Modern Murder Trials and Newspapers

RECENT discussions concerning public methods of dealing with crime may lend interest to reflections concerning capital cases and the publicity now given to them. Necessarily some relations of the newspapers to such cases come into a general view.

Murder trials as reported by newspapers are often very different from the actual trials. The courts do not permit the reporters to characterize testimony freely, or to weigh witnesses. Readers generally demand the truth in a nutshell. Under these restrictions no reporter can let himself go, and tell a natural story of how the whole thing looks to him. Picturesque and entertaining as his reports may be, no one knows better than an experienced reporter how much out of proportion details are which he cannot omit. Many an able reporter, who has really mastered the evidence in a long and difficult case, has to pick out what the public will read. Of course the larger part of the people are more familiar with newspapers than with courts. Evidently much public opinion is formed upon inadequate information.

But the majority get what the publishers know they demand. They demand news in brief and readable form. It is the business of newspapers to supply this demand. Accordingly reporters have to deal with a complex problem. They are to seek facts, and to state them not merely to persons of learning and taste, but also to the far greater number who have neither, yet whose patronage is necessary to the paper. The ability and training of the reporter of course affects his choice of what he tells and his manner of telling it. Nevertheless he must not forget the mass of readers.

It is not usual to employ lawyers to report long trials. It is more convenient to put clever members of the regular staff of experienced reporters upon work requiring such skill and rapidity. They know better what interests the public. The reporters talk with lawyers from day to day, to get professional views, and occasionally a lawyer is employed to write a critical article or an editorial.

If the public demanded a report of every question and answer and of everything else said at a trial, the great newspapers could afford to print a complete report. But since few, except some professional or historical readers, wish for that, something is always omitted which might affect one’s judgment, and which may have influenced some ruling of the judge or the verdict of the jury. In such a struggle of extremes of energy as a capital case, where every point is in a high light, one cannot thoroughly understand the case as tried and the persons trying it without a full report; and even then one’s knowledge is but second-hand. To appreciate a witness one must see him on the stand. The manners of attorneys are favorite topics, but the mere mention of some detail often gives it an exaggerated importance, when so many grave matters are omitted. A few impulsive words or a hasty gesture are more than fully reported, while anxious and deliberate statements of the positions of the parties to a debate are dismissed in a sentence. The reader is led to wonder that grown men, trained to controversy, can be such creatures of impulse. This is not usually because clever reporters do not understand the points. It is because they know that the average reader will be more entertained by a dramatic description of a little display of temper, with a glimpse of a legal point, than by a more sober statement of a labored argument. Thus discussions essential to the case fail to be reported properly, because the reporters know that most of their readers would either not read or not comprehend them.

Some reporters defend this method by pointing to the spectators in the courtroom, most of whom certainly seem to look at a trial much as sensational reports describe it. They avowedly go not so much to understand the fine points of the case as to get excitement from the personal incidents. Thus the newspapers are not solely responsible for spreading grotesque ideas concerning what happens in the courtroom. The courts are more businesslike than ever before; but many spectators and readers are not businesslike, and they incite the reporters to give impressionist views of how a solemn scene looks to a wild eye.

Certainly many reporters make their reports readable, and the best of them take great pains to give correct statements of essential parts of the evidence. The speed with which they must work prevents the correction of all mistakes, and the pressure of new incidents puts the old out of the mind of most readers. A reporter’s view of his function naturally is that he is to report facts, not as a leader of public opinion, but as one of the crowd saying what the rest of the crowd wants to hear. More critical work could not be done so rapidly. In the Eastman case, tried in Cambridge, fourteen thousand words were written as the report for an afternoon’s edition of one newspaper. This report was delivered piecemeal by the reporter to the messenger, who took it downstairs to the telegrapher, who wired it to Boston, where it was printed, published, and sold in the papers of that afternoon.

