeries before a roomful of reporters, it was
+impossible, when her trial was called, to find more than one
+of them who would testify--and he had practically to be
+dragged to the witness chair.  In point of fact, if reporters
+made a practice of being witnesses it would probably hurt
+their business.  But, however much "faked" news may be
+published, a prosecutor who did not listen to all the hints
+the press boys had to give would make a great mistake; and as
+allies and advisers they are often invaluable, for they can
+tell him where and how to get evidence of which otherwise he
+would never hear.
+
+The week before a great case is called is a busy one for the
+prosecutor in charge.  He is at his office early to interview
+his main witnesses and go over their testimony with them so
+that their regular daily work may not be interrupted more than
+shall be actually necessary.  Some he cautions against being
+overenthusiastic and others he encourages to greater emphasis.
+The bashful "cop" is badgered until at last he ceases to begin
+his testimony in the cut-and-dried police fashion.
+
+"On the morning of the twenty-second of July, about 3.30 A.M.,
+while on post at the corner of Desbrosses Street--," he
+starts.
+
+"Oh, quit that!" shouts the district attorney.  "Tell me what
+you saw in your own words."
+
+The "cop" blushes and stammers:
+
+"Aw, well, on the morning of the twenty-second of July, about
+3.30 A.M."
+
+"Look here!" yells the prosecutor, jumping to his feet and
+shaking his fist at him, "do you want to be taken for a d--n
+liar?  `Morning of the twenty-second of July, about 3.30 A.M.,
+while on post I' You never talked like that in your life."
+
+By this time the "cop" is "mad clear through."
+
+"I'm no liar!" he retorts.  "I saw the ------ pull his gun and
+shoot!"
+
+"Well, why didn't you say so?" laughs the prosecutor, and the
+officer mollified with a cigar, dimly perceives the
+objectionable feature of his testimony.
+
+About this time one of the sleuths comes in to report that
+certain much-desired witnesses have been "located" and are in
+custody downstairs.  The assistant makes immediate preparation
+for taking their statements.  Then one of the experts comes in
+for a chat about a new phase of the case occasioned by the
+discovery that the defendant actually did have spasms when an
+infant.  The assistant wisely makes an appointment for the
+evening.  A telegram arrives saying that a witness for the
+defence has just started for New York from Philadelphia and
+should be duly watched on arrival.  The district attorney
+sends for the assistant to inquire if he has looked up the law
+on similar cases in Texas and Alabama--which he probably has
+not done; and a friend on the telephone informs him that
+Tomkins, who has been drawn on the jury, is a boon companion
+of the prisoner and was accustomed to play bridge with him
+every Sunday night before the murder.
+
+Coincidently, some private detectives enter with a long report
+on the various members of the panel, including the aforesaid
+Tomkins, whom they pronounce to be "all right," and as never
+having, to their knowledge, laid eyes on the accused.
+Finally, in despair, the prosecutor locks himself in his
+library with a copy of the Bible, "Bartlett's Familiar
+Quotations," and a volume of celebrated speeches, to prepare
+his summing up, for no careful trial lawyer opens a case
+without first having prepared, to some extent, at least, his
+closing address to the jury.  He has thought about this for
+weeks and perhaps for months.  In his dreams he has formulated
+syllogisms and delivered them to imaginary yet obstinate
+talesman.  He has glanced through many volumes for similes and
+quotations of pertinency.  He has tried various arguments on
+his friends until he knows just how, if he succeeds in proving
+certain facts and the defence expected is interposed, he is
+going to convince the twelve jurors that the defendant is
+guilty and, perhaps, win an everlasting reputation as an
+orator himself.
+
+This superficial sketch of how an important criminal case is
+got ready for trial would be incomplete without some further
+reference to something which has been briefly hinted at
+before--preparation upon its purely legal aspect.  This may
+well demand almost as much labor as that required in amassing
+the evidence.  Yet a careful and painstaking investigation of
+the law governing every aspect of the case is indispensable to
+success.  The prosecutor with a perfectly clear case may see
+the defendant walk out of court a free man, simply because he
+has neglected to acquaint himself with the various points of
+law which may arise in the course of the trial, and the lawyer
+for an accused may find his client convicted upon a charge to
+which he has a perfectly good legal defence, for the same
+reason.
+
+Looking at it from the point of view of the prisoner's
+counsel, it is obvious that it is quite as efficacious to free
+your client on a point of law, without having the case go to
+the jury at all, as to secure an acquittal at their hands.
+
+At the conclusion of the evidence introduced in behalf of the
+State there is always a motion made to dismiss the case on the
+ground of alleged insufficiency in the proof.  This has
+usually been made the subject of the most exhaustive study by
+the lawyers for the defence, and requires equal preparation on
+the part of the prosecutor.  The writer recalls trying a
+bankrupt, charged with fraud, where the lawyer for the
+defendant had written a brief of some three hundred pages upon
+the points of law which he proposed to argue to the court upon
+his motion to acquit.  But, unfortunately, his client pleaded
+guilty and the volume was never brought into play.
+
+But a mastery of the law, a thorough knowledge and control of
+the evidence, a careful preparation for the opening and
+closing addresses, and an intimate acquaintance with the panel
+from which the jury is to be drawn are by no means the only
+elements in the preparation for a great legal battle.  One
+thing still remains, quite as important as the rest--the
+selection of the best time and the best court for the trial.
+"A good beginning" in a criminal case means a beginning before
+the right judge, the proper jury, and at a time when that
+vague but important influence known as public opinion augurs
+success.  A clever criminal lawyer, be he prosecutor or
+lawyer for the defendant, knows that all the preparation in
+the world is of no account provided his case is to come before
+a stupid or biased judge, or a prejudiced or obstinate jury.
+Therefore, each side, in a legal battle of importance,
+studies, as well as it can, the character, connections, and
+cast of mind of the different judges who may be called upon to
+hear the case, and, like a jockey at the flag, tries to hurry
+or delay, as the case may be, until the judicial auspices
+appear most favorable.  A lawyer who has a weak defence seeks
+to bring the case before a weak judge, or, if public clamor is
+loud against his client, makes use of every technical artifice
+to secure delay, by claiming that there are flaws in the
+indictment, or by moving for commissions to take testimony in
+distant points of the country.  The opportunities for legal
+procrastination are so numerous that in a complicated case the
+defence may often delay matters for over a year.  This may be
+an important factor in the final result.
+
+Yet even this is not enough, for, ultimately, it is the
+judge's charge to the jury which is going to guide their
+deliberations and, in large measure, determine their verdict.
+The lawyers for the defence, therefore, prepare long
+statements of what they either believe or pretend to believe
+to be the law.  These statements embrace all the legal
+propositions, good or bad, favorable to their side of the
+case.  If they can induce the judge to follow these so much
+the better for their client, for even if they are not law it
+makes no difference, since the State has no appeal from an
+acquittal in a criminal case, no matter how much the judge has
+erred.  In the same way, but not in quite the same fashion,
+the district attorney prepares "requests to charge," but his
+desire for favorable instructions should be, and generally is,
+curbed by the consideration that if the judge makes any
+mistake in the law and the defendant is convicted he can
+appeal and upset the case.  Of course, some prosecutors are so
+anxious to convict that they will wheedle or deceive a judge
+into giving charges which are not only most inimical to the
+prisoner, but so utterly unsound that a reversal is sure to
+follow; but when one of these professional bloodhounds is
+baying upon the trail all he thinks of is a conviction--that
+is all he wants, all the public will remember; to him will be
+the glory; and when the case is finally reversed he will
+probably be out of office.  These "requests" cover pages, and
+touch upon every phase of law applicable or inapplicable to
+the case.  Frequently they number as many as fifty, sometimes
+many more.  It is "up to" the judge to decide "off the bat"
+which are right and which are wrong.  If he guesses that the
+right one is wrong or the wrong one right the defendant gets a
+new trial.
+
+
+
+
+CHAPTER III
+
+Sensationalism and Jury Trials
+
+
+For the past twenty-five years we have heard the cry upon all
+sides that the jury system is a failure, and to this general
+indictment is frequently added the specification that the
+trials in our higher courts of criminal justice are the scenes
+of grotesque buffoonery and merriment, where cynical juries
+recklessly disregard their oaths and where morbid crowds flock
+to satisfy the cravings of their imaginations for details of
+blood and sexuality.
+
+It is unnecessary to question the honesty of those who thus
+picture the administration of criminal justice in America.
+Indeed, thus it probably appears to them.  But before such an
+arraignment of present conditions in a highly civilized and
+progressive nation is accepted as final, it is well to examine
+into its inherent probabilities and test it by what we know of
+the actual facts.
+
+In the first place, it should be remembered that the jury was
+instituted and designed to protect the English freeman from
+tyranny upon the part of the crown.  Judges were, and
+sometimes still are, the creatures of a ruler or unduly
+subject to his influence.  And that ruler neither was, nor is,
+always the head of the nation; but just as in the days of the
+Normans he might have been a powerful earl whose influence
+could make or unmake a judge, so to-day he may be none the
+less a ruler if he exists in the person of a political boss
+who has created the judge before whom his political enemy is
+to be tried.  The writer has seen more than one judge openly
+striving to influence a jury to convict or to acquit a
+prisoner at the dictation of such a boss, who, not content to
+issue his commands from behind the arras, came to the
+courtroom and ascended the bench to see that they were obeyed.
+Usually the jury indignantly resented such interference and
+administered a well-merited rebuke by acting directly contrary
+to the clearly indicated wishes of the judge.
+
+But while admitting its theoretic value as a bulwark of
+liberty, the modern assailant of the jury brushes the
+consideration aside by asserting that the system has "broken
+down" and "degenerated into a farce."
+
+Let us now see how much of a farce it is.  If four times out
+of five a judge rendered decisions that met with general
+approval, he would probably be accounted a highly satisfactory
+judge.  Now, out of every one hundred indicted prisoners
+brought to the bar for trial, probably fifteen ought to be
+acquitted if prosecuted impartially and in accordance with the
+strict rules of evidence.  In the year 1910 the juries of New
+York County convicted in sixty-six per cent of the cases
+before them.  If we are to test fairly the efficiency of the
+system, we must deduct from the thirty-four acquittals
+remaining the fifteen acquittals which were justifiable.  By
+so doing we shall find that in the year 1910 the New York
+County juries did the correct thing in about eighty-one cases
+out of every hundred.  This is a high percentage of
+efficiency.*  Is it likely that any judge would have done much
+better?
+       _______________________________________
+
+* The following table gives the yearly percentages of
+convictions and acquittals by verdict in New York County since
+1901:
+
+           NUMBER        NUMBER
+YEAR     CONVICTIONS   ACQUITTALS  CONVICTIONS   ACQUITTALS
+          BY VERDICT   BY VERDICT   PER CENT      PER CENT
+
+1901........551...........344..........62............38
+1902........419...........349..........55............45
+1903........485...........307..........61............39
+1904........495...........357..........58............42
+1905........489...........299..........62............38
+1906........464...........246..........65............35
+1907........582...........264..........68............32
+1908........649...........301..........62............38
+1909........463...........235..........66............34
+1910........649...........325..........66............34
+       _______________________________________
+
+After a rather long experience as a prosecutor, in which he
+conducted many hundreds of criminal cases, the writer believes
+that the ordinary New York City jury finds a correct general
+verdict four times out of five.  As to talesmen in other
+localities he has no knowledge or reliable information.  It
+seems hardly possible, however, that juries in other parts of
+the United States could be more heterogeneous or less
+intelligent than those before which he formed his conclusions.
+Of course, jury judgments are sometimes flagrantly wrong.  But
+there are many verdicts popularly regarded as examples of
+lawlessness which, if examined calmly and solely from the
+point of view of the evidence, would be found to be the
+reasonable acts of honest and intelligent juries.
+
+For example, the acquittal of Thaw upon the ground of insanity
+is usually spoken of as an illustration of sentimentality on
+the part of jurymen, and of their willingness to be swayed by
+their emotions where a woman is involved.  But few clearer
+cases of insanity have been established in a court of justice.
+The district attorney's own experts had pronounced the
+defendant a hopeless paranoiac; the prosecutor had, at a
+previous trial, openly declared the same to be his own
+opinion; and the evidence was convincing.  At the time it was
+rendered, the verdict was accepted as a foregone conclusion.
+To-day the case is commonly cited as proof of the gullibility
+of juries and of the impossibility of convicting a rich man of
+a crime.
+
+There will always be some persons who think that every
+defendant should be convicted and feel aggrieved if he is
+turned out by the jury.  Yet they entirely forget, in their
+displeasure at the acquittal of a man whom they instinctively
+"know" to be guilty, that the jury probably had exactly the
+same impression, but were obliged under their oaths to acquit
+because of an insufficiency of evidence.
+
+An excellent illustration of such a case is that of Nan
+Patterson.  She is commonly supposed to have attended, upon
+the night of her acquittal, a banquet at which one of her
+lawyers toasted her as "the guilty girl who beat the case."
+Whether she was guilty or not, there is a general impression
+that she murdered Caesar Young.  Yet the writer, who was
+present throughout the trial, felt at the conclusion of the
+case that there was a fairly reasonable doubt of her guilt.
+Even so, the jury disagreed, although the case is usually
+referred to as an acquittal and a monument to the
+sentimentality of juries.
+
+The acquittal of Roland B. Molineux is also recalled as a case
+where a man, previously proved guilty, managed to escape.  The
+writer, who was then an assistant district attorney, made a
+careful study of the evidence at the time, and feels confident
+that the great majority of the legal profession would agree
+with him in the opinion that the Court of Appeals had no
+choice but to reverse the defendant's first conviction on
+account of the most prejudicial error committed at the trial,
+and that the jury who acquitted him upon the second occasion
+had equally no choice when the case was presented with a
+proper regard to the rules of evidence and procedure.  Indeed,
+on the second trial the evidence pointed almost as
+convincingly toward another person as toward the defendant.
+
+I have mentioned the Patterson, Thaw, and Molineux trials
+because they are cases commonly referred to in support of the
+general contention that the jury system is a failure.  But I
+am inclined to believe that any single judge, bench of judges,
+or board of commissioners would have reached the same result
+as the juries did in these instances.
+
+It is quite true that juries, for rather obvious reasons, are
+more apt to acquit in murder cases than in others.  In the
+first place, save where the defendant obviously belongs to the
+vicious criminal class, a jury finds it somewhat difficult to
+believe, unless overwhelming motive be shown, that he could
+have deliberately taken another's life.  Thus, with sound
+reason, they give great weight to the plea of self-defence
+which the accused urges upon them.  He is generally the only
+witness.  His story has to be disproved by circumstantial
+evidence, if indeed there be any.  Frequently it stands alone
+as the only account of the homicide.  Thus murder cases are
+almost always weaker than others, since the chief witness has
+been removed by death; while at the same time the nature of
+the punishment leads the jury unconsciously to require a
+higher degree of proof than in cases where the consequences
+are less abhorrent.  All this is quite natural and inevitable.
+Moreover, homicide cases as a rule are better defended than
+others, a fact which undoubtedly affects the result.  These
+considerations apply to all trials for homicide, notorious or
+otherwise, the results of which in New York County for ten
+years are set forth in the following table:
+
+YEAR     CONVICTIONS   ACQUITTALS  CONVICTIONS   ACQUITTALS
+                                    PER CENT      PER CENT
+1901.........25............17..........60............40
+1902.........31............11..........74............26
+1903.........42.............8..........84............16
+1904.........37............14..........72............28
+1905.........32............13..........71............29
+1906.........53............22..........70............30
+1907.........39............10..........78............22
+1908.........35............17..........67............33
+1909.........43............11..........80............20
+1910.........45............15..........75............25
+TOTAL.......382...........138......Av. 74........Av. 27
+
+
+A popular impression exists at the present time that a man
+convicted of murder has but to appeal his case on some
+technical ground in order to secure a reversal, and thus
+escape the consequences of his crime.  How wide of the mark
+such a belief may be, at least so far as one locality is
+concerned, is shown by the fact that in New York State, from
+1887 to 1907, there were 169 decisions by the Court of Appeals
+on appeals from convictions of murder in the first degree, out
+of which there were only twenty-nine reversals.  Seven of
+these defendants were again immediately tried and convicted,
+and a second time appealed, upon which occasion only two were
+successful, while five had their convictions promptly
+affirmed.  Thus, so far as the ultimate triumph of justice is
+concerned, out of 169 cases in that period the appellants
+finally succeeded in twenty-two only.
+
+Since 1902 there have been twenty-seven decisions rendered in
+first-degree murder cases by the Court of Appeals, with only
+three reversals.* (* Written in 1909.)  The more important
+convictions throughout the State are affirmed with great
+regularity.
+
+As to the conduct of such cases, the writer's own experience
+is that a murder trial is the most solemn proceeding known
+to the law.  He has prosecuted at least fifty men for murder,
+and convicted more than he cares to remember.  Such trials
+are invariably dignified and deliberate so far as the conduct
+of the legal side of the case is concerned.  No judge,
+however unqualified for the bench; no prosecutor, however
+light-minded; no lawyer however callous, fails to feel the
+serious nature of the transaction or to be affected strongly
+by the fact that he is dealing with life, and death.  A
+prosecutor who openly laughed or sneered at a prisoner charged
+with murder would severely injure his cause.  The jury,
+naturally, are overwhelmed with the gravity of the occasion
+and the responsibility resting upon them.
+
+In the Patterson, Thaw, and Molineux cases the evidence,
+unfortunately, dealt with unpleasant subjects and at times was
+revolting, but there was a quiet propriety in the way in which
+the witnesses were examined that rendered it as inoffensive as
+it could possibly be.  Outside the court-room the vulgar crowd
+may have spat and sworn; and inside no doubt there were
+degenerate men and women who eagerly strained their ears to
+catch every item of depravity.  But the throngs that filled
+the courtroom were quiet and well ordered, and the justified
+interested outnumbered the morbid.
+
+The writer deprecates the impulse which leads judges, from a
+feeling that justice should be publicly administered, to throw
+wide the doors of every courtroom, irrespective of the
+subject-matter of the trial.  We need have no fear of Star
+Chamber proceedings in America, and no harm would be done by
+excluding from the courtroom all persons who have no business
+there.
+
+It is, of course, not unnatural that in the course of a trial
+occupying weeks or months the tension should occasionally be
+relieved by a gleam of humor.  After one has been busy trying
+a case for a couple of weeks one goes to court and sets to
+work in much the same frame of mind in which one would attack
+any other business.  But the fact that a small boy sometimes
+sees something funny at a funeral, or a bevy of giggling
+shop-girls may be sitting in the gallery at a fashionable
+wedding, argues little in respect to the solemnity or beauty
+of the service itself.
+
+What are the celebrated cases--the trials that attract the
+attention and interest of the public?  In the first place,
+they are the very cases which contain those elements most
+likely to arouse the sympathy and prejudices of a jury--where
+a girl has taken the life of her supposed seducer, or a
+husband has avenged his wife's alleged dishonor.  Such cases
+arouse the public imagination for the very reason that every
+man realizes that there are two sides to every genuine tragedy
+of this character--the legal and the natural.  Thus, aside
+from any other consideration, they are the obvious instances
+where justice is most likely to go astray.
+
+In the next place, the defence is usually in the hands of
+counsel of adroitness and ability; for even if the prisoner
+has no money to pay his lawyer, the latter is willing to take
+the case for the advertising he will get out of it.
+
+Third, a trial which lasts for a long time naturally results
+in creating in the jury's mind an exaggerated idea of the
+prisoner's rights, namely, the presumption of innocence and
+the benefit of the reasonable doubt.  For every time that the
+jury will hear these phrases once in a petty larceny or
+forgery case, they will hear them in a lengthy murder trial a
+hundred times.  They see the defendant day after day, and the
+relation becomes more personal.  Their responsibility seems
+greater toward him than toward the defendant in petty cases.
+
+Last, as previously suggested, murder cases are apt to be
+inherently weaker than others, and more often depend upon
+circumstantial evidence.
+
+The results of such cases are therefore an inadequate test of
+the efficiency of a jury system.  They are, in fact, the
+precise cases where, if at all, the jury might be expected to
+go wrong.
+
+But juries would go astray far less frequently even in such
+trials were it not for that most vicious factor in the
+administration of criminal justice--the "yellow" journal.  For
+the impression that public trials are the scenes of buffoonery
+and brutality is due to the manner in which these trials are
+exploited by the sensational papers.
+
+The instant that a sensational homicide occurs, the aim of the
+editors of these papers is--not to see that a swift and sure
+retribution is visited upon the guilty, or that a prompt and
+unqualified vindication is accorded to the innocent, but, on
+the contrary, so to handle the matter that as many highly
+colored "stories" as possible can be run about it.
+
+Thus, where the case is perfectly clear against the prisoner,
+the "yellow" press seeks to bolster up the defence and really
+to justify the killing by a thinly disguised appeal to the
+readers' passions.  Not infrequently, while the editorial page
+is mourning the prevalence of homicide, the front columns are
+bristling with sensational accounts of the home-coming of the
+injured husband, the heartbreaking confession of the weak and
+erring wife, and the sneering nonchalance of the seducer,
+until a public sentiment is created which, if it outwardly
+deprecates the invocation of the unwritten law, secretly avows
+that it would have done the same thing in the prisoner's
+place.
+
+This antecedent public sentiment is fostered from day to day
+until it has unconsciously permeated every corner of the
+community.  The juryman will swear that he is unaffected by
+what he has read, but unknown to himself there are already
+tiny furrows in his brain along which the appeal of the
+defence will run.
+
+In view of this deliberate perversion of truth and morals, the
+euphemisms of a hard-put defendant's counsel when he pictures
+a chorus girl as an angel and a coarse bounder as a St. George
+seem innocent indeed.  It is not within the rail of the
+courtroom but within the pages of these sensational journals
+that justice is made a farce.  The phrase "contempt of court"
+has ceased practically to have any significance whatever.  The
+front pages teem with caricatures of the judge upon the bench,
+of the individual jurors with exaggerated heads upon
+impossible bodies, of the lawyers ranting and bellowing,
+juxtaposed with sketches of the defendant praying beside his
+prison cot or firing the fatal shot in obedience to a message
+borne by an angel from on high.
+
+How long would the "unwritten law" play any part in the
+administration of criminal justice if every paper in the land
+united in demanding, not only in its editorials, but upon its
+front pages, that private vengeance must cease?  Let the
+"yellow" newspapers confine themselves simply to an accurate
+report of the evidence at the trial, with a reiterated
+insistence that the law must take its course.  Let them stop
+pandering to those morbid tastes which they have themselves
+created.  Let the "Sympathy Sisters," the photographer, and
+the special artist be excluded from the court-room.  When
+these things are done, we shall have the same high standard of
+efficiency upon the part of the jury in great murder trials
+that we have in other cases.
+
+
+
+CHAPTER IV
+
+Why Do Men Kill?
+
+
+When a shrewd but genial editor called me up on the telephone
+and asked me how I should like to write an article on the
+above lurid title, I laughed in his--I mean the telephone's
+face.
+
+"My dear fellow!" I said (I should only have the nerve to call
+him that over a wire).  It would ruin me!  How could I keep my
+self-respect and write that kind of sensational stuff--Why do
+men kill?  Why do men eat?  Why do men drink?  Why do men
+love?  Why do men--"
+
+"Look here!" he interrupted.  I want to know why one man kills
+another man.  If we knew why, maybe we could stop it, couldn't
+we?  We could try to, anyhow.  And you know something about
+it.  You've prosecuted nearly a hundred men for murder.  Get
+the facts--that's what I want.  Cut the adjectives and
+morality, and get down to the reasons.  Anything particularly
+undignified about that?"  And he rang off.
+
+I arose and walked over to the bookcase on which reposed
+several shelves of "minutes" of criminal trials.  They were
+dusty and depressing.  Practically every one of them was a
+memento of some poor devil gone to prison or to the chair.
+Where were they now--and why did they kill--yes, why DID they?
+
+I glanced along the red-labeled backs.
+
+"People versus Candido."  Now why did HE kill?  I remembered
+the Italian perfectly.  He killed his friend because the
+latter had been too attentive to his wife.  "People versus
+Higgins."  Why did he?  That was a drunken row on a New Year's
+Eve within the sound of Trinity chimes.  "People versus
+Sterling Greene."  Yes, he was a colored man--I recalled the
+evidence--drink and a "yellow gal."  "People versus Mock
+Duck"-a Chinese feud between the On Leong Tong and the Hip
+Sing Tong--a vendetta, first one Chink shot and then another,
+turn and turn about, running back through Mott Street, New
+York, Boston, San Francisco, until the origin of the quarrel
+was lost in the dim Celestial mists across the sea.  Out of
+the first four cases the following motives: Jealousy--1.
+Drink--1.  Drink and jealousy--1.  Scattering (how can you
+term a "Tong" row?)--1.
+
+I began to get interested.  Supposing I dug out all the
+homicide cases I had ever tried, what would the result show as
+to motive for the killing?  Would drink and women account for
+seventy-five per cent?  Mentally I ran my eye back over nearly
+ten years.  What OTHER motives had the defendants at the bar
+had?  There was Laudiero--an Italian "Camorrista"--he had
+killed simply for the distinction it gave him among his
+countrymen and the satisfaction he felt at being known as a
+"bad" man--a "capo maestra."  There was Joseph Ferrone--pure
+jealousy again.  Hendry--animal hate intensified by drink.
+Yoscow--a deliberate murder, planned in advance by several of
+a gang, to get rid of a young bully who had made himself
+generally unpleasant.  There was Childs, who had killed, as he
+claimed, in self-defence because he was set upon and assaulted
+by rival runners from another seaman's boarding house.  Really
+it began to look as if men killed for a lot of reasons.
+
+One consideration at once suggested itself.  How about the
+killings where the murderer is never caught?  The prisoners
+tried for murder are only a mere fraction of those who commit
+murder.  True, and the more deliberate the murder, the
+greater, unfortunately, the chance of the villain getting
+away.  Still, in cases merely of suspected murder, or in cases
+where no evidence is taken, it would be manifestly unfair
+arbitrarily to assign motives for the deed, if deed it was.
+No, one must start with the assumption, sufficiently accurate
+under all the circumstances, that the killings in which the
+killer is caught are fairly representative of killings as a
+whole.
+
+All crimes naturally tend to divide themselves into two
+classes--crimes against property and crimes against the
+person, each class having an entirely different assortment of
+reasons for their commission.
+
+There can be practically but one motive for theft, burglary,
+or robbery.  It is, of course, conceivable that such crimes
+might be perpetrated for revenge--to deprive the victim of
+some highly prized possession.  But in the main there is only
+one object--unlawful gain.  So, too, blackmail, extortion, and
+kidnapping are all the products of the desire for "easy
+money."  But, unquestionably, this is the reason for murder in
+comparatively few cases.
+
+The usual motive for crimes against the person--assault,
+manslaughter, mayhem, murder, etc.--is the desire to punish,
+or be avenged upon another by inflicting personal pain upon
+him or by depriving him of his most valuable asset--life.  And
+this desire for retaliation or revenge generally grows out of
+a recent humiliation received at the hands of the other
+person, a real or fancied wrong to oneself, a member of one's
+family, or one's property.  But this was too easy an answer to
+my friend's question.  He wanted and deserved more than that,
+and I set out to give it to him.
+
+My first inquiry was in the direction of original sources.  I
+sought out the man in the district attorney's office who had
+had the widest general experience and put the question to him.
+This was Mr. Charles C. Nott, Jr., (now judge of the General
+Sessions) who had been trying murder cases for nearly ten
+years.  It so happened that he had kept a complete record of
+all of them and this he courteously placed at my disposal.
+The list contains sixty-two cases, and the defendants were of
+divers races.  These homicides included seventeen committed in
+cold blood (about twenty-five per cent, an extraordinary
+percentage) from varying motives, as follows: One defendant
+(white) murdered his colored mistress simply to get rid of
+her; another killed out of revenge because the deceased had
+"licked" him several times before; another, having quarrelled
+with his friend over a glass of soda water, later on returned
+and precipitated a quarrel by striking him, in the course of
+which he killed him; another because the deceased had induced
+his wife to desert him; another lay in wait for his victim and
+killed him without the motive ever being ascertained; one man
+killed his brother to get a sum of money, and another because
+his brother would not give him money; another because he
+believed the deceased had betrayed the Armenian cause to the
+Turks; another because he wished to get the deceased out of
+the way in order to marry his wife; and another because
+deceased had knocked him down the day before.  One man had
+killed a girl who had ridiculed him; and one a girl who had
+refused to marry him; another had killed his daughter because
+she could no longer live in the house with him; one, an
+informer, had been the victim of a Black Hand vendetta; and
+the last had poisoned his wife for the insurance money in
+order to go off with another woman.  There were two cases of
+infanticide, one in which a woman threw her baby into the lake
+in Central Park, and another in which she gave her baby
+poison.  Besides these murders, five homicides had been
+committed in the course of perpetrating other crimes,
+including burglary and robbery.
+
+Passing over three cases of culpable negligence resulting in
+death, we come to thirty-seven homicides during quarrels, some
+of which might have been technically classified as murders,
+but which being committed "in the heat of passion," in
+practically every instance resulted in a verdict of
+manslaughter.  The quarrels often arose over the most trifling
+matters.  One was a dispute over a broom, another over a horse
+blanket, another over food, another over a twenty-five cent
+bet in a pool game, another over a loan of fifty cents,
+another over ten cents in a crap game, and still another over
+one dollar and thirty cents in a crap game.  Five men were
+killed in drunken rows which had no immediate cause except the
+desire to "start something."  One man killed another because
+he had not prevented the theft of some lumber, one (a
+policeman) because the deceased would not "move on" when
+ordered, one because a bartender refused to serve him with any
+more drinks, and one (a bartender) because the deceased
+insisted that he should serve more drinks.  One man was killed
+in a quarrel over politics, one in a fuss over some beer, one
+in a card game, one trying to rob a fruit-stand, one in a
+dispute with a ship's officer, one in a dance hall row.  One
+man killed another whom he found with his wife, and one wife
+killed her husband for a similar cause; another wife killed
+her husband simply because she "could not stand him," and one
+because he was fighting with their son.  One man was killed by
+another who was trying to collect from him a debt of six
+hundred dollars.  One quarrel resulting in homicide arose
+because the defendant had pointed out deceased to the police,
+another because the participants called each other names, and
+another arose out of an alleged seduction.  Three homicides
+grew out of street rows originating in various ways.  One man
+killed another who was fighting with a friend of the first, a
+janitor was killed in a "continuous row" which had been going
+on for a long time, and one homicide was committed for
+"nothing in particular."
+
+This astonishing olla podrida of reasons for depriving men of
+their lives leaves one stunned and confused.  Is it possible
+to deduce any order out of such homicidal chaos?  Still, an
+attempt to classify such diverse causes enables one to reach
+certain general conclusions.  Out of the sixty-two homicides
+there were seventeen cold-blooded murders, with deliberation
+and premeditation (in such cases the reasons for the killing
+are by comparison unimportant); three homicides due to
+negligence, five committed while perpetrating a felony;
+thirty-seven manslaughters, due in sixteen cases to quarrels
+(simply), thirteen to drink, four to disputes over money,
+three to women, one to race antagonism.
+
+Reclassifying the seventeen murders according to causes, we
+have: Six due to women, four to quarrels, five to other
+causes, and two infanticides.  Added to the manslaughters
+previously classified, we have a total of sixty-two killings,
+due in twenty cases to quarrels, thirteen to drink, nine to
+women, four to disputes over money, one to race antagonism,
+five to general causes, three to negligence, two infanticides,
+five during the commission of other crimes.
+
+The significant features of this analysis are that about
+seventy-five per cent of the killings were due to quarrels
+over small sums or other matters, drink and women; over fifty
+per cent to drink and petty quarrels; and about thirty per
+cent to quarrels simply.  The trifling character of the causes
+of the quarrels themselves is shown by the fact that in three
+of these particular cases, tried in a single week, the total
+amount involved in the disputes was only eighty-five cents.
+That is about twenty-eight and one-half cents a life.  Many a
+murder in a barroom grows out of an argument over whether a
+glass of beer has, or has not, been paid for, or whose turn it
+is to treat; and more than one man has been killed in New York
+City because he was too clumsy to avoid stepping on somebody's
+feet or bumping into another man on the sidewalk.
+
+The writer sincerely regrets that his own lack of initiative
+prevented his keeping a diary during his seven years's service
+as a prosecutor.  It is now impossible for him to refresh his
+memory as to the causes of all the various homicides which he
+prosecuted, but where he can do so the evidence points to a
+conclusion similar to that deduced from Mr. Nott's record.
+The proximate causes were trifling--the underlying cause was
+the lack of civilization of the defendant--his brutality and
+absence of self-control.
+
+With a view to ascertaining conditions in general throughout
+the United States, I asked a clipping agency to send me the
+first one hundred notices of actual homicides which should
+come under its scissors.  The immediate result of this
+experiment was that I received forty-five notices supposedly
+relating to murders and homicides, which on closer examination
+proved to be anything but what I wanted for the purpose in
+view.  With only one or two exceptions they related not to
+deaths from violence reported as having occurred on any
+particular day, but to notices of convictions, acquittals,
+indictments, pleas of guilty and not guilty, rewards offered,
+sentences, executions, "suspicions" of the police, "mysteries
+revived," and even editorials on capital punishment.
+
+A letter of protest brought in due course, but much more
+slowly, one hundred and seven clippings, which yielded the
+following reasons why men killed:  There were four suicides,
+three lynchings, one infanticide, three murders while
+resisting arrest, three criminals killed while resisting
+arrest, two men killed in riots, eight murders in the course
+of committing burglaries and robberies, seven persons killed
+in vendettas, three grace murders, and twenty-four killed in
+quarrels over petty causes; there were twelve murders from
+jealousy, followed in four instances by suicide on the part of
+the murderer; six killings justifiable on the "higher law"
+theory only, but involving great provocation, and thirty
+deliberate slaughters.  The last clipping recounted how an
+irate husband pounded a "masher" so hard that he died.
+Leaving out the suicides and those killed while resisting
+arrest, there remain one hundred persons murdered, not only by
+persons insane or wild from the effects of liquor, but by
+robbers and burglars, brutes, bullies, and thugs, husbands,
+wives, and lovers, and by a vast number of people who not only
+destroyed their enemies in the fury of anger, but in many
+instances openly went out gunning for them, lay in wait for
+them in the dark, or hacked off their heads with hatchets
+while they slept.
+
+It is, indeed, a sanguinary record, from which little
+consolation is to be derived, and the only comfort is the
+probability that the accounts of the first one hundred
+murders anywhere in Europe would undoubtedly be just as
+blood-curdling.  I had simply asked the clipping bureau to
+send me one hundred horrors and I had got them.  They did not
+indicate anything at all so far as the ratio of homicide to
+population was concerned or as to the bloodthirstiness of
+Americans in general.  They merely showed what despicable
+things murders were.
+
+As to the reasons for the killings, they were as diverse as
+those which Mr. Nott had prosecuted, save that there were more
+of an ultra blood-thirsty character, due probably to the fact
+that the young lady who did the clipping wanted (after one
+rebuff) to make sure that I was satisfied with the goods she
+sent me.  And this suggests a reason for the large percentage
+of cold-blooded killings prosecuted by my friend--namely, that
+Mr. Nott being the most astute prosecutor available, the
+district attorney, whenever the latter had a particularly
+atrocious case, sent it to him in order that the defendant
+might surely get his full deserts.