The reporter has to endure the traditional fate of the bearer of bad news. A heavy load of moral responsibility is upon him when he does detective work and makes reports before trial concerning persons charged with crime. Sometimes, when he tells too much or falls into libels, it is a reproach which he shares with the police, and in some instances the work is a public benefit which he and the police perform with industry and courage without thanks. It is to the credit of the Boston Herald, its reporter and the other gentlemen1 who acted with it, that, in consequence of their recent investigations, Cromwell and Stain, after conviction of murder and eleven years’ imprisonment in Maine, were found not guilty, and were pardoned.

Before a celebrated murder case comes to trial the usual methods of the reporters and of the police are practiced, according to the scrupulousness or unscrupulousness of this and that man or woman. Our law forbids an arresting officer to question a prisoner without warning him of the right of silence. Cunning questions, however, are often put to entrap him by officers who are ambitious to make a record. In many cases no harm is done except in continuing the habit of ignoring our legal system. Yet now and then, when this illegal practice is exposed by the searchlight of some capital case, the importance of the broken rule appears, and citizens are startled to hear that officers of justice frequently yield to the temptation of bullying or wheedling out of their prisoner what our law forbids them to ask.

Reporters are usually more active and more gifted with an instinct for detail than the officers. Together they make a formidable combination. But they are often divided in opinion, and yet oftener in their sympathies. Reporters, like the average citizen, are more apt to pity the prisoner, if for nothing else for the very reason that the police are down upon him. It is an ambition of reporters to unearth more facts than the police. Newspapers print news from a prisoner’s friends as readily as news from his prosecutors. Nevertheless they spread abroad the charge against a suspected person more than he or his friends wish. Such publication often injures the prisoner’s reputation. But sometimes it helps his case by giving his attorneys information. The defense does not usually confide so much to reporters as the prosecution. Yet reporters refrain from reporting some things out of compassion for innocent and unsuspected persons whom they do not wish to injure ; and newspaper men generally refrain so much from publishing follies and sins that are told them by private telltales that they are in the habit of looking upon themselves as rather reserved. Since the newspapers begin long before a trial to work UP a popular interest in all the persons concerned, the results cannot be other than an exaggeration of the importance to the public of what stimulates and gratifies curiosity, whether or not it affects the question of the prisoner’s guilt.

Then the average critic of newspapers exaggerates as much as they do. For instance, it is said here and there that the newspapers are giving more and more space to murder trials. But they give less now than they gave a few years ago. The Borden trial and the Bram trial were reported much more fully than the Eastman trial or the Fosburgh trial, although the position of the accused in the last two cases, and the peculiar circumstances, excited wide popular curiosity. The reason of this change, probably, is not that the taste of the majority has improved, but that its interest has shifted for the moment to scandals.

Such changes tend to modify the theory that reports of criminal cases usually cause a morbid interest in crime. The public mind seems to be pretty healthy in that it does not dwell permanently upon any one evil, but samples them all in turn, with a cheerful belief that some persons are deterred from crime by a fear of exposure by the vigilant press.

A pet fancy of the average critic of newspapers is that they have to resort to horrors to fill up their columns; but a great newspaper is constantly cutting down its material, and small ones are constantly declining communications. An interesting piece of news comes in early, and is put down for a column ; then a dozen reports of other equally important matters arrive, and before the paper goes to press the first piece is condensed into a short paragraph. The test of space is, How much does the majority want ? The tests of what shall be told, and how plainly it shall be put, are the standards commonly observed as to what can be said aloud to a roomful of grown persons who really wish to know what has happened. Variable as may be these standards, the regard paid to them, such as they are, affects the circulation of every newspaper. The circulation affects the advertising. Some men will not take a paper home which is habitually scandalous. The advertiser has to estimate his chances according to his wares.

The average critic of the newspapers does not own stock in any newspaper, and does not know the cost of getting the news. The chances are that he has never consciously met a reporter. Yet most of what he knows from reading, outside of his own business or profession, has been taught him by the newspapers. They show him every day that the world is not what he wants it to be, and it is hard for him to learn their lessons, and especially hard to make allowances for their faults. He may be lazy, — they are industrious for him ; he may be stupid, — they are intelligent for him; he may be timid, — they are bold for him ; yet he damns the newspapers. When a reporter, working day and night, throws the ardor of youth or the pity of age into tragic scenes from court where every one with a heart was in tears, he damns the newspapers. When an editorial — which he hunts for before breakfast, in order to know what to think immediately after some momentous tragedy — is not exhaustive, he damns the newspapers. His especial condemnation is bestowed upon what he truly calls the vulgar publicity of the newspaper. When he reads enough papers, or extends his reading beyond his newspapers and his business, or, better still, tries to prevent some injustice, he may learn that vulgar publicity is often a safeguard of justice. Good taste and the modest reserve of private life too often tempt the critic to shrink from an open fight with oppression. One of the arts of the leading criminals among politicians is to scare off the private citizen by warning him that evil communications corrupt good manners. But public spirit is much more robust and efficient when coupled with a familiar knowledge of the vulgar world.

Prosecuting officers and police are now held up to higher standards of investigation, of thorough proof of alleged crimes, and of humane conduct toward alleged criminals and all the persons over whom they have any power, than ever before. This is effected partly by the general enlightenment made possible by the newspapers, and largely by the publicity which the newspapers give to the acts of public servants and to the rebukes administered by the courts to their officers. That does wonders even toward reforming professed reformers. When some respectable citizen himself happens to be falsely accused of crime, his chances of foiling his enemies are far greater than of old. Nor is he slow in taking advantage of the existing vulgar medium for reaching the ear of the common people.

When a human being’s life is openly at stake, it is to be expected that the feelings of many will overflow into cruelty or sentimentality. Some foolish things always occur when the community is excited. Excessive kindness is not a novelty created by the newspapers. Witness Claude Duval, and the anguish which the conviction of that dashing highwayman caused in the breasts of fair ladies of the court of Charles II. An interesting contrast between the old and the new age is found in the following stories. Judge Morton, who presided at the trial of Duval, threatened to resign his great office if the gallant prisoner were pardoned, as the ladies prayed ; and the judge forced the prisoner’s execution.2 Almost two hundred years afterwards, in the reign of Victoria, the late Mr. Justice Stephen, who presided at the trial of Mrs. Maybrick for the murder of her husband, after sentencing her to death, used his influence to get the sentence commuted to imprisonment for life, because the doctors disagreed as to whether her husband died of arsenic, with which the government claimed, and the jury found, that she tried to kill him.

That case was a pregnant instance of rough-and-ready methods in striving in some practicable ways for both truth and right without satisfying everybody that justice had been done. The judge had suffered some mental weakness, which afterwards caused his retirement from the bench, and the excitement of the trial led him to add to an attempt at an impartial statement of the jury’s task a rhetorical declaration of horror at the motive suggested by the prisoner’s confessed adultery with a lover to whom she wrote love letters while nursing her husband in his sick bed. The jury had heard the evidence, and there is no reason for not thinking their verdict honest. But the fact that they agreed upon a verdict of guilty in about half an hour, a remarkably short time in view of the conflicting medical evidence, seemed to show that they were influenced more by the judge’s rhetoric than by his doubts. Besides, an English jury cares more for what a judge says than an American jury. After a private hearing, the Home Secretary decided substantially that the death might not have been caused by arsenic, but she belonged in jail because of the attempt to poison. Persons were content with this who believed the attempt to have been proved, and who were bent rather upon what they regarded as justice than upon technical correctness. Others insisted that if she were not hanged she should be pardoned, because she had been tried for murder, and because imprisonment for life was not a legal punishment for the lesser crime. There were those, also, who regarded the commutation as an example of the old saying that English law is lenient because it is not enforced. Thus there was a conflict between what was called truth on one side and what was called right on the other.