+
+The reasons for these homicides were of every sort; police
+officers and citizens were shot and killed by criminals trying
+to make "get-aways," and by negroes and others "running
+amuck"; despondent young men shot their unresponsive
+sweethearts and then either blew out their own brains of
+pretended to try to do so; two stable-men had a duel with
+revolvers, and each killed the other; several men were shot
+for being too attentive to young women residing in the same
+hotels; an Italian, whose wife had left him and gone to her
+mother, went to the house and killed her, her sister, her
+sister's husband, his mother-in-law, two children, and finally
+himself; the "Gopher Gang" started a riot at a "benefit" dance
+given to a widow and killed a man, after which they fled to
+the woods and fired from cover upon the police until eighteen
+were overpowered and arrested; a young girl and her fiance,
+sitting in the parlor, planning their honeymoon, were
+unexpectedly interrupted by a rejected suitor of the girl's,
+who shot and killed both of them; an Italian who peeked into a
+bedroom, just for fun, afterward rushed in and cut off two
+persons' heads with an ax--one of them was his wife; a gang of
+white ruffians shot and then burned a negro family of three
+peacefully working in the fields; a man who went to the front
+door to see who had tapped on his window was shot through the
+heart; a striker was killed by a twenty-five-pound piece of
+flagging thrown from a roof; there was a gun fight of colored
+men at Madison, Wisconsin, at which three were shot; a gang of
+negro ruffians killed and mutilated a white woman (with a baby
+in her arms) and her husband; masked robbers called a man to
+his barn at Winston-Salem, North Carolina, and cut his throat;
+an Italian was found with his head split in two by a butcher's
+cleaver; a negress in Lafayette, Louisiana, killed a family of
+six with a hatchet; a negro farmer and his two daughters were
+lynched and their bodies burned by four white men (who will
+probably also be lynched if caught); a girl of eleven shot her
+girl friend of about the same age and killed her; several
+persons were found stabbed to death; a plumber killed his
+brother (also a plumber) for saying that he stole two dollars;
+a murderer was shot by a posse of militia in a cornfield; a
+card game at Bayonne, New Jersey, resulted in a revolver fight
+on the street in which one of the players was killed; bank
+robbers killed a cashier at twelve o'clock noon; a jealous
+lover in Butte, Montana, shot and killed his sweetheart, her
+father, and mother; a deputy sheriff was murdered; burglars
+killed several persons in the course of their business;
+Kokolosski, a Pole, kicked his child to death; and a couple of
+dozen people were incidentally shot, stabbed, or otherwise
+disposed of in the course of quarrels over the most trivial
+matters.  In almost no case was there what an intelligent,
+civilized man would regard as an adequate reason for the
+homicide.  They killed because they felt like killing, and
+yielded to the impulse, whatever its immediate origin.
+
+This conclusion is abundantly supported by the figures of the
+'Chicago Tribune' for the seven years ending in 1900, when
+carefully analyzed.  During this period 62,812 homicides were
+recorded.  Of these there were 17,120 of which the causes were
+unknown and 3,204 committed while making a justifiable arrest,
+in self-defence, or by the insane, so that there were in fact
+only 42,488 felonious homicides the causes of which can be
+definitely alleged.  The ratio of the "quarrels" to this net
+total is about seventy-five per cent.  There were, in
+addition, 2,848 homicides due to liquor--that is, without
+cause.  Thus eighty per cent of all the murders and
+manslaughters in the United States for a period of seven years
+were for no reason at all or from mere anger or habit, arising
+out of causes often of the most trifling character.
+
+Nor are the conclusions changed by the figures of the years
+between 1904 and 1909.
+
+During this period 61,786 homicides were recorded.  Of these
+there were 9,302 of which the causes were not known, and 2,480
+committed while making a justifiable arrest, in self-defence,
+or by the insane, leaving 50,004 cases of felonious homicides
+of known causes.  Of these homicides, 33,476 were due to
+quarrels and 4,799 to liquor, a total of 38,275 out of the
+50,004 cases of known causes being traceable in this, another
+seven years, to motives the most casual.
+
+It would be stupid to allege that the reason men killed was
+because they had been stepped on or had been deprived of a
+glass of beer.  The cause lies deeper than that.  It rests in
+the willingness or desire of the murderer to kill at all.
+Among barbaric or savage peoples this is natural; but among
+civilized nations it is hardly to be anticipated.  If the
+negro who shoots his fellow because he believes himself to
+have been cheated out of ten cents were really civilized, he
+would either not have the impulse to kill or, having the
+impulse to kill, would have sufficient power of self-control
+to refrain from doing so.  This power of self-control may be
+natural or acquired, and it may or may not be possessed by the
+man who feels a desire to commit a homicide.  The fact to be
+observed--the interesting and, broadly speaking, the
+astonishing fact--is that among a people like ourselves
+anybody should have a desire to kill.  It is even more
+astonishing than that the impulse should be yielded to so
+often if it comes.
+
+This, then, is the real reason why men kill--because it is
+inherent in their state of mind, it is part of their mental
+and physical make-up--they are ready to kill, they want to
+kill, they are the kind of men who do kill.  This is the
+result of their heredity, environment, educational and
+religious training, or the absence of it.  How many readers of
+this paper have ever experienced an actual desire to kill
+another human being?  Probably not one hundredth of one per
+cent.  They belong to the class of people who either never
+have such an impulse, or at any rate have been taught to keep
+such impulses under control.  Hence it is futile to try to
+explain that some men kill for a trifling sum of money, some
+because they feel insulted, others because of political or
+labor disputes, or because they do not like their food.  Any
+one of these may be the match that sets off the gunpowder, but
+the real cause of the killing is the fact that the gunpowder
+is there, lying around loose, and ready to be touched off.
+What engenders this gunpowder state of mind would make a
+valuable sociological study, but it may well be that a
+seemingly inconsequential fact may so embitter a boy or man
+toward life or the human race in general that in time he "sees
+red" and goes through the world looking for trouble.  Any
+cause that makes for crime and depravity makes for murder as
+well.  The little boy who is driven out of the tenement onto
+the street, and in turn off the street by a policeman, until,
+finding no wholesome place to play, he joins a "gang" and
+begins an incipient career of crime, may end in the "death
+house."
+
+The table on the opposite page gives the figures collected by
+the 'Chicago Tribune' for the years from 1881 to 1910.
+
+In view of the foregoing it may seem paradoxical for the
+writer to state that he questions the alleged unusual tendency
+to commit murder on the part of citizens of the United States.
+Yet of one fact he is absolutely convinced--namely, that
+homicide has substantially decreased in the last fifteen
+years.  Even according to the figures collected by the
+'Chicago Tribune', there were but 8,975 homicides in 1910 as
+compared with 10,500 in 1895, and 10,652 in 1896.  Meantime
+the population of our country has been leaping onward.
+
+
+NUMBER OF MURDERS AND HOMICIDES IN THE UNITED STATES EACH
+YEAR SINCE 1891, COMPARED WITH THE POPULATION
+
+         NUMBER OF                          NUMBER OF
+         MURDERS AND     ESTIMATED          MURDERS AND
+YEAR     HOMICIDES IN    POPULATION         HOMICIDES
+         THE UNITED      OF THE             FOR EACH
+         STATES          UNITED STATES      MILLION OF
+                                            PEOPLE
+
+1881......1,266..........51,316,000..........24.7
+
+1882......1.467..........----------..........27.9
+
+1883......1,697..........----------..........31.6
+
+1884......1,465..........----------..........26.7
+
+1885......1,808..........56,I48,000..........32.2
+
+1886......1,499..........----------..........26.1
+
+1887......2,335..........----------..........39.8
+
+1888......2,184..........---------...........36.4
+
+1889......3,567..........---------...........58.0
+
+1890......4,290.........62,622,250...........68.5
+
+1891......5,906..........---------...........92.4
+
+1892......6,791..........---------..........104.2
+
+1893......6,615..........---------..........99.5
+
+1894......9,800..........---------.........144.7
+
+1895.....10,500.........69,043,000.........152.2
+
+1896.....10,652..........---------.........151.3
+
+1897......9,520..........---------.........132.8
+
+1898......7,840..........---------.........107.2
+
+1899......6,225..........---------..........83.6
+
+1900......8,275.........75,994,575.........108.7
+
+1901......7,852.........77,754,000.........100.9
+
+1902......8,834.........79,117,OOO.........111.7
+
+1903......8,976..........---------.........112.0
+
+1904......8,482..........---------...............
+
+1905......9,212..........---------...............
+
+1906......9,350.........---------................
+
+1907......8,712..........---------...............
+
+1908......8,952..........---------...............
+
+1909......8,103..........---------...............
+
+1910......8,975.........91,972,266...........97.5
+
+Total......191,150
+
+
+We are blood-thirsty enough, God knows, without making things
+out any worse than they are.  Our murder rate per 100,000
+unquestionably exceeds that of most of the countries of
+western Europe, but, as the saying is, "there's a reason."  If
+our homicide statistics related only to the white population
+of even the second generation born in this country we should
+find, I am convinced, that we are no more homicidal than
+France and Belgium, and less so than Italy.  It is to be
+expected that with our Chinese, "greaser," and half-breed
+population in the West, our Black Belt in the South, and our
+Sicilian and South Italian immigration in the North and East,
+our murder rate should exceed those of the continental
+nations, which are nothing if not well policed.
+
+But of one thing we can be abundantly certain without any
+figures at all, and that is that our present method of
+administering justice (less the actions of juries than of
+judges)--the system taken as a whole--offers no deterrent to
+the embryonic or professional criminal.  The administration of
+justice to-day is not the swift judgment of honest men upon a
+criminal act, but a clever game between judge and lawyer, in
+which the action of the jury is discounted entirely and the
+moves are made with a view to checkmating justice, not in the
+trial courtroom, but before the appellate tribunal two or
+three years later.
+
+"My young feller," said a grizzled veteran of the criminal bar
+to me long years ago, after our jury had gone out, "there's
+lots of things in this game you ain't got on to yet.  Do you
+think I care what this jury does?  Not one mite.  I got a nice
+little error into the case the very first day--and I've set
+back ever since.  S'pose we are convicted?  I'll get Jim here
+[the prisoner] out on a certificate and it'll be two years
+before the Court of Appeals will get around to the case.
+Meantime Jim'll be out makin' money to pay me my fee--won't
+you, Jim?  Then your witnesses, will be gone, and nobody'll
+remember what on earth it's all about.  You'll be down in Wall
+Street practicing real law yourself, and the indictment will
+kick around the office for a year or so, all covered with
+dust, and then some day I'll get a friend of mine to come in
+quietly and move to dismiss.  And it'll be dismissed.  Don't
+you worry!  Why, a thousand other murders will have been
+committed in this county by the time that happens.  Bless your
+soul!  You can't go on tryin' the same man forever!  Give the
+other fellers a chance.  You shake your head?  Well, it's a
+fact.  I've been doin' it for forty years.  You'll see."  And
+I did.  That may not be why men kill, but perhaps indirectly
+it may have something to do with it.
+
+
+
+
+CHAPTER V
+
+Detectives and Others
+
+
+A Detective, according to the dictionaries, is one "whose
+occupation it is to discover matters as to which information
+is desired, particularly wrong-doers, and to obtain evidence
+to be used against them."  A private detective, by the same
+authority, is one "engaged unofficially in obtaining secret
+information for or guarding the private interests of those who
+employ him."  The definition emphasizes the official character
+of detectives in general as contrasted with those whose
+services may be enlisted for hire by the individual citizen,
+but the distinction is of little importance, since it is based
+arbitrarily upon the character of the employer (whether the
+State or a private client) instead of upon the nature of the
+employment itself, which is the only thing which is likely to
+interest us about detectives at all.
+
+The sanctified tradition that a detective was an agile
+person with a variety of side-whiskers no longer obtains
+even in light literature, and the most imaginative of us
+is frankly aware of the fact that a detective is just a
+common man earning (or pretending to earn) a common living
+by common and obvious means.  Yet in spite of ourselves
+we are accustomed to attribute superhuman acuteness and a
+lightning-like rapidity of intellect to this vague and
+romantic class of fellow-citizens.  The ordinary work of a
+detective, however, requires neither of these qualities.
+Honesty and obedience are his chief requirements, and if he
+have intelligence as well, so much the better, provided it be
+of the variety known as "horse" sense.  A genuine candidate
+for the job of Sherlock Holmes would find little competition.
+In the first place, the usual work of a detective does not
+demand any extraordinary powers of deduction at all.
+
+Leaving out of consideration those who are merely private
+policemen (often in uniform), and principally engaged in
+patrolling residential streets, preserving order at fairs,
+race-tracks, and political meetings, or in breaking strikes
+and preventing riots, the largest part of the work for which
+detectives are employed is not in the detection of crime and
+criminals, but in simply watching people, following them, and
+reporting as accurately as possible their movements.  These
+functions are known in the vernacular as spotting, locating,
+and trailing.  It requires patience, some powers of
+observation, and occasionally a little ingenuity.  The real
+detective under such circumstances is the man to whom they
+hand in their reports.  Yet much of the most dramatic and
+valuable work that is done involves no acuteness at all, but
+simply a willingness to act as a spy and to brave the dangers
+of being found out.
+
+There is nothing more thrilling in the pages of modern history
+than the story of the man (James McPartland) who uncovered the
+conspiracies of the Molly McGuires.  But the work of this man
+was that of a spy pure and simple.
+
+Another highly specialized class of detectives is that engaged
+in police and banking work, who by experience (or even origin)
+have a wide and intimate acquaintance with criminals of
+various sorts, and by their familiarity with the latters'
+whereabouts, associates, work, and methods are able to
+recognize and run down the perpetrators of particular crimes.
+
+Thus, for example, there are men in the detective bureau of
+New York City who know by name, and perhaps have a speaking
+acquaintance with, a large number of the pick-pockets and
+burglars of the East Side.  They know their haunts and their
+ties of friendship or marriage.  When any particular job is
+pulled off they have a pretty shrewd idea of who is
+responsible for it and lay their plans accordingly.  If
+necessary, they run in the whole gang and put each of them
+through a course of interrogation, accusation, and browbeating
+until some one breaks down or makes a slip that involves him
+in a tangle.  These men are special policemen whose knowledge
+makes them detectives by courtesy.  But their work does not
+involve any particular superiority or quickness of intellect
+--the quality which we are wont to associate with the
+detection of crime.
+
+Now, if the ordinary householder finds that his wife's
+necklace has mysteriously disappeared, his first impulse is to
+send for a detective of some sort or other.  In general, he
+might just as well send for his mother-in-law.  Of course, the
+police can and will watch the pawnshops for the missing
+baubles, but no crook who is not a fool is going to pawn a
+whole necklace on the Bowery the very next day after it has
+been "lifted."  Or he can enlist a private detective who will
+question the servants and perhaps go through their trunks, if
+they will let him.  Either sort will probably line up the
+inmates of the house for general scrutiny and try to bully
+them separately into a confession.  This may save the master a
+disagreeable experience, but it is the simplest sort of police
+work and is done vicariously for the taxpayer, just as the
+public garbage man relieves you from the burden of taking out
+the ashes yourself, because he is paid for it, not on account
+of your own incapacity or his superiority.
+
+The real detective is the one who, taking up the solution
+of a crime or other mystery, brings to bear upon it unusual
+powers of observation and deduction and an exceptional
+resourcefulness in acting upon his conclusions.  Frankly, I
+have known very few such, although for some ten years I have
+made use of a large number of so-called detectives in both
+public and private matters.  As I recall the long line of
+cases where these men have rendered service of great value,
+almost every one resolves itself into a successful piece of
+mere spying or trailing.  Little ingenuity or powers of reason
+were required.  Of course, there are a thousand tricks that an
+experienced man acquires as a matter of course, but which at
+first sight seem almost like inspiration.  I shall not forget
+my delight when Jesse Blocher, who had been trailing Charles
+Foster Dodge through the South (when the latter was wanted
+as the chief witness against Abe Hummel on the charge of
+subornation of perjury of which he was finally convicted),
+told me how he instantly located his man, without disclosing
+his own identity, by unostentatiously leaving a note addressed
+to Dodge in a bright-red envelope upon the office counter of
+the Hotel St. Charles in New Orleans, where he knew his quarry
+to be staying.  A few moments later the clerk saw it, picked
+it up, and, as a matter of course, thrust it promptly into box
+No. 420, thus involuntarily hanging, as it were, a red lantern
+on Dodge's door.
+
+There is no more reason to look for superiority of
+intelligence or mental alertness among detectives of the
+ordinary class than there is to expect it from clerks,
+stationary engineers, plumbers, or firemen.  While comparisons
+are invidious, I should be inclined to say that the ordinary
+chauffeur was probably a brighter man than the average
+detective.  This is not to be taken in derogation of the
+latter, but as a compliment to the former.  There are a great
+many detectives of ambiguous training.  I remember in one case
+discovering that of the more important detectives employed by
+a well-known private Anti-Criminal Society in New York, one
+had been a street vender of frankfurters (otherwise yclept
+"hot dogs"), and another the keeper of a bird store, which
+last perhaps qualified him for the pursuit and capture of
+human game.  There is a popular fiction that lawyers are
+shrewd and capable, similar to the prevailing one that
+detectives are astute and cunning.  But, as the head of one of
+the biggest agencies in the country remarked to me the other
+day, when discussing the desirability of retaining local
+counsel in a distant city: "You know how hard it is to find a
+lawyer that isn't a dead one."  I feel confident that he did
+not mean this in the sense that there was no good lawyer
+except a dead lawyer.  What my detective friend probably had
+in mind was that it was difficult to find a lawyer who brought
+to bear on a new problem any originality of thought or action.
+It is even harder to find a detective who is not in this sense
+a dead one.  I have the feeling, being a lawyer myself, that
+it is harder to find a live detective than a live lawyer.
+There are a few of both, however, if you know where to look
+for them.  But it is easy to fall into the hands of the
+Philistines.
+
+The fundamental reason why it is so hard to form any just
+opinion of detectives in general is that (except by their
+fruits) there is little opportunity to discriminate between
+the able and the incapable.  Now, the more difficult and
+complicated his task the less likely is the sleuth (honest or
+otherwise) to succeed.  The chances are a good deal more than
+even that he will never solve the mystery for which he is
+engaged.  Thus at the end of three months you will have only
+his reports and his bill--which are poor comfort, to say the
+least.  And yet he may have really worked eighteen hours a day
+in your service.  But a dishonest detective has only to
+disappear (and take his ease for the same period) and send you
+his reports and his bill--and you will have only his word for
+how much work he has done and how much money he has spent.
+You are absolutely in his power--unless you hire another
+detective to watch HIM.  Consequently there is no class in the
+world where the temptation to dishonesty is greater than among
+detectives.  This, too, is, I fancy, the reason that the
+evidence of the police detective is received with so much
+suspicion by jurymen--they know that the only way for him to
+retain his position is by making a record and getting
+convictions, and hence they are always looking for jobs and
+frame-ups.  If a police detective doesn't make arrests and
+send a man to jail every once in a while there is no
+conclusive way for his superiors to be sure he isn't loafing.
+
+There are a very large number of persons who go into the
+detective business for the same reason that others enter the
+ministry--they can't make a living at anything else, Provided
+he has squint eyes and a dark complexion, almost anybody feels
+that he is qualified to unravel the tangled threads of crime.
+The first resource of the superannuated or discharged police
+detective is to start an agency.  Of course, he may be first
+class in spite of these disqualifications, but the presumption
+in the first instance is that he is no longer alert or
+effective, and in the second that in one way or another he
+is not honest.  Agencies recruited from deposed and other
+ex-policemen usually have all the faults of the police without
+any of their virtues.  There are many small agencies which do
+reliable work, and there are a number of private detectives in
+all the big cities who work single-handed and achieve
+excellent results.  However, if he expects to accomplish
+anything by hiring detectives, the layman or lawyer must first
+make sure of his agency or his man.
+
+One other feature of the detective business should not be
+overlooked.  In addition to charging for services not actually
+rendered and expenses not actually incurred, there is in many
+cases a strong temptation to betray the interests of the
+employer.  A private detective may, and usually does, become
+possessed of information even more valuable to the person who
+is being watched than to the person to whom he owes his
+allegiance.  Unreliable rascals constantly sell out to the
+other side and play both ends against the middle.  In this
+they resemble some of the famous diplomatic agents of history.
+And police detectives employed to run down criminals and
+protect society have been known instead to act as stalls for
+bank burglars and (for a consideration) to assist them to
+dispose of their booty and protect them from arrest and
+capture.  It has repeatedly happened that reliable private
+detectives have discovered that the police employed upon the
+same case have in reality been tipping off the criminals as to
+what was being done and coaching them as to their conduct.  Of
+course the natural jealousy existing between official and
+unofficial agents of the law leads to many unfounded
+accusations of this character, but, on the other hand, the
+fact that much of the most effective police work is done by
+employing professional criminals to secure information and act
+as stool-pigeons often results in a definite understanding
+that the latter shall be themselves protected in the quiet
+enjoyment of their labors.  The relations of the regular
+police to crime, however, and the general subject of police
+graft have little place in a chapter of this character.
+
+The first question that usually arises is whether a detective
+shall or shall not be employed at all in any particular case.
+Usually the most important thing is to find out what the real
+character, past, and associations of some particular
+individual may be.  Well-established detective agencies with
+offices throughout the country are naturally in a better
+position to acquire such information quickly than the private
+individual or lawyer, since they are on the spot and have an
+organized staff containing the right sort of men for the work.
+If the information lies in your own city you can probably hire
+some one to get it or ferret it out yourself quite as well,
+and much more cheaply, than by employing their services.  The
+leads are few and generally simple.  The subject's past
+employers and business associates, his landlords and
+landladies, his friends and enemies, and his milkman must be
+run down and interrogated.  Perhaps his personal movements
+must be watched.  Any intelligent fellow who is out of a job
+will do this for you for about $5 a day and expenses.  The
+agencies usually charge from $6 to $8 (and up), and prefer two
+men to one, as a matter of convenience and to make sure that
+the subject is fully covered.  If the suspect is on the move
+and trains or steamships must be met, you have practically no
+choice but to employ a national agency.  It alone has the
+proper plant and equipment for the work.  In an emergency,
+organization counts more than anything else.  Where time is of
+the essence, the individual has no opportunity to hire his own
+men or start an organization of his own.  But if the matter is
+one where there is plenty of leisure to act, you can usually
+do your own detective work better and cheaper than any one
+else.
+
+Regarding the work of the detective as a spy (which probably
+constitutes seventy-five per cent of his employment to-day),
+few persons realize how widely such services are being
+utilized.  The insignificant old Irishwoman who stumbles
+against you in the department store is possibly watching with
+her cloudy but eagle eye for shoplifters.  The tired-looking
+man on the street-car may, in fact, be a professional
+"spotter."  The stout youth with the pince nez who is
+examining the wedding presents is perhaps a central-office
+man.  All this you know or may suspect.  But you are not so
+likely to be aware that the floor-walker himself is the agent
+of a rival concern placed in the department store to keep
+track, not only of prices but of whether or not the
+wholesalers are living up to their agreements in regard to the
+furnishing of particular kinds of goods only to one house; or
+that the conductor on the car is a paid detective of the
+company, whose principal duty is not to collect fares, but to
+report the doings of the unions; or that the gentleman who is
+accidentally introduced to you at the wedding breakfast is
+employed by a board of directors to get a line on your host's
+business associates and social companions.
+
+In the great struggle between capital and labor, each side has
+expended large sums of money in employing confederates to
+secure secret information as to the plans and doings of the
+enemy.  Almost every labor union has its Judas, and less often
+a secretary to a capitalist is in the secret employment of a
+labor union.  The railroads must be kept informed of what is
+going on, and, if necessary, they import a man from another
+part of the country to join the local organization.  Often
+such men, on account of their force and intelligence, are
+elected to high office in the brotherhoods whose secrets they
+are hired to betray.  Practically every big manufacturing
+plant in the United States has on its payrolls men acting as
+engineers, foremen, or laborers who are drawing from $8o to
+$100 per month as detectives either (1) to keep their
+employers informed as to the workings of the labor unions, (2)
+to report to the directors the actual conduct of the business
+by its salaried officers, superintendents, and overseers, or
+(3) to ascertain and report to outside competing concerns the
+methods and processes made use of, the materials utilized, and
+the exact cost of production.
+
+There are detectives among the chambermaids and bellboys in
+the hotels, and also among the guests; there are detectives on
+the passenger lists and in the cardrooms of the Atlantic
+liners; the colored porter on the private car, the butler at
+your friend's house, the chorus girl on Broadway, the clerk in
+the law office, the employee in the commercial agency, may all
+be drawing pay in the interest of some one else, who may be
+either a transportation company, a stock-broker, a rival
+financier, a yellow newspaper, an injured or even an erring
+wife, a grievance committee, or a competing concern; and the
+duties of these persons may and will range from the theft of
+mailing lists, books, papers, and private letters, up to
+genuine detective work requiring some real ability.
+
+Detective work of the sort which involves the betrayal of
+confidences and friendships naturally excites our aversion
+--yet in many cases the end undoubtedly justifies the means
+employed, and often there is no other way to avert disaster
+and prevent fiendish crimes.  Sometimes, on the other hand,
+the information sought is purely for mercenary or even less
+worthy reasons, and those engaged in these undertakings range
+from rascals of the lowest type to men who are ready to risk
+death for the cause which they represent and who are really
+heroes of a high order.  One of the latter with whom I
+happened to be thrown professionally was a young fellow of
+about twenty named Guthrie.
+
+It was during a great strike, and outrages were being
+committed all over the city of New York by dynamiters supposed
+to be in the employ of the unions.  Young Guthrie, who was a
+reckless daredevil, offered his services to the employers, and
+agreed to join one of the local unions and try to find out who
+were the men blowing up office buildings in process of
+construction and otherwise terrorizing the inhabitants of the
+city.  Accordingly he applied for membership in the
+organization, and by giving evidence of his courage and fiber
+managed to secure a place as a volunteer in the dynamiting
+squad.  So cleverly did he pass himself off as a bitter enemy
+of capital that he was entrusted with secrets of the utmost
+value and took part in making the plans and procuring the
+dynamite to execute them.  The quality of his nerve (as well
+as his foolhardiness) is shown by the fact that he once
+carried a dress-suit case full of the explosive around the
+city, jumping on and off street cars, and dodging vehicles.
+When the proper moment came and the dynamite had been placed
+in an uncompleted building on Twenty-second Street, Guthrie
+gave the signal and the police arrested the dynamiters--all of
+them, including Guthrie, who was placed with the rest in a
+cell in the Tombs and continued to report to the district
+attorney all the information which he thus secured from his
+unsuspecting associates.  Indeed, it was hard to convince the
+authorities that Guthrie was a spy and not a mere accomplice
+who had turned State's evidence, a distinction of far-reaching
+legal significance so far as his evidence was concerned.
+
+The final episode in the drama was the unearthing by the
+police of Hoboken of the secret cache of the dynamiters,
+containing a large quantity of the explosive.  Guthrie's
+instructions as to how they should find it read like a page
+from Poe's "Gold Bug."  You had to go at night to a place
+where a lonely road crossed the Erie Railroad tracks in the
+Hackensack meadows, and mark the spot where the shadow of a
+telegraph pole (cast by an arc light) fell on a stone wall.
+This you must climb and walk so many paces north, turn and go
+so many feet west, and then north again.  You then came to a
+white stone, from which you laid your course through more
+latitude and longitude until you were right over the spot.
+The police of Hoboken did as directed, and after tacking round
+and round the field, found the dynamite.  Of course, the union
+said the whole thing was a plant, and that Guthrie had put the
+dynamite in the field himself at the instigation of his
+employers, but before the case came to trial both dynamiters
+pleaded guilty and went to Sing Sing.  One of them turned out
+to be an ex-convict, a burglar.  I often wonder where Guthrie
+is now.  He certainly cared little for his life.  Perhaps he
+is down in Venezuela or Mexico.  He could never be aught than
+a soldier of fortune.  But for a long time the employers
+thought that Guthrie was a detective sent by the unions to
+compromise THEM in the very dynamiting they were trying to
+stop!
+
+I once had a particularly dangerous and unfortunate case where
+a private client was being blackmailed by a half-crazy ruffian
+who had never seen him, but had selected him arbitrarily as a
+person likely to give up money.  The blackmailer was a German
+Socialist, who was out of employment--a man of desperate
+character.  He had made up his mind that the world owed him a
+living, and he had decided that the easiest way to get it was
+to make some more prosperous person give him a thousand
+dollars under threat of being exposed as an enemy of society.
+
+The charge was so absurd as to be almost ludicrous, but had my
+client caused the blackmailer's arrest the matter would have
+been the subject of endless newspaper notoriety and comment.
+It was therefore thought wise to make use of other means, and
+I procured the assistance of a young German-American of my
+acquaintance, who, in the guise of a vaudeville artist seeking
+a job, went to the blackmailer's boarding-house and pretended
+to be looking for an actor friend with a name not unlike that
+of the criminal.
+
+After two or three visits he managed to scrape an acquaintance
+with the blackmailer and thereafter spent much time with him.
+Both were out of work, both were German, and both liked beer.
+My friend had just enough money to satisfy this latter
+craving.  In a month or so they were intimate friends and used
+to go fishing together down the bay.  At last, after many
+months, the criminal disclosed to the detective his plan of
+blackmailing my client, and suggested that as two heads were
+better than one they had better make it a joint venture.  The
+detective pretended to balk at the idea at first, but was
+finally persuaded, and at the other's request undertook the
+delivery of the blackmailing letters to my client!  Inside of
+three weeks he had in his possession enough evidence in the
+criminal's own handwriting to send him to a prison for the
+rest of his life.  When at last the detective disclosed his
+identity the blackmailer at first refused to believe him, and
+then literally rolled on the floor in his agony and fear at
+discovering how he had been hoodwinked.  The next day he
+disappeared and has not been heard of since, but his letters
+are in my vault, ready to be used if he again puts in an
+appearance.
+
+The records of the police and of the private agencies contain
+many instances where murderers have confessed their guilt long
+after the crime to supposed friends, who were in reality
+decoys placed there for that very purpose.  It is a
+peculiarity of criminals that they cannot keep their secrets
+locked in their own breasts.  The impulse to confession is
+universal, particularly in women.  Egotism has some part in
+this, but the chief element is the desire for companionship.
+Criminals have a horror of dying under an alias.  The dignity
+of identity appeals even to the tramp.  This impulse leads
+oftentimes to the most unnecessary and suicidal disclosures.
+The murderer who has planned and executed a diabolical
+homicide and who has retired to obscurity and safety will very
+likely in course of time make a clean breast of it to some one
+whom he believes to be his friend.  He wants to "get it off
+his chest," to talk it over, to discuss its fine points, to
+boast of how clever he was, to ask for unnecessary advice
+about his conduct in the future, to have at least one other
+person in the world who has seen his soul's nakedness.
+
+The interesting feature of such confessions from a legal point
+of view is that, no matter how circumstantial they may be,
+they are not usually of themselves sufficient under our law to
+warrant a conviction.  The admission or confession of a
+defendant needs legal corroboration.  This corroboration is
+often very difficult to find, and frequently cannot be
+secured at all.  This provision of the statutes is doubtless a
+wise one to prevent hysterical, suicidal, egotistical, and
+semi-insane persons from meeting death in the electric chair
+or on the gallows, but it often results in the guilty going
+unpunished.  Personally, I have never known a criminal to
+confess a crime of which he was innocent.  The nearest thing
+to it in my experience is when one criminal, jointly guilty
+with another and sure of conviction, has drawn lots with his
+pal, lost, confessed, and in the confession exculpated his
+companion.
+
+In the police organization of almost every large city there
+are a few men who are genuinely gifted for the work of
+detection.  Such an one was Guiseppe Petrosino, a great
+detective, and an honest, unselfish, and heroic man, who
+united indefatigable patience and industry with reasoning
+powers of a high order.  The most thrilling evening of my
+life was when I listened before a crackling fire in my library
+to Joe's story of the Van Cortlandt Park murder, the night
+before I was going to prosecute the case.  Sitting stiffly in
+an arm-chair, his ugly moon-face expressionless save for an
+occasional flash from his black eyes, Petrosino recounted
+slowly and accurately how, by means of a single slip of paper
+bearing the penciled name "Sabbatto Gizzi, P.O. Box 239,
+Lambertville, N.J.," he had run down the unknown murderer of
+an unknown Italian stabbed to death in the park's shrubbery.
+
+Petrosino's physical characteristics were so pronounced
+that he was probably as widely, if not more widely, known
+than any other Italian in New York.  He was short and heavy,
+with enormous shoulders and a bull neck, on which was
+placed a great round head like a summer squash.  His face was
+pock-marked, and he talked with a deliberation that was due
+to his desire for accuracy, but which at times might have
+been suspected to arise from some other cause.  He rarely
+smiled and went methodically about his business, which was to
+drive the Italian criminals out of the city and country.  Of
+course, being a marked man in more senses than one, it was
+practically impossible to disguise himself, and, accordingly,
+he had to rely upon his own investigations and detective
+powers, supplemented by the efforts of the trained men in the
+Italian branch, many of whom are detectives of a high order of
+ability.  If the life of Petrosino were to be written, it
+would be a book unique in the history of criminology and
+crime, for this man was probably the only great detective of
+the world to find his career in a foreign country amid
+criminals of his own race.
+
+I have instanced Petrosino as an example of a police detective
+of a very unusual type, but I have known several other men on
+the New York Police Force of real genius in their own
+particular lines of work.  One of these is an Irishman who
+makes a specialty of get-rich-quick men, oil and mining stock
+operators, wire-tappers and their kin, and who knows the
+antecedents and history of most of them better than any other
+man in the country.  He is ready to take the part of either a
+"sucker" or a fellow crook, as the exigencies of the case may
+demand.
+
+There are detectives--real ones--on the police force of
+all the great cities of the world to-day, most of them
+specialists, a few of them geniuses capable of undertaking
+the ferreting out of any sort of mystery, but the last are
+rare.  The police detective usually lacks the training,
+education, and social experience to make him effective in
+dealing with the class of elite criminals who make high
+society their field.  Yet, of course, it is this class of
+crooks who most excite our interest and who fill the pages
+of popular detective fiction.
+
+The headquarters man has no time nor inclination to follow the
+sporting duchess and the fictitious earl who accompanies her
+in their picturesque wanderings around the world.  He is busy
+inside the confines of his own country.  Parents or children
+may disappear, but the mere seeking of oblivion on their part
+is no crime and does not concern him except by special
+dispensation on the part of his superiors.  Divorced couples
+may steal their own children back and forth, royalties may
+inadvertently involve themselves with undesirables,
+governmental information exude from State portals in a
+peculiar manner, business secrets pass into the hands of
+rivals, racehorses develop strange and untimely diseases,
+husbands take long and mysterious trips from home--a thousand
+exciting and worrying things may happen to the astonishment,
+distress, or intense interest of nations, governments,
+political parties, or private individuals, which from their
+very nature are outside the purview of the regular police.
+Here, then, is the field of the secret agent or private
+detective, and here, forsooth, is where the detective of
+genuine deductive powers and the polished address of the
+so-called "man of the world" is required.
+
+There are two classes of cases where a private detective must
+needs be used, if indeed any professional assistance is to be
+called in: first, where the person whose identity is sought to
+be discovered or whose activities are sought to be terminated
+is not a criminal or has committed no crime, and second,
+where, though a crime has been committed, the injured parties
+cannot afford to undertake a public prosecution.
+
+For example, if you are receiving anonymous letters, the
+writer of which accuses you of all sorts of unpleasant things,
+you would, of course, much prefer to find out who it is and
+stop him quietly than to turn over the correspondence to the
+police and let the writer's attorneys publicly cross-examine
+you at his trial as to your past career.  Even if a diamond
+necklace is stolen from a family living on Fifth Avenue, there
+is more than an even chance that the owner will prefer to
+conceal her loss rather than to have her picture in the
+morning paper.  Yet she will wish to find the necklace if she
+can.
+
+When the matter has no criminal side at all, the police cannot
+be availed of, although we sometimes read that the officers of
+the local precinct have spent many hours in trying to locate
+Mrs. So-and-So's lost Pomeranian, or in performing other
+functions of an essentially private nature--most generously.
+But if, for example, your daughter is made the recipient,
+almost daily, of anonymous gifts of jewelry which arrive by
+mail, express, or messenger, and you are anxious to discover
+the identity of her admirer and return them, you will probably
+wish to engage outside assistance.