The jury in the Maybrick case did what they thought was right, notwithstanding the doubts suggested by the judge as to what the truth was. In the recent Shaw case,3 a Massachusetts jury found a verdict of not guilty because they thought it was right, although the charge of the judge was against the prisoner. The evidence was that a man was found dead about eighteen feet from the window of a lonely house in a forest. He had been shot twice in front, and once in the back of the head. The back wound was about two inches in diameter, and seemed to contain a whole charge of shot, which tended to prove that the gun had been discharged very near and behind him. The master of the house surrendered himself to the police. He testified that at night a strange man tried to get in where he and his wife were, and, when refused, said in the grossest words, “ Send your woman out here.” Being ordered off the stranger said, “ I ’ll come back again and fix you.” The master of the house, who was a nervous man and much excited, got his shotgun and watched at a window by the side door. The stranger returned, and as he approached the master of the house fired, as he said, one shot, not at him, but to scare him; and, when he continued to approach, fired two shots at him, — and all these shots from the window. No weapon was in the stranger’s hands, but in his pockets were a razor in a case and a jackknife. The prosecution claimed that the wound in the back of the head was not consistent with the prisoner’s testimony, and the judge charged the jury that to excuse the homicide the law required proof of a reasonable apprehension — not such as a timid or excited man, but such as an ordinarily brave man would have — of violence from a trespasser armed with a dangerous weapon ready for use.

But the prisoner’s story was corroborated by his wife. His counsel argued that the shot from behind might have taken place if the stranger, in approaching to attack the house, had looked back for an instant to signal to possible confederates or for any other purpose. The jury after several hours brought in a verdict of not guilty. Probably they would have found anything to be a dangerous weapon in the possession of a man who demanded a woman in a forest. And whether they approved the judgment of the husband or not, they would not say that he was a murderer because he was not cautious or bold enough to try uncertain blows at such a moment.

This conflict between what may be true and what the jury think is probably right is increasing with the progress of scientific knowledge and with popular education. The defense can now present such formidable heaps of details to the jury about what may possibly have happened, and can appeal to the enlightened conscience of modern men with such plausibility, that the rugged old generalizations of common sense, like “ Smoke proves fire,” are often made to appear brutally inaccurate. Hence there is a new development of the art of trying to turn jurymen into doubting students, and to make them casuists who fear to act upon their genuine convictions, and who seek fictitious reasons for verdicts according to their conceit.

Testimony concerning scientific questions adds much to the length and expense of trials. And long trials are thought to need defense by persons who suppose that the legal profession arrogates to itself too much importance. Some members of the medical profession dislike cross-examination so much that they join in this criticism, and urge that physicians be given more authority than ordinary witnesses. But it would be surprising if men trained in the practice of the common law should surrender questions of fact to experts. A specialist is not always a man of trustworthy judgment, and it takes time to show this to a jury.

Many persons unused to the close examination of witnesses find fault with the persistent ingenuity of counsel for the defense in inventing doubts not reasonably raised by the evidence. In the Bram case there was a striking instance of this. Bram, the first mate of a vessel, was on watch on deck at night, near the forward door of the cabin. A sailor was at the helm, near the after door of the cabin. The sailor testified that he looked through a window near the wheel and saw Bram strike down with something like an axe handle. The captain was found on the floor under that window, killed by an axe. The captain’s wife was found murdered in the next room, and the second mate was found murdered in a third room. The defense was that the sailor lashed the wheel and committed all these murders and returned to the wheel without being discovered even by the first mate on watch, although some windows and the forward door were open. There was not the slightest evidence that the wheel was lashed. But the theory of the defense required the government to prove beyond a reasonable doubt that Brain had exclusive opportunity. Hence days were added to the trial by the examination of experts in the sailing of vessels as to how long a vessel could sail with her helm lashed without changing her course perceptibly.

It is impossible to prevent spending time and labor on such questions in a thorough trial. It is the penalty of having a mind that it will think more than is convenient for everybody. The history of what judges and juries have been in the past tends to reconcile us to attempts to satisfy the minds of jurymen by facts and reason instead of frightening them into verdicts by threats of the vengeance of men in power. The question of length must be considered not merely by the trouble it gives the government and the expense in taxes. The public question is, Is this our kind of justice ? And if so, is our justice worth this much to us ? If it is not our kind of justice, then we have a right to try to amend the law or its practice. If it is our justice, more delicate and difficult questions of morals and of judgment arise. How much of our justice can we afford to pay for ?

Although the checks and balances that make long trials possible sometimes delay punishment and may faintly encourage a few calculating criminals, our long trials as now conducted and made public by the newspapers are lessons in justice. They teach the people how law is made, what it is, and its value as well as its defects as a means of justice. The temporary postponement of a verdict or execution is of little moment compared with the awe-inspiring spectacle of a powerful government controlling itself to examine and judge correctly the personal claims of a mere individual charged with a heinous crime. If such an effort is not worth much time and money, what is ? Lovers of music do not grudge the time or the money required to produce that flower of delight, an opera. A yachtsman spends a fortune on a good boat. A country town will appropriate a fourth of its public debt for electric lights. And are laws, which are tentative rules for the justice we long for,—are laws and the application of laws to the ever changing dangers of the complicated machinery of social order expected to be perfectly expressed, and undoubtedly clear, and promptly enforced, without nights of anxiety as sleepless as any caused by failure to sing an opera beautifully, without the exercise of ingenuity beyond the dreams of any mechanic, or without the expenditure of a large part of the savings of the people for the sake of making them just and practicing under them justly ?

After Bram was convicted he got a second trial, one of the grounds of which was that after his arrest a detective examined him about his conduct. The Supreme Court of the United States held that our law required that accused persons should be free from such interference, a constant menace to justice as well as an inevitable temptation to the police. Thus the police may defeat themselves by trying to take the law into their own hands. The time and expense of such second trial are paid for by its possible influence, for instance, in preventing illegal evidence in such cases as that of Dr. Eastman. He was an officer of instruction in Harvard University, who accidentally shot a friend, and was accused of murder. The district judge discharged him, but he was summoned before the grand jury and indicted. At the trial the attorney-general of Massachusetts was forbidden by the court to put in evidence of what Eastman said before the grand jury, because an accused person should not be summoned before the grand jury. Influential persons, who had cared little for Bram, were naturally eager to give all the rights of law and of humanity to Dr. Eastman. But the criminal lawyers had to treat them both alike. Each of Bram’s trials was longer than Eastman’s. Bram was convicted. Eastman was acquitted.

The world has always been interested in prosecutions against criminals as a class. Its interest in criminals as individuals is growing, and will increase as studies extend into the nature of men as they actually are. As the people become more closely organized, and governments acquire the strength of centralization, laws and the practice under them even in a free country tend, from the mere convenience of business, to become impersonal in their application. This would lead to the oppression of worthy individuals, if the mind of the public were not often instructed and its sympathies touched by such popular exhibitions of the effect of general rules upon particular persons as are given in celebrated cases. These dramatic events, judged by jurymen trusted by the people, help the masses to understand principles of government, and warn the learned that under all and above all of our laws and procedure are the original passions and force of living men. In the civil courts the pecuniary interests of the parties may control the whole proceeding. But in the criminal courts the issue is, Did this man, or this woman, or this child do this act? And if so, what shall be done to him or to her ? The truth is to be proved; the right, so far as the law provides for it, is to be done. Truth and right are at stake for the people ; everything is at stake for the prisoner and his friends,—truth, right, property, reputation, happiness, life itself in a capital case. Therefore a stream of perjury flows from the witness stand. In such a contest between truth and fiction, right and wrong, law and practice contrary to law, justice and injustice, how can anything less than a popular sensation take place and run its natural course through the newspapers when a crime is peculiarly terrible, or an accused person is for some reason distinguished or notorious ? Even a law-abiding community cannot help feeling a shock when a prisoner, against overwhelming evidence, challenges the government not only to do its utmost to prove its charges, but to show that it has acted legally toward him, and to do this according to its somewhat obscure laws, and to carry out correctly in detail to the end the proceedings without which he cannot be punished. A great trial is a crisis in the family of the state. If it were not celebrated, the community would neither get nor deserve the protection which such trials afford both to them and to the prisoner, a living member of the community, one of the individuals who give it its existence.