+
+Where will you seek it?  You can do one of two things: go to a
+big agency and secure the services of the right man, or engage
+such a man outside who may or may not be a professional
+detective.  I have frequently utilized with success in
+peculiar and difficult cases the services of men whom I knew
+to be common-sense persons, with a natural taste for ferreting
+out mysteries, but who were not detectives at all.  Your head
+bookkeeper may have real talents in this direction--if he is
+not above using them.  Naturally, the first essential is
+brains--and if you can give the time to the matter, your own
+head will probably be the best one for your purposes.  If,
+then, you are willing to undertake the job yourself, all you
+need is some person or persons to carry out your instructions,
+and such are by no means difficult to find.  I have had many a
+case run down by my own office force--clerks, lawyers, and
+stenographers, all taking a turn at it.  Why not?  Is the
+professional sleuth working on a fixed salary for a regular
+agency and doing a dozen different jobs each month as likely
+to bring to bear upon your own private problem as much
+intelligence as you yourself?
+
+There is no mystery about such work, except what the detective
+himself sees fit to enshroud it with.  Most of us do detective
+work all the time without being conscious of it.  Simply
+because the matter concerns the theft of a pearl, or the
+betraying of a business or professional secret, or the
+disappearance of a friend, the opinion of a stranger becomes
+no more valuable.  And the chances are equal that the stranger
+will make a bungle of it.
+
+Many of the best available detectives are men who work by
+themselves without any permanent staff, and who have their own
+regular clients, generally law firms and corporations.  Almost
+any attorney knows several such, and the chief advantage of
+employing one of them lies in the fact that you can learn just
+what their abilities are by personal experience.  They usually
+command a high rate of remuneration, but deductive ability and
+resourcefulness are so rare that they are at a premium and can
+only be secured by paying it.  These men are able, if
+necessary, to assume the character of a doctor, traveller,
+man-about-town, or business agent without wearing in their
+lapels a sign that they are detectives, and they will reason
+ahead of the other fellow and can sometimes calculate pretty
+closely what he will do.  Twenty-five dollars a day will
+generally hire the best of them, and they are well worth it.
+
+The detective business swarms with men of doubtful honesty and
+morals, who are under a constant temptation to charge for
+services not rendered and expenses not incurred, who are
+accustomed to exaggeration if not to perjury, and who have
+neither the inclination nor the ability to do competent work.
+
+Once they get their clutches on a wealthy client, they
+resemble the shyster lawyer in their efforts to bleed him by
+stimulating his fears of publicity and by holding out false
+hopes of success, and thus prolonging their period of service.
+An unscrupulous detective will, almost as a matter of course,
+work on two jobs at once and charge all his time to each
+client.  He will constantly report progress when nothing has
+been accomplished, and his expenses will fill pages of his
+notebook.  Meantime his daily reports will fall like a shower
+of autumn leaves.  In no profession is it more essential to
+know the man who is working for you.  If you need a detective,
+get the best you can find, put a limit on the expense, and
+give him your absolute confidence.
+
+
+
+
+CHAPTER VI
+
+Detectives Who Detect
+
+
+In the preceding chapter the writer discussed at some length
+the real, as distinguished from the fancied, attributes of
+detectives in general, and the weaknesses as well as the
+virtues of the so-called detective "agency."  There are in the
+city of New York at the present time about one hundred and
+fifty licensed detectives.  Under the detective license laws
+each of these has been required to file with the State
+comptroller written evidences of his competency, and
+integrity, approved by five reputable freeholders of his
+county, and to give bond in the sum of two thousand dollars.
+He also has to pay a license fee of one hundred dollars per
+annum, but this enables him to employ as many "operators"
+as he chooses.  In other words, the head of the agency may
+be of good character and his agents wholly undesirable
+citizens.  How often this is the case is known to none better
+than the heads themselves.  The strength and efficiency of a
+detective agency does not lie in the name at the top of its
+letter-paper, but in the unknown personnel of the men who
+are doing or shirking the work.  I believe that most of the
+principals of the many agencies throughout the United States
+are animated by a serious desire to give their clients a full
+return for their money and loyal and honest service.  But the
+best intentions in the world cannot make up for the lack of
+untiring vigilance in supervising the men who are being
+employed in the client's service.
+
+It is the right here that the "national" has an immense
+advantage over the small agency which cannot afford to keep a
+large staff of men constantly on hand, but is forced to engage
+them temporarily as they may be needed.  The "national" agency
+can shift its employees from place to place as their services
+are required, and the advantages of centralization are felt as
+much in this sort of work as in any other industry.  The
+licensed detective who sends out a hurry call for assistants
+is apt to be able to get only men whom he would otherwise not
+employ.  In this chapter, the word "national," as applied to a
+detective agency, refers not to the title under which such an
+agency may do its business, but to the fact that it is
+organized and equipped to render services all over the
+country.
+
+In this connection it is worth noticing that the best
+detective agencies train their own operators, selecting them
+from picked material.  The candidate must as rule be between
+twenty and thirty-five years of age, sound of body, and
+reasonably intelligent.  He gets pretty good wages from the
+start.  From the comparatively easy work of watching or
+"locating," he is advanced through the more difficult
+varieties of "shadowing" and "trailing," until eventually he
+may develop into a first-class man who will be set to unravel
+a murder mystery or to "rope" a professional criminal.  But
+with years of training the best material makes few real
+detectives, and the real detective remains in fact the man who
+sits at the mahogany desk in the central office and presses
+the row of mother of pearl buttons in front of him.
+
+If you know the heads or superintendents of the large agencies
+you will find that the "star" cases, of which they like to
+talk, are, for the most part, the pursuit and capture of
+forgers and murderers.  The former, as a rule, are "spotted"
+and "trailed" to their haunts, and when sufficient evidence
+has been obtained the police are notified, and a raid takes
+place, or the arrest is made, by the State authorities.  In
+the case of a murderer, in a majority of cases, his capture is
+the result of skilful "roping" by an astute detective who
+manages to get into his confidence.  For example, a murder is
+committed by an Italian miner.  Let us suppose he has killed
+his "boss," or even the superintendent or owner.  He
+disappears.  As the reader known, the Italians are so
+secretive that it is next to impossible to secure any
+information--even from the relatives of the murdered man.
+
+The first thing is to locate the assassin.  An Italian
+detective is sent into the mine as a laborer.  Months may
+elapse before he gets on familiar or intimate terms with
+his fellows.  All the time he is listening and watching.
+Presently he hears something that indicates that the murderer
+is communicating with one of his old friends either directly
+or through third parties.  It is then generally only a
+question of time before his whereabouts are ascertained.
+Once he is "located" the same method is followed in securing
+additional evidence or material in the nature of a confession
+or admission tending to establish guilt.  Having previously
+"roped" the murderer's friends, the detective now proceeds to
+the more difficult task of "roping" the murderer himself.  Of
+course, the life of a detective in a Pennsylvania coal mine
+would be valueless if his identity were discovered, and yet
+the most daring pieces of detective work are constantly being
+performed under these and similar conditions.  Where the
+criminal is not known, the task becomes far more difficult and
+at times exceedingly dangerous.
+
+One of my own friends, an Italian gentleman, spent several
+months in the different mines of this country, where Italians
+are largely employed, investigating conditions and
+ascertaining for the benefit of his government the extent to
+which anarchy was prevalent.  It was necessary for him to
+secure work as a miner at the lowest wages and to disguise
+himself in such a way that it would be impossible for anybody
+to detect his true character.  Fortunately, the great
+diversity of Italian dialects facilitated his efforts and
+enabled him to pass himself off as from another part of the
+country than his comrades.  Having made his preparations he
+came to New York as an immigrant and joined a party of newly
+arrived Italians on their way to the coal mines of West
+Virginia.  Without following him further, it is enough to say
+that during his service in the mines he overheard much that
+was calculated to interest exceedingly the authorities at
+Rome.  Had his disguise been penetrated the quick thrust of a
+five-inch blade would have ended his career.  He would never
+have returned to New York.  There would only have been another
+dead "Dago" miner.  The local coroner would have driven up in
+his buggy, looked at the body, examined the clean, deep wound
+in the abdomen, shrugged his shoulders, and empanelled a
+hetrogeneous jury who would have returned a verdict to the
+effect that "deceased came to his death through a stab wound
+inflicted by some person to the jury unknown."  My friend was
+not a professional detective, but the recital of his
+experiences was enough to fill me with new respect for those
+engaged in the "man hunt" business among the half civilized
+miners of the coal regions.
+
+But the work of even the "national" agencies is not of the
+kind which the novel-reading public generally associates
+with detectives--that is to say, it rarely deals with the
+unravelling of "mysteries," except the identity of passers of
+fraudulent paper and occasional murderers.  The protection of
+the banks is naturally the most important work that such an
+agency can perform.
+
+The National Bankers' Association has eleven thousand members.
+"Pinkerton's Bank and Bankers' Protection" also has a large
+organization of subscribers.  These devote themselves to
+identifying and running down all criminals whose activities
+are dangerous to them.  Here the agency and the police work
+hand in hand, exchanging photographs of crooks and suspects
+and keeping closely informed as to each other's doings.  Yet
+there is no official connection between any detective agency
+and the police of any city.  It is an almost universal rule
+that a private detective shall not make an arrest.  The
+reasons for this are manifold.  In the first place, the
+private detective has neither the general authority nor the
+facilities for the manual detention of a criminal.  A blue
+coat and brass buttons, to say nothing of a night stick, are
+often invaluable stage properties in the last act of the
+melodrama.  And as the criminal authorities are eventually to
+deal with the defendant anyway, it is just as well if they
+come into the case as soon as may be.  It goes without saying,
+of course, that a detective per se has no more right to make
+an arrest than any private citizen--nor has a policeman, for
+that matter, save in exceptional cases.  The officer is
+valuable for his dignity, avoirdupois, "bracelets," and other
+accessories.  The police thus get the credit of many arrests
+in difficult cases where all the work has been done by private
+detectives, and it is good business for the latter to let them
+know it.
+
+One of the chief assets of the big agency is its accumulated
+information concerning all sorts of professional criminals.
+Its galleries are quite as complete as those of the local
+police headquarters, for a constant exchange of art objects is
+going on with the police throughout the world.  And as the
+agency is protecting banks all over the United States it has
+greater interest in all bank burglars as a class than the
+police of any particular city who are only concerned with the
+burglars who (as one might say) burgle in their particular
+burg.  Thus, you are more likely to find a detective from a
+national agency than a sleuth from 300 Mulberry Street, New
+York, following a forger to Australasia or Polynesia.
+
+The best agencies absolutely decline to touch divorce and
+matrimonial cases of any sort.  It does not do a detective
+agency any good to have its men constantly upon the witness
+stand subject to attack, with a consequent possible reflection
+upon their probity of character or truthfulness.  Moreover, a
+good detective is too valuable a person to be wasting his time
+in the court-room.  In the ordinary divorce case the
+detective, having procured evidence, is obliged to remain on
+tap and subject to call as a witness for at least three or
+four months, during which time he cannot be sent away on
+distant work.  Neither can the customer be charged ordinarily
+for waiting time, and apart from its malodorous character the
+business is not desirable from a financial point of view.
+
+The national agencies prefer clean criminal work, murder
+cases, and general investigating.  They no longer undertake
+any policing, strike-breaking, or guarding.  The most
+ridiculous misinformation in regard to their participation in
+this sort of work has been spread broadcast largely by jealous
+enemies and by the labor unions.
+
+By way of illustration, one Thomas Beet, describing himself as
+an English detective, contributed an article to the 'New York
+Tribune' of September 16, 1906, in which he said:
+
+"In one of the greatest of our strikes, that involving the
+steel industry, over two thousand armed detectives were
+employed supposedly to protect property, while several hundred
+men were scattered in the ranks of strikers as workmen.  Many
+of the latter became officers in the labor bodies, helped to
+make laws for the organizations, made incendiary speeches,
+cast their votes for the most radical movements made by the
+strikers, participated in and led bodies of the members in the
+acts of lawlessness that eventually caused the sending of
+State troops and the declaration of martial law.  While doing
+this, these spies within the ranks were making daily reports
+of the plans and purposes of the strikers.  To my knowledge,
+when lawlessness was at its height and murder ran riot, these
+men wore little patches of white on the lapels of their coats
+so that their fellow detectives of the two thousand would not
+shoot them down by mistake."
+
+He, of course, referred to the great strike at Homestead,
+Pennsylvania, in 1892.  In point of fact, there were only six
+private detectives engaged on the side of the employers at
+that time, and these were there to assist the local
+authorities in taking charge of six hundred and fifty
+watchmen, and to help place the latter upon the property of
+the steel company.  These watchmen were under the direction
+of the sheriff and sworn in as peace officers of the county.
+Mr. Beet seems to have confused his history and mixed up
+the white handkerchief of the Huguenots of Nantes with the
+strike-breakers of Pennsylvania.  It is needless to repeat
+(as Mr. Robert A. Pinkerton stated at the time), that the
+white label story is ridiculously' untrue, and that it was
+the strikers who attacked the watchmen, and not the watchmen
+the strikers.  One striker and one watchman were killed.
+
+But this attack of Mr. Beet upon his own profession, under the
+guise of being an English detective (it developed that he was
+an ex-divorce detective from New York City), was not confined
+to his remarks about inciting wanton murder.  On the contrary,
+he alleged (as one having authority and not merely as a
+scribe) that American detective agencies were practically
+nothing but blackmailing concerns, which used the information
+secured in a professional capacity to extort money from their
+own clients.
+
+"Think of the so-called detective," says Mr. Beet, "whose
+agency pays him two dollars or two dollars and fifty cents a
+day, being engaged upon confidential work and in the
+possession of secrets that he knows are worth money!  Is it
+any wonder that so many cases are sold out by employees, even
+when the agencies are honest?"
+
+We are constrained to answer that it is no more wonderful
+than that any person earning the same sum should remain
+honest when he might so easily turn thief.  As the writer
+has himself pointed out in these pages, there are hundreds
+of so-called detective agencies which are but traps for the
+guileless citizen who calls upon them for aid.  But there
+are many which are as honestly conducted as any other variety
+of legitimate business.  I do not know Mr. Beet's personal
+experience, but it appears to have been unfortunate.  At any
+rate, his diatribe is unfounded and false, and the worst
+feature of it is his assertion that detective agencies make a
+business of manufacturing cases when there happen to be none
+on hand.
+
+"Soon," says he, "there were not enough cases to go around,
+and then with the aid of spies and informers the unscrupulous
+detectives began to make cases.  Agencies began to work up
+evidence against persons and then resorted to blackmail, or
+else approached those to whom the information might be
+valuable, and by careful manoeuvring had themselves retained
+to unravel the case.  This brought into existence hordes of
+professional informers who secured the opening wedges for the
+fake agencies.  Men and women, many of them of some social
+standing, made it a practice to pry around for secrets which
+might be valuable able; spies kept up their work in large
+business establishments and began to haunt the cafes and
+resorts of doubtful reputation, on the watch for persons of
+wealth and prominence who might be foolish enough to place
+themselves in compromising circumstances.  Even the servants
+in wealthy families soon learned that certain secrets of the
+master and mistress could be turned to profitable account.
+We shudder when we hear of the system of espionage maintained
+in Russia, while in the large American cities, unnoticed, are
+organizations of spies and informers on every hand who spend
+their lives digging pitfalls for the unwary who can afford to
+pay."
+
+One would think that we were living in the days of the
+Borgias!  "Ninety per cent," says Mr. Beet, "of private
+detective agencies are rotten to the core and simply exist
+and thrive upon a foundation of dishonesty, deceit,
+conspiracy, and treachery to the public in general and their
+own patrons in particular.  There are detectives at the heads
+of prominent agencies in this country whose pictures adorn
+the Rogues' Gallery; men who have served time in various
+prisons for almost every crime on the calendar."
+
+This harrowing picture has the modicum of truth that makes
+it insidiously dangerous.  But this last extravagance
+betrays the denunciator.  One would be interested to have
+this past-master of overstatement mention the names of these
+distinguished crooks that head the prominent agencies.  Their
+exposure, if true, would not be libellous, and it would seem
+that he had performed but half his duty to the public in
+refraining from giving this important, if not vital,
+information.
+
+I know several of these gentlemen whose pictures I feel
+confident do not appear in the Rogues' Gallery, and who have
+not been, as yet, convicted of crime.  A client is as safe in
+the hands of a good detective agency as he is in the hands of
+a good attorney; he should know his agency, that is all--just
+as he should know his lawyer.  The men at the head of the
+big agencies generally take the same pride in their work
+as the members of any other profession.  They know that a
+first-class reputation for honesty is essential to their
+financial success and that good will is their stock in trade.
+Take this away and they would have nothing.
+
+In 1878 the founder of one of the most famous of our national
+agencies promulgated in printed form for the benefit of his
+employees what he called his general principles.  One of
+these was the following:
+
+"This agency only offers its services at a stated per diem
+for each detective employed on an operation, giving no
+guarantee of success, except in the reputation for
+reliability and efficiency; and any person in its service who
+shall, under any circumstances, permit himself or herself to
+receive a gift, reward, or bribe shall be instantly dismissed
+from the service."
+
+Another:
+
+"The profession of the detective is a high and honorable
+calling.  Few professions excel it.  He is an officer of
+justice, and must himself be pure and above reproach."
+
+Again:
+
+"It is an evidence of the unfitness of the detective for his
+profession when he is compelled to resort to the use of
+intoxicating liquors; and, indeed, the strongest kind of
+evidence, if he continually resorts to this evil practice.
+The detective must not do anything to farther sink the
+criminal in vice or debauchery, but, on the contrary, must
+seek to win his confidence by endeavoring to elevate him,
+etc."
+
+"Kindness and justice should go hand in hand, whenever it is
+possible, in the dealings of the detective with the criminal.
+There is no human being so degraded but there is some little
+bright spark of conscience and of right still existing in
+him."
+
+Last:
+
+"The detective must, in every instance, report everything
+which is favorable to the suspected party, as well as
+everything which may be against him."
+
+The man who penned these principles had had the safety of
+Abraham Lincoln in his keeping; and these simple statements
+are the best refutation of the baseless assertions above
+referred to.
+
+It may be that in those days the detection of crime was a bit
+more elementary than at the present time.  One can hardly
+picture a modern sleuth delaying long in an attempt to
+evangelize his quarry, but these general principles are the
+right stuff and shine like good deeds in a naughty world.
+
+As one peruses this little pink pamphlet he is constantly
+struck by the repeated references to the detective as an
+actor.  That was undoubtedly the ancient concept of a sleuth.
+"He must possess, also, the player's faculty of assuming any
+character that his case may require, and of acting it out to
+the life with an ease and naturalness which shall not be
+questioned."  This somewhat large order is, to our relief,
+qualified a little later on.  "It is not to be expected,
+however," the author admits, "that every detective shall
+possess these rare qualifications, although the more talented
+and versatile he is, the higher will be the sphere of
+operation which he will command."
+
+The modern detective agency is conducted on business
+principles and does not look for histrionic talent or general
+versatility.  As one of the heads of a prominent agency said
+to me the other day:
+
+"When we want a detective to take the part of a plumber we
+get a plumber, and when we need one to act as a boiler-maker
+we go out and get a real one--if we haven't one on our pay
+rolls."
+
+"But," I replied, "when you need a man to go into a private
+family and pretend to be an English clergyman, or a French
+viscount, or a brilliant man of the world--who do you send?"
+
+The "head" smiled.
+
+"The case hasn't arisen yet," said he.  "When it does I guess
+we'll get the real thing."
+
+The national detective agency, with its thousands of
+employees who have, most of them, grown up and received their
+training in its service, is a powerful organization, highly
+centralized, and having an immense sinking fund of special
+knowledge and past experience.  This is the product of
+decades of patient labor and minute record.  The agency which
+offers you the services of a Sherlock Holmes is a fraud, but
+you can accept as genuine a proposition to run down any man
+whose picture you may be able to identify in the gallery.
+The day of the impersonator is over.  The detective of this
+generation is a hard-headed business man with a stout pair of
+legs.
+
+This accumulated fund of information is the heritage of an
+honest and long established industry.  It is seventy-five per
+cent of its capital.  It is entirely beyond the reach of the
+mushroom agency, which in consequence has to accept less
+desirable retainers involving no such requirements, or go to
+the wall.  The collection of photographs is almost priceless
+and the clippings, letters, and memoranda in the filing cases
+only secondarily so.  Very few of the "operators" pretend to
+anything but common-sense, with perhaps some special
+knowledge of the men they are after.  They are not
+clairvoyants or mystery men, but they will tirelessly follow
+a crook until they get him.  They are the regular troops who
+take their orders without question.  The real "detective" is
+the "boss" who directs them.
+
+The reader can easily see that in all cases where a crime,
+such as forgery, is concerned, once the identity of the
+criminal is ascertained, half the work (or more than half) is
+done.  The agencies know the face and record of practically
+every man who ever flew a bit of bad paper in the United
+States, in England, or on the Continent.  If an old hand gets
+out of prison his movements are watched until it is obvious
+that he does not intend to resort to his old tricks.  After
+the criminal is known or "located," the "trailing" begins and
+his "connections" are carefully studied.  This may or may not
+require what might be called real detective work; that is to
+say, work requiring superior power of deducing conclusions
+from first-hand information, coupled with unusual skill in
+acting upon them.  Mere trailing is often simple, yet
+sometimes very difficult.  A great deal depends on the
+operator's own peculiar information as to his man's habits,
+haunts, and associates.  It is very hard to say in most cases
+just where mere knowledge ends and detective work proper
+begins.  As for disguises, they are almost unknown, except
+such as are necessary to enable an operator to join a gang
+where his quarry may be working and "rope" him into a
+confession.
+
+Detective agencies of the first-class are engaged principally
+in clean-cut criminal work, such as guarding banks from
+forgers and "yeggmen"--an original and dangerous variety of
+burglar peculiar to the United States and Canada.  In other
+words, they have large associations of clients who need more
+protection than the regular police can give them, and whose
+interest it is that the criminal shall not only be driven out
+of town, but run down (wherever he may be), captured, and put
+out of the way for as long a time as possible.
+
+The work done for private individuals is no less important
+and effective, but it is secondary to the other.  The great
+value of the "agency" to the victim of a theft is the speed
+with which it can disseminate its information--something
+quite impossible so far as the individual citizen is
+concerned.  Let me give an illustration or two.
+
+Between 10.30 P.M. Saturday, February 25, 1911, and 9.30 A.M.
+Sunday, February 26, 1911, one hundred and thirty thousand
+dollars worth of pearls belonging to Mrs. Maldwin Drummond
+were stolen from a stateroom on the steamship 'Amerika' of
+the Hamburg-American line.  The London underwriters cabled
+five thousand dollars reward and retained to investigate the
+case a well-known American agency, which before the 'Amerika'
+had reached Plymouth on her return trip had their
+notifications in the hands of all the jewelers and police
+officials of Europe and the United States, and had covered
+every avenue of disposal in North and South America.  In
+addition, this agency investigated every human being on the
+Amerika from first cabin to forecastle.
+
+Within a year or so an aged stock-broker, named Bancroft, was
+robbed on the street of one hundred thousand dollars in
+securities.  Inside of fifty-five minutes after he had
+reported his loss a detective agency had notified all banks,
+brokers, and the police in fifty-six cities of the United
+States and Canada.
+
+In the story books your detective scans with eagle eye the
+surface of the floor for microscopic evidences of crime.  His
+mind leaps from a cigar ash to a piece of banana peel and
+thence to what the family had for dinner.  His brain is
+working all the time.  It is, of course, all quite wonderful
+and most excellent reading, and the old-style sleuth really
+thought he could do it!  Nowadays, while the fake detective
+is snooping around the back piazza with a telescope, the real
+one is getting the "dope" from the village blacksmith or
+barber or the waitress at the station.  He may not be highly
+intelligent, but he knows the country, and, what is more
+important, he knows the people.  All the brains in the world
+cannot make up for the lack of an elementary knowledge of the
+place and the characters themselves.  It stands to reason
+that no strange detective could form as good an opinion as to
+which of the members of your household would be most likely
+to steal a piece of jewelry as you could yourself.  Yet the
+old-fashioned Sherlock knew and knows it all.
+
+One of the best illustrations of the practical necessity of
+some first-hand knowledge is that afforded by the recovery of
+a diamond necklace belonging to the wife of a gentleman in a
+Connecticut town.  The facts that are given here are
+absolutely accurate.  The gentleman in question was a retired
+business man of some means who lived not far from the town
+and who made frequent visits to New York City.  He had made
+his wife a present of a fifteen thousand-dollar diamond
+necklace, which she kept in a box in a locked trunk in her
+bedroom.  While she had owned the necklace for over a year
+she had never worn it.  One evening having guests for dinner
+on the occasion of her wedding anniversary she decided to put
+it on and wear it for the first time.  That night she
+replaced it in its box and enclosed this in another box,
+which she locked and placed in her bureau drawer.  This she
+also locked.  The following night she decided to replace the
+necklace in the trunk.  She accordingly unlocked the bureau
+drawer, and also the larger box, which apparently was in
+exactly the same condition as when she had put it away.  But
+the inner box was empty and the necklace had absolutely
+disappeared.  Now, no one had seen the necklace for a year,
+and then only her husband, their servants, and two or three
+old friends.  No outsider could have known of its existence.
+There was no evidence of the house or bureau having been
+disturbed.
+
+A New York detective agency was at once retained, which sent
+one of its best men to the scene of the crime.  He examined
+the servants, heard the story, and reported that it must have
+been an inside job--that there was no possibility of anything
+else.  But there was nothing to implicate any one of the
+servants, and there seemed no hope of getting the necklace
+back.  Two or three days later the husband turned up at the
+agency's office in New York, and after beating about the bush
+for a while, remarked:
+
+"I want to tell you something.  You have got this job wrong.
+There's one fact your man didn't understand.  The truth is
+that I'm a pretty easy going sort, and every six months or so
+I take all the men and girls employed around my house down to
+Coney Island and give 'em a rip-roaring time.  I make 'em my
+friends, and I dance with the girls and I jolly up the men,
+and we are all good pals together.  Sort of unconventional,
+maybe, but it pays.  I know--see?--that there isn't a single
+one of those people who would do me a mean trick.  Not one of
+'em but would lend me all the money he had.  I don't care
+what your operator says, the person who took that necklace
+came from outside.  You take that from me.  The
+superintendent, who is wise in his generation, scratched his
+chin.
+
+"Is that dead on the level?" he inquired.
+
+"Gospel!" answered the other.
+
+"I'll come up myself!" said the boss.
+
+Next day the boss behind a broken-winded horse, in a
+dilapidated buggy, drove from another town to the place where
+his client lived.  At the smithy on the crossroads he stopped
+and borrowed a match.
+
+"Anybody have good hosses in this town?" asked the detective.
+
+"Sure!" answered the smith.  "Mr. ------ up on the hill has the
+best in the county!"
+
+"What sort of a feller is he?"
+
+The smith chewed in silence for a moment.
+
+"Don't know him myself, but I tell you what, his help says
+he's the best employer they ever had--and they stay there
+forever!"
+
+The boss drove on to the house, which he observed was
+situated at about an equal distance from three different
+railway stations and surrounded by a piazza with pillars.  He
+walked around it, examining the vines until his eye caught a
+torn creeper and a white scratch on the paint.  It had been
+an outside job after all, and two weeks had already been
+lost.  Deduction was responsible for a mistake which would
+not have occurred had a little knowledge been acquired first.
+That is the lesson of this story.
+
+The denouement, which has no lesson at all, is interesting.
+The superintendent saw no prospect of getting back the
+necklace, but before so informing the client, decided to
+cogitate on the matter for a day or two.  During that time he
+met by accident a friend who made a hobby of studying yeggmen
+and criminals and occasionally doing a bit of the amateur
+tramp act himself.
+
+"By the way," said the friend, "do you ever hear of any
+`touches' up the river or along the Sound?"
+
+"Sometimes," answered the boss, pricking up his ears.  "Why
+do you ask?"
+
+"Why, the other night, replied the friend, "I happened to be
+meeting my wife up at the Grand Central about six o'clock and
+I saw two yeggs that I knew taking a train out.  I thought it
+was sort of funny.  Pittsburgh Ike and Denver Red."
+
+"When was it?"
+
+"Two weeks ago," said the friend.
+
+"Thanks," returned the boss.  "You must excuse me now; I've
+got an important engagement."
+
+Three hours later Pittsburgh Ike and Denver Red were in a
+cell at headquarters.  At six o'clock that evening the
+necklace had been returned.  This was a coincidence that
+might not occur in a hundred years, but had the deductive
+detective determined the question he would still be pondering
+on the comparative probability of whether the cook, the chore
+man, or the hired girl was the guilty party.
+
+A clean bit of detection on the part of an agency, and quite
+in the day's work, was the comparatively recent capture of a
+thief who secured three hundred and sixty thousand dollars
+worth of securities from a famous banking institution in New
+York City by means of a very simple device.  A firm of stock
+brokers had borrowed from this bank about two hundred and
+fifty thousand dollars for a day or two and put up the
+securities as collateral.  In the ordinary course of
+business, when the borrower has no further use for the money,
+he sends up a certified check for the amount of the loan with
+interest, and the bank turns over the securities to the
+messenger.  In this particular case a messenger arrived with
+a certified check, shoved it into the cage, and took away
+what was pushed out to him in return--three hundred and sixty
+thousand dollars in bonds.  The certification turned out to
+be a forgery and the securities vanished.  I do not know
+whether the police were consulted or not.  Sometimes in such
+cases the banks prefer to resort to more private methods and,
+perhaps, save the necessity of making a public admission of
+their stupidity.  When my friend, the superintendent, was
+called in, the officers of the bank were making the wildest
+sort of guesses as to the identity of the master mind and
+hand which had deceived the cashier.  He must, they felt
+sure, have made the forgery with a camel's hair brush of
+unrivalled fineness.
+
+"A great artist!" said the president.
+
+"The most skilful forger in the world!" opined another.
+
+"We must run down all the celebrated criminals!" announced a
+third.
+
+"Great artist-nothing!" remarked the boss, rubbing his thumb
+over the certification which blurred at the touch.  "He's no
+painter!  Why, that's a rubber stamp!"
+
+What a shock for those dignified gentlemen!  To think that
+their cashier had been deceived by a mere, plebeian, common
+or garden thing of rubber!
+
+"Good-day, gents!" said the boss, putting the check in his
+wallet.  "I've got to get busy with the rubber stamp makers!"
+
+He returned to his office and detailed a dozen men to work on
+the East Side and a dozen on the West Side, with orders to
+search out every man in New York who manufactured rubber
+stamps.  Before the end of the afternoon the maker was found
+on the Bowery, near Houston Street.  This was his story:  A
+couple of weeks before, a young man had come in and ordered a
+certification stamp, drawing at the time a rough design of
+what he wanted.  The stamp, when first manufactured, had not
+been satisfactory to him; and on his second visit, the
+customer had left a piece of a check, carefuly torn out in
+circular form, which showed the certification which he
+desired copied.  This fragment the maker had retained,
+as well as a slip of paper, upon which the customer had
+written the address of the place to which he wished the stamp
+sent--The Young Men's Christian Association!  The face of the
+fragment showed a part of the maker's signature.  The
+superintendent ran his eye over a list of brokers and picked
+out the name of the firm most like the hieroglyphics on the
+check.  Then he telephoned over and asked to be permitted to
+see their pay roll.  Carefully comparing the signature
+appearing thereon with the Y.M.C.A. slip, he picked his man
+in less than ten minutes.
+
+The latter was carefully trailed to his home, and thence to
+the Young Men's Christian Association, after which he called
+on his fiancee at her father's house.  He spent the night at
+his own boarding place.  Next morning (Sunday) he was
+arrested on his way to church, and all the securities (except
+some that he later returned) were discovered in his room.
+More quick work!  The amateur's method had been very simple.
+He knew that the loan had been made and the bonds sent to the
+bank.  So he forged a check, certified it himself, and
+collected the securities.  Of course, he was a bungler and
+took a hundred rash chances.
+
+A good example of the value of the accumulated information
+--documentary, pictorial, and otherwise--in the possession of
+an agency was the capture of Charles Wells, more generally
+known as Charles Fisher, alias Henry Conrad, an old-time
+forger, who suddenly resumed his activities after being
+released from a six-year term in England.  A New York City
+bank had paid on a bogus two hundred and fifty dollar check
+and had reported its loss to the agency in question.  The
+superintendent examined the check (although Fisher had been
+in confinement for six years on the other side) spotted it as
+his work.  The next step was to find the forger.  Of course,
+no man who does the actual "scratching" attempts to "lay
+down" the paper.  That task is up to the "presenter."  The
+cashier of the bank identified in the agency's gallery the
+picture of the man who had brought in the two hundred and
+fifty dollar check, and he in turn proved to be another
+ex-convict well known in the business, whose whereabouts in
+New York were not difficult to ascertain.  He was "located"
+and "trailed" and all his associates noted and followed.  In
+due course he "connected up" (as they say) with Fisher.  Now,
+it is one thing to follow a man who has no idea that he is
+being followed and another to trail a man who is as
+suspicious and elusive as a fox.  A professional criminal's
+daily business is to observe whether or not he is being
+followed, and he rarely if ever, makes a direct move.  If he
+wants a drink at the saloon across the street, he will, by
+preference, go out the back door, walk around the block and
+dodge in the side entrance under the tail of an ice wagon.
+In this case the detectives followed the presenter for days
+before they reached Fisher, and when they did they had still
+to locate his "plant."
+
+The arrest in this case illustrates forcibly the chief
+characteristic of successful criminals--egotism.  The
+essential quality of daring required in their pursuits gives
+them an extraordinary degree of self-confidence, boldness,
+and vanity.  And to vanity most of them can trace their fall.
+It seems incredible that Fisher should have returned to the
+United States after his discharge from prison and immediately
+resumed his operations without carefully concealing his
+impedimenta.  Yet when he was run down in a twenty-six family
+apartment house, the detectives found in his valise several
+thousand blank and model checks, hundreds of letters and
+private papers, a work on "Modern Bank Methods," and his
+"ticket of leave" from England!  This man was a successful
+forger and because he was successful, his pride in himself
+was so great that he attributed his conviction in England to
+accident and really felt that he was immune on his release.
+
+The arrest of such a man often presents great legal
+difficulties which the detectives overcome by various
+practical methods.  Of course, no officer without a search
+warrant has a right to enter a house or an apartment.  A
+man's house is his castle.  Mayor Gaynor, when a judge, in a
+famous opinion (more familiarly known in the lower world even
+than the Decalogue) laid down the law unequivocally and
+emphatically in this regard.  Thus, in the Fisher case, the
+defendant having been arrested on the street, the detectives
+desired to search the apartment of the family with which he
+lived.  They did this by first inducing the tenant to open
+the door and, after satisfying themselves that they were in
+the right place, ordering the occupants to get in line and
+"march" from one room to another while they rummaged for
+evidence.  "Of course, we had no right to do it, but they
+didn't know we hadn't!" said the boss.
+
+But frequently the defendant knows his rights just as well as
+the police.  On one occasion the same detective who arrested
+Fisher wanted to take another man out of an apartment where
+he had been run to earth.  His mother (aged eighty-two years)
+put the chain on the door and politely declined to open it.
+All the evidence against the forger was inside the apartment
+and he was actively engaged in burning it up in the kitchen
+stove.  In half an hour to arrest him would have been
+useless!  The detectives stormed and threatened, but the old
+crone merely grinned at them.  She hated a "bull" as much as
+did her son.  Fearing to take the law into their own hands,
+they summoned a detective sergeant from head-quarters, but,
+although he sympathized with them, he had read Mayor Gaynor's
+decision and declined to take any chances.  They then
+"appealed" to the cop on the beat, who proved more
+reasonable, but although he used all his force, he was unable
+to break down the door which had in the meantime been
+reinforced from the inside.  After about an hour, the old
+lady unchained the door and invited the detectives to come
+in.  The crook was sitting by the window smoking a cigar and
+reading St. Nicholas, while all evidence of his crime had
+vanished in smoke.