It is easy to curse the technical lawyer, who, with history at his back, faces a frowning world, and holds it off while he analyzes the words of an indictment against a heartless wretch who may deserve a felon’s death. It is hard to understand an intricate system of rules, to appreciate the rude manners of courts, to endure the insolence of the transgressor, and to believe that his attorneys all have the good of the commonwealth in view. But it is of the essence of the order and the purity of the state that the attorney shall fearlessly bring the commu nity and its courts face to face with its own laws, with all their imperfections, and it is the glory of our criminal law that the most reluctant judge is obliged to listen and to decide upon points so raised, whosoever the attorney or the prisoner at the bar may be. The court itself compels even a Czolgosz to be legally defended.

The truth must be found before what is right can be known. The truth about the motive of a person accused of an act which requires an evil intention to make it a crime is often too delicate or too deep a matter for the head or heart of even the average respectable citizen. Students of natural science are becoming more influential in trials. The effect of their knowledge appeared recently in New Hampshire, at the trial of young Kelley for the murder of an aged cashier. It was found that the prisoner had, in his boyhood, suffered a blow upon the head which injured his brain. After a conference between the counsel, the physicians, and the judge, the prisoner pleaded guilty, the crime of murder was fixed at the second degree because of his mental condition, and the youth was sent to the state prison.

But we have to be on our guard, also, against the errors of experts as to both knowledge and judgment. The mere fact that some physician swears that a prisoner is insane does not always raise even a reasonable doubt of his sanity for the purpose of punishment. Even in insane asylums punishment is found to be good for some insane patients. The execution of such an unbalanced person as Guiteau for the murder of President Garfield was probably useful as a deterrent to persons in some degree resembling the assassin; for, notwithstanding the reported numbers of persons in this country who admire such crimes, it is a very rare fool who lives up to their doctrine in practice. Besides, the thorough public trial of an assassin tends to educate those who are a little above him in character or in judgment, by showing how mean and absurd as well as wicked assassination may be. It is good to have plenty of hospitals, but one of the best ways to treat some insane persons is to deal with them as if they were well. This is applicable to some of those who plead insanity as an excuse for crime. It is well to cause those who are a little crazy to fear to do what they know to be wrong.

The tendency to make the punishment fit the crime is an advance in civilization which can only come by increased knowledge. There is no hurry about executing a murderer when the community is sufficiently advanced to understand that he is to be punished as he deserves, when he shall have been proved guilty according to methods whose regular observance is as important as the incident of his execution. A jury in New York, after several months’ trial, found Molineux guilty; but, if evidence was admitted against him illegally, since the law is really intended to hold judges up to the enforcement of our rules of evidence, the question of his guilt remained open. What good would it do to the taxpayer to have a court of appeals confuse the law to save present expenses, and leave the survivors in a fog ?

The length and expense of such a trial are not arguments in favor of the English system of having no resort to a higher court in criminal cases. Our American system of giving the prisoner a chance to argue the law after the trial of fact helps to settle, one after another, points that affect personal liberty, honor, and justice. This is wiser as well as juster than the method of leaving the final power as to the law to the judge presiding at the trial of fact, subject only to pardon or commutation by the political branch of the government. Not long ago, a murder case was taken up three times to the Supreme Court of the United States after three verdicts of guilty in the court below ; but it became a precedent4 for charging juries, and it was itself decided upon grounds that were intelligible to those who take pains to understand our government. But the case of Mrs. Maybrick, although the English government5 has been firm in resisting frequent complaints, has nevertheless caused agitation to provide for proceedings, after verdict and sentence, that may rescue the law from the accidents of a presiding judge’s absence of mind, errors of expression, or essential mistakes.

There has been much discussion lately as to who should be prosecuted and the methods of prosecution. The attorneygeneral has judicial powers, and may prosecute or not, as he decides the evidence and the welfare of the state require. Police devote themselves often to work that convinces them of the guilt of some one against whom the evidence is weak from a legal point of view. How much consideration shall an attorneygeneral give to the wishes of the police or of persons who inform the police? Shall experimental cases be tried only on a corpus vile, a tramp or a known villain, or shall persons of fortunate standing in the social and business world be tried for homicide because the police have claims to professional support after detective work ?

There can be no general answer to fit such questions for practical use. That is why the attorney general has judicial powers intrusted to him. Some critics do not, until a trial, wake up to the fact that prosecuting officers have anxiously exercised their judicial functions before undertaking the tremendous labors of a prosecution. In the case of Dr. Eastman no motive was proved, but he had to be tried because the bullet found in the man he shot could not have been fired from the pistol he thought and said he shot him with, at a little distance, by letting the hammer slip accidentally. He admitted on the witness stand that he was mistaken, and that the bullet must have come from a pistol for which he and his friend were struggling after the first accidental shot. The prisoner was an honest man, whose word was of value ; but it had to be taken by a jury before the prosecuting officers could rest in the face of persons interested in the man who was killed. It was a tragedy with two sides. The prisoner had to suffer for the public good. The more public the trial, the more instructed were the people as to the rights of the people to a trial of any one for the public safety, and as to the rights of any one against the chief prosecuting officer of the state in the admission and rejection of evidence. But the point here is that the accused man himself had to be judged by judge and jury because, in the opinion of the attorneygeneral, it was a case requiring such judgment. The attorney-general said to the jury, “I regret that the duty of my office requires me to prosecute my brother student.” Both that trial and the event which caused it are awful illustrations of the impossibility of being sure of what we all would agree to be perfect justice, whether in court or in the outside world. Yet an innocent man triumphed over suspicion by telling the truth, and, as the world goes, the case served both truth and right within the limits of our law.

On the other hand, the recent Fosburgh case, unless we accept without criticism the discretion of the prosecution, does not seem to have served the cause of either truth or right, except so far as the officers of the law tried to do their duty, and as it was correct for the judge to direct a verdict for the defendant. A young lady was shot dead in her father’s house, in the middle of the night. The family said that it was done by a burglar. The police doubted that burglars would or could have left such tracks as were found. A pistol belonging to a brother of the deceased was missing. The bullet might have come from that. The brother was indicted and tried for manslaughter, on the theory that in some kind of family quarrel he fired the shot with some motive that was criminal, although he may not have wished to kill his sister. No evidence is reported that tended to sustain the indictment. It is said that the government relied upon witnesses who disappointed them. Was it due to the police to try that case ? Persons of experience who know the prosecuting officers say that the suggestion that they yielded to the influence of ambitious police is unfair, and that they acted upon honest suspicion, official duty, and the expectation of unearthing falsehood. But from the outside one cannot see any wisdom in bringing the case to trial.

Yet this case was made as public as any. Is this an evil of the newspapers ? Some of it is, and some of it is not. Since the arrest and indictment and trial of necessity were public, it was better that the whole matter should be published, and thus disposed of. When the trial was over, the defendant is reported to have issued to a newspaper a letter expressing his own indignation about the prosecution. From the rough-and-ready point of view, he got even with the police.