+
+One more anecdote, at the expense of the deductive detective.
+A watchman was murdered, the safe of a brewery blown open and
+the contents stolen.  Local detectives worked on the case and
+satisfied themselves that the night engineer at the brewery
+had committed the crime.  He was a quiet and, apparently, a
+God-fearing man, but circumstances were conclusive against
+him.  In fact, he had been traced within ten minutes of the
+murder on the way to the scene of the homicide.  But some
+little link was lacking and the brewery officials called in
+the agency.  The first thing the superintendent did was to
+look over the engineer.  At first sight he recognized him as
+a famous crook who had served five years for a homicidal
+assault!  One would think that that would have settled the
+matter.  But it didn't!  The detective said nothing to his
+associates or employers, but called on the engineer that
+evening and had a quiet talk with him in which he satisfied
+himself that the man was entirely innocent.  The man had
+served his time, turned over a new leaf, and was leading an
+honest, decent life.  Two months later the superintendent
+caused the arrest of four yeggmen, all of whom were convicted
+and are now serving fifteen years each for the crime.
+
+Thus, the reader will observe that there are just a few more
+real detectives still left in the business-if you can find
+them.  Incidentally, they, one and all, take off their hats
+to Scotland Yard.  They will tell you that the Englishman may
+be slow (fancy an American inspector of police wearing gray
+suede gloves and brewing himself a dish of tea in his office
+at four o'clock), but that once he goes after a crook he is
+bound to get him--it is merely a question of time.  I may add
+that in the opinion of the heads of the big agencies the
+percentage of ability in the New York Detective Bureau is
+high--one of them going so far as to claim that fifty per
+cent of the men have real detective ability--that is to say
+"brains."  That is rather a higher average than one finds
+among clergymen and lawyers, yet it may be so.
+
+
+
+
+CHAPTER VII
+
+Women in the Courts
+
+
+AS WITNESSES
+
+Women appear in the criminal courts constantly as witnesses,
+although less frequently as complainants and defendants.  As
+complainants are always witnesses, and as defendants may,
+and in point of fact generally do become so, whatever
+generalizations are possible regarding women in courts of law
+can most easily be drawn from their characteristics as givers
+of testimony.  Roughly speaking, women exhibit about the same
+idiosyncrasies and limitations in the witness-chair as the
+opposite sex, and at first thought one would be apt to say
+that it would be fruitless and absurd to attempt to predicate
+any general principles in regard to their testimony, but a
+careful study of female witnesses as a whole will result in
+the inevitable conclusion that their evidence has virtues and
+limitations peculiar to itself.
+
+The ancient theory that woman was man's inferior showed
+itself in the tendency to reject, or at least to regard with
+suspicion, her evidence in legal matters.
+
+"The following law," says W. M. Best, "is attributed to Moses
+by Josephus: `Let the testimony of women not be received on
+account of the levity and audacity of their sex'; a law which
+looks apocryphal, but which, even if genuine, could not have
+been of universal application....  The law of ancient Rome,
+though admitting their testimony in general, refused it in
+certain cases.  The civil canon laws of mediaeval Europe seem
+to have carried the exclusion much further.  Mascardus says:
+'Feminis plerumque omnino non creditur, et id dumtaxat, quod
+sunt feminae qua ut plurimum solent esse fraudulentre
+fallaces, et dolosae' [Generally speaking, no credence at all
+is given to women, and for this reason, because they are
+women, who are usually deceitful, untruthful, and treacherous
+in the very highest degree.]  And Lancelottus, in his
+'Institutiones Juris Canonici,' lays it down in the most
+distinct terms, that women cannot in general be witnesses,
+citing the language of Virgil: 'Varium et mutabile semper
+femina'....
+
+"Bruneau, although a contemporary of Madame de Sevigne, did
+not scruple to write, in 1686, that the deposition of three
+women was only equal to that of two men.  At Berne, so late
+as 1821, in the Canton of Vaud, so late as 1824, the
+testimony of two women was required to counterbalance that of
+one man....  A virgin was entitled to greater credit than a
+widow....  In the `Canonical Institutions of Devotus,'
+published at Paris in 1852, it is distinctly stated that,
+except in a few peculiar instances, women are not competent
+witnesses in criminal cases.  In Scotland also, until the
+beginning of the eighteenth century, sex was a cause of
+exclusion from the witness-box in the great majority of
+instances."
+
+Cockburn in his Memoirs tells of an incident during the trial
+of Glengarry, in Scotland, for murder in a duel, which is,
+perhaps, explicable by this extraordinary attitude:  A lady
+of great beauty was called as a witness and came into
+court heavily veiled.  Before administering the oath, Lord
+Eskgrove, the judge (to whom this function belongs in
+Scotland), gave her this exposition of her duty:
+
+"Young woman, you will now consider yourself as in the
+presence of Almighty God and of this High Court.  Lift up
+your veil, throw off all your modesty, and look me in the
+face."
+
+Whatever difference does exist in character between the
+testimony of men and women has its root in the generally
+recognized diversity in the mental processes of the two
+sexes.  Men, it is commonly declared, rely upon their powers
+of reason; women upon their intuition.  Not that the former
+is frequently any more accurate than the latter.  But our
+courts of law (at least those in English-speaking countries)
+are devised and organized, perhaps unfortunately, on the
+principle that testimony not apparently deduced by the
+syllogistic method from the observation of relevant fact is
+valueless, and hence woman at the very outset is placed at a
+disadvantage and her usefulness as a probative force sadly
+crippled.
+
+The good old lady who takes the witness-chair and swears that
+she knows the prisoner took her purse has perhaps quite as
+good a basis for her opinion and her testimony (even though
+she cannot give a single reason for her belief and becomes
+hopelessly confused on cross-examination) as the man who
+reaches the same conclusion ostensibly by virtue of having
+seen the defendant near by, observed his hand reaching for
+the purse, and then perceived him take to his heels.  She has
+never been taught to reason and has really never found it
+necessary, having wandered through life by inference or, more
+frankly, by guesswork, until she is no longer able to point
+out the simplest stages of her most ordinary mental
+processes.
+
+As the reader is already aware, the value of all honestly
+given testimony depends first upon the witness's original
+capacity to observe the facts; second upon his ability to
+remember what he has seen and not to confuse knowledge with
+imagination, belief or custom, and lastly, upon his power
+to express what he has, in fact, seen and remembers.
+
+Women do not differ from men in their original capacity to
+observe, which is a quality developed by the training and
+environment of the individual.  It is in the second class of
+the witness's limitations that women as a whole are more
+likely to trip than men, for they are prone to swear to
+circumstances as facts, of their own knowledge, simply
+because they confuse what they have really observed with what
+they believe did occur or should have occurred, or with what
+they are convinced did happen simply because it was
+accustomed to happen in the past.
+
+Perhaps the best illustration of the female habit of swearing
+that facts occurred because they usually occurred, was
+exhibited in the Twitchell murder trial in Philadelphia,
+cited in Wellman's "Art of Cross-Examination."  The defendant
+had killed his wife with a blackjack, and having dragged her
+body into the back yard, carefully unbolted the gate leading
+to the adjacent alley and, retiring to the house, went to
+bed.  His purpose was to create the impression that she had
+been murdered by some one from outside the premises.  To
+carry out the suggestion, he bent a poker and left it lying
+near the body smeared with blood.  In the morning the servant
+girl found her mistress and ran shrieking into the street.
+
+At the trial she swore positively that she was first obliged
+to unbolt the door in order to get out.  Nothing could shake
+her testimony, and she thus unconsciously negatived the entire
+value of the defendant's adroit precautions.  He was justly
+convicted, although upon absolutely erroneous testimony.
+
+The old English lawyers occasionally rejected the evidence of
+women on the ground that they are "frail."  But the exclusion
+of women as witnesses in the old days was not for
+psychological reasons, nor did it originate from a critical
+study of the probative value of their testimony.
+
+Though the conclusions to which women frequently jump may
+usually be shown by careful interrogation to be founded upon
+observation of actual fact, their habit of stating inferences
+often leads them to claim knowledge of the impossible--"wiser
+in [their] own conceit than seven men that can render a
+reason."
+
+In a very recent case where a clever thief had been convicted
+of looting various apartments in New York City of over eighty
+thousand dollars' worth of jewelry, the female owners were
+summoned to identify their property.  The writer believes that
+in every instance these ladies were absolutely ingenuous and
+intended to tell the absolute truth.  Each and every one
+positively identified various of the loose stones found in the
+possession of the prisoner as her own.  This was the case even
+when the diamonds, emeralds and pearls had no distinguishing
+marks at all.  It was a human impossibility actually to
+identify any such objects, and yet these eminently respectable
+and intelligent gentlewomen swore positively that they could
+recognize their jewels.  They drew the inference merely that
+as the prisoner had stolen similar jewels from them these must
+be the actual ones which they had lost, an inference very
+likely correct, but valueless in a tribunal of justice.
+
+Where their inferences are questioned, women, as a rule, are
+much more ready to "swear their testimony through" than men.
+They are so accustomed to act upon inference that, finding
+themselves unable to substantiate their assertion by any
+sufficient reason, they become irritated, "show fight," and
+seek refuge in prevarication.  Had they not, during their
+entire lives, been accustomed to mental short-cuts, they would
+be spared the humiliation of seeing their evidence "stricken
+from the record."
+
+One of the ladies referred to testified as follows:
+
+"Can you identify that diamond?"
+
+"I am quite sure that it is mine:"
+
+"How do you know?"
+
+"It looks exactly like it."
+
+"But may it not be a similar one and not your own?"
+
+"No; it is mine."
+
+"But how?  It has no marks."
+
+"I don't care.  I know it is mine.  I SWEAR IT IS!"
+
+The good lady supposed that, unless she swore to the fact, she
+might lose her jewel, which was, of course, not the case at
+all, as the sworn testimony founded upon nothing but inference
+left her in no better position than she was in before.
+
+The writer regrets to say that observation would lead him to
+believe that women as a rule have somewhat less regard for the
+spirit of their oaths than men, and that they are more ready,
+if it be necessary, to commit perjury.  This may arise from
+the fact that women are fully aware that their sex protects
+them from the same severity of cross-examination to which men
+would be subjected under similar circumstances.  It is today
+fatal to a lawyer's case if he be not invariably gentle and
+courteous with a female witness, and this is true even if she
+be a veritable Sapphira.
+
+In spite of these limitations, which, of course, affect the
+testimony of almost every person, irrespective of sex, women,
+with the possible exception of children, make the most
+remarkable witnesses to be found in the courts.  They are
+almost invariably quick and positive in their answers, keenly
+alive to the dramatic possibilities of the situation, and with
+an unerring instinct for a trap or compromising admission.
+
+A woman will inevitably couple with a categorical answer to a
+question, if in truth she can be induced to give one at all, a
+statement of damaging character to her opponent.  For example:
+
+"Do you know the defendant?"
+
+"Yes, to my cost!"
+
+Or
+
+"How old are you?"
+
+"Twenty-three,--old enough to have known better than to trust
+him."
+
+Forced to make an admission which would seem to hurt her
+position, the explanation, instead of being left for the
+re-direct examination of her own counsel, is instantly added
+to her answer then and there.
+
+"Do you admit that you were on Forty-second Street at
+midnight?"
+
+"Yes.  But it was in response to a message sent by the
+defendant through his cousin."
+
+What is commonly known as "silent cross-examination" is
+generally the most effective.  The jury realize the
+difficulties of the situation for the lawyer, and are not
+unlikely to sympathize with him, unless he makes bold to
+attack the witness, when they quickly chance their attitude.
+
+One question, and that as to the witness's means of
+livelihood, is often sufficient.
+
+"How do you support yourself?"
+
+"I am a lady of leisure!" replies the witness (arrayed in
+flamboyant colors) snappishly.
+
+"That will do, thank you," remarks the lawyer with a smile.
+"You may step down."
+
+The writer remembers being nicely hoisted by his own petard on
+a similar occasion:
+
+"What do you do for a living?" he asked.
+
+The witness, a rather deceptively arrayed woman, turned upon
+him with a glance of contempt:
+
+"I am a respectable married woman, with seven children," she
+retorted.  "I do nothing for a living except cook, wash,
+scrub, make beds, clean windows, mend my children's clothes,
+mind the baby, teach the four oldest their lessons, take care
+of my husband, and try to get enough sleep to be up by five in
+the morning.  I guess if some lawyers worked as hard as I do
+they would have sense enough not to ask impertinent
+questions."
+
+An amusing incident is recorded of how a feminine witness
+turned the laugh upon Mr. Francis L. Wellman, the noted
+cross-examiner.  In his book he takes the opportunity to
+advise his lawyer readers to "avoid the mistake, so common
+among the inexperienced, of making much of trifling
+discrepancies.  It has been aptly said," he continues,
+"that `juries have no respect for small triumphs over a
+witness's self-possession or memory!'  Allow the loquacious
+witness to talk on; he will be sure to involve himself in
+difficulties from which he can never extricate himself.  Some
+witnesses prove altogether too much; encourage them and lead
+them by degrees into exaggerations that will conflict with the
+common-sense of the jury."
+
+Mr. Wellman is famous for following this precept himself and,
+with one eye significantly cast upon the jury, is likely to
+lead his witness a merry dance until the latter is finally
+"bogged" in a quagmire of absurdities.  Not long ago, shortly
+after the publication of his book, the lawyer had occasion to
+cross-examine a modest-looking young woman as to the speed of
+an electric car.  The witness seemed conscious that she was
+about to undergo a severe ordeal, and Mr. Wellman, feeling
+himself complete master of the situation, began in his most
+winsome and deprecating manner:
+
+"And how fast, Miss, would you say the car was going?"
+
+"I really could not tell exactly, Mr. Wellman."
+
+"Would you say that it was going at ten miles an hour?"
+
+"Oh, fully that!"
+
+"Twenty miles an hour?"
+
+"Yes, I should say it was going twenty miles an hour."
+
+"Will you say it was going thirty miles an hour?" inquired
+Wellman with a glance at the jury.
+
+"Why, yes, I will say that it was."
+
+"Will you say it was going forty?"
+
+"Yes."
+
+"Fifty?"
+
+"Yes, I will say so."
+
+"Seventy?"
+
+"Yes."
+
+"Eighty?"
+
+"Yes," responded the young lady with a countenance absolutely
+devoid of expression.
+
+"A hundred?" inquired the lawyer with a thrill of eager
+triumph in his voice.
+
+There was a significant hush in the court-room Then the
+witness, with a patient smile and a slight lifting of her
+pretty eyebrows, remarked quietly:
+
+"Mr. Wellman, don't you think we have carried our little joke
+far enough?"
+
+There is no witness in the world more difficult to cope with
+than a shrewd old woman who apes stupidity, only to reiterate
+the gist of her testimony in such incisive fashion as to leave
+it indelibly imprinted on the minds of the jury.  The lawyer
+is bound by every law of decency, policy and manners to treat
+the aged dame with the utmost consideration.  He must allow
+her to ramble on discursively in defiance of every rule of
+law and evidence in answer to the simplest question; must
+receive imperturbably the opinions and speculations upon every
+subject of both herself and (through her) of her neighbors;
+only to find when he thinks she must be exhausted by her own
+volubility, that she is ready, at the slightest opportunity,
+to break away again into a tangle of guesswork and hearsay,
+interwoven with conclusions and ejaculation.  Woe be unto him
+if he has not sense enough to waive her off the stand!  He
+might as well try to harness a Valkyrie as to restrain a
+pugnacious old Irishwoman who is intent on getting the whole
+business before the jury in her own way.
+
+In the recent case of Gustav Dinser, convicted of murder, a
+vigorous old lady took the stand and testified forcibly
+against the accused.  She was as "smart as paint," as the
+saying goes, and resolutely refused to answer any questions
+put to her by counsel for the defence.  Instead, she would
+raise her voice and make a savage onslaught upon the prisoner,
+rehearsing his brutal treatment of the deceased on previous
+occasions, and getting in the most damaging testimony.
+
+"Do you say, Mrs.--" the lawyer would inquire deferentially,
+"that you heard the sound of three blows?"
+
+"Oh, thim blows!" the old lady would cry--"thim turrible
+blows!  I could hear the villain as he laid thim on!  I could
+hear the poor, pitiful groans av her, and she so sufferin'!
+'Twas awful!  Howly Saints,'twould make yer blood run cowld!"
+
+"Stop! stop!" exclaimed the lawyer.
+
+"Ah, stop is it?  Ye can't stop me till Oi've had me say to
+tell the whole truth.  I says to me daughter Ellen, says I:
+'Th' horrid baste is afther murtherin' the poor thing,' says
+I; `run out an' git an officer!'"
+
+"I object to all this!" shouts the lawyer.
+
+"Ah, ye objec', do ye?" retorts the old lady.  "Shure an' ye'd
+have been after objectin' if ye'd heard thim turrible blows
+that kilt her--the poor, sufferin', swate crayter!  I hope he
+gits all that's comin' to him--bad cess to him for a
+blood-thirsty divil!"
+
+The lawyer ignominiously abandoned the attack.
+
+The writer recalls a somewhat similar instance, but one even
+better exhibiting the cleverness of an old woman, which
+occurred in the year 1901.  A man named Orlando J. Hackett, of
+prepossessing appearance and manners, was on trial, charged
+with converting to his own use money which had been intrusted
+to him for investment in realty.  The complainant was a shrewd
+old lady, who together with her daughter, had had a long
+series of transactions with Hackett which would have entirely
+confused the issue could the defence have brought them before
+the jury.  The whole contention of the prosecution was that
+Hackett had received the money for one purpose and used it for
+another.  During preparation for the trial the writer had had
+both ladies in his office and remembers making the remark:
+
+"Now, Mrs. ------, don't forget that the charge here is that you
+gave Mr. Hackett the money to put into real estate.  Nothing
+else is comparatively of much importance."
+
+"Be sure and remember that, mother," the daughter had
+admonished her.
+
+In the course of a month the case came on for trial
+before Recorder Goff, in Part II of the General Sessions.
+Mrs. ------ gave her testimony with great positiveness.
+Mr. Lewis Stuyvesant Chanler, now Lieutenant-Governor of
+the State, arose to cross-examine her.
+
+"Madam," he began courteously, "you say you gave the defendant
+money?"
+
+"I told him to put it into real estate, and he said he would!"
+replied Mrs. firmly.
+
+"I did not ask you that, Mrs. ------," politely interjected Mr.
+Chanler.  "How much did you give him?"
+
+"I told him to put it into real estate, and he said he would!"
+repeated the old lady wearily.
+
+"But, madam, you do not answer my question!" exclaimed
+Chanler.  "How much did you give him?"
+
+"I told him to put it into real--" began the old lady again.
+
+"Yes, yes!" cried the lawyer; "we know that!  Answer the
+question."
+
+"estate, and he said he would!" finished the old woman
+innocently.
+
+"If your Honor please, I will excuse the witness.  And I move
+that her answers be stricken out!" cried Chanler savagely.
+
+The old lady was assisted from the stand, but as she made her
+way with difficulty towards the door of the court-room she
+could be heard repeating stubbornly:
+
+"I told him to put it into real estate, and he said he would!"
+
+Almost needless to say, Hackett was convicted and sentenced to
+seven years in State's prison.
+
+To recapitulate, the quickness and positiveness of women make
+them ordinarily better witnesses than men; they are vastly
+more difficult to cross-examine; their sex protects them from
+many of the most effective weapons of the lawyer, with the
+result that they are the more ready to yield to prevarication;
+and, even where the possibility of complete and unrestricted
+cross-examination is afforded, their tendency to inaccurately
+inferential reasoning, and their elusiveness in dodging from
+one conclusion to another, render the opportunity of little
+value.
+
+In general, however, women's testimony differs little in
+quality from that of men, all testimony being subject to the
+same three great limitations irrespective of the sex of the
+witness, and the conclusions set forth above are merely the
+result of an effort on the part of the writer to comment
+somewhat upon those small differences which, under close
+scrutiny, may fairly be said to exist.  These differences
+are quite as noticeable at the breakfast-table as in the
+court-room; and are no more patent to the advocate than to the
+ordinary male animal whose forehead habitually reddens when he
+hears the unanswerable reason which, in default of all others,
+explains and glorifies the mental action of his wife, sister
+or mother: "Just because!"
+
+
+AS COMPLAINANTS AND DEFENDANTS
+
+The ratio of women to men indicted and tried for crime is,
+roughly, about one to ten.  Could adequate statistics be
+procured, the proportion of female to male complainants in
+criminal cases would very likely prove to be about the same:
+In a very substantial proportion, therefore, of all
+prosecutions for crime a woman is one of the chief actors.
+The law of the land compels the female prisoner to submit the
+question of her guilt or innocence to twelve individuals of
+the opposite sex; and permits the female complainant to
+rehearse the story of her wrongs before the same collection of
+colossal intellects and adamantine hearts.
+
+The first thing the ordinary woman hastens to do if she be
+summoned to appear in a court of justice is not, as might be
+expected, to think over her testimony or try to recall facts
+obliterated or confused by time, but to buy a new hat; and
+precisely the same thing is true of the female defendant
+called to the bar of justice, whether it be for stealing a
+pair of gloves or poisoning her lover.
+
+Yet how far does the element of sex defeat the ends of
+justice?  To answer this question it is necessary to determine
+how far juries are liable to favor the testimony of a woman
+plaintiff merely because she is a woman, and how far sympathy
+for a woman arraigned as a prisoner is likely to warp their
+judgment.
+
+As to the first, it is fairly safe to say that a woman is much
+more likely to win a verdict in a civil court or to persuade
+the jury that the prisoner is guilty in a criminal case than a
+man would be in precisely similar circumstances.  In most
+criminal prosecutions for the ordinary run of felonies little
+injustice is likely to result from this.  There is one
+exception, however, where juries should reach conclusions with
+extreme caution, namely, where certain charges are brought by
+women against members of the opposite sex.
+
+Here the jury is apt to leap to a conclusion, rendered easy by
+the attractiveness of the witness and the feeling that the
+defendant is a "cur anyway," and ought to be "sent up."
+
+The difficulty of determining, even in one's office, the true
+character of a plausible woman is enhanced tenfold in the
+court-room, where the lawyer is generally compelled to proceed
+upon the assumption that the witness is a person of
+irreproachable life and antecedents.  Almost any young woman
+may create a favorable impression, provided her taste in dress
+be not too crude, and, even when it is so, the jury are not
+apt to distinguish carefully between that which cries to
+Heaven and that which is merely "elegant."
+
+When the complaining witness is a woman who has merely lost
+money through the acts of the defendant, the jury are not so
+readily moved to accept her story in toto as when the crime
+charged is of a different character.  They realize that the
+complainant, feeling that she has been injured, may be
+inclined to color her testimony, perhaps unconsciously, until
+the wrong becomes a crime.
+
+An ordinary example of this variety of prosecution is where
+the witness is a young woman from the East Side, usually a
+Polish or Russian Jewess, who charges the defendant, a youth
+of about her own age, with stealing her money by means of
+false pretences.  They have been engaged to be married, and
+she has turned over her small savings to him to purchase the
+diamond ring and perhaps set him up in a modest business of
+his own.  He has then fallen in love with some other girl, has
+broken the engagement, and the ring now adorns the fourth
+finger of her rival.  Her money is gone.  She is without a
+dot.  She hurries with her parents and loudly vociferating
+friends to the Essex Market Police Court, and secures a
+warrant for the defendant on the theory that he defrauded her
+by "trick and device" or "false representations."  Usually the
+only "representation" has been a promise to marry her.  Her
+real motive is revenge upon her faithless fiance.  In nine
+cases out of ten the fellow is a cad, who has deliberately
+deserted her after getting her money, but it is doubtful
+whether any real crime is involved.
+
+If the judge lets the case go to the jury it is a pure gamble
+as to what the result will be, and it may largely turn on the
+girl's physical attractiveness.  If she be pretty and demure a
+mixture of emotions is aroused in the jury.  "He probably did
+love her," say the twelve, "because any one would be likely to
+do so.  If he did love her, of course he didn't falsely
+pretend to do so; but if he deserted a woman like that he
+ought to be in jail anyway."  Thus the argument that ought to
+acquit in fact may convict the defendant.  If the rival also
+is pretty, hopeless confusion results; while if the
+complainant be a homely girl the jury feels that he must have
+intended to swindle her anyway, as he could never have
+honestly intended to marry her.  Thus in any case the Lothario
+is apt to pay a severe penalty for his faithlessness.
+
+The man prosecuted by a woman, provided she cannot be
+persuaded to withdraw the charge against him, is likely to get
+but cold consideration for his side of the story and short
+shrift in the jury-room.  Turn about, if he can get a young
+and attractive woman to swear to his alibi or good reputation
+the honest masculine citizen whom he has defrauded may very
+likely have to whistle for his revenge.  Many a scamp has gone
+free by producing some sweetly demure maiden who faithfully
+swears that she knows him to be an honest man.  A blush at the
+psychological moment and a wink from the lawyer is quite
+enough to lead the jury to believe that, if they acquit the
+defendant, they will "make the young lady happy," whereas if
+he is convicted she will remain for aye a heart-broken
+spinster.  Like enough she may be only the merest
+acquaintance.
+
+The writer is not likely to forget a distinguished lawyer's
+instructions to his client who happened also to be a childhood
+acquaintance--as she was about to go into court as the
+plaintiff in a suit for damages:
+
+"I would fold my hands in my lap, Gwendolyn--yes, like that
+--and be calm, very calm.  And, Gwendolyn, above all things,
+be demure, Gwendolyn!  Be demure!"
+
+Gwendolyn was the demurest of the demure, letting her eyes
+fall beneath their pendant black lashes at the conclusion of
+each answer, and won her case without the slightest
+difficulty.
+
+The unconscious or conscious influence of women upon the
+intellects of jurymen has given rise to a very prevalent
+impression that it is difficult if not impossible successfully
+to prosecute a woman for crime.  This feeling expresses itself
+in general statements to the effect that as things stand
+to-day a woman may commit murder with impunity.  Experience,
+supplemented by the official records, demonstrates, however,
+that, curious as it must seem, the same sentiment aroused by a
+woman supposed to have been wronged is not inspired in a jury
+by a woman accused of crime.  It is, indeed, true that juries
+are apt to be more lenient with women than with men, but this
+leniency shows itself not in acquitting them of the crimes
+charged against them, but of finding them guilty in lower
+degrees.
+
+Of course flagrant miscarriages of justice frequently occur,
+which, by reason of their widespread publicity in the press,
+would seem to justify the almost universal opinion that women
+are immune from the penalities for homicide.  It is also true
+that such miscarriages of justice are more likely when the
+defendant is a woman than if he be a man.
+
+One of these hysterical acquittals which give color to popular
+impression, but which the writer believes to be an exception,
+was the case of a young mother tried and acquitted for murder
+in the first degree, December 22, 1904.  This young woman,
+whose history was pathetic in the extreme, was shown clearly
+by the evidence to have deliberately taken the life of her
+child by giving it carbolic acid.  The story was a shocking
+one, yet the jury apparently never considered at all the
+possibility of convicting her, but on retiring to the j
+ury-room spent their time in discussing how much money they
+should present her on her acquittal.
+
+No better actor ever played a part upon the court-room stage
+than old "Bill" Howe.  His every move and gesture was
+considered with reference to its effect upon the jury, and the
+climax of his summing-up was always accompanied by some
+dramatic exhibition calculated to arouse sympathy for his
+client.  Himself an adept at shedding tears at will, he seemed
+able to induce them when needed in the lachrymal glands of the
+most hardened culprit whom he happened to be defending.
+
+Mr. Wellman tells the story of how he was once prosecuting a
+woman for the murder of her lover, whom she had shot rather
+than allow him to desert her.  She was a parson's daughter who
+had gone wrong and there seemed little to be said in her
+behalf.  She sat at the bar the picture of injured innocence,
+with a look of spirituality which she must have conjured up
+from the storehouse of her memories of her father.  Howe was
+rather an exquisite so far as his personal habits were
+concerned, and allowed his finger-nails to grow to an
+extraordinary length.  He had arranged that at the climax of
+his address to the jury he would turn and, tearing away the
+slender hands of his client from her tear-stained face,
+challenge the jury to find guilt written there.  Wellman was
+totally unprepared for this and a shiver ran down his spine
+when he saw Howe, his face apparently surcharged with emotion,
+turn suddenly towards his client and roughly thrust away her
+hands.  As he did so he embedded his finger-nails in her
+cheeks, and the girl uttered an involuntary scream of nervous
+terror and pain that made the jury turn cold.
+
+"Look, gentlemen!  Look in this poor creature's face!  Does
+she look like a guilty woman?  No!  A thousand times no!
+Those are the tears of innocence and shame!  Send her back to
+her aged father to comfort his old age!  Let him clasp her in
+his arms and press his trembling lips to her hollow eyes!  Let
+him wipe away her tears and bid her sin no more!"
+
+The jury acquitted, and Wellman, aghast, followed them
+downstairs to inquire how such a thing were possible.  The
+jurors said that they had agreed to disclose nothing of their
+deliberations.
+
+"But," explained Wellman, "you see, in a way I am your
+attorney, and I want to know how to do better next time.  She
+had offered to plead guilty if she could get off with twenty
+years!"
+
+The abashed jury slunk downstairs in silence and the secret of
+their deliberations remains as yet untold.
+
+In spite of such cases, where guilty women have been acquitted
+through maudlin sentiment or in response to popular clamor,
+nothing could be more erroneous than the idea that few women
+who are brought to the bar of justice are made to suffer for
+their offences.  Thus, although no woman has suffered the
+death penalty in New York County in twenty years, the average
+number of convictions for crime is practically the same for
+women as for men in proportion to the number indicted.  The
+last unreversed conviction of a woman for murder in the first
+degree was that of Chiara Cignarale, in May, 1887.  Her
+sentence was commuted to life imprisonment.  Since then thirty
+women have been actually tried before juries for homicide with
+the following results:
+
+    Convicted of murder in first degree...........0
+    Acquitted "...................................7
+       "      " murder in second degree...........3
+       "      " manslaughter in first degree.....10
+       "      " manslaughter in seconds degree...10
+
+     Total.......................................30
+
+
+The percentage of convictions to acquittals is as follows:
+
+          Convictions Acquittals Convictions Acquittals
+                                  Per Cent    Per Cent
+1887-1907 ......23........7..........77..........23
+
+
+It is distinctly interesting to compare this with the table
+showing the results of all the homicide trials for the past
+eight years irrespective of the sex of the defendants:
+
+          Convictions Acquittals Convictions Acquittals
+                                  Per Cent    Per Cent
+
+1900.............5.......12...........29.........71
+1901............17.......17...........50.........50
+1902............15.......11...........58.........42
+1903............24........8...........75.........25
+1904............19.......14...........58.........42
+1905............18.......13...........58.........42
+1906............21.......22...........49.........51
+1907............16.......10...........62.........38
+
+Total..........135......107.....Aver. 55...Aver. 45
+
+The reader will observe that the percentage of convictions to
+acquittals of women defendants averages twenty-two per cent
+greater than the percentage for both sexes.  A more elaborate
+table would show that where the defendants are men there are a
+greater proportionate number of acquittals, but more verdicts
+in higher degrees.  A verdict of manslaughter in the second
+degree in the case of a man charged with murder is infrequent,
+but convictions of murder in the second degree are exceedingly
+common.
+
+The reason for the higher percentage of convictions of women
+is that fewer women who commit crime are prosecuted than men,
+and that they are rarely indicted unless they are clearly
+guilty of the degree of crime charged against them; while
+practically every man who is charged with homicide and who, it
+seems, may be found guilty is indicted for murder in the first
+degree.
+
+The trial of women for crime invariably arouses keen public
+interest, and the dethronement of a Czar, or the assassination
+of an Emperor, pales to insignificance before the prosecution
+of a woman for murder.  Some of this interest is fictitious
+and stimulated merely by the yellow press, but a great deal of
+it is genuine.  The writer remembers attending a dinner of
+gray-headed judges and counsellors during the trial of Anna
+Eliza, alias "Nan," Patterson, where one would have supposed
+that the lightest subject of conversation would be not less
+weighty than the constitutionality of an income tax, and
+finding to his astonishment that the only topic for which they
+showed any zest was whether "Nan" would be found guilty.
+
+One of the earliest, if not the earliest, record of a woman
+being held for murder is that of Agnes Archer, indicted by
+twelve men on April 4, 1435, sworn before the mayor and
+coroner to inquire as to the death of Alice Colynbourgh.  The
+quaint old report begins in Latin, but "the pleadings" are set
+forth in the language of the day, as follows:
+
+"Agnes Archer, is that thy name?  which answered, yes....
+Thou art endyted that thou.... feloney moderiste her with a
+knyff fyve tymes in the throte stekyng, throwe the wheche
+stekyng the saide Alys is deed....  I am not guilty of thoo
+dedys, ne noon of hem, God help me so....  How wylte thou
+acquite the?...  By God and by my neighbours of this town."
+
+The subsequent history of Agnes is lost in obscurity, but
+since she had to procure but thirty-six compurgators who were
+prepared to swear that they believed her innocent, and as she
+was at liberty to choose these herself from her native village
+of Winchelsea, it is probable that she escaped.*
+
+
+* Cf.  Thayer, as cited, supra.
+
+
+Fortunately the sight of a woman, save of the very lowest
+class, at the bar of justice is rare.  The number of cases
+where women of good environment appear as defendants in the
+criminal courts in the course of a year may be numbered upon
+the fingers of a single hand, and, although the number of
+female defendants may equal ten per cent of the total number
+of males, not one-tenth of the women brought to the bar of
+justice have had the benefit of an honest bringing up and good
+surroundings.
+
+
+
+
+CHAPTER VIII
+
+Tricks of the Trade
+
+
+"Tricks and treachery," said Benjamin Franklin, "are the
+practice of fools that have not wit enough to be honest."
+Had the kindly philosopher been familiar with all the
+exigencies of the criminal law he might have added a
+qualification to this somewhat general, if indisputably
+moral, maxim.  Though it doubtless remains true as a guiding
+principle of life that "Honesty is the best policy," it would
+be an unwarrantable aspersion upon the intellectual qualities
+of the members of the criminal bar to say that the tricks by
+virtue of which they often get their clients off are "the
+practice of fools."  On the contrary, observation would seem
+to indicate that in many instances the wiser, or at least the
+more successful, the practitioner of criminal law becomes, the
+more numerous and ingenious become the "tricks" which are his
+stock in trade.  This must not be taken to mean that there are
+not high-minded and conscientious practitioners of criminal
+law, many of them financially successful, some filled with a
+noble humanitarian purpose, and some drawn to their calling by
+a sincere enthusiasm for the vocation of the advocate which,
+in these days of "business" law and commercial methods,
+reaches perhaps its highest form in the criminal courts.
+
+There are no more "tricks" practised in these tribunals than
+in the civil, but they are more ingenious in conception, more
+lawless in character, bolder in execution and less shamefaced
+in detection.
+
+Let us not be too hard upon our brethren of the criminal
+branch.  Truly, their business is to "get their clients off."
+It is unquestionably a generally accepted principle that it is
+better that ninety-nine guilty men should escape than that one
+innocent man should be convicted.  However much persons of
+argumentative or philosophic disposition may care to quarrel
+with this doctrine, they must at least admit that it would
+doubtless appear to them of vital truth were they defending
+some trembling client concerning whose guilt or innocence they
+were themselves somewhat in doubt.  "Charity believeth all
+things," and the prisoner is entitled to every reasonable
+doubt, even from his own lawyer.  It is the lawyer's business
+to create such a doubt if he can, and we must not be too
+censorious if, in his eagerness to raise this in the minds of
+the jury, he sometimes oversteps the bounds of propriety,
+appeals to popular prejudices and emotions, makes illogical
+deductions from the evidence, and impugns the motives of the
+prosecution.  The district attorney should be able to take
+care of himself, handle the evidence in logical fashion, and
+tear away the flimsy curtain of sentimentality hoisted by the
+defence.  These are hardly "tricks" at all, but sometimes
+under the name of advocacy a trick is "turned" which deserves
+a much harsher name.
+
+Not long ago a celebrated case of murder was moved for trial
+after the defendant's lawyer had urged him in vain to offer a
+plea of murder in the second degree.  A jury was summoned and,
+as is the usual custom in such cases, examined separately on
+the "voir dire" as to their fitness to serve.  The defendant
+was a German, and the prosecutor succeeded in keeping all
+Germans off the jury until the eleventh seat was to be filled,
+when he found his peremptory challenges exhausted.  Then the
+lawyer for the prisoner managed to slip in a stout old Teuton,
+who replied, in answer to a question as to his place of
+nativity, "Schleswig-Holstein."  The lawyer made a note of it,
+and, the box filled, the trial proceeded with unwonted
+expedition.
+
+The defendant was charged with having murdered a woman with
+whom he had been intimate, and his guilt of murder in the
+first degree was demonstrated upon the evidence beyond
+peradventure.  At the conclusion of the case, the defendant
+not having dared to take the stand, the lawyer arose to
+address the jury in behalf of what appeared a hopeless cause.
+Even the old German in the back row seemed plunged in
+soporific inattention.  After a few introductory remarks the
+lawyer raised his voice and in heart-rending tones began:
+
+"In the beautiful county of Schleswig-Holstein sits a woman
+old and gray, waiting the message of your verdict from beyond
+the seas."  (Number 11 opened his eyes and looked at the
+lawyer as if not quite sure of what he had heard.)  "There she
+sits" (continued the attorney), "in Schleswig-Holstein, by her
+cottage window, waiting, waiting to learn whether her boy is
+to be returned to her outstretched arms."  (Number 11 sat up
+and rubbed his forehead.)  "Had the woman, who so unhappily
+met her death at the hands of my unfortunate client, been like
+those women of Schleswig-Holstein--noble, sweet, pure, lovely
+women of Schleswig-Holstein--I should have naught to say to
+you in his behalf."  (Number 11 leaned forward and gazed
+searchingly into the lawyer's face.)  "But alas, no!
+Schleswig-Holstein produces a virtue, a loveliness, a nobility
+of its own."  (Number 11 sat up and proudly expanded his
+chest.)
+
+When, after about an hour or more of Schleswig-Holstein the
+defendant's counsel surrendered the floor to the district
+attorney, the latter found it quite impossible to secure the
+slightest attention from the eleventh juror, who seemed to be
+spending his time in casting compassionate glances in the
+direction of the prisoner.  In due course the jury retired,
+but had no sooner reached their room and closed the door than
+the old Teuton cried, "Dot man iss not guilty!"  The other
+eleven wrestled with him in vain.  He remained impervious to
+argument for seventeen hours, declining to discuss the
+evidence, and muttering at intervals, "Dot man iss not
+guilty!"  The other eleven stood unanimously for murder in the
+first degree, which was the only logical verdict that could
+possibly have been returned upon the evidence.
+
+At last, worn out with their efforts, they finally induced the
+old Teuton to compromise with them on a verdict of
+manslaughter.  Wearily they straggled in, the old native of
+Schleswig-Holstein bringing up the rear, bursting with
+exultation and with victory in his eye.
+
+"Gentlemen of the jury, have you agreed upon a verdict?"
+inquired the clerk.
+
+"We have," replied the foreman.
+
+"How say you, do you find the defendant guilty or not guilty?"
+
+"Guilty--of manslaughter," returned the foreman feebly.
+
+The district attorney was aghast at such a miscarriage of
+justice, and the judge showed plainly by his demeanor his
+opinion of such a verdict.  But the old inhabitant of
+Schleswig-Holstein cared for this not a whit.  The old mother
+in Schleswig-Holstein might still clasp her son in her arms
+before she died!  The defendant was arraigned at the bar.
+Then for the first time, and to the surprise and disgust of
+No. 11, he admitted in answer to the questions of the clerk
+that his parents were both dead and that he was born in
+Hamburg, a town for whose inhabitants the old juryman had,
+like others of his compatriots, a constitutional antipathy.
+
+The "tricks" of the trade as practised by the astute and
+unscrupulous criminal lawyer vary with the stage of the case
+and the character of the crime charged.  They are also adapted
+with careful attention to the disposition, experience and
+capacity of the particular district attorney who happens to be
+trying the case against the defendant.  An illustration of one
+of these occurred during the prosecution of a bartender for
+selling "spirituous liquors" without a proper license.  He was
+defended by an old war-horse of the criminal bar famous for
+his astuteness and ability to laugh a case out of court.  The
+assistant district attorney who appeared against him was a
+young man recently appointed to office, and who was almost
+overcome at the idea of trying a case against so well known a
+practitioner.  He had personally conducted but very few cases,
+had an excessive conception of his own dignity, and dreaded
+nothing so much as to appear ridiculous.  Everything, except
+the evidence, favored the defendant, who, however, was, beyond
+every doubt, guilty of the offence charged.
+
+The young assistant put in his case, calling his witnesses one
+by one, and examining them with the most feverish anxiety lest
+he should forget something.  The lawyer for the defence made
+no cross-examination and contented himself with smiling
+blandly as each witness left the stand.  The youthful
+prosecutor became more and more nervous.  He was sure that
+something was wrong, but he couldn't just make out what.  At
+the conclusion of the People's case the lawyer inquired, with
+a broad grin, "if that was all."
+
+The young assistant replied that it was, and that, in his
+opinion, it was "quite enough."
+
+"Let that be noted by the stenographer," remarked the lawyer.
+"Now, if your Honors please," he continued, addressing the
+three judges of the Special Sessions, "you all know how
+interested I am to see these young lawyers growing up.  I like
+to help 'em along--give 'em a chance--teach 'em a thing or
+two.  I trust it may not be out of place for me to say that I
+like my young friend here and think he tried his case very
+well.  But he has a great deal to learn.  I'm always glad,
+as I said, to give the boys a chance--to give 'em a little
+experience.  I shall not put my client upon the stand.  It is
+not necessary.  The fact is," turning suddenly to the
+unfortunate assistant district attorney--"my client has a
+license."  He drew from his pocket a folded paper and handed
+it to the paralyzed young attorney with the harsh demand:
+"What do you say to that?"
+
+The assistant took the paper in trembling fingers and perused
+it as well as he could in his unnerved condition.
+
+"Mr. District Attorney," remarked the presiding justice dryly
+(which did not lessen the confusion of the young lawyer), "is
+this a fact?  Has the defendant a license?"
+
+"Yes, your Honors," replied the assistant; "this paper seems
+to be a license."
+
+"Defendant discharged!" remarked the court briefly.
+
+The prisoner stepped from the bar and rapidly disappeared
+though the door of the court-room.  After enough time had
+elapsed to give him a good start and while another case was
+being called, the old lawyer leaned over to the assistant and
+remarked with a chuckle
+
+"I am always glad to give the boys a chance--help 'em along
+--teach 'em a little.  That license was a beer license!"
+
+
+BEFORE TRIAL
+
+To begin at the beginning, whenever a person has been
+arrested, charged with crime, and has secured a criminal
+lawyer to defend him, the first move of the latter is
+naturally to try and nip the case in the bud by inducing the
+complaining witness to abandon the prosecution.  In a vast
+number of cases he is successful.  He appeals to the charity
+of the injured party, quotes a little of the Scriptures and
+the "Golden Rule," pictures the destitute condition of the
+defendant's family should he be cast into prison, and the
+dragging of an honored name in the gutter if he should be
+convicted.  Few complainants have ever before appeared in a
+police court, and are filled with repugnance at the rough
+treatment of prisoners and the suffering which they observe
+upon every side.  After they have seen the prisoner emerge
+from the cells, pale, hollow-eyed, bedraggled, and have beheld
+the tears of his wife and children as they crowd around the
+husband and father, they begin to realize the horrible
+consequences of a criminal prosecution and to regret that they
+ever took the steps which have brought the wrong-doer where he
+is.  The district attorney hag not yet taken up the case; the
+prosecution up to this point is of a private character; there
+are loud promises of "restitution" and future good behavior
+from the defendant, and the occasion is ripe for the lawyer to
+urge the complainant to "temper justice with mercy" and
+withdraw "before it be too late and the poor man be ruined
+forever."
+
+If the complainant is, however, bent on bringing the defendant
+to justice and remains adamantine to the arguments of the
+lawyer and the tears of the defendant's family connections, it
+remains for the prisoner's attorney to endeavor to get the
+case adjourned "until matters can be adjusted"--to wit,
+restitution made if money has been stolen, or doctors' bills
+paid if a head has been cracked, with perhaps another chance
+of "pulling off" the complainant and his witnesses.  Failing
+in an attempt to secure an adjournment, two courses remain
+open: first, to persuade the court that the matter is a
+trivial one arising out of petty spite, is all a mistake, or
+that at best it is a case of "disorderly conduct" (and thus
+induce the judge to "turn the case out" or inflict some
+trifling punishment in the shape of a fine); or, second, if
+it be clear that a real crime has been committed, to clamor
+for an immediate hearing in order, if it be secured, to
+subject the prosecution's witnesses to a most exhaustive
+cross-examination, and thus get a clear idea of just what
+evidence there is against the accused.
+
+At the conclusion of the complainant's case, if it appear
+reasonably certain that the magistrate will "hold" the
+prisoner for the action of a superior court, the lawyer will
+then "waive further examination," or, in other words, put in
+no defence, preferring the certainty of having to face a jury
+trial to affording in prosecution an opportunity to discover
+exactly what defence will be put in and to secure evidence in
+advance of the trial to rebut it.  Thus it rarely happens in
+criminal cases of importance that the district attorney knows
+what the defence is to be until the defendant himself takes
+the stand, and, by "waiving further examination" in the police
+court, the astute criminal attorney may select at his leisure
+the defence best suited to fit in with and render nugatory the
+prosecution's evidence.
+
+The writer has frequently been told by the attorney for a
+defendant on trial for crime that "the defence has not yet
+been decided upon."  In fact, such statements are exceedingly
+common.  In many courts the attitude of all parties concerned
+seems to be that the defendant will put up a perjured defence
+(so far as his own testimony is concerned, at any rate) as a
+matter of course, and that this is hardly to be taken against
+him.
+
+On the other hand, if a guilty defendant has been so badly
+advised as to give his own version of the case before the
+magistrate in the first instance, it requires but slight
+assiduity on the part of the district attorney to secure, in
+the interval between the hearing and the jury trial, ample
+evidence to rebut it.
+
+As illustrating merely the fertility and resourcefulness of
+some defendants (or perhaps their counsel), the writer recalls
+a case which he tried in the year 1902 where the defendant, a
+druggist, was charged with manslaughter in having caused the
+death of an infant by filling a doctor's prescription for
+calomel with morphine.  It so happened that two jars
+containing standard pills had been standing side by side upon
+an adjacent shelf, and, a prescription for morphine having
+come in at the same time as that for the calomel, the druggist
+had carelessly filled the morphine prescription with calomel,
+and the calomel prescription with morphine.  The adult for
+whom the morphine had been prescribed recovered immediately
+under the beneficent influence of the calomel, but the baby
+for whom the calomel had been ordered died from the effects of
+the first morphine pill administered.  All this had occurred
+in 1897--five years before.  The remainder of the pills had
+disappeared.
+
+Upon the trial (no inconsistent contention having been entered
+in the police court) the prisoner's counsel introduced six
+separate defences, to wit:  That the prescription had been
+properly filled with calomel and that the child had died from
+natural causes, the following being suggested.
+
+1.  Acute gastritis.
+
+2.  Acute nephritis.
+
+3.  Cerebro-spinal meningitis.
+
+4.  Fulminating meningitis.
+
+5.  That the child had died of apomorphine, a totally distinct
+poison.
+
+6.  That it had received and taken calomel, but that, having
+eaten a small piece of pickle shortly before, the conjunction
+of the vegetable acid with the calomel had formed, in the
+child's stomach, a precipitate of corrosive sublimate, from
+which it had died.
+
+These were all argued with great learning.  During the trial
+the box containing the balance of the pills, which the defence
+contended were calomel, unexpectedly turned up.  It has always
+been one of the greatest regrets of the writer's life that he
+did not then and there challenge the defendant to eat one of
+the pills and thus prove the good faith of his defence.
+
+This was one of the very rare cases where a chemical analysis
+has been conducted in open court.  The chemist first tested a
+standard trade morphine pill with sulphuric acid, so that the
+jury could personally observe the various color reactions for
+themselves.  He then took one of the contested pills and
+subjected it to the same test.  The first pill had at once
+turned to a brilliant rose, but the contested pill, being
+antiquated, "hung fire," as it were, for some seconds.  As
+nothing occurred, dismay made itself evident on the face of
+the prosecutor, and for a moment he felt that all was lost.
+Then the five-year-old pill slowly turned to a faint brown,
+changed to a yellowish red, and finally broke into an ardent
+rose.  The jury settled back into their seats with an audible
+"Ah!" and the defendant was convicted.
+
+Let us return, however, to that point in the proceedings where
+the defendant has been "held for trial" by the magistrate.
+The prisoner's counsel now endeavors to convince the district
+attorney that "there is nothing in the case," and continues
+unremittingly to work upon the feelings of the complainant.
+If he finds that his labors are likely to be fruitless in both
+directions, he may now seek an opportunity to secure
+permission for his client to appear before the grand jury and
+explain away, if possible, the charge against him.
+
+We will assume, however, that, in spite of the assiduity of
+his lawyer, the prisoner has at last been indicted and is
+awaiting trial.  What can be done about it?  Of course, if the
+case could be indefinitely adjourned, the complainant or his
+chief witness might die or move away to some other
+jurisdiction, and if the indictment could be "pigeon-holed"
+the case might die a natural death of itself.  Indictments,
+however, in New York County, whatever may be the case
+elsewhere, are no longer "pigeon-holed," and they cannot be
+adequately "lost," since certified copies are made of each.
+The next step, therefore, is to secure as long a time as
+possible before trial.
+
+Usually a prisoner has nothing to lose and everything to gain
+by delay, and the excuses offered for adjournment are often
+ingenious in the extreme.  The writer knows one criminal
+attorney who, if driven to the wall in the matter of excuses,
+will always serenely announce the death of a near relative and
+the obligation devolving upon him to attend the funeral.
+Another, as a last resort, regularly is attacked in open court
+by severe cramps in the stomach.  If the court insists on the
+trial proceeding, he invariably recovers.  Of course, there
+are many legitimate reasons for adjourning cases which the
+prosecution is powerless to combat.
+
+The most effective method invoked to secure delay, and one
+which it is practically useless for the district attorney to
+oppose, is an application "to take testimony" upon commission
+in some distant place.  Here again it must be borne in mind
+that such applications are often legitimate and proper and
+should be granted in simple justice to the defendant.
+Although this right to take the testimony of absent witnesses
+is confined in New York State to the defendant and does not
+extend to the prosecution, and is undoubtedly often the
+subject of much abuse, it not infrequently is the cause of
+saving an innocent man.
+
+An example of this was the case of William H. Ellis, recently
+brought into the public eye through his connection with the
+treaty between the United States Government and King Menelik
+of Abyssinia.  Ellis was accused in 1901 by a young woman of
+apparently excellent antecedents and character of a serious
+crime.  Prior to his indictment a colored man employed in his
+office (the alleged scene of the crime) disappeared.  When the
+case was moved for trial, Ellis, through his attorneys, moved
+for a commission to take the testimony of this absent, but
+clearly material, witness in one of the remote States of
+Mexico--a proceeding which would require a journey of some two
+weeks on muleback, beyond the railway terminus.  The district
+attorney, in view of the peculiarly opportune disappearance of
+this person from the jurisdiction, strenuously opposed the
+application and hinted at collusion between Ellis and the
+witness.  The application, however, was granted, and a delay
+of over a month ensued.  During that time evidence was
+procured by the counsel of the prisoner showing conclusively
+that the complaining witness was mentally unsound and had made
+similar and groundless charges against others.  The indictment
+was at once dismissed.
+
+But such delays are not always so righteously employed.  There
+is a story told of a case where a notorious character was
+charged with the unusual crime of "mayhem"--biting off another
+man's finger.  The defendant's counsel secured adjournment
+after adjournment--no one knew why.  At last the case was
+moved for trial and the prosecution put in its evidence,
+clearly showing the guilt of the prisoner.  At the conclusion
+of the People's testimony, the lawyer for the defendant arose
+and harshly stigmatized the story of the complainant as a
+"pack of lies."
+
+"I will prove to you in a moment, gentlemen," exclaimed he to
+the jury, "how absurd is this charge against my innocent
+client.  Take the stand!"
+
+The prisoner arose and walked to the witnesschair.
+
+"Open your mouth!" shouted the lawyer.
+
+The defendant did so.  He had not a tooth in his head.  The
+delay had been advantageously employed.
+
+The importance of mere delay to a guilty defendant cannot well
+be overestimated.  "You never can tell what may happen to
+knock a case on the head."  For this reason a sufficiently
+paid and properly equipped counsel will run the whole gamut of
+criminal procedure, and:
+
+1.  Demur to the indictment.,
+
+2.  Move for an inspection of the minutes of the proceedings
+before the grand jury.
+
+3.  Move to dismiss the indictment for lack of sufficient
+evidence before that body.
+
+4.  Move for a commission to take testimony.
+
+5.  Move for a change of venue.
+
+6.  Secure, where possible, a writ of habeas corpus and a stay
+of proceedings from some federal judge on the ground that his
+client is confined without due process of law.
+
+All these steps he will take seriatim, and some cases have
+been delayed for as much as two years by merely invoking
+"legitimate" legal processes.  In point of fact it is quite
+possible for any defendant absolutely to prevent an immediate
+trial provided he has the services of vigilant counsel, for
+these are not the only proceedings of which he can avail
+himself.
+
+A totally distinct method is for the defendant to secure bail,
+and, after securing as many adjournments as possible, simply
+flee the jurisdiction.  He will then remain away until the
+case is hopelessly stale, or he no longer fears prosecution.
+
+In default of all else he may go "insane" just before the case
+is moved for trial.  This habit of the criminal rich when
+brought to book for their misdeeds is too well known to
+require comment.  All that is necessary is for a sufficient
+number of "expert" alienists to declare it to be their opinion
+that the defendant is mentally incapable of understanding the
+proceedings against him or of preparing his defence, and he is
+shifted off to a "sanitarium" until some new sensation
+occupies the public mind and his offences are partially
+forgotten.
+
+In this way justice is often thwarted and the law cheated of
+its victim, but unless fortune favors him, sooner or later the
+indicted man must return for trial and submit the charge
+against him to a jury.  But if this happens, even if he be
+guilty, all hope need not be lost.  There are still "tricks of
+the trade" which may save him from the clutches of the law.
+
+AT THE TRIAL
+
+What can be done when at last the prisoner who has fought
+presistently for adjournment has been forced to face the
+witnesses against him and submit the evidence to a jury of
+peers?  Let us assume further that he has been "out on bail,"
+with plenty of opportunity to prepare his defence and lay his
+plans for escape.
+
+When the case is finally called and the defendant takes his
+seat at the bar after a lapse of anywhere from six months to a
+year or more after his arrest, the first question for the
+district attorney to investigate is whether or no the person
+presenting himself for trial be in point of fact the
+individual mentioned in the indictment.  This is often a
+difficult matter to determine.  "Ringers"--particularly in the
+magistrates' courts--are by no means unknown.  Sometimes they
+appear even in the higher courts.  If the defendant be an
+ex-convict or a well-known crook, his photograph and
+measurements will speedily remove all doubt upon the subject,
+but if he be a foreigner (particularly a Pole, Italian or a
+Chinaman), or even merely one of the homogeneous inhabitants
+of the densely-populated East Side of New York, it is
+sometimes a puzzling problem.  "Mock Duck," the celebrated
+Highbinder of Chinatown, who was set free after two lengthy
+trials for murder, was charged not long ago with a second
+assassination.  He was pointed out to the police by various
+Chinamen, arrested and brought into the Criminal Courts
+building for identification, but for a long time it was a
+matter of uncertainty whether friends of his (masquerading as
+enemies) had not surrendered a substitute.  Luckily the
+assistant district attorney who had prosecuted this wily and
+dangerous Celestial in the first instance was able to identify
+him.
+
+Many years ago, during the days of Fernando Wood, a connection
+of his was reputed to be the power behind the "policy"
+business in New York City--the predecessor of the notorious Al
+Adams.  A "runner" belonging to the system having been
+arrested and policy slips having been found in his possession,
+the reigning Policy King retained a lawyer of eminent
+respectability to see what could be done about it.  The
+defendant was a particularly valuable man in the business and
+one for whom his employer desired to do everything in his
+power.  The lawyer advised the defendant to plead guilty,
+provided the judge could be induced to let him off with a
+fine, which the policy King agreed to pay.  Accordingly, the
+lawyer visited the judge in his chambers and the latter
+practically promised to inflict only a fine in case the
+defendant, whom we will call, out of consideration for his
+memory, "Johnny Dough," should plead guilty.  Unfortunately
+for this very satisfactory arrangement, the judge, now long
+since deceased, was afflicted with a serious mental trouble
+which occasionally manifested itself in peculiar losses of
+memory.  When "Johnny Dough," the Policy King's favorite, was
+arraigned at the bar and, in answer to the clerk's
+interrogation, stated that he withdrew his plea of "not
+guilty" and now stood ready to plead "guilty," the judge, to
+the surprise and consternation of the lawyer, the defendant,
+and the latter's assembled friends, turned upon him and
+exclaimed:
+
+"Ha!  So you plead guilty, do you?  Well, I sentence you to
+the penitentiary for one year, you miserable scoundrel!"
+
+Utterly overwhelmed, "Johnny Dough!" was led away, while his
+lawyer and relatives retired to the corridor to express their
+opinion of the court.  About three months later the lawyer,
+who had heard nothing further concerning the case, happened to
+be in the office of the district attorney, when the latter
+looked up with a smile and inquired:
+
+"Well, how's your client-Mr. Dough?"
+
+"Safe on the Island, I suppose," replied the lawyer,
+
+"Not a bit of it," returned the district attorney.  "He never
+went there."
+
+"What do you mean?" inquired the lawyer.  "I heard him
+sentenced to a year myself!"
+
+"I can't help that," said the district attorney.  "The other
+day a workingman went down to the Island to see his old friend
+`Johnny Dough.'  There was only one `Johnny Dough' on the
+lists, but when he was produced the visitor exclaimed: `That
+Johnny Dough!  That ain't him at all, at all!'  The visitor
+departed in disgust.  We instituted an investigation and found
+that the man at the Island was a `ringer.'"
+
+"You don't say!" cried the lawyer.
+
+"Yes," continued the district attorney.  "But that is not the
+best part of it.  You see, the `ringer' says he was to get two
+hundred dollars per month for each month of Dough's sentence
+which he served.  The prison authorities have refused to keep
+him any longer, and now he is suing them for damages, and is
+trying to get a writ of mandamus to compel them to take him
+back and let him serve out the rest of the sentence!"
+
+Probably the most successful instance on record of making use
+of a dummy occurred in the early stages of the now famous
+Morse-Dodge divorce tangle.  Dodge had been the first husband
+of Mrs. Morse, and from him she had secured a divorce.  A
+proceeding to effect the annulment of her second marriage had
+been begun on the ground that Dodge had never been legally
+served with the papers in the original divorce case--in other
+words, to establish the fact that she was still, in spite of
+her marriage to Morse, the wife of Dodge.  Dodge appeared in
+New York and swore that he had never been served with any
+papers.  A well-known and reputable lawyer, on the other hand,
+Mr. Sweetser, was prepared to swear that he had served them
+personally upon Dodge himself.  The matter was sent by the
+court to a referee.  At the hour set for the hearing in the
+referee's office, Messrs. Hummel and Steinhardt arrived early,
+in company with a third person, and took their seats with
+their backs to a window on one side of the table, at the head
+of which sat the referee, and opposite ex-Judge Fursman,
+attorney for Mrs. Morse.  Mr. Sweetser was late.  Presently he
+appeared, entered the office hurriedly, bowed to the referee,
+apologized for being tardy, greeted Messrs. Steinhardt and
+Hummel, and then, turning to their companion, exclaimed: "How
+do you do, Mr. Dodge?"  It was not Dodge at all, but an
+acquaintance of one of Howe & Hummel's office force who had
+been asked to accommodate them.  Nothing had been said, no
+representations had been made, and Sweetser had voluntarily
+walked into a trap.
+
+The attempt to induce witnesses to identify "dummies" is
+frequently made by both sides in criminal cases, and under
+certain circumstances is generally regarded as professional.
+Of course, in such instances no false suggestions are made,
+the witness himself being relied upon to "drop the fall."  In
+case he does identify the wrong person, he has, of course,
+invalidated his entire testimony.
+
+Not in one case out of five hundred, however, is any attempt
+made to substitute a "dummy" for the real defendant, the
+reason being, presumably, the prejudice innocent people have
+against going to prison even for a large reward.  The question
+resolves itself, therefore, into how to get the client off
+when he is actually on trial.  First, how can the sympathies
+of the jury be enlisted at the very start?  Weeping wives and
+wailing infants are a drug on the market.  It is a friendless
+man indeed, even if he be a bachelor, who cannot procure for
+the purposes of his trial the services of a temporary wife and
+miscellaneous collection of children.  Not that he need swear
+that they are his!  They are merely lined up along a bench
+well to the front of the court-room--the imagination of the
+juryman does the rest.
+
+A defendant's counsel always endeavors to impress the jury
+with the idea that all he wants is a fair, open trial--and
+that he has nothing in the world to conceal.  This usually
+takes the form of a loud announcement that he is willing "to
+take the first twelve men who enter the box."  Inasmuch as the
+defence needs only to secure the vote of one juryman to
+procure a disagreement, this offer is a comparatively safe one
+for the defendant to make, since the prosecutor, who must
+secure unanimity on the part of the jury (at least in New York
+State), can afford to take no chances of letting an
+incompetent or otherwise unfit talesman slip into the box.
+Caution requires him to examine the jury in every important
+case, and frequently this ruse on the part of the defendant
+makes it appear as if the State had less confidence in its
+case than the defence.  This trick was invariably used by the
+late William F. Howe in all homicide cases where he appeared
+for the defence.
+
+The next step is to slip some juryman into the box who is
+likely for any one of a thousand reasons to lean toward the
+defence--as, for example, one who is of the same religion,
+nationality or even name as the defendant.  The writer once
+tried a case where the defendant was a Hebrew named Bauman,
+charged with perjury.  Mr. Abraham Levy was the counsel for
+the defendant.  Having left an associate to select the jury
+the writer returned to the courtroom to find that his friend
+had chosen for foreman a Hebrew named Abraham Levy.  Needless
+to say, a disagreement of the jury was the almost inevitable
+result.  The same lawyer not many years ago defended a client
+named Abraham Levy.  In like manner he managed to get an
+Abraham Levy on the jury, and on that occasion succeeded in
+getting his client off scot-free.
+
+No method is too far-fetched to be made use of on the chance
+of "catching" some stray talesman.  In a case defended by
+Ambrose Hal. Purdy, where the deceased had been wantonly
+stabbed to death by a blood-thirsty Italian shortly after the
+assassination of President McKinley, the defence was
+interposed that a quarrel had arisen between the two men owing
+to the fact that the deceased had loudly proclaimed
+anarchistic doctrines and openly gloried in the death of the
+President, that the defendant had expostulated with him,
+whereupon the deceased had violently attacked the prisoner,
+who had killed him in self-defence.
+
+The whole thing was so thin as to deceive nobody, but Mr.
+Purdy, as each talesman took the witness-chair to be examined
+on the voir dire, solemnly asked each one:
+
+"Pardon me for asking such a question at this time--it is only
+my duty to my unfortunate client that impels me to it--but
+have you any sympathy with anarchy or with assassination?"
+
+The talesman, of course, inevitably replied in the negative.
+
+"Thank you, sir," Purdy would continue: "In that event you
+are entirely acceptable!"
+
+Not long ago two shrewd Irish attorneys were engaged in
+defending a client charged with an atrocious murder.  The
+defendant had the most Hebraic cast of countenance imaginable,
+and a beard that reached to his waist.  Practically the only
+question which these lawyers put to the different talesmen
+during the selection of the jury was, "Have you any prejudice
+against the defendant on account of his race?"  In due course
+they succeeded in getting several Hebrews upon the jury who
+managed in the jury-room to argue the verdict down from murder
+to manslaughter in the second degree.  As the defendant was
+being taken across the bridge to the Tombs he fell on his
+knees and offered up a heartfelt prayer such as could only
+have emanated from the lips of a devout Roman Catholic.
+
+Lawyers frequently secure the good-will of jurors (which may
+last throughout the trial and show itself in the verdict) by
+some happy remark during the early stages of the case.  During
+the Clancy murder trial each side exhausted its thirty
+peremptory challenges and also the entire panel of jurors in
+filling the box.  At this stage of the case the foreman became
+ill and had to be excused.  No jurors were left except one who
+had been excused by mutual consent for some trifling reason,
+and who out of curiosity had remained in court.  He rejoiced
+in the name of Stone.  Both sides then agreed to accept him as
+foreman provided he was still willing to serve, and this
+proving to be the case he triumphantly made his way towards
+the box.  As he did so, the defendant's counsel remarked: "The
+Stone which the builders refused is become the head Stone of
+the corner."  The good-will generated by this meagre jest
+stood him later in excellent stead.
+
+In default of any other defence, some criminal attorneys have
+been known to seek to excite sympathy for their helpless
+clients by appearing in court so intoxicated as to be
+manifestly unable to take care of the defendant's interests,
+and prisoners have frequently been acquitted simply by virtue
+of their lawyer's obvious incapacity.  The attitude of the
+jury in such cases seems to be that the defendant has not had
+a "fair show" and so should be acquitted anyway.  Of course,
+this appeals to the juryman's sympathies and he overlooks the
+fact that by his action the prosecution is given no "show" at
+all.
+
+Generally speaking, the advice credited to Mr. Lincoln, as
+being given by him to a young attorney who was about to defend
+a presumably guilty client, is religiously followed by all
+criminal practitioners:
+
+"Well, my boy, if you've got a good case, stick to the
+evidence; if you've got a weak one, go for the People's
+witnesses; but--if you've got no case at all, hammer the
+district attorney!"
+
+As a rule, however, criminal lawyers are not in a position to
+"hammer" the prosecuting officer, but endeavor instead to
+suggest by innuendo or even open declaration his bias and
+unfairness.
+
+"Be fair, Mr.--!" is the continual cry.  "Try to be fair!"
+
+The defendant, whether he be an ex-convict or thirty-year-old
+professional thief, is always "this poor boy," and, as he is
+not compelled by law to testify, and as his failure to do so
+must not be weighed against him by the jury, he frequently
+walks out of court a free man, because the jury believe from
+the lawyer's remarks that he is in fact a mere youthful
+offender of hitherto good reputation and deserves another
+chance.
+
+By all odds the greatest abuse in criminal trials lies in the
+open disregard of professional ethics on the part of lawyers
+who deliberately supply of themselves, in their opening and
+closing addresses to the jury, what incompetent bits of
+evidence, true or false, they have not been able to establish
+by their witnesses.  There is no complete cure for this, for
+even if the judge rebukes the lawyer and directs the jury to
+disregard what he has said as "not being in the evidence," the
+damage has been done, the statement still lingering in the
+jury's mind without any opportunity on the part of the
+prosecutor to disprove it.  There is no antidote for such
+jury-poison.  A shyster lawyer need but to keep his client off
+the stand and he can saturate the jury's mind with any facts
+concerning the defendant's respectability and history which
+his imagination is powerful enough to supply.  On such
+occasions an ex-convict with no relatives may become a "noble
+fellow, who, rather than have his family name tainted by being
+connected with a criminal trial, is willing to risk even
+conviction"--"a veteran of the glorious war which knocked the
+shackles from the slave"--"the father of nine children"--"a
+man hounded by the police."  The district attorney may shout
+himself hoarse, the judge may pound his gavel in righteous
+indignation, the lawyer may apologize because in the zeal with
+which he feels inspired for his client's cause he perhaps
+(which only makes matters worse) has overstepped the mark--but
+some juryman may suppose that, after all, the prisoner is a
+hero or nine times a father.
+
+There is one notorious attorney who poses as a philanthropist
+and who invariably promises the jury that if they acquit his
+client he will personally give him employment.  If he has kept
+half of his promises he must by this time have several hundred
+clerks, gardeners, coachmen, choremen and valets.
+
+In like manner attorneys of this feather will deliberately
+state to the jury that if the defendant had taken the stand he
+would have testified thus and so; or that if certain witnesses
+who have not appeared (and who perhaps in reality do not exist
+at all) had testified they would have established various
+facts.  Such lawyers should be locked up or disbarred; courts
+are powerless to negative entirely their dishonesty in
+individual cases.
+
+Clever counsel, of course, habitually make use of all sorts of
+appeals to sympathy and prejudice.  In one case in New York in
+which James W. Osborne appeared as prosecutor the defendant
+wore a G.A.R.  button.  His lawyer managed to get a veteran on
+the jury.  Mr. Osborne is a native of North Carolina.  The
+defendant's counsel, to use his own words, "worked the war for
+all it was worth," and the defendant lived, bled and died for
+his country and over and over again.  In summing up the case,
+the attorney addressed himself particularly to the veteran on
+the back row, and, after referring to numerous imaginary
+engagements, exclaimed: "Why, gentlemen, my client was pouring
+out his life blood upon the field of battle when the ancestors
+of Mr. Osborne were raising their hands against the flag!"
+For once Mr. Osborne had no adequate words to reply.
+
+By far the most effective and dangerous "trick" employed by
+guilty defendants is the deliberate shouldering of the entire
+blame by one of two persons who are indicted together for a
+single offence.  A common example of this is where two men are
+caught at the same time bearing away between them the spoil of
+their crime and are jointly indicted for "criminally receiving
+stolen property."  Both, probably, are "side partners,"
+equally guilty, and have burglarized some house or store in
+each other's company.  They maybe old pals and often have
+served time together.  They agree to demand separate trials,
+and that whoever is convicted first shall assume the entire
+responsibility.  Accordingly, A. is tried and, in spite of his
+asseveration that he is innocent and that the "stuff" was
+given him by a strange man, who paid him a dollar to transport
+it to a certain place, is properly convicted.*  The bargain
+holds.  B.'s case is moved for trial and he claims never to
+have seen A. in his life before the night in question, and
+that he volunteered to help the latter carry a bundle which
+seemed to be too heavy for him.  He calls A., who testifies
+that this is so--that B., whom he did not know from Adam,
+tendered his services and that he availed himself of the
+offer.  The jury are usually prone to acquit, as the weight of
+evidence is clearly with the defendant.
+       _______________________________________
+
+* The defence that the accused innocently received the stolen
+property into his possession was a familiar one even in 1697,
+as appears by the following record taken from the Minutes of
+the Sessions.  It would seem that it was even then received
+with some incredulity.
+
+CITY & COUNTY OF NEW YORK: ss:
+
+At a Meeting of the Justices of the Peace for the said City &
+County at the City Hall of the said City on Thursday the 10th
+day of June Anno Dom 1697.
+
+PRESENT.
+                William Morrott \   Esquires
+                James Graham    /      quorum
+
+               Jacobus Cortlandt \  Esquires
+               Grandt Schuylor    }     Justices
+               Leonard Lowie     /  of the Peace
+
+Jacobus Cortlandt, Esq., one of his Majestys justices of the
+peace for ye said City and County Informed the Kings justices
+that a peace of Linnen Ticking was taken out of his Shop this
+Morning.  That he was informed a Negro Slave Named Joe was
+seen to take the same whereupon the said Jacobus Van Cortlandt
+Pursued the said, Joe and apprehended him and found the said
+peice of ticking in his custody and had the said Negro Joe
+penned in the cage, upon which the said Negro man being
+brought before the said Justices said he did not take the said
+ticking out of the Shop window but that a Boy gave itt to him,
+but upon Examination of Sundry other Evidence itt Manifestly
+Appeareth to the said Justices that the said Negro man Named
+Joe, did steal the said piece of linnen ticking out of the
+Shop Window of the said Jacobus Van Cortlandt and thereupon
+doe order the punishment of the said Negro as follows vigt.