Sympathetic persons suggest pecuniary compensation in cases where, after the failure to convict an accused person, he is thought by the court to have been wronged without fault on his part. The allowance for counsel fees and witnesses now in the discretion of the court amounts to little. A trial may have ruined an innocent defendant’s fortune, reputation, and health. The suggestion is characteristic of the socialistic tendency of the time. Hitherto the books have been enthusiastic about the mere opportunity of getting acquitted by a fair trial. There is already a remedy for a malicious prosecution against any one who maliciously procured it. No compensation could be expected to be provided for by a legislature unless it also invented a new form of verdict, such as, Not guilty, with compensation. This might be a hard verdict to win, and might lengthen trials, but it would correspond in a measure to the modified verdict established a few years ago by Congress for federal courts, “Guilty, without capital punishment,” which was the verdict at the second trial of Bram. That met the growing opposition to capital punishment, and the consequent difficulty in filling juries, and in getting verdicts of guilty even when guilt is proved.

The general answer to the question, What is the use of such publicity ? is that much of it is of no use and does harm, but that much of it is of use even when it does harm, because most persons need to be watched in some things, and the evils of the watching have to be endured for the sake of the good. We cannot have public courts of justice, and a free press, and the prompt reports that help us to save ourselves and our friends from dangerous persons, without occasional sad libels and tragic injustice. They are the costly price of a knowledge of even a little of the actual wickedness that daily seeks to destroy civilization, as agony and death are the price of electric conveniences that make a short life fuller.

The raw material of civilization can never be excluded from it. The law laid down by the Supreme Court of the United States concerning the mining rights of millionaires is based upon the rules made in California by rough miners in their shirt sleeves, with pistols in their belts. The newspapers, with all their faults, are among the most constant aids to the vigilance which is the price of the liberty that is protected by the courts. Who believes that the police, the prosecuting officers, or the judges would enforce the laws and respect private persons as well as they do now, if the eye of the reporter and the pen of the editor were not at the daily service of every voter ? The occasional pettifogging of attorneys is a necessary evil, incidental to the conservative power by which the legal profession upholds and tests the law as it exists, and exercises a foresight gained from history and informed by present business. Yet sharp practice is kept in check by the fear that it will be reported.

In England, in the reign of James II., there was not a word in the Gazette about the trial and acquittal of the seven bishops who had dared to tell the king that he was not above the Constitution. It is better to tolerate the worst newspaper in the United States than to have a censorship of the press. We have to take some risks, and our people prefer the risks of freedom of speech. They who abuse it by foolish declarations lose much of what influence they have by the indifference or ridicule with which our people are accustomed to treat absurdities ; and those who publish criminal suggestions are more easily watched and caught in their earlier career than they would be if our government required them to be more secret. Indeed, the people of the United States do not know how to do without freedom of speech. The repressive policies of other governments, judged by their effects, are not alluring.

The more open and fearless way is the better way for trying to give to every human being his share of truth and right, as well as his just portion of punishment. We cannot escape suffering of some kind, and we are learning that no tests are too severe for the ages in their development of the highest types of human character. Until individual life shall not need to fear exposure, publicity will be the dreaded weapon of public order as well as of private revenge. And it is impossible to foretell when publicity will not need to be subject at least to the restrictions of our law.

It is consistent with these reflections to insist that, in this conflict of forces, newspapers are rightly subject to courts as distinguished from censors ; that the justice of the law is necessarily of a rough kind, which improves very gradually with the rest of our education; that the cost of legal justice affects its kind and degree ; that the increasing thoroughness of criminal trials tends toward an enlightened consideration for individuals ; and that the lawful publicity which is given to capital cases, while sometimes unjustly damaging innocent persons, strengthens the influence of our courts, and upon the whole does more good than harm.

Charles E. Grinnell.

“ Old Tyburn’s glory, England’s illustrious thief!
Duval the ladies’ joy ; Duval the ladies’ grief.”
From epitaph said to be in Covent Garden Church.
  1. Thomas J. Feeney, reporter