+That the said Negro man Slave Named Joe shall be forthwith by
+the Common whipper of the City or some of the Sheriffs
+officers art the Cage be stripped Naked from the Middle
+upwards and then and there shall be tyed to the tayle of a
+Cart and being soe stripped and tyed shah be Drove Round the
+City and Receive upon his naked body art the Corner of each
+Street nine lashes until he return to the place from whence he
+sett out and that he afterwards Stand Committed to the
+Sheriffs custody till he pay his fees.
+       _______________________________________
+
+Many changes are rung upon this device.  There is said to have
+been a case in which the defendant was convicted of murder in
+the first degree and sentenced to be executed.  It was one of
+circumstantial evidence and the verdict was the result of
+hours of deliberation on the part of the jury.  The prisoner
+had stoutly denied knowing anything of the homicide.  Shortly
+before the date set for the execution, another man turned up
+who admitted that he had committed the crime and made the
+fullest sort of a confession.  A new trial was thereupon
+granted by the Appellate Court, and the convict, on the
+application of the prosecuting attorney, was discharged and
+quickly made himself scarce.  It then developed that apart
+from the prisoner's own confession there was practically
+nothing to connect him with the crime.  Under a statute making
+such evidence obligatory in order to render a confession
+sufficient for a conviction, the prisoner had to be
+discharged.
+
+In the case of Mabel Parker, a young woman of twenty, charged
+with the forgery of a large number of checks, many of them for
+substantial amounts, her husband made an almost successful
+attempt to procure her acquittal by means of a new variation
+of the old game.  Mrs. Parker, after her husband had been
+arrested for passing one of the bogus checks, had been duped
+by a detective into believing that the latter was a fellow
+criminal who was interested in securing Parker's release.  In
+due course she took this supposed friend into her confidence,
+made a complete confession, and illustrated her skill by
+impromptu copies of her forgeries from memory upon a sheet of
+pad paper.  This the detective secured and then arrested her.
+She was indicted for forging the name Alice Kauser to a check
+upon the Lincoln National Bank.  On her trial she denied
+having done so, and claimed that the detective had found the
+sheet containing her supposed handwriting in her husband's
+desk, and that she had written none of the alleged copies upon
+it.  The door of the courtroom then opened, and James Parker
+was led to the bar and pleaded guilty to the forgery of the
+check in question.  (For the benefit of the layman it should
+be explained that as a rule indictments for forgery also
+contain a count for "uttering.")  He then took the stand,
+admitted that he had not only uttered but had also written the
+check, and swore that it was his handwriting which, appeared
+on the pad.
+
+The prosecutor was nonplussed.  If he should ask the witness
+to prove his capacity to forge such a check from memory on the
+witness-stand, the latter, as he had ample time to practise
+the signature while in prison, would probably succeed in doing
+so.  If, on the other hand, he should not ask him to write the
+name, the defendant's counsel would argue to the jury that he
+was afraid to do so.  The district attorney therefore took the
+bull by the horns and challenged Parker to make from memory a
+copy of the signature, and, much as he had suspected, the
+witness produced a very good one.  An acquittal seemed
+certain, and the prosecutor was at his wit's end to devise a
+means to meet this practical demonstration that the husband
+was in fact the forger.  At last it was suggested to him that
+it would be comparatively easy to memorize such a signature,
+and acting on this hint he found that after half an hour's
+practice he was able to make almost as good a forgery as
+Parker.  When therefore it came time for him to address the
+jury he pointed out the fact that Parker's performance on the
+witness-stand really established nothing at all--that any one
+could forge such a signature from memory after but a few
+minutes' practice.
+
+"To prove to you how easily this can be done," said he, "I
+will volunteer to write a better Kauser signature than Parker
+did."
+
+He thereupon seized a pen and began to demonstrate his ability
+to do so.  Mrs. Parker, seeing the force of this ocular
+demonstration, grasped her counsel's arm and cried out: "For
+God's sake, don't let him do it!"  The lawyer objected, the
+objection was sustained, but the case was saved.  Why, the
+jury argued, should the lawyer object unless the making of
+such a forgery were in fact an easy matter?
+
+In desperate cases, desperate men will take desperate chances.
+The traditional instance where the lawyer, defending a client
+charged with causing the death of another by administering
+poisoned cake, met the evidence of the prosecution's experts
+with the remark: "This is my answer to their testimony!" and
+calmly ate the balance of the cake, is too familiar to warrant
+detailed repetition.  The jury retired to the jury-room and
+the lawyer to his office, where a stomach pump quickly put him
+out of danger.  The jury is supposed to have acquitted.
+
+Such are some of the tricks of the legal trade as practised in
+its criminal branch.  Most of them are unsuccessful and serve
+only to relieve the gray monotony of the courts.  When they
+achieve their object they add to the interest of the
+profession and teach the prosecutor a lesson by which,
+perhaps, he may profit in the future.
+
+
+
+
+CHAPTER IX
+
+What Fosters Crime
+
+
+To lack of regard for law is mainly due the existence of
+crime, for a perfect respect for law would involve entire
+obedience to it.  Yet crime continues and from time to time
+breaks forth to such an extent as to give ground for a popular
+impression that it is increasing out of proportion to our
+growth as a nation.  Now, while it may be fairly questioned
+whether there is any actual increase of crime in the United
+States, and while, on the contrary, observation would seem to
+show an actual decrease, not only in crimes of violence, but
+in all major crimes, there nevertheless exists to-day a
+widespread contempt for the criminal law which, if it has not
+already stimulated a general increase of criminal activity, is
+likely to do so in the future.  This contempt for the law is
+founded not only upon actual conditions, but also upon belief
+in conditions erroneously supposed to exist, which is fostered
+by current literature and by the sensational press.
+
+Thus, as has already been pointed out, while it is popularly
+believed that women are almost never convicted of crime, and
+particularly of homicide, the fact is, at least in New York
+County, that a much greater proportion of women charged with
+murder are convicted than of men charged with the same
+offence.  To read the newspapers one would suppose that the
+mere fact that the defendant was a female instantly paralyzed
+the minds of the jury and reduced them to a state of
+imbecility.  The inevitable result of this must be to
+encourage lawlessness among the lower orders of women and to
+lead them to look upon arrest as a mere formality without
+ultimate significance.  The writer recalls trying for murder a
+negress who had shot her lover not long after the discharge of
+a notorious female defendant in a recent spectacular trial in
+New York.  When asked why she had killed him she replied:
+
+"Oh, Nan Patterson did it and got off."
+
+This is not offered as a reflection upon the failure of the
+jury to reach a verdict in the Patterson case, but as an
+illuminating illustration of the concrete and immediate effect
+of all actual or supposed failures of justice.
+
+A belief that the course of criminal justice is slow and
+uncertain, that the chances are all in favor of the
+defendant, and that he has but to resort to technicalities
+to secure not only indefinite delay but generally ultimate
+freedom, breeds an indifference amounting almost to arrogance
+among law-breakers, powerful and otherwise, and a painful yet
+hopeless conviction among honest men that nothing can prevent
+the wicked from flourishing.  Honesty seems no longer even a
+good policy, and the young business man resorts to sharp
+practices to get ahead of his unscrupulous competitor.  In
+some localities the uncertainty and delay attendant upon the
+execution of the law is the alleged and maybe the actual,
+cause of the community crime of lynching.  Even where the
+administration of justice is seen at its best many people who
+have been wronged believe that there is so little likelihood
+that the offender will after all be punished that the cheapest
+and easiest course is to let the matter drop.  All this gives
+aid and comfort to the powers of darkness.
+
+The widespread impression as to the uncertainty of the law is
+not entirely a misapprehension.  "We have long since passed
+the period when it is possible to punish an innocent man.  We
+are now struggling with the problem whether it is any longer
+possible to punish the guilty."  It is a melancholy fact that
+at the present time "penal statutes and procedure tend more to
+defeat and retard the ends of justice than to protect the
+rights of the accused."
+
+The subject of criminal-law reform is too extensive to be
+discussed here even superficially, but historically the
+explanation of existing conditions is simple enough.  The
+present overgrown state of the criminal law is the direct
+result of our exaggerated regard for personal liberty, coupled
+with a wholesale adoption of the technicalities of English law
+invented when only such technicalities could stand between the
+minor offender and the barbarous punishments of a bygone age.
+We forget that the community is composed of individuals, and
+we tend to disregard its interests for those of any particular
+individual who happens to be a prisoner at the bar.  We
+revolted from England and incidentally from her system of
+administering the criminal law, by which the defendant could
+have no voice at his own trial, where practically every crime
+was punishable with death, and where only the Crown could
+produce and examine witnesses.  Every one will have to agree
+that the English system was very harsh and very unfair indeed.
+To-day it is better than ours, simply because its errors have
+been systematically and wisely corrected, without diminution
+in the national respect for law.  When we devised our own
+system we adopted those humane expedients for evading the law
+which were only justified by the existing penalties attached
+to convictions for crime,--and then discarded the penalties.
+We were through with tyrants once and for all.  The Crown had
+always been opposed to the defendant and the Crown was a
+tyrant.  We naturally turned with sympathy towards the
+prisoner.
+
+We gave him the right of appeal on all matters of law through
+all the courts of our States, and even into the courts of the
+United States, while we allowed the People no right of appeal
+at all.  If the prisoner was convicted he could go on and test
+the case all along the line,--if he was acquitted the People
+had to rest satisfied.  We stopped the mouth of the judge and
+made it illegal for him to "sum up" the case or discuss the
+facts to any extent.  We clipped the wings of the prosecutor
+and allowed him less latitude of expression than an English
+judge.  Then we gazed on the work of our intellects and said
+it was good.  If an ignorant jury acquitted a murderer under
+the eyes of a gagged and helpless judge, we said that it was
+all right and that it was better that ninety-nine guilty men
+should escape than that one innocent man should be convicted.
+Yes, better for whom?  If another murderer, about whose guilt
+the highest court in one of the States said there was no
+possible doubt, secured three new trials and was finally
+acquitted on the fourth, it merely demonstrated how perfectly
+we safeguarded the rights of the individual.
+
+The result is that we have unnecessarily fettered ourselves,
+have furnished a multitude of technical avenues of escape to
+wrong-doers, and have created a popular contempt for courts of
+justice, which shows itself in the sentimental and careless
+verdicts of juries, in a lack of public spirit, and in an
+indisposition to prosecute wrong-doers.  In addition, the
+impression sought to be conveyed by the yellow press that our
+judiciary is corrupt and that money can buy anything--even
+justice--leads the jury in many cases to feel that their
+presence is merely a formal concession to an archaic procedure
+and that their oaths have no real significance.
+
+The community, the "People," have a sufficiently hard task to
+secure justice at any criminal trial.  On the one hand is the
+abstract proposition that the law has been violated, on the
+other sits a human being, ofttimes contrite, always an object
+of pity.  He is presumed innocent, he is to be given the
+benefit of every reasonable doubt.  He has the right to make
+his own powerful appeal to the jury and to have the services
+of the best lawyer he can secure to sway their emotions and
+their sympathies.  If the prosecutor resorts to eloquence he
+is stigmatized as "over-zealous" and as a "persecutor."  If a
+plainly guilty defendant be acquitted, not the trampled ideal
+of justice, but the vision of a liberated prisoner rejoicing
+in his freedom hovers in the talesman's dreams.
+
+So far so good; we can afford to stand by a system which in
+the long run has served us fairly well.  But an occasional
+evil, an evil which when it occurs is productive of great harm
+and serves to give color to the popular opinion of criminal
+law, begins only when the lawyers have had their opportunity
+for elocution.  At the conclusion of the charge the
+defendant's attorney proceeds to put the judge through what
+is familiarly known as "a course of sprouts."  He makes
+twenty or thirty "requests to charge the jury" on the most
+abstract propositions of law which his fertile mind can
+devise,--relevant or irrelevant, applicable or inapplicable
+to the facts,--and the judge is compelled to decide from the
+bench, without opportunity for reflection, questions which the
+attorney has labored upon, perchance, for weeks.  If he
+guesses wrong, the lawyer "excepts" and the case may be
+reversed on appeal.  This is not a test of the defendant's
+guilt or innocence, but a test of the abstract learning and
+quickness of the presiding judge.
+
+It is generally believed that appellate courts are prone to
+reverse criminal cases on purely technical grounds.  Whether
+this belief be well founded or ill, its wide acceptance as
+fact is fertile in bringing the law into disrepute.*  Justice
+to be effective must be not only sure but swift.  An "iron
+hand" cannot always compensate for a "leaden heel".
+
+
+*Cf.  "Criminal Law Reform," G.W. Alger, "The Outlook," June,
+1907.  Also article having same title in "Moral Overstrain,"
+by same author.  See also, by Hon. C.F. Amidon, "The Quest for
+Error and the doing of Justice," 40 American Law Rev. 681, and
+article on same subject in "The Outlook" for June, 1906.
+
+
+It is probably true that in some of the States such a tendency
+exists and may result in making the administration of justice
+a laughing stock, but it is far from being so in States of the
+character of New York and Massachusetts.  The Appellate
+Division, First Department, and Court of Appeals in New York
+are distinctly opposed to reversing criminal cases on
+technical grounds and are prone to disregard trivial error
+where the guilt of the defendant is clear.  The writer can
+recall no recent criminal case where the district attorney's
+office has felt aggrieved at the action of the higher courts,
+and on the contrary believes that their action is generally
+based on broad principles of public policy and common-sense.
+
+During the year 1905 the district attorney of New York County
+defended forty-seven appeals from convictions in criminal
+cases in the Appellate Division.  Of these convictions only
+three were reversed.  He defended eighteen in the Court of
+Appeals, of which only two were reversed.  One of the writer's
+associates computed that he had secured, during a four years'
+term of office, twenty-nine convictions in which appeals had
+been taken.  Of these but two were reversed, one of them
+immediately resulting in the defendant's re-conviction for the
+same crime.  The other is still pending and the defendant
+awaiting his trial.  Certainly there is little in the actual
+figures to give color to the impression that the criminal
+profits by mere technicalities on appeal,--at least in New
+York State.
+
+In nine cases out of ten the reversal of a conviction in a
+criminal case is due to the carelessness or inefficiency of
+the prosecuting officer or trial judge and not to any
+inadequacy in our methods of procedure.  Yet the tenth case,
+the case where the criminal does beat the law by a
+technicality, does more harm than can easily be estimated.
+That is the one case everybody knows about, the one the papers
+descant upon, the one that cheers the heart of the grafter and
+every criminal who can afford to pay a lawyer.
+
+Yet the evil influence of the reversal of a conviction on
+appeal, however much it is to be deprecated, is as nothing
+compared with a deliberate acquittal of a guilty defendant by
+a reckless, sentimental, or lawless jury.  Few can appreciate
+as does a prosecutor the actual, practical and immediate
+effect of such a spectacle upon those who witness it.
+
+Two men were seen to enter an empty dwelling-house in the dead
+of night.  The alarm was given by a watchman near by, and a
+young police officer, who had been but seven months on the
+force, bravely entered the black and deserted building,
+searched it from roof to cellar, and found the marauders
+locked in one of the rooms.  He called upon them to open,
+received no reply, yet without hesitation and without knowing
+what the consequences to himself might be, smashed in the door
+and apprehended the two men.  One was found with a large
+bundle of skeleton keys in his pocket and several candles,
+while a partially consumed candle lay upon the floor.  In the
+police court they pleaded guilty to a charge of burglary, and
+were promptly indicted by the grand jury.
+
+At the trial they claimed to have gone into the house to
+sleep, said they had found the bunch of keys on the stairs,
+denied having the candles at all or that they were in a room
+on the top story, and asserted that they were in the entrance
+hall when arrested.
+
+The story told by the defendants was so utterly ridiculous
+that one of the two could not control a grin while giving his
+version of it on the witness stand.  The writer, who
+prosecuted the case, regarded the trial as a mere formality
+and hardly felt that it was necessary to sum up the evidence
+at all.
+
+Imagine his surprise when an intelligent-looking jury
+acquitted both the defendants after practically no
+deliberation.  Both had offered to plead guilty to a slightly
+lower degree of crime before the case was moved for trial.
+
+These two defendants, who were neither insane nor
+degenerates.  consorted with others in Bowery hotels and
+saloons,--incubators of crime.  What effect could such a
+performance have upon them and their friends save to inculcate
+a belief that they were licensed to commit as many burglaries
+as they chose?  They had a practical demonstration that the
+law was "no good" and the system a failure.  If they could
+beat a case in which they had already pleaded guilty, what
+could they not do where the evidence was less obvious?  They
+were henceforth immune.  Who shall say how many embryonic
+law-breakers took courage at the story and started upon an
+experimental attempt at crime?
+
+The news of such an acquittal must instantly have been carried
+to the Tombs, where every other guilty prisoner took heart and
+prepared anew his defence.  Those about to plead guilty and
+throw themselves upon the mercy of the court abandoned their
+honest purpose and devised some perjury instead. Criminals
+almost persuaded that honesty was the best policy changed
+their minds.  The barometer of crime swung its needle from
+"stormy" to "fair."
+
+But apart from the law-breakers consider the effect of such a
+miscarriage of justice upon a young, honest and zealous
+officer. First, all his good work, his bravery, his
+conscientious effort at safeguarding the sleeping public had
+been disregarded, tossed aside with a sneer, and had gone for
+naught.  The jury had stamped his story as a lie and
+stigmatized him, by their action, as a perjurer.  They had
+chosen two professional criminals as better men.  His whole
+conduct of the case instead of being commended as meritorious
+had resulted in a solemn public declaration that he was not
+worthy of credence and that he had attempted wilfully to
+railroad to State's prison two innocent men.  In other words.
+that he ought to be there himself.  What was the use of trying
+to do good work any longer?  He might just as well loiter in
+an area on a barrel and smoke a furtive cigar when he ought to
+be "on post."  Perhaps he might better "stand in" with those
+who would inevitably be preferred to him by a jury of their
+peers.
+
+What must have been the effect on the court officers, the
+witnesses, the defendants out on bail, the complainants, the
+spectators?  That the whole business was nonsense and rot!
+That the jury system was ridiculous.  That the jurymen were
+either crooks or fools.  That the only people who were not
+insulted and sneered at were the lawbreakers themselves.  That
+if two such rogues were to be set free all the other jailbirds
+might as well be let go.  That an honest man could whistle for
+his justice and might better straightway put on his hat and go
+home.  That the only way to punish a criminal was to punish
+him yourself--kill him if you got the chance or get the crowd
+to lynch him.  That if a thief stole from you the shrewdest
+thing to do was to induce him as a set-off to give you the
+proceeds of his next thieving.  That it was humiliating to
+live in a town where a self-confessed rascal could snap his
+fingers at the law and go unwhipped of justice.
+
+The jury's action must have been due either to a wilful
+disregard of their oath or an entire misconception of it.
+Assuming that the jury deliberately declined to obey the law,
+the whole twelve elected to become, and thereby did become,
+lawbreakers.  They disqualified themselves forever as
+talesmen.  No prosecutor in his senses would move a case
+before a jury which numbered any one of them.  They had
+arraigned themselves upon the side, and under the standard, of
+crime.  They became accessories after the fact.  If on the
+other hand they misconceived the purpose for which they were
+there the performance was a shocking example of what is
+possible under present conditions.
+
+Just as there are three general classes of wrongs, so there
+are three general and varyingly effective forms of restraint
+against their perpetration.  First there is the moral control
+exerted by what is ordinarily called conscience, secondly
+there is the restraint which arises out of the apprehension
+that the commission of a tort will be followed by a judgment
+for damages in a civil court, and lastly there is the
+restraint imposed by the criminal law.  All these play their
+part, separately or in conjunction.  For some men conscience
+is a sufficient barrier to crime or to those acts which,
+while equally reprehensible, are not technically criminal;
+for others the possibility of pecuniary loss is enough to
+keep them in the straight and narrow way; but for a large
+proportion of the community the fear of criminal prosecution,
+with implied disgrace and ignominy, forfeiture of citizenship,
+and confinement in a common jail is about the only conclusive
+reason for doing unto others as they would the others should
+do unto them.  Were the criminal law done away with in our
+present state of civilization, religion, ethics and civil
+procedure would be absolutely inefficacious to prevent
+anarchy.  It is as imperative to the ordinary citizen to know
+that if he steals he will be locked up as it is for the child
+to know that if he puts his hand into the fire it will be
+burned.  The acquittal of every thief breeds another, and the
+unpunished murder is an incentive for a dozen similar
+homicides.
+
+Crimes are either deliberate or the result of accident or
+impulse.  The last class may rise to a high degree of
+enormity, such as manslaughter, but these crimes are rarely
+possible of restraint.  The perpetrator does not stop to
+consider, even if he be sober enough to think at all, whether
+his act be moral, whether it will entail any civil liability,
+or what will be its consequences, if it be a crime.  So far as
+such acts are concerned those who commit them are hardly
+criminals in the ordinary sense, and no influence in the world
+is able to prevent them.
+
+The question is how far these different kinds of restraint
+operate upon the community as a whole in the prevention of
+deliberate crime.  Clearly the fear of pecuniary loss through
+actions brought to judgment in the civil courts is practically
+nil.  Most persons who set out to commit crime have no bank
+account, the absence of one being generally what leads them
+into a criminal career.
+
+The writer has no intention of attempting to discuss or
+estimate the efficacy of religion or ethics as restraining
+influences.  A certain limited proportion of the community
+would not commit crime under any circumstances.  It is enough
+for them that the act is forbidden by the State even if it be
+not really wrong from their own personal point of view.  Side
+by side with these very good people are a very large number
+who wear just as fashionable clothing, have the same friends,
+attend the same churches, but who would commit almost any
+crime so long as they were sure of not being caught.  If we
+had no criminal law we should soon discover who were the
+hypocrites.
+
+But for an overwhelming majority of the community something
+more practical than either religion, ethics, or philosophy is
+necessary to keep them in order.  They must be convinced that
+the transgressor will surely be punished,--not some time, not
+next year or the year after, but now.  Not, moreover, that his
+way will be merely hard; but that he will be put in stripes
+and made to break stones.
+
+Hence the necessity for a vigorous and adequate criminal law
+and procedure which shall command the respect and loyalty of
+the community, administered by a fearless judiciary who will
+hold jurors to a rigid and conscientious obedience to their
+oath.
+
+There is nothing sacred about an archaic criminal procedure
+which in some respects is less devised for the protection of
+the community than for the exculpation of the guilty.  The
+portals of liberty would not fall down or the framers of the
+constitution turn in their graves if the peremptory challenges
+allowed to both sides in the selection of a jury were reduced
+to a reasonable number, or if persons found guilty of crime
+after due process of law were compelled to stay in jail until
+their appeals were decided, instead of walking the streets
+free as air under a certificate of "reasonable doubt" issued
+by some judge who personally knew nothing of the actual trial
+of the case.  As things stand to-day, a thief caught in the
+very act of picking a pocket in the night-time may challenge
+arbitrarily the twenty most intelligent talesmen called to sit
+as jurors in his case.  Does such a practice make for justice?
+It is even possible that the sacred bird of liberty would not
+scream if eleven jurors, instead of twelve, were permitted to
+convict a defendant or set him free, while the question of how
+far the right of appeal in criminal cases might properly be
+limited or, in default of such limitation, how far under
+certain conditions it might be correspondingly extended to the
+community, is by no means purely academic.*  It is also
+conceivable that some means might be found to do away with the
+interminable technicalities which can now be interposed on
+behalf of the accused to prevent trials or the infliction of
+sentence after conviction.
+
+
+* "Limitation of the Right of Appeal in Criminal Cases," by
+Nathan A. Smythe, 17 Harvard Law Rev.  317 (1905).
+
+
+Yet these considerations are of slight moment in contrast to
+that most crying of all present abuses,--the domination of the
+court-room by the press.*  It is no fiction to say that in
+many cases the actual trial is conducted in the columns of
+yellow journals and the defendant acquitted or convicted
+purely in accordance with an "editorial policy."  Judges,
+jurors, and attorneys are caricatured and flouted.  There is
+no evidence, how ever incompetent, improper, or prejudicial to
+either side, excluded by the judge in a court of criminal
+justice, that is not deliberately thrust under the noses of
+the jury in flaring letters of red or purple the moment they
+leave the court-room.  The judge may charge one way in
+accordance with the law of the land, while the editor charges
+the same jury in double-leaded paragraphs with what
+"unwritten" law may best suit the owner of his conscience and
+his pen.  "Contempt of court" in its original significance is
+something known today only to the reader of text books.**
+
+
+*Cf. "Sensational Journalism and the Law," in "Moral
+Overstrain," by G.W. Alger.
+
+
+**By the New York Penal Code section 143, an editor is only
+guilty of contempt of court (a misdemeanor) if he publishes "a
+false or grossly inaccurate report" of its proceedings.  The
+most insidious, dangerous, offensive and prejudicial matter
+spread broadcast by the daily press does not relate to actual
+trials at all, but to matters entirely outside the record,
+such as what certain witnesses of either side could establish
+were they available, the "real" past and character of the
+defendant, etc.  The New York Courts, under the present
+statute, are powerless to prevent this abuse.  In
+Massachusetts half a dozen of our principal editors and
+"special writers" would have been locked up long ago to the
+betterment of the community and to the increase of respect for
+our courts of justice.
+
+Each State has its own particular problem to face, but
+ultimately the question is a national one.  Lack of respect
+for law is characteristic of the American people as a whole.
+Until we acquire a vastly increased sense of civic duty we
+should not complain that crime is increasing or the law
+ineffective.  It would be a most excellent thing for an
+association of our leading citizens to interest itself in
+criminal-law reform and demand and secure the passage of new
+and effective legislation, but it would accomplish little if
+its individual members continued to evade jury service and
+left their most important duty to those least qualified by
+education or experience to perform.*  It would serve some
+of this class of reformers right, if one day, when after a
+life-time of evasion, they perchance came to be tried by a
+jury of their peers, they should find that among their twelve
+judges there was not one who could read or write the English
+language with accuracy and that all were ready to convict
+anybody because he lived in a brown-stone front.
+
+
+*"The Citizen and the Jury," in "Moral Overstrain," by G.W.
+Alger.
+
+
+Merchants, who in return for a larger possible restitution
+habitually compound felonies by tacitly agreeing not to
+prosecute those who have defrauded them, have no right to
+complain because juries acquit the offenders whom they finally
+decide it to be worth their while to pursue.  The voter who
+has not the courage to insist that hypocritical laws should be
+wiped from the statute books should express no surprise when
+juries refuse to convict those who violate them.  The man who
+perjures himself to escape his taxes has no right to expect
+that his fellow citizens are going to place a higher value
+upon an oath than he.
+
+
+
+
+CHAPTER X
+
+Insanity and the Law
+
+
+Harry Kendall Thaw shot and killed Stanford White on the 25th
+day of June, 1905.  Although most of the Coroner's jury which
+first sat upon the case considered him irrational, he was
+committed to the Tombs and, having been indicted for murder,
+remained there over six months pending his trial.  During that
+time it was a matter of common knowledge that his defence was
+to be that he was insane at the time of the shooting, but as
+under the New York law it is not necessary specifically to
+enter a plea of insanity to the indictment in order to take
+advantage of that defence (which may be proven under the
+general plea of "not guilty"), there was nothing officially on
+record to indicate this purpose.  Neither was it possible for
+the District Attorney to secure any evidence of Thaw's mental
+condition, since he positively refused either to talk to the
+prosecutor's medical representatives or to allow himself to be
+examined by them.  Mr. Jerome therefore was compelled to enter
+upon an elaborate and expensive preparation of the case, not
+only upon its merits, but upon the possible question of the
+criminal irresponsibility of the defendant.
+
+The case was moved in January, 1906, and the defence thereupon
+proceeded to introduce a limited amount of testimony tending
+to show that Thaw was insane when he did the shooting.  While
+much of this evidence commended itself but little to either
+the prosecutor or the jury, it was sufficient to raise grave
+doubt as to whether the accused was a fit subject for trial.
+The District Attorney's experts united in the opinion that,
+while he knew that he was doing wrong when he shot White, he
+was, nevertheless, the victim of a hopeless progressive form
+of insanity called dementia praecox.  In the midst of the
+trial, therefore, Mr. Jerome moved for a commission to examine
+into the question of how far Thaw was capable of understanding
+the nature of the proceedings against him and consulting with
+counsel, and frankly expressed his personal opinion in open
+court that Thaw was no more a proper subject for trial than a
+baby.  A commission was appointed which reported the prisoner
+was sane enough to be tried, and the case then proceeded at
+great length with the surprising result that, in spite of the
+District Attorney's earlier declaration that he believed Thaw
+to be insane, the jury disagreed as to his criminal
+responsibility, a substantial number voting for conviction.
+Of course, logically, they would have been obliged either to
+acquit entirely on the ground of insanity or convict of murder
+in the first degree, but several voted for murder in the
+second degree.
+
+A year now elapsed, during which equally elaborate
+preparations were made for a second trial.  The State had
+already spent some $25,000, and yet its experts had never had
+the slightest opportunity to examine or interrogate the
+defendant, for the latter had not taken the stand at the first
+trial.  The District Attorney still remained on record as
+having declared Thaw to be insane, and his own experts were
+committed to the same proposition, yet his official duty
+compelled him to prosecute the defendant a second time.  The
+first prosecution had occupied months and delayed the trial of
+hundreds of other prisoners, and the next bid fair to the do
+same.  But at this second trial the defence introduced enough
+testimony within two days to satisfy the public at large of
+the unbalanced mental condition of the defendant from boyhood.
+
+After a comparatively short period of deliberation the jury
+acquitted the prisoner "on the ground of insanity," which may
+have meant either one of two things: (a) that they had a
+reasonable doubt in their own minds that Thew knew that he was
+doing wrong when he committed the murder--something hard for
+the layman to believe, or (b) that, realizing that he was
+undoubtedly the victim of mental disease, they refused to
+follow the strict legal test.
+
+Nearly two years had elapsed since the homicide; over a
+hundred thousand dollars had been spent upon the case; every
+corner of the community had been deluged with detailed
+accounts of unspeakable filth and depravity; the moral tone of
+society had been depressed; and the only element which had
+profited by this whole lamentable and unnecessary proceeding
+had been the sensational press.  Yet the sole reason for it
+all was that the law of the land in respect to insane persons
+accused of crime was hopelessly out of date.
+
+The question of how far persons who are victims of diseased
+mind shall be held criminally responsible for their acts has
+vexed judges, jurors, doctors, and lawyers for the last
+hundred years.  During that time, in spite of the fact that
+the law has lagged far behind science in the march of
+progress, we have blundered along expecting our juries to
+reach substantial justice by dealing with each individual
+accused as most appeals to their enlightened common sense.
+
+And the fact that they have obeyed their common sense rather
+than the law is the only reason why our present antiquated and
+unsatisfactory test of who shall be and who shall not be held
+"responsible" in the eyes of the law remains untouched upon
+the statute-books.  Because its inadequacy is so apparent, and
+because no experienced person seriously expects juries to
+apply it consistently, it fairly deserves first place in any
+discussion of present problems.
+
+Thanks to human sympathy, the law governing insanity has had
+comparatively few victims, but the fact remains that more than
+one irresponsible insane man has swung miserably from the
+scaffold.  But "hard cases" do more than "make bad law," they
+make lawlessness.  A statute systematically violated is worse
+than no statute at all, and exactly in so far as we secure a
+sort of justice by evading the law as it stands, we make a
+laughing-stock of our procedure.
+
+The law is, simply, that any person is to be held criminally
+responsible for a deed unless he was at the time laboring
+under such a defect of reason as not to know the nature and
+quality of his act and that it was wrong.
+
+This doctrine first took concrete form in 1843, when, after a
+person named McNaughten, who had shot and killed a certain Mr.
+Drummond under an insane delusion that the latter was Sir
+Robert Peel, had been acquitted, there was such popular
+uneasiness over the question of what constituted criminal
+responsibility that the House of Lords submitted four
+questions to the fifteen judges of England asking for an
+opinion on the law governing responsibility for offences
+committed by persons afflicted with certain forms of insanity.
+It is unnecessary to set forth at length these questions, but
+it is enough to say that the judges formulated the foregoing
+rule as containing the issue which should be submitted to the
+jury in such cases.*
+______________________________________________________________
+
+* The questions propounded to the judges and their answers are
+here given:
+
+
+Question 1.--"What is the law respecting alleged crimes
+committed by persons afflicted with insane delusion in respect
+of one or more particular subjects or persons, as, for
+instance, where, at the time of the commission of the alleged
+crime, the accused knew he was acting contrary to law, but did
+the act complained of with a view, under the influence of
+insane delusion, of redressing or revenging some supposed
+grievance or injury, or of producing some supposed public
+benefit?
+
+Answer 1.-"Assuming that your lordships' inquiries are
+confined to those persons who labor under such partial
+delusions only, and are not in other respects insane, we are
+of opinion that, notwithstanding the accused did the act
+complained of with a view, under the influence of insane
+delusion, of redressing or revenging some supposed grievance
+or injury, or of producing some public benefit, he is,
+nevertheless, punishable, according to the nature of the crime
+committed, if he knew at the time of committing such crime
+that he was acting contrary to law, by which expression we
+understand your lordships to mean the law of the land.
+
+Question 4:--"If a person under an insane delusion as to
+existing facts commits an offence in consequence thereof, is
+he thereby excused?
+
+Answer 4.--"The answer must of course depend on the nature
+of the delusion; but, making the same assumption as we did
+before, namely, that he labors under such partial delusion
+only, and is not in other respects insane, we think he must
+be considered in the same situation as to responsibility as
+if the facts with respect to which the delusions exist were
+real.  For example, if under the influence of his delusion
+he supposes another man to be in the act of attempting to
+take away his life, and kills the man, as he supposes in
+self-defence, he would be exempt from punishment.  If his
+delusion was that the deceased had inflicted a serious injury
+to his character and fortune, and he killed him in revenge for
+such supposed injury, be would be liable to punishment.
+
+Question 2.--"What are the proper questions to be submitted to
+the jury when a person, afflicted with insane delusions
+respecting one or more particular subjects or persons, is
+charged with the commission of a crime (murder, for instance),
+and insanity is set up as a defence?
+
+Question 3.--"In what terms ought the question to be left to
+the jury as to the prisoner's state of mind when the act was
+committed?
+
+Answers 2 and 3.--"As these two questions appear to us to be
+more conveniently answered together, we submit our opinion to
+be that the jurors ought to be told, in all cases, that every
+man is presumed to be sane, and to possess a sufficient degree
+of reason to be responsible for his crimes, until the contrary
+be proved to their satisfaction; and that, to establish a
+defence on the ground of insanity it must he clearly proved
+that at the time of committing the act the accused was
+laboring under such a defect of reason, from disease of the
+mind, as not to know the nature and quality of the act he was
+doing, or, if he did know it, that he did not know he was
+doing what was wrong."  (The remainder of the answer goes on
+to discuss the usual way the question is put to the jury.)
+______________________________________________________________
+
+Now, with that commendable reverence for judicial utterance
+which is so characteristic of the English nation, and is so
+conspicuously absent in our own country, it was assumed until
+recently that this solemn pronunciamento was the last word on
+the question of criminal responsibility and settled the matter
+once and forever.  Barristers and legislators did not trouble
+themselves particularly over the fact that in 1843 the study
+of mental disease was in its infancy, and judges, including
+those of England, probably knew even less about the subject
+than they do now.  In 1843 it was supposed that insanity, save
+of the sort that was obviously maniacal, necessitated
+"delusions," and unless a man had these delusions no one
+regarded him as insane.  In the words of a certain well-known
+judge:
+
+"The true criterion, the true test of the absence or presence
+of insanity, I take to be the absence or presence of what,
+used in a certain sense of it, is comprisable in a single
+term, namely, delusion ....  In short, I look on delusion
+.... and insanity to be almost, if not altogether, convertible
+terms."*
+
+
+* Dew vs. Clark.
+
+
+This in a certain broad sense, probably not intended by the
+judge who made the statement, is nearly true, but,
+unfortunately, is not entirely so.
+
+The dense ignorance surrounding mental disease and the
+barbarous treatment of the insane within a century are
+facts familiar to everybody.  Lunatics were supposed to be
+afflicted with demons or devils which took possession of
+them as retribution for their sins, and in addition to the
+hopelessly or maniacally insane, medical science recognized
+only a so-called "partial" or delusionary insanity.  Today it
+would be regarded about as comprehensive to relate all mental
+diseases to the old-fashioned "delusion" as to regard as
+insane only those who frothed at the mouth.
+
+But the particular individual out of whose case in 1843 arose
+the rule that is in 1908 applied to all defendants
+indiscriminately was the victim of a clearly defined insane
+delusion, and the four questions answered by the judges of
+England relate only to persons who are "afflicted with insane
+delusions in respect to one or more particular subjects or
+persons."  Nothing is said about insane persons without
+delusions, or about persons with general delusions, and the
+judges limit their answers even further by making them apply
+"to those persons who labor under such partial delusion only
+and are not in other respects insane"--a medical
+impossibility.
+
+Modern authorities agree that a man cannot have insane
+delusions and not be in other respects insane, for it is
+mental derangement which is the cause of the delusion.
+
+In the first place, therefore, a fundamental conception of the
+judges in answering the questions was probably fallacious, and
+in the second, although the test they offered was distinctly
+limited to persons "afflicted with insane delusions," it has
+ever since been applied to all insane persons irrespective of
+their symptoms.
+
+Finally, whether the judges knew anything about insanity or
+not, and whether in their answers they weighed their words
+very carefully or not, the test as they laid it down is by no
+means clear from a medical or even legal point of view.
+
+Was the accused laboring under such a defect of reason as not
+to know the nature and quality of the act he was doing, or not
+to know that it was wrong?  What did these judges mean by
+know?
+
+What does the reader mean by know?  What does the ordinary
+juryman mean by it?
+
+We are left in doubt as to whether the word should be given,
+as justice Stephens contended it should be, a very broad and
+liberal interpretation such as "able to judge calmly and
+reasonably of the moral or legal character of a proposed
+action,"* or a limited and qualified one.  There are all
+grades and degrees of "knowledge," and it is more than
+probable that there is a state of mind which I have heard an
+astute expert call upon the witness stand "an insane
+knowledge," and equally obvious that there may be "imperfect"
+nor "incomplete knowledge," where the victim sees "through a
+glass darkly."  Certainly it seems far from fair to interpret
+the test of responsibility to cover a condition where the
+accused may have had a hazy or dream-like realization that his
+act was technically contrary to the law, and even more
+dangerous to make it exclude one who was simply unable to
+"judge calmly and reasonably" of his proposed action, a
+doctrine which could almost be invoked by any one who
+committed homicide in a state of anger.
+
+
+*"General View of the Criminal Law," p. 80.
+
+
+Ordinarily the word is not defined at all and the befuddled
+juryman is left to his own devices in determining what
+significance he shall attach not only to this word but to the
+test as a whole.
+
+An equally ambiguous term is the word "wrong."  The judges
+made no attempt to define it in 1843, and it has been
+variously interpreted ever since.  Now it may mean "contrary
+to the dictates of conscience" or, as it is usually construed,
+"contrary to the law of the land"--and exactly what it means
+may make a great difference to the accused on trial.  If the
+defendant thinks that God has directed him to kill a wicked
+man, he may know that such an act will not only be contrary to
+law, but also in opposition to the moral sense of the
+community as a whole, and yet he may believe that it is his
+conscientious duty to take life.  In the case of Hadfield, who
+deliberately fired at George III in order to be hung, the
+defendant believed himself to be the Lord Jesus Christ, and
+that only by so doing could the world be saved.  Applying the
+legal test and translating the word "wrong" as contrary to the
+common morality of the community wherein he resided or
+contrary to law, Hadfield ought to have achieved his object
+and been given death upon the scaffold instead of being
+clapped, as he was, into a lunatic asylum.
+
+On the other hand, if the word "wrong" is judicially
+interpreted, it would seem to be given an elasticity which
+would invite inevitable confusion as well as abuse.
+
+Moreover, the test in question takes no cognizance of persons
+who have no power of control.  The law of New York and most of
+the states does not recognize "irresistible impulses," but it
+should admit the medical fact that there are persons who,
+through no fault of their own, are born practically without
+any inhibitory capacity whatever, and that there are others
+whose control has been so weakened, through accident or
+disease, as to render them morally irresponsible,--the
+so-called psychopathic inferiors.
+
+Most of us are only too familiar with the state of a person
+just falling under the influence of an anesthetic, when all
+the senses seem supernaturally acute, the reasoning powers are
+active and unimpaired, and the patient is convinced that he
+can do as he wills, whereas, in reality, he says and does
+things which later on seem impossible in their absurdity.
+Such a condition is equally possible to the victim of mental
+disease, where the knowledge of right and wrong has no real
+relevancy.
+
+The test of irresponsibility as defined by law is hopelessly
+inadequate, judged by present medical knowledge.  There is no
+longer any pretence that a perception of the nature and
+quality of an act or that it is wrong or right is conclusive
+of the actual insanity of a particular accused.  In a recent
+murder case a distinguished alienist, testifying for the
+prosecution, admitted that over seventy per cent. of the
+patients under his treatment, all of whom he regarded as
+insane and irresponsible, knew what they were doing and could
+distinguish right from wrong.
+
+Countless attempts have been made to reconcile this obvious
+anachronism with justice and modern knowledge, but always
+without success, and courts have wriggled hard in their
+efforts to make the test adequate to the particular cases
+which they have been trying, but only with the result of
+hopelessly confounding the decisions.
+
+But, however it is construed, the test as laid down in 1843 is
+insufficient in 1908.  Medical science has marched on with
+giant strides, while the law, so far as this subject is
+concerned, has never progressed at all.  It is no longer
+possible to determine mental responsibility by any such
+artificial rule as that given by the judges to the Lords in
+McNaughten's case, and which juries are supposed to apply in
+the courts of today.  I say "supposed," for juries do not
+apply it, and the reason is simple enough--you cannot expect a
+juryman of intelligence to follow a doctrine of law which he
+instinctively feels to be crude and which he knows is
+arbitrarily applied.
+
+No juryman believes himself capable of successfully analyzing
+a prisoner's past mental condition, and he is apt to suspect
+that, however sincere the experts on either side may appear,
+their opinions may be even less definite than the terms in
+which they are expressed.  The spectacle of an equal number of
+intellectual-looking gentlemen, all using good English and all
+wearing clean linen, reaching diametrically opposite
+conclusions on precisely the same facts, is calculated to fill
+the well-intentioned juror with distrust.  Painful as it is to
+record the fact, juries are sometimes almost as sceptical in
+regard to doctors as they always are in regard to lawyers.
+
+The usual effect of the expert testimony on one side is to
+neutralize that on the other, for there is no practical way
+for the jury to distinguish between experts, since the foolish
+ones generally look as learned as the wise ones.  The result
+is hopeless confusion on the part of the juryman, an
+inclination to "throw it all out," and a resort to other
+testimony to help him out of his difficulty.  Of course he has
+no individual way of telling whether the defendant "knew right
+from wrong," whatever that may mean, and so the ultimate test
+that he applies is apt to be whether or not the defendant is
+really "queer," "nutty" or "bughouse," or some other equally
+intelligible equivalent far "medically insane."
+
+The unfortunate consequence is that there is so general and
+growing a scepticism about the plea of insanity, entirely
+apart from its actual merits, that it is difficult in ordinary
+cases, whatever the jurors may think or say in regard to the
+matter, to secure twelve men who will give the defence fair
+consideration at the outset.
+
+This is manifest in frequent expressions from talesmen such
+as: "I think the defence of insanity is played out," or "I
+believe everybody is a little insane, anyhow" (very popular
+and regarded by jurymen as witty), or "Well, I have an idea
+that when a fellow can't cook up any other defence he claims
+to be insane."
+
+The result is a rather paradoxical situation:  The attitude of
+the ordinary jury in a homicide case, where the defence of
+insanity is interposed, is usually at the outset one of
+distrust, and their impulse is to brush the claim aside.  This
+tendency is strengthened by the legal presumption, which the
+prosecutor invariably calls to their attention, that the
+defendant is sane.  Every expert who has testified for the
+defence in the ordinary "knock down and drag out" homicide
+case must have felt with the prisoner's attorneys, that it was
+"up to them" not so much to create a doubt of the defendant's
+sanity as to prove that he was insane, if they expected
+consideration from the jury.
+
+Now let us assume that the defence is meritorious and that the
+prisoner's experts have created a favorable impression.  Let
+us go even further and assume that they have generated a
+reasonable doubt in the mind of the jury as to the defendant's
+responsibility at the time he committed the offence.  What
+generally occurs?  Not, as one would suppose, an acquittal,
+but, in nine cases out of ten, a conviction in a lower degree.
+
+The only usual result of an honest claim of irresponsibility
+on the ground of insanity is to lead the jury to reduce the
+grade of the offence from murder in the first, entailing the
+death penalty, to murder in the second degree.  The jury have
+no intention of "taking the chance" involved in turning the
+man loose on the community and their minds are filled with the
+predominating fact that a human being has been killed.  They
+have an idea that it is as easy to get "sworn out" of a
+lunatic asylum as they suppose it is to get "sworn into" one,
+and they know that if the prisoner is found to be insane when
+sent to State's prison he will be transferred elsewhere.
+They, therefore, as a rule, waste little time upon the
+question of how far the defendant was irresponsible within the
+legal definition when he committed the deed, but convict him
+"on general principles," trusting the prison officials to
+remedy any possible injustice.  The jury in such cases ignore
+the law and decline either to acquit or to convict in
+accordance with the test.  Their action becomes rather that of
+a lay commission condemning the prisoner to hard labor for
+life on the ground that he is medically insane.
+
+Assuming that the jury take the defence seriously, there is
+only one class of cases where, in the writer's opinion, they
+follow the legal test as laid down by the court--that is to
+say, in cases of extreme brutality.  Here they hold the
+prisoner to the letter of the law, and the more abhorrent the
+crime (even where its nature might indicate to a physician
+that the accused was the victim of some sort of mania) the
+less likely they are to acquit.  The writer has prosecuted
+perhaps a dozen homicide and other cases where the defence was
+insanity.  In his own experience he has known of no acquittal.
+In several instances the defendants were undoubtedly insane,
+but, strictly speaking, probably vaguely knew the nature and
+quality of their acts and that they were wrong.  In a few of
+these the juries convicted of murder in the first degree
+because the circumstances surrounding the homicides were so
+brutal that the harshness of the technical doctrine they were
+required to apply was overshadowed in their minds by their
+horror of the act itself.  In other cases, where either the
+accused appeared obviously abnormal as he sat at the bar of
+justice, or the details of the crime were less abhorrent, they
+convicted of murder in the second degree in accordance with
+the reasoning set forth in the foregoing paragraph.  The
+writer seriously advances the suggestion that the more the
+brutality of a homicide indicates mental derangement the less
+chance the defendant has to secure an acquittal upon the plea
+of insanity.
+
+And this leads us to that increasingly large body of cases
+where the usual scepticism of the jury in regard to such
+defences is counterbalanced by some real or imaginary element
+of sympathy.  In cities like New York, where the jury system
+is seen at its very best, where the statistics show seventy
+per cent. of convictions by verdict for the year 1907, and
+where the sentiment of the community is against the invocation
+of any law supposedly higher than that of the State, our
+talesmen are unwilling to condone homicide or to act as
+self-constituted pardoning bodies, for they know that an
+obviously lawless verdict will bring down upon them the
+censure of the public and the press.  This is perhaps
+demonstrated by the fact that in New York County a higher
+percentage of women are convicted of homicide than of men.
+
+But the plea of insanity, with its vague test of
+responsibility, whose terms the juryman may construe for
+himself (or which his fellow-jurors may construe for him)
+offers an unlimited and fertile field for the "reasonable"
+doubt and an easy excuse for the conscientious talesman who
+wants to acquit if he can.  Juries take the little stock in
+irresistible impulses and emotional or temporary insanity save
+as a cloak to cover an unrighteous acquittal.
+
+In no other class of cases does "luck" play so large a part in
+the final disposition of the prisoner.  A jury is quite as
+likely to send an insane man to the electric chair as to
+acquit a defendant who is fully responsible for his crime.
+
+To recapitulate from the writer's experience:
+
+(1) The ordinary juror tends to be sceptical as to the good
+faith of the defence of insanity.
+
+(2) When once this distrust is removed by honest evidence on
+the part of the defence, he usually declines to follow the
+legal test as laid down by the court on the general theory
+that any one but an idiot or a maniac has some knowledge of
+what he is doing and whether it is right or wrong.
+
+(3) He applies the strict legal test only in cases of extreme
+brutality.
+
+(4) In all other cases he follows the medical rather than the
+legal test, but instead of acquitting the accused on account
+of his medical irresponsibility, merely convicts in a lower
+degree.
+
+The following deductions may also fairly be made from
+observation:
+
+(1) That the present legal test for criminal responsibility is
+admittedly vague and inadequate, affording great opportunity
+for divergent expert testimony and a readily availed of excuse
+for the arbitrary and sentimental actions of juries, to which
+is largely due the distrust prevailing of the claim of
+insanity when interposed as a defence to crime.
+
+(2) That expert medical testimony in such cases is largely
+discounted by the layman.
+
+(3) That in no class of cases are the verdicts of jurors so
+apt to be influenced solely by emotion and prejudice, or to be
+guided less by the law as laid down by the court.
+
+(4) That a new definition of criminal responsibility is
+necessary, based upon present knowledge of mental disease and
+its causes.
+
+(5) Lastly, that, as whatever definition may be adopted will
+inevitably be difficult of application by an untutored lay
+jury, our procedure should be so amended that they may be
+relieved wherever possible of a task sufficiently difficult
+for even the most experienced and expert alienists.
+
+A classification of the different forms of insanity, based
+upon its causes to which the case of any particular accused
+might be relegated, such as has recently been urged by a
+distinguished young neurologist, would not, with a few
+exceptions, assist us in determining his responsibility.  It
+would be easy to say then, as now, that lunatics or maniacs
+should not be held responsible for their acts, but we should
+be left where we are at present in regard to all those shadowy
+cases where the accused had insane, incomplete or imperfect
+knowledge of what he was doing.  It would be ridiculous, for
+example, to lay down a general rule that no person suffering
+from hysterical insanity should be punished for his acts.
+Yet, even so, such a classification would instantly remedy
+that anachronism in our present law which refuses to recognize
+as irresponsible those born without power to control their
+emotions--the psychopathic inferiors of science, and the real
+victims of dementia praecox.
+
+Of course, if the insanity under which the defendant labors
+bears no relation to or connection with the deed for which he
+is on trial, there would logically be no reason why his
+insanity on other subjects should be any defence to his crime.
+For example, there is the well-known case of the Harvard
+professor who was apparently sane on all other matters, yet
+believed himself to be possessed of glass legs.  Had this man
+in wanton anger struck and killed another, his "glass leg"
+delusion could not logically have availed him.  If, however,
+he had struck and killed one who he believed was going to
+shatter his legs it might have been important.  The
+illustration is clear enough, but its application probably
+involves a mistaken premise.  If he thought he had glass legs
+his mind was undoubtedly deranged--whether enough or not
+enough to constitute him irresponsible or beyond the effect of
+penal discipline might be a difficult question.  The generally
+accepted doctrine is, that if a man has a delusion concerning
+something, which if actually existing as he believed it to be
+would be no excuse for his committing the criminal act, he is
+responsible and liable to punishment; but, as Bishop well
+says:
+
+"This branch of the doctrine should be cautiously received;
+for delusion of any kind is strongly indicative of a generally
+diseased mind."
+
+The new test to determine responsibility will recognize, as
+does the law of Germany, that there can be no criminal act
+where the free determination of the will is excluded by
+disease, and that the capacity to distinguish between right
+and wrong is inconclusive.  It may perhaps have to take a
+general form, leaving it to a lay, or a mixed lay-and-expert
+jury to say merely whether the accused had a disease of the
+mind of a type recognized by science, and whether the alleged
+criminal act was of such a character as would naturally flow
+from that type of insanity, in which case it would seem
+obviously just to regard the defendant as partially
+irresponsible, and perhaps entirely so.  Possibly the
+practical needs of the moment might be met by permitting such
+a jury to determine whether the defendant had such a knowledge
+of the wrongful nature and consequences of his act and such a
+control over his will as to be a proper subject of
+punishment.*  This would require the jury to find that the
+defendant had some knowledge of right and wrong and the power
+to choose between them.  In any event, to render the accused
+entirely irresponsible, his act should arise out of and be
+caused solely by the diseased condition of his mind.  The law,
+while asserting the responsibility of many insane people,
+should recognize "partial" responsibility as well.
+
+
+*See State vs.  Richards, 1873, Conn.
+
+
+The reader may feel that little after all would be gained, but
+he will observe that at any rate such a test, however
+imperfect, would permit juries to do lawfully that which they
+now do by violating their oaths.  The writer believes that the
+best concrete test yet formulated and applied by any court is
+that laid down in Parsons vs. The State of Alabama (81 Ala.,
+577):
+
+
+"1.  Was the defendant at the time of the commission of the
+alleged crime, as matter of fact, afflicted with a disease of
+the mind, so as to be either idiotic, or otherwise insane?
+
+"2.  If such be the case, did he know right from wrong as
+applied to the particular act in question?  If he did not have
+such knowledge, he is not legally responsible.
+
+"3.  If he did have such knowledge, he may nevertheless not be
+legally responsible if the two following conditions concur:
+
+"(1) If, by reason of the duress of such mental disease, he
+had so far lost the power to choose between the right and
+wrong, and to avoid doing the act in question, as that his
+free agency was at the time destroyed.
+
+"(2) And if, at the same time, the alleged crime was so
+connected with such mental disease, in the relation of cause
+and effect, as to have been the product of it solely."
+
+
+But whatever modification in the present test of criminal
+responsibility is adopted, there must come an equally, if not
+even more important, reform in the procedure in insanity
+cases, which to-day is as cumbersome and out of date as the
+law itself.  As things stand now in New York and most other
+jurisdictions there are no adequate means open to the State to
+find out the actual present or past mental condition of the
+defendant until the trial itself, and ofttimes not even then.
+
+In New York, in cases like Thaw's, the accused, while fully
+intending to interpose the defence of insanity (which he is
+now permitted to do simply under the general plea of "not
+guilty") may not only conceal the fact until the trial, but
+may likewise successfully block every effort of the
+authorities to examine him and find out his present mental
+condition.  He may thus keep it out of the power of the
+District Attorney to secure the facts upon which to move for a
+commission to determine whether or not he ought to be in an
+insane asylum or is a fit subject for trial, and at the same
+time prevent the prosecutor from obtaining any evidence
+through direct medical observation by which to meet the claim,
+which may be "sprung" suddenly upon him later at the trial,
+that the defendant was irresponsible.
+
+In order that this may be clearly understood by the reader he
+should fully appreciate the distinction between (1) the claim
+on the part of an accused that he is at present insane, and
+for that reason should not be either tried or punished for his
+alleged offence, and (2) the defence that he was (irrespective
+of his present mental condition) insane within the legal
+definition of irresponsibility at the time he committed it.
+No person who is incapable of understanding the nature of the
+proceedings against him or of consulting with counsel and
+preparing his defence can be placed on trial at all, or, if
+already on trial, can continue to be tried, and if a defendant
+"appears to the court to be insane," the judge may appoint a
+commission to examine him and report as to his present
+condition.  This may be done upon the application either of
+the State of the accused through his counsel.
+
+It was such a commission to determine the accused's present
+mental condition that District Attorney Jerome, upon the basis
+of the evidence introduced by the defence, applied for and
+secured during the first trial of Harry K. Thaw.  The
+commission reported that Thaw was sane enough to be tried and
+the court then proceeded with the original case for the
+purpose of allowing the jury to say whether he knew the nature
+and quality of his act and that it was wrong when he shot and
+killed White.
+
+This was a totally distinct proceeding from the interposition
+of the DEFENCE that the accused was irresponsible when he
+committed the crime charged against him and was not
+inconsistent with it.
+
+Now supposing that the Commission had reported that Thaw was
+insane at the time of examination and not a fit subject for
+trial, but, on the contrary, ought to be confined in an insane
+asylum, the District Attorney would have spent some twenty odd
+thousand dollars and a year's time of one or more of his
+assistants in fruitless preparation.  Yet, as the law stands
+on the books to-day in New York, there is no adequate way for
+the prosecution to find out whether this enormous expenditure
+of time or money is necessary or not, for it cannot compel
+the defendant to submit either to a physical or mental
+examination.  To do so has been held to be a violation of his
+constitutional rights and equivalent to compelling him to give
+evidence against himself.
+
+Thus when Thaw came to the bar at his first trial the State
+had never had any opportunity, through an examination by its
+physicians, to learn what his present condition was or past
+mental condition had been.  The accused, on the other hand,
+had had over six months to prepare his defence and had fully
+availed himself of the time to submit to the most exhaustive
+examinations on the part of his own experts.  The defendant's
+physicians came to court brimming with facts to which they
+could testify; while the State's experts had only the barren
+opportunity for determining the defendant's condition afforded
+by observing him daily in the court room and hearing what
+Thaw's own doctors claimed that they had discovered.  There
+was no chance to rebut anything which the latter alleged that
+they had observed, and their testimony, save in so far as it
+was inconsistent or contradictory in itself, remained
+irrefutable.
+
+There is probably no procedure which would be held
+constitutional whereby a compulsory examination of the accused
+could be had upon the mere application of the prosecuting
+authorities; but as a commission may generally be appointed at
+any time after an accused has been indicted if he "appears" to
+the court to be "insane," and as it is usually within the
+power of the District Attorney where such is the case to bring
+sufficient evidence of it to the attention of the court before
+the prisoner is brought to trial, little time is actually lost
+and justice is rarely defeated except in those cases (such as
+Thaw's) where an attempt is to be made to prove the accused
+insane at the time of the alleged crime although sane at the
+time of trial.  Even here it would be the simplest thing in
+the world to remedy the difficulty and the proper legal steps
+in all jurisdictions should be taken immediately.
+
+The two chief objects of such reforms should be, first, to
+relieve the ordinary jury in as many cases as possible from
+the necessity of passing upon the delicate issue of a
+defendant's mental condition at a previous time, and second,
+where this may not be avoided, to make their task as easy as
+possible by providing (a) a more scientific and definite test
+of legal responsibility and (b) an opportunity for adequate
+examination of defendants availing themselves of this defence.
+
+This last and most practical reform can be easily secured by a
+slight alteration in the New York Code of Criminal Procedure,
+which already provides both for the entering of the specific
+plea of insanity and for the introduction of the defence and
+the proof of insanity under the general plea of "not guilty."
+At present the defendant has his choice of openly announcing
+or of concealing until the trial his intention of claiming
+that he was insane and so irresponsible for his crime.  This
+is an advantage the results of which were probably not fully
+contemplated by the Legislature, and one to which an accused
+has no fair claim.
+
+Fortunately, in the same section of the Code (658), which
+provides that the court may appoint a Commission to inquire
+into the sanity of a defendant at the time of his trial, there
+exists another provision, hitherto little noticed, that:
+
+"When a defendant PLEADS INSANITY, as prescribed in Section
+336, the court in which the indictment is pending, instead of
+proceeding with the trial of the indictment, may appoint a
+commission of not more than three disinterested persons to
+examine him and report to the court as to his insanity at the
+time of the commission of the crime."
+
+If a defendant intends to prove himself irresponsible for his
+offence, why should he not be compelled to enter a specific
+plea to that effect?  Once he has entered that plea, the law
+as it stands just quoted will do the rest.  No reason has been
+brought to the attention of the writer why the admission of
+any evidence upon the defendant's trial tending to show that
+he was mentally irresponsible at the time of committing the
+crime should not be made contingent upon the defence of
+insanity having been specifically pleaded either at the time
+of his arraignment or later by substitution for or in
+conjunction with the plea of "not guilty."  This would deprive
+him of no constitutional right whatever.  There is no legal
+necessity of permitting an accused to prove insanity under a
+general answer of "not guilty."  Then upon his own plea that
+he had been insane he could instantly be committed to some
+place of observation where a permanent medical board of
+inquiry could be given full opportunity to examine him and
+study his case with a view to determining his present and past
+mental condition.  He would still have in prospect his regular
+jury trial, but if this board found him at the present time
+insane, the court could immediately commit him to an asylum
+pending recovery, precisely as under the present procedure,
+while if they found him sane at the present time, but reported
+that, in their opinion (whatever test, "medical" or "legal,"
+they might have applied), he was irresponsible at the time he
+committed the crime, it is unlikely that any prosecutor would
+bring him to trial.  If, however, they reported that he was
+not only sane, but had been sane at the time of his crime, it
+is probable that any proposed defence of insanity would be
+abandoned, while if it was still urged by the accused, the
+opinion of such a board would carry far greater weight at the
+ultimate trial of the case than the individual opinions of
+experts retained and paid by either side for that particular
+occasion only, and having had only a comparatively limited
+opportunity for examination.  At any rate, if the court called
+in the services of such a board of medical judges to assist as
+amici curie in determining the defendant's condition, while
+their opinion would not be conclusive upon the jury, it would
+at least do away with the present lamentable necessity of
+learned men answering "yes" or "no" to a hypothetical question
+fifty thousand words long, when the most superficial personal
+examination of the accused would settle the matter definitely
+in their minds.  Such a procedure is in general use in Germany
+and other continental countries, and is likewise substantially
+followed in Massachusetts, Maine, Vermont, and New Hampshire.*
+
+
+* Another equally efficacious means of dealing with the matter
+would be to substitute, upon a defendant's plea of insanity, a
+full jury of experts--like any "special" jury--for the
+ordinary petit jury.
+
+
+There is good reason to hope that we may soon see in all the
+states adequate provision for preliminary examination upon the
+plea of insanity, and a new test of criminal responsibility
+consistent with humanity and modern medical knowledge.  Even
+then, although murderers who indulge in popular crime will
+probably be acquitted on the ground of insanity, we shall at
+least be spared the melancholy spectacle of juries arbitrarily
+committing feeble-minded persons charged with homicide to
+imprisonment at hard labor for life, and in a large measure do
+away with the present unedifying exhibition of two groups of
+hostile experts, each interpreting an archaic and inadequate
+test of criminal responsibility in his own particular way, and
+each conscientiously able to reach a diametrically opposite
+conclusion upon precisely the same facts.
+
+
+
+
+CHAPTER XI
+
+The Mala Vita in America
+
+
+There are a million and a half of Italians in the United
+States, of whom nearly six hundred thousand reside in New York
+City--more than in Rome itself.  Naples alone of all the
+cities of Italy has so large an Italian population; while
+Boston has one hundred thousand, Philadelphia one hundred
+thousand, San Francisco seventy thousand, New Orleans seventy
+thousand, Chicago sixty thousand, Denver twenty-five thousand,
+Pittsburg twenty-five thousand, Baltimore twenty thousand, and
+there are extensive colonies, often numbering as many as ten
+thousand, in several other cities.
+
+So vast a foreign-born population is bound to contain elements
+of both strength and weakness.  The north Italians are molto
+simpatici to the American character, and many of their
+national traits are singularly like our own, for they are
+honest, thrifty, industrious, law-abiding and good-natured.
+The Italians from the extreme south of the peninsula have
+fewer of these qualities, and are apt to be ignorant, lazy,
+destitute, and superstitious.  A considerable percentage,
+especially of those from the cities, are criminal.  Even for a
+long time after landing in America, the Calabrians and
+Sicilians often exhibit a lack of enlightenment more
+characteristic of the Middle Ages than of the twentieth
+century.
+
+At home they have lived in a tumble-down stone hut about
+fifteen feet square, half open to the sky (its only saving
+quality); in one corner the entire family sleeping in a
+promiscuous pile on a bed of leaves; in another a domestic zoo
+consisting of half a dozen hens, a cock, a goat, and a donkey.
+They neither read, think, nor exchange ideas.  The sight of a
+uniform means to them either a tax-gatherer, a compulsory
+enlistment in the army, or an arrest, and at its appearance
+the man will run and the wife and children turn into stone.
+They are stubborn and distrustful.  They are the same as they
+were a thousand or more years gone by.
+
+When the writer was acting as an assistant prosecutor in New
+York County, a young Italian, barely twenty years of age, was
+brought to the bar charged with assault with intent to kill.
+The complainant was a withered Sicilian woman who claimed to
+be his wife.  Both spoke an almost unintelligible dialect.
+The case on its face was simple enough.  An officer testified
+that on a Sunday morning in Mulberry Bend Park, at a distance
+of about fifty feet from where he was standing, he saw the
+defendant, who had been walking peaceably with the complaining
+witness, suddenly draw a long and deadly looking knife and
+proceed to slash her about the head and arms.  It had taken
+the officer but a moment or two to seize the defendant from
+behind and disarm him, but in the meantime he had inflicted
+some eleven wounds upon her body.  No explanation had been
+offered for this terrible assault, and the complainant had
+appeared involuntarily before the Grand jury and afterward had
+to be kept in the House of Detention as a hostile witness.
+The woman, who appeared to be about fifty years old, was
+sworn, and on being questioned stated that she had been
+married to the defendant in Sicily three years before.  She
+declined to admit that he had attacked or harmed her in any
+way, constantly mumbling: "He is my husband.  Do not punish
+him!"
+
+The defendant, however, seemed eager to get on the stand and
+to tell his story; nor did the introduction of the knife in
+evidence or the exhibition of the woman's wounds embarrass him
+in the slightest degree.  His manner was that of a man who had
+only to explain to be entirely exonerated from blame.  He
+nodded at the jury and the judge, and scowled at the
+complainant, who was speedily conducted to a place where no
+harm could possibly come to her.  When at last he was sworn,
+he could hardly restrain himself into coherency.
+
+"Yes--that woman forced me to marry her!" he testified in
+substance.  "But in the eyes of God I am not her husband, for
+she bewitched me!  Else would I have married an old crone who
+could not have borne me children?  When her spells weakened I
+left her and came to America.  Here I met the woman I love,
+--Rosina,--and as I had been bewitched into the other
+marriage, we lived together as man and wife for two years.
+Then one day a friend told me that the old woman had followed
+me over the sea and was going to throw her spells upon me
+again.  But I did not inform Rosina of these things.  The next
+evening she told me that an old woman had been to the house
+and asked for me.  For days my first wife lurked in the
+neighborhood, beseeching me to come back to her.  But I told
+her that in the eyes of God she was not my wife.  Then, in
+revenge, she cast the evil eye upon the child--sul bambino
+--and for six weeks it ailed and then died.  Again the witch
+asked me to go with her, and again I refused.  This time she
+cast her evil eye upon my wife--and Rosina grew pale and sick
+and took to her bed.  There was only one thing to do, you
+understand.  I resolved to slay her, just as you--giudici
+--would have done.  I bought a carving-knife and sharpened it,
+and asked her to walk with me to the park, and I would have
+killed her had not the police prevented me.  Wherefore, O
+giudici!  I pray you to recall her and permit me to kill her
+or to decree that she be hung!"
+
+This case illustrates the depths of ignorance and superstition
+that are occasionally to be found among Italian peasant
+immigrants.  Another actual experience may demonstrate the
+mediaeval treachery of which the Sicilian Mafiuso is capable,
+and how little his manners or ideals have progressed in the
+last five hundred years or so.
+
+A photographer and his wife, both from Palermo, came to New
+York and rented a comfortable home with which was connected a
+"studio."  In the course of time a young man--a Mafiuso from
+Palermo--was engaged as an assistant, and promptly fell in
+love with the photographer's wife.  She was tired of her
+husband, and together they plotted the latter's murder.  After
+various plans had been considered and rejected, they
+determined on poison, and the assistant procured enough
+cyanide of mercury to kill a hundred photographers, and turned
+it over to his mistress to administer to the victim in his
+"Marsala."  But at the last moment her hand lost its courage
+and she weakly sewed the poison up for future use inside the
+ticking of the feather bolster on the marital bed.
+
+This was not at all to the liking of her lover, who thereupon
+took matters into his own hands, by hiring another Mafiuso to
+remove the photographer with a knife-thrust through the heart.
+In order that the assassin might have a favorable opportunity
+to effect his object, the assistant, who posed as a devoted
+friend of his employer, invited the couple to a Christmas
+festival at his own apartment.  Here they all spent an
+animated and friendly evening together, drinking toasts and
+singing Christmas carols, and toward midnight the party broke
+up with mutual protestations of regard.  If the writer
+remembers accurately, the evidence was that the two men
+embraced and kissed each other.  After a series of farewells
+the photographer started home.  It was a clear moonlight night
+with the streets covered with a glistening fall of snow.  The
+wife, singing a song, walked arm in arm with her husband until
+they came to a corner where a jutting wall cast a deep shadow
+across the sidewalk.  At this point she stepped a little ahead
+of him, and at the same moment the hired assassin slipped up
+behind the victim and drove his knife into his back.  The wife
+shrieked.  The husband staggered and fell, and the "bravo"
+fled.
+
+The police arrived, and so did an ambulance, which removed the
+hysterical wife and the transfixed victim to a hospital.
+Luckily the ambulance surgeon did not remove the knife, and
+his failure to do so saved the life of the photographer, who
+in consequence practically lost no blood and whose cortex was
+skilfully hooked up by a dextrous surgeon.  In a month he was
+out.  In another the police had caught the would-be murderer
+and he was soon convicted and sentenced to State prison, under
+a contract with the assistant to be paid two hundred and fifty
+dollars for each year he had to serve.  Evidently the lover
+and his mistress concluded that the photographer bore a
+charmed life, for they made no further homicidal attempts.
+
+So much for the story as an illustration of the mediaeval
+character of some of our Sicilian immigrants.  For the
+satisfaction of the reader's taste for the romantic and
+picturesque it should be added, however, that the matter did
+not end here.  The convict, having served several years, found
+that the photographer's assistant was not keeping his part of
+the contract, as a result of which the assassin's wife and
+children were suffering for lack of food and clothing.  He
+made repeated but fruitless attempts to compel the party of
+the first part to pay up, and finally, in despair, wrote to
+the District Attorney of New York County that he could, if he
+would, a tale unfold that would harrow up almost anybody's
+soul.  Mr. Jerome therefore, on the gamble of getting
+something worth while, sent Detective Russo to Auburn to
+interview the prisoner.  That is how the whole story came to
+be known.  The case was put in the writer's hands, and an
+indictment for the very unusual crime of attempted murder
+(there are only one or two such cases on record in New York
+State) was speedily found against the photographer's
+assistant.  At the trial the lover saw his mistress compelled
+to turn State's evidence against him to save herself.  She
+testified to the Christmas carols and the cyanide of mercury.
+
+"Did you ever remove this terrible poison from the bolster?"
+demanded the defendant's counsel in a sneering tone.
+
+"No," answered the woman.
+
+"Have you ever changed the bolster?" he persisted.
+
+"No."
+
+"Then it's there yet?"
+
+"I-I think so," falteringly.
+
+"I demand that this incredible yarn be investigated!" cried
+the lawyer.  "I ask that the court send for the bolster and
+cut it open here in the presence of the jury."
+
+The writer had no choice but to accede to this request, and
+the bolster was hunted down and brought into court.  With some
+anxiety both sides watched while the lining was slit with a
+penknife.  A few feathers fluttered to the floor as the
+fingers of the witness felt inside and came in contact with
+the poison.  The assistant was convicted of attempted murder
+on the convict's testimony, and sentenced to Sing Sing for
+twenty-five years.  That was the end of the second lesson.
+
+About a month afterward the defendant's counsel made a motion
+for a new trial on the ground that the convict now admitted
+his testimony to have been wholly false, and produced an
+affidavit from the assassin to that effect.  Naturally so
+startling an allegation demanded investigation.  Yes, insisted
+the "bravo," it was all made up, a "camorra"--not a word of
+truth in it, and he had invented the whole thing in order to
+get a vacation from State prison and a free ride to New York.
+However, the court denied the motion.  The writer procured a
+new indictment against the assassin--this time for perjury
+--and he was sentenced to another additional term in prison.
+What induced this sudden and extraordinary change of mind on
+his part can only be surmised.
+
+These two cases are extreme examples of the mediaevalism that
+to a considerable degree prevails in New York City, probably
+in Chicago and Boston, and wherever there is an excessive
+south Italian population.
+
+The conditions under which a large number of Italians live
+in this country are favorable not only to the continuance
+of ignorance, but to the development of disease and crime.
+Naples is bad enough, no doubt.  The people there are
+poverty-stricken and homeless.  But in New York City they are
+worse than homeless.  It is better far to sleep under the
+stars than in a stuffy room with ten or twelve other persons.
+Let the reader climb the stairs of some of the tenements in
+Elizabeth Street, or go through those in Union Street,
+Brooklyn, and he will get firsthand evidence.  This is
+generally true of the lower class of Italians throughout the
+United States, whether in the city or country.  They live
+under worse conditions than at home.  You may go through the
+railroad camps and see twenty men sleeping together in a
+one-room built of lath, tar-paper, and clay.  The writer knows
+of one Italian laborer in Massachusetts who slept in a
+floorless mud hovel about six feet square, with one hole to go
+in and out by and another in the roof for ventilation--in
+order to save $1.75 per month.  All honor to him!  Garibaldi
+was of just such stuff, only he suffered in a better cause.
+In Naples the young folks are out all day in the sun.  Here
+they are indoors all the year round.  For the consequences of
+this change see Dr. Peccorini's article in the 'Forum' for
+January, 1911, on the tuberculosis that soon develops among
+Italians who abroad were accustomed to live in the country but
+here are forced to exist in tenements.
+
+Now, for historic reasons, these south Italians hate and
+distrust all governmental control and despise any appeal to
+the ordinary tribunals of justice to assert a right or to
+remedy a wrong.  It has been justly said by a celebrated
+Italian writer that, in effect, there is some instinct for
+civil war in the heart of every Italian.  The insufferable
+tyranny of the Bourbon dynasty made every outlaw dear to the
+hearts of the oppressed people of the Kingdom of the Two
+Sicilies.  Even if he robbed them, they felt that he was the
+lesser of two evils, and sheltered him from the authorities.
+Out of this feeling grew the "Omerta," which paralyzes the arm
+of justice both in Naples and Sicily.  The late Marion
+Crawford thus summed up the Sicilian code of honor:
+
+According to this code, a man who appeals to the law against
+his fellow man is not only a fool but a coward, and he who
+cannot take care of himself without the protection of the
+police is both ....  It is reckoned as cowardly to betray an
+offender to justice, even though the offence be against one's
+self, as it would be not to avenge an injury by violence.  It
+is regarded as dastardly and contemptible in a wounded man to
+betray the name of his assailant, because if he recovers he
+must naturally expect to take vengeance himself.  A rhymed
+Sicilian proverb sums up this principle, the supposed speaker
+being one who has been stabbed.  "If I live, I will kill
+thee," it says; "if I die, I forgive thee!"
+
+Any one who has had anything to do with the administration of
+criminal justice in a city with a large Italian population
+must have found himself constantly hampered by precisely this
+same "Omerta."  The south Italian feels obliged to conceal the
+name of the assassin and very likely his person, though he
+himself be but an accidental witness of the crime; and, while
+the writer knows of no instance in New York City where an
+innocent man has gone to prison himself rather than betray a
+criminal, Signor Cutera, formerly chief of police in Palermo,
+states that there have been many cases in Sicily where men
+have suffered long terms of penal servitude and even have died
+in prison rather than give information to the police.
+
+In point of fact, however, the "Omerta" is not confined to
+Italians.  It is a common attribute of all who are opposed to
+authority of any kind, including small boys and criminals, and
+with the latter arises no more from a half chivalrous loyalty
+to their fellows than it does from hatred of the police and a
+uniform desire to block their efforts (even if a personal
+adversary should go unpunished in consequence), fear that
+complaint made or assistance given to the authorities will
+result in vengeance being taken upon the complainant by some
+comrade or relative of the accused, distrust of the ability of
+the police to do anything anyway, disgust at the delay
+involved, and lastly, if not chiefly, the realization that as
+a witness in a court of justice the informer as a professional
+criminal would have little or no standing or credence, and in
+addition would, under cross-examination, be compelled to lay
+bare the secrets of his unsavory past, perhaps resulting
+indirectly in a term in prison for himself.*  Thus may be
+accounted for much of the supposed "romantic, if misguided,
+chivalry" of the south Italian.  It is common both to him and
+to the Bowery tough.  The writer knew personally a
+professional crook who was twice almost shot to pieces in
+Chatham Square, New York City, and who persistently declined,
+even on his dying bed, to give a hint of the identity of his
+assassins, announcing that if he got well he "would attend to
+that little matter himself."  Much of the romance surrounding
+crime and criminals, on examination, "fades into the light
+of common day"--the obvious product not of idealism, but of
+well-calculated self-interest.
+
+
+* Much more likely in Italy than in the United States.
+
+
+As illustrating the backwardness of our Italian
+fellow-citizens in coming forward when the criminality of
+one of their countrymen is at stake, the last three cases
+of kidnapping in New York City may be mentioned.
+
+About a year and a half ago the little boy of Dr. Scimeca, of
+2 Prince Street, New York, was taken from his home.  From
+outside sources the police heard that the child had been
+stolen, but, although he was receiving constant letters and
+telephonic communications from the kidnappers, Dr. Scimeca
+would not give them any information.  It is known on pretty
+good authority that the sum of $10,000 was at first demanded
+as a ransom, and was lowered by degrees to $5,000, $2,500, and
+finally to $1,700.  Dr. Scimeca at last made terms with the
+kidnappers, and was told to go one evening to City Park, where
+he is said to have handed $1,700 to a stranger.  The child was
+found wandering aimlessly in the streets next day, after a
+detention of nearly three months.
+
+The second case was that of Vincenzo Sabello, a grocer of 386
+Broome Street, who lost his little boy on August 26, 1911.
+After thirty days he reported the matter to the police, but
+shortly after tried to throw them off the track by saying that
+he had been mistaken, that the boy had not been kidnapped, and
+that he wished no assistance.  Finallv he ordered the
+detectives out of his place.  About a month later the child
+was recovered, but not, according to reliable information,
+until Mr. Sabello had handed over $2,500.
+
+Pending the recovery of the Sabello boy, a third child was
+stolen from the top floor of a house at 119 Elizabeth Street.
+The father, Leonardo Quartiano, reported the disappearance,
+and in answer to questions stated that he had received no
+letters or telephone messages.  "Why should I?" he inquired,
+with uplifted hands and the most guileless demeanor.  "I am
+poor!  I am a humble fishmonger."  In point of fact, Quartiano
+at the time had a pocketful of blackmail letters, and after
+four weeks paid a good ransom and got back his boy.
+
+It is impossible to estimate correctly the number of Italian
+criminals in America or their influence upon our police
+statistics; but in several classes of crime the Italians
+furnish from fifteen to fifty per cent of those convicted.  In
+murder, assault with intent to kill, blackmail, and extortion
+they head the list, as well as in certain other offences
+unnecessary to describe more fully but prevalent in Naples and
+the South.
+
+Joseph Petrosino, the able and fearless officer of New York
+police who was murdered in Palermo while in the service of the
+country of his adoption, was, while he lived, our greatest
+guaranty of protection against the Italian criminal.  But
+Petrosino is gone.  The fear of him no longer will deter
+Italian ex-convicts from seeking asylum in the United States.
+He once told the writer that there were five thousand Italian
+ex-convicts in New York City alone, of whom he knew a large
+proportion by sight and name.*  Signor Ferrero, the noted
+historian, is reported to have stated, on his recent visit to
+America, that there were thirty thousand Italian criminals in
+New York City.  Whatever their actual number, there are quite
+enough at all events.
+
+
+*Petrosino is a national hero in Italy, where he was known as
+"Il Sherlock Holmes d'Italia"--"the Italian Sherlock Holmes."
+Many novels in which he figures as the central character have
+a wide circulation there.
+
+
+By far the greater portion of these criminals, whether
+ex-convicts or novices, are the products or byproducts of the
+influence of the two great secret societies of southern Italy.
+These societies and the unorganized criminal propensity and
+atmosphere which they generate, are known as the "Mala Vita."
+
+The Mafia, a purely Sicilian product, exerts a much more
+obvious influence in America than the Camorra, since the Mafia
+is powerful all over Sicily, while the Camorra is practically
+confined to the city of Naples and its environs.  The
+Sicilians in America vastly outnumber the Neapolitans.  Thus
+in New York City for every one Camorrist you will find seven
+or eight Mafiusi.  But they are all essentially of a piece,
+and the artificial distinction between them in Italy
+disappears entirely in America.
+
+Historically the Mafia burst from a soil fertilized by the
+blood of martyred patriots, and represented the revolt of the
+people against all forms of the tyrannous government of the
+Bourbons; but the fact remains that, whatever its origin, the
+Mafia to-day is a criminal organization, having, like the
+Camorra, for its ultimate object blackmail and extortion.  Its
+lower ranks are recruited from the scum of Palermo, who,
+combining extraordinary physical courage with the lowest type
+of viciousness, generally live by the same means that supports
+the East Side "cadet" in New York City, and who end either in
+prison or on the dissecting-table, or gradually develop into
+real Mafiusi and perhaps gain some influence.
+
+It is, in addition, an ultra-successful criminal political
+machine, which, under cover of a pseudoprinciple, deals in
+petty crime, wholesale blackmail, political jobbery, and the
+sale of elections, and may fairly be compared to the lowest
+types of politico-criminal clubs or societies in New York
+City.  In Palmero it is made up of "gangs" of toughs and
+criminals, not unlike the Camorrist gangs of Naples, but
+without their organization, and is kept together by personal
+allegiance to some leader.  Such a leader is almost always
+under the patronage of a "boss" in New York or a 'padrone' in
+Italy, who uses his influence to protect the members of the
+gang when in legal difficulties and find them jobs when out of
+work and in need of funds.  Thus the "boss" can rely on the
+gang's assistance in elections in return for favors at other
+times.  Such gangs may act in harmony or be in open hostility
+or conflict with one another, but all are united as against
+the police, and exhibit much the same sort of "Omerta" in
+Chatham Square as in Palermo.  The difference between the
+Mafia and Camorra and the "gangs" of New York City lies in the
+fact that the latter are so much less numerous and powerful,
+and bribery and corruption so much less prevalent, that they
+can exert no practical influence in politics outside the Board
+of Aldermen, whereas the Italian societies of the Mala Vita
+exert an influence everywhere--in the Chamber of Deputies, the
+Cabinet, and even closer to the King.  In fact, political
+corruption has been and still is of a character in Italy
+luckily unknown in America--not in the amounts of money
+paid over (which are large enough), but in the calm and
+matter-of-fact attitude adopted toward the subject in
+Parliament and elsewhere.
+
+The overwhelming majority of Italian criminals in this country
+come from Sicily, Calabria, Naples, and its environs.  They
+have lived, most of their lives, upon the ignorance, fear, and
+superstitions of their fellow-countrymen.  They know that so
+long as they confine their criminal operations to Italians of
+the lower class they need have little terror of the law,
+since, if need be, their victims will harbor them from the
+police and perjure themselves in their defence.  For the
+ignorant Italian brings to this country with him the same
+attitude toward government and the same distrust of the law
+that characterized him and his fellow-townsmen at home, the
+same Omerta that makes it so difficult to convict any Italian
+of a serious offence.  The Italian crook is quick-witted and
+soon grasps the legal situation.  He finds his fellow
+countrymen prospering, for they are generally a hard-working
+and thrifty lot, and he proceeds to levy tribute on them just
+as he did in Naples or Palermo.  If they refuse his demands,
+stabbing or bomb-throwing show that he has lost none of his
+ferocity.  Where they are of the most ignorant type he
+threatens them with the "evil eye," the "curse of God," or
+even with sorceries.  The number of Italians who can be thus
+terrorized is astonishing.  Of course, the mere possibility of
+such things argues a state of mediaevalism.  But mere
+mediaevalism would be comparatively unimportant did it not
+supply the principal element favorable to the growth of the
+Mala Vita, apprehended with so much dread by many of the
+citizens of the United States.
+
+Now, what are the phases of the Mala Vita--the Camorra, the
+Black Hand, the Mafia--which are to-day observable in the
+United States and which may reasonably be anticipated in the
+future?
+
+In the first place, it may be safely said that of the Camorra
+in its historic sense--the Camorra of the ritual, of the
+"Capo in Testa" and "Capo in Trino," highly organized with a
+self-perpetuating body of officers acting under a supreme
+head--there is no trace.  Indeed, as has already been
+explained, this phase of the Camorra, save in the prisons, is
+practically over, even in Naples.  But of the Mala Vita there
+is evidence enough.
+
+Every large city, where people exist under unwholesome
+conditions, has some such phenomenon.  In Palermo we have the
+traditional Mafia--a state of mind, if you will, ineradicable
+and all-pervasive.  Naples festers with the Camorra as with a
+venereal disease, its whole body politic infected with it, so
+that its very breath is foul and its moral eyesight
+astigmatized.  In Paris we find the Apache, abortive offspring
+of prostitution and brutality, the twin brother of the
+Camorrista.  In New York there are the "gangs," composed of
+pimps, thugs, cheap thieves, and hangers-on of criminals,
+which rise and wane in power according to the honesty and
+efficiency of the police, and who, from time to time, hold
+much the same relations to police captains and inspectors as
+the various gangs of the Neapolitan Camorra do to commissaries
+and delegati of the "Public Safety."  Corresponding to these,
+we have the "Black Hand" gangs among the Italian population
+of our largest cities.  Sometimes the two coalesce, so that
+in the second generation we occasionally find an Italian,
+like Paul Kelly, leading a gang composed of other Italians,
+Irish-Americans, and "tough guys" of all nationalities.  But
+the genuine Black Hander (the real Camorrist or "Mafiuoso")
+works alone or with two or three of his fellow-countrymen.
+
+Curiously enough, there is a society of criminal young men in
+New York City who are almost the exact counterpart of the
+Apaches of Paris.  They are known by the euphonious name of
+"Waps" or "Jacks."  These are young Italian-Americans who
+allow themselves to be supported by one or two women, almost
+never of their own race.  These pimps affect a peculiar cut of
+hair, and dress with half-turned-up velvet collar, not unlike
+the old-time Camorrist, and have manners and customs of their
+own.  They frequent the lowest order of dance-halls, and are
+easily known by their picturesque styles of dancing, of which
+the most popular is yclept the "Nigger."  They form one
+variety of the many "gangs" that infest the city, are as quick
+to flash a knife as the Apaches, and, as a cult by themselves,
+form an interesting sociological study.
+
+The majority of the followers of the Mala Vita--the Black
+Handers--are not actually of Italian birth, but belong to the
+second generation.  As children they avoid school, later haunt
+"pool" parlors and saloons, and soon become infected with a
+desire for "easy money," which makes them glad to follow the
+lead of some experienced capo maestra.  To them he is a sort
+of demi-god, and they readily become his clients in crime,
+taking their wages in experience or whatever part of the
+proceeds he doles out to them.  Usually the "boss" tells them
+nothing of the inner workings of his plots.  They are merely
+instructed to deliver a letter or to blow up a tenement.  The
+same name is used by the Black Hander to-day for his
+"assistant" or "apprentice" who actually commits a crime as
+that by which he was known under the Bourbons in 1820.  In
+those early days the second-grade member of the Camorra was
+known as a picciotto.  To-day the apprentice or "helper" of
+the Black Hander is termed a picciott' in the clipped dialect
+of the South.  But the picciotto of New York is never raised
+to the grade of Camorrista, since the organization of the
+Camorra has never been transferred to this country.  Instead
+he becomes in course of time a sort of bully or bad man on his
+own hook, a criminal "swell," who does no manual labor, rarely
+commits a crime with his own hands, and lives by his brain.
+Such a one was Micelli Palliozzi, arrested for the kidnapping
+of the Scimeca and Sabello children mentioned above--a dandy
+who did nothing but swagger around the Italian quarter.
+
+Generally each capo maestra works for himself with his own
+handful of followers, who may or may not enjoy his confidence,
+and each gang has its own territory, held sacred by the
+others.  The leaders all know each other, but never trespass
+upon the others' preserves, and rarely attempt to blackmail or
+terrorize any one but Italians.  They gather around them
+associates from their own part of Italy, or the sons of men
+whom they have known at home.  Thus for a long time Costabili
+was leader of the Calabrian Camorra in New York, and held
+undisputed sway of the territory south of Houston Street as
+far as Canal Street and from Broadway to the East River.  On
+September 15, last, Costabili was caught with a bomb in his
+hand, and he is now doing a three-year bit up the river.  Sic
+transit gloria mundi!
+
+The Italian criminal and his American offspring have a sincere
+contempt for American criminal law.  They are used by
+experience or tradition to arbitrary police methods and
+prosecutions unhampered by Anglo-Saxon rules of evidence.
+When the Italian crook is actually brought to the bar of
+justice at home, that he will "go" is generally a foregone
+conclusion.  There need be no complainant in Italy.  The
+government is the whole thing there.  But, in America, if the
+criminal can "reach" the complaining witness or "call him off"
+he has nothing to worry about.  This he knows he can easily do
+through the terror of the Camorra.  And thus he knows that the
+chances he takes are compartively small, including that of
+conviction if he is ever tried by a jury of his American
+peers, who are loath to find a man guilty whose language and
+motives they are unable to understand.  All this the young
+Camorrist is perfectly aware of and gambles on.
+
+One of the unique phenomena of the Mala Vita in America is the
+class of Italians who are known as "men of honor."  These are
+native Italians who have been convicted of crime in their own
+country and have either made their escape or served their
+terms.  Some of these may have been counterfeiters at home.
+They come to America either as stokers, sailors, stewards, or
+stowaways, and, while they can not get passports, it is
+surprising how lax the authorities are in permitting their
+escape.  The spirit of the Italian law is willing enough, but
+its fleshly enforcement is curiously weak.  Those who have
+money enough manage to reach France or Holland and come over
+first or second-class.  The main fact is that they get here
+--law or no law.  Once they arrive in America, they realize
+their opportunities and actually start in to turn over a new
+leaf.  They work hard; they become honest.  They may have been
+Camorrists or Mafiusi at home, but they are so no longer.
+They are "on the level," and stay so; only--they are "men of
+honor."  And what is the meaning of that?  Simply that they
+keep their mouths, eyes, and ears shut so far as the Mala Vita
+is concerned.  They are not against it.  They might even
+assist it passively.  Many of these erstwhile criminals pay
+through the nose for respectability--the Camorrist after his
+kind, the Mafius' after his kind.  Sometimes the banker who is
+paying to a Camorrist is blackmailed by a Mafius'.  He
+straightway complains to his own bad man, who goes to the
+"butter-in" and says in effect: "Here!  What are you doing?
+Don't you know So-and-So is under my protection?"
+
+"Oh!" answers the Mafius'.  "Is he?  Well, if that is so, I'll
+leave him alone--as long as he is paying for protection by
+somebody."
+
+The reader will observe how the silence of "the man of honor"
+is not remotely associated with the Omerta.  As a rule,
+however, the "men of honor" form a privileged and negatively
+righteous class, and are let strictly alone by virtue of their
+evil past.
+
+The number of south Italians who now occupy positions of
+respectability in New York and who have criminal records on
+the other side would astound even their compatriots.  Even
+several well-known business men, bankers, journalists, and
+others have been convicted of something or other in Italy.
+Occasionally they have been sent to jail; more often they have
+been convicted in their absence--condannati in contumacia--and
+dare not return to their native land.  Sometimes the offences
+have been serious, others have been merely technical.  At
+least one popular Italian banker in New York has been
+convicted of murder--but the matter was arranged at home so
+that he treats it in a humourous vein.  Two other bankers are
+fugitives from justice, and at least one editor.
+
+To-day most of these men are really respectable citizens.  Of
+course some of them are a bad lot, but they are known and
+avoided.  Yet the fact that even the better class of Italians
+in New York are thoroughly familiar with the phenomena
+surrounding the Mala Vita is favorable to the spread of a
+certain amount of Camorrist activity.  There are a number of
+influential bosses, or capi maestra, who are ready to
+undertake almost any kind of a job for from twenty dollars up,
+or on a percentage.  Here is an illustration.
+
+A well-known Italian importer in New York City was owed the
+sum of three thousand dollars by an other Italian, to whom he
+had loaned the money without security and who had abused his
+confidence.  Finding that the debtor intended to cheat him out
+of the money, although he could easily have raised the amount
+of the debt had he so wished, the importer sent for a
+Camorrist and told him the story.
+
+"You shall be paid," said the Camorrist.
+
+Two weeks later the importer was summoned to a cellar on Mott
+Street.  The Camorrist conducted him down the stairs and
+opened the door.  A candle-end flaring on a barrel showed the
+room crowded with rough-looking Italians and the debtor
+crouching in a corner.  The Camorrist motioned to the
+terrified victim to seat himself by the barrel.  No word was
+spoken and amid deathly silence the man obeyed.  At last the
+Camorrist turned to the importer and said:
+
+"This man owes you three thousand dollars, I believe."
+
+The importer nodded.
+
+"Pay what you justly owe," ordered the Camorrist.
+
+Slowly the reluctant debtor produced a roll of bills and
+counted them out upon the barrel-head.  At five hundred he
+stopped and looked at the Camorrist.
+
+"Go on!" directed the latter.
+
+So the other, with beads of sweat on his brow, continued until
+he reached the two thousand-dollar mark.  Here the bills
+seemed exhausted.  The importer by this time began to feel a
+certain reticence about his part in the matter--there might be
+some widows and orphans somewhere.  The bad man looked
+inquiringly at him, and the importer mumbled something to the
+effect that he "would let it go at that."  But the bad man
+misunderstood what his client had said and ordered the
+bankrupt to proceed.  So he did proceed to pull out another
+thousand dollars from an inside pocket and add it to the pile
+on the barrel-head.
+
+The Camorrist nodded, picked up the money, recounted it, and
+removed three hundred dollars, handing the rest to the
+importer.
+
+"I have deducted the camorra," said he.
+
+The bravos formed a line along the cellar to the door, and, as
+the importer passed on his way out, each removed his hat and
+wished him a buona sera.  That importer certainly will never
+contribute toward a society for the purpose of eradicating the
+"Black Hand" from the city of New York.  He says it is the
+greatest thing he knows.
+
+But the genuine Camorrist or Mafius' would be highly indignant
+at being called a "Black Hander."  His is an ancient and
+honorable profession; he is no common criminal, but a "man
+peculiarly sensitive in matters of honor," who for a
+consideration will see that others keep their honorable
+agreements.
+
+The writer has received authoritative reports of three
+instances of extortion which are probably prototypes of many
+other varieties.  The first is interesting because it shows a
+Mafius' plying his regular business and coming here for that
+precise purpose.  There is a large wholesale lemon trade in
+New York City, and various growers in Italy compete for it.
+Not long past, a well-dressed Italian of good appearance and
+address rented an office in the World Building.
+
+His name on the door bore the suffix "Agent."  He was, indeed,
+a most effective one, and he secured practically all the lemon
+business among the Italians for his principals, for he was a
+famous capo ma mafia, and his customers knew that if they did
+not buy from the growers under his "protection" that something
+might, and very probably would, happen to their families in or
+near Palermo.  At any rate, few of them took any chances in
+the matter, and his trip to America was a financial success.
+
+In much the same way a notorious crook named Lupo forced all
+the retail Italian grocers to buy from him, although his
+prices were considerably higher than those of his competitors.
+
+Even Americans have not been slow to avail themselves of
+Camorrist methods.  There is a sewing machine company which
+sells its machines to Italian families on the instalment plan.
+A regular agent solicits the orders, places the machines, and
+collects the initial dollar; but the moment a subscriber in
+Mulberry Street falls in arrears his or her name is placed on
+a black list, which is turned over by this enterprising
+business house to a "collector," who is none other than the
+leading Camorrist, "bad man," or Black Hander of the
+neighborhood.  A knock on the door from his fist, followed by
+the connotative expression on his face, results almost
+uniformly in immediate payment of all that is due.  Needless
+to say, he gets his camorra--a good one--on the money that
+otherwise might never be obtained.
+
+It is probable that we should have this kind of thing among
+the Italians in America even if the Neapolitan Camorra and the
+Sicilian Mafia had never existed, for it is the precise kind
+of crime that seems to be spontaneously generated among a
+suspicious, ignorant, and superstitious people.  The Italian
+is keenly alive to the dramatic, sensational, and picturesque;
+he loves to intrigue, and will imagine plots against him when
+none exists.  If an Italian is late for a business engagement
+the man with whom he has his appointment will be convinced
+that there is some conspiracy afoot, even if his friend has
+merely been delayed by a block on the subway.  Thus, he is a
+good subject for any wily lago that happens along.  The
+Italians in America are the most thrifty of all our immigrant
+citizens.  In five years their deposits in the banks of New
+York State amounted to over one hundred million dollars.  The
+local Italian crooks avail themselves of the universal fear of
+the vendetta, and let it be generally known that trouble will
+visit the banker or importer who does not "come across"
+handsomely.  In most cases these Black Handers are ex-convicts
+with a pretty general reputation as "bad men."  It is not
+necessary for them to phrase their demands.  The tradesman who
+is honored with a morning call from one of this gentry does
+not need to be told the object of the visit.  The mere
+presence of the fellow is a threat; and if it is not acceded
+to, the front of the building will probably be blown out by a
+dynamite bomb in the course of the next six weeks--whenever
+the gang of which the bad man is the leader can get around to
+it.  And the bad man may perhaps have a still badder man who
+is preying upon HIM.  Very often one of these leaders or
+bosses will run two or three groups, all operating at the same
+time.  They meet in the back rooms of saloons behind locked
+doors, under pretence of wishing to play a game of zecchinetta
+unmolested, or in the gloaming in the middle of a city park or
+undeveloped property on the outskirts.  There the different
+members of the gang get their orders and stations, and perhaps
+a few dollars advance wages.  It is naturally quite impossible
+to guess the number of successful and unsuccessful attempts at
+blackmail among Italians, as the amount of undiscovered crime
+throughout the country at large is incomputable.  No word of
+it comes from the lips of the victims, who are in mortal
+terror of the vendetta--of meeting some casual stranger on the
+street who will significantly draw the forefinger of his right
+hand across his throat.
+
+There is rather more chance to find and convict a kidnapper
+than a bomb-thrower, so that, as a means of extortion,
+child-snatching is less popular than the mere demand for the
+victim's money or his life.  On the other hand it is probably
+much more effective in accomplishing its result.  But America
+will not stand for kidnapping, and, although the latter occurs
+occasionally, the number of cases is insignificant compared
+with those in which dynamite is the chief factor.  In 1908,
+there were forty-four bomb outrages reported in New York City.
+There were seventy arrests and nine convictions.  During the
+present year (1911) there have been about sixty bomb cases,
+but there have been none since September 8, since Detective
+Carrao captured Rizzi, a picciott', in the act of lighting a
+bomb in the hallway of a tenement house.
+
+This case of Rizzi is an enlightening one for the student of
+social conditions in New York, for Rizzi was no Orsini, not
+even a Guy Fawks, nor yet was he an outlaw in his own name.
+He was simply a picciott' (pronounced "pish-ot") who did what
+he was told in order that some other man who did know why
+might carry out a threat to blow up somebody who had refused
+to be blackmailed.  It is practically impossible to get inside
+the complicated emotions and motives that lead a man to become
+an understudy in dynamiting.  Rizzi probably got well paid; at
+any rate, he was constantly demonstrating his fitness "to do
+big things in a big way," and be received into the small
+company of the elect--to go forth and blackmail on his own
+hook and hire some other picciott' to set off the bombs.
+
+Whoever the capo maestra that Rizzi worked for, he was not
+only a deep-dyed villain, but a brainy one.  The gang hired a
+store and pretended to be engaged in the milk business.  They
+carried the bombs in the steel trays holding the milk bottles
+and cans, and, in the costume of peaceful vendors of the
+lacteal fluid, they entered the tenements and did their damage
+to such as failed to pay them tribute.  The manner of his
+capture was dramatic.  A real milkman for whom Rizzi had
+worked in the past was marked out for slaughter.  He had been
+blown up twice already.  While he slept his wife heard some
+one moving in the hall.  Looking out through a small window,
+she saw the ex-employee fumble with something and then turn
+out the gas on the landing.  Her husband, awakened by her exit
+and return, asked sleepily what the matter was.
+
+"I saw Rizzi out in the hall," she answered.  "It was funny-he
+put out the light!"
+
+In a moment the milkman was out of bed and gazing, with his
+wife, into the street.  They saw Rizzi come down with his tray
+and pass out of sight.  So did a couple of Italian detectives
+from Headquarters who had been following him and now, at his
+very heels, watched him enter another tenement, take a bomb
+from his tray, and ignite a time fuse.  They caught him with
+the thing alight in his hand.  Meanwhile the other bomb had
+gone off and blown up the milkman's tenement.
+
+There is some ancient history in regard to these matters which
+ought to be retold in the light of modern knowledge; for
+example, the case of Patti, the Sicilian banker. He had a
+prosperous institution in which were deposited the earnings of
+many Italians, poor and wealthy.  Lupo's gang got after him
+and demanded a large sum for "protection."  But Patti had a
+disinclination to give up, and refused.  At the time his
+refusal was attributed to high civic ideals, and he was lauded
+as a hero.  Anyhow, he defied the Mafia, laid in a stock of
+revolvers and rifles, and rallied his friends around him.  But
+the news got abroad that Lupo was after Patti, and there was a
+run on Patti's bank.  It was a big run, and some of the
+depositors gesticulated and threatened--for Patti couldn't pay
+it all out in a minute.  Then there was some kind of a row,
+and Patti and his friends (claiming that the Mafia had
+arrived) opened fire, killing one man and wounding others.
+The newspapers praised Patti for a brave and stalwart citizen.
+Maybe he was.  After the smoke had cleared away, however, he
+disappeared with all his depositors' money, and now it has
+been discovered that the man he killed was a depositor and not
+a Black Hander.  The police are still looking for him.
+
+This case seems a fairly good illustration of the endless
+opportunity for wrong-doing possible in a state of society
+where extortion is permitted to exist--where the laws are not
+enforced--where there is a "higher" sanction than the code.
+Whether Patti was a good or a bad man, he might easily have
+killed an enemy in revenge and got off scot-free on the mere
+claim that the other was blackmailing him; just as an American
+in some parts of our country can kill almost anybody and rely
+on being acquitted by a jury, provided he is willing to swear
+that the deceased had made improper advances to his wife.
+
+The prevention of kidnapping, bomb-throwing, and the other
+allied manifestations of the Black Hand depends entirely upon
+the activity of the police--particularly the Italian
+detectives, who should form an inevitable part of the force in
+every large city.  The fact of the matter is that we never
+dreamed of a real "Italian peril" (or, more accurately, a real
+"Sicilian peril") until about the year 1900.  Then we woke up
+to what was going on--it had already gone a good way--and
+started in to put an end to it.  Petrosino did put an end to
+much of it, and at the present time it is largely sporadic.
+Yet there will always be a halo about the heads of the real
+Camorrists and Mafiusi--the Alfanos and the Rapis--in the eyes
+of their simple-minded countrymen in the United States.
+
+Occasionally one of these big guns arrives at an American port
+of entry, coming first-class via Havre or Liverpool, having
+made his exit from Italy without a passport.  Then the
+Camorrists of New York and Brooklyn get busy for a month or
+so, raising money for the boys at home and knowing that they
+will reap their reward if ever they go back.  The popular
+method of collecting is for the principal capo maestra, or
+temporary boss of Mulberry Street, to "give" a banquet at
+which all "friends" must be present--at five dollars per head.
+No one cares to be conspicuous by reason of his absence, and
+the hero returns to Italy with a large-sized draft on Naples
+or Palermo.
+
+Meanwhile the criminal driven out of his own country has but
+to secure transportation to New York to find himself in a rich
+field for his activities; and once he has landed and observed
+the demoralization often existing from political or other
+reasons in our local forces of police and our uncertain
+methods of administering justice (particularly where the
+defendant is a foreigner), he rapidly becomes convinced that
+America is not only the country of liberty but of license--to
+commit crime.
+
+Most Italian crooks come to the United States not merely some
+time or other, but at intervals.  Practically all of the
+Camorrist defendants on trial at Viterbo have been in the
+United States, and all will be here soon again, after their
+discharge, unless steps are taken to keep them out.  Luckily,
+it is a fact that so much has been written in American
+newspapers and periodicals in the past few years about the
+danger of the Black Hand and the criminals from south Italy
+that the authorities on the other side have allowed a rumor to
+be circulated that the climate of South America is peculiarly
+adapted to persons whose lungs have become weakened from
+confinement in prison.  In fact, at the present time more
+Italian criminals seek asylum in the Argentine than in the
+United States.  Theoretically, of course, as no convict can
+procure a passport, none of them leave Italy at all--but that
+is one of the humors of diplomacy.  The approved method among
+the continental countries of Europe of getting rid of their
+criminals is to induce them to "move on."  A lot of them keep
+"moving on" until they land in America.
+
+Of course, the police should be able to cope with the Black
+Hand problem, and, with a free use of Italian detectives who
+speak the dialects and know their quarry, we may gradually, in
+the course of fifteen years or so, see the entire
+disappearance of this particular criminal phenomenon.  But an
+ounce of prevention is worth--several tons of cure.  Petrosino
+claimed--not boastfully--that he could, with proper
+deportation laws behind him, exterminate the Black Hand
+throughout the United States in three months.
+
+But, as far as the future is concerned, a solution of the
+problem exists--a solution so simple that only a statesman
+could explain why it has not been adopted long years ago.  The
+statutes in force at Ellis Island permit the exclusion of
+immigrants who have been guilty of crimes involving moral
+turpitude in their native land, but do not provide for the
+compulsory production of the applicants' "penal certificate"
+under penalty of deportation.  Every Italian emigrant is
+obliged to secure a certified document from the police
+authorities of his native place, giving his entire criminal
+record or showing that he has had none, and without it he can
+not obtain a passport.  For several years efforts have been
+made to insert in our immigration laws a provision that every
+immigrant from a country issuing such a certificate must
+produce it before he can be sure of admission to the United
+States.  If this proposed law should be passed by Congress the
+exclusion of Italian criminals would be almost automatic.  But
+if it or some similar provisions fails to become law, it is
+not too much to say that we may well anticipate a Camorra of
+some sort in every locality in our country having a large
+Italian population.  Yet government moves slowly, and action
+halts while diplomacy sagely shakes its head over the official
+cigarette.
+
+A bill amending the present law to this effect has received
+the enthusiastic approval of the immigration authorities and
+of the President.  At first the Italian officials here and
+abroad expressed themselves as heartily in sympathy with this
+proposed addition to the excluded classes; but, once the bill
+was drawn and submitted to Congress, some of these same
+officials entered violent protests against it, on the ground
+that such a provision discriminated unfairly against Italy and
+the other countries issuing such certificates.  The result of
+this has been to delay all action on the bill which is now
+being held in committee.  Meanwhile the Black Hander is
+arriving almost daily, and we have no adequate laws to keep
+him out.
+
+
+
+
+
+
+
+
+End of the Project Gutenberg EBook of Courts and Criminals, by Arthur Train
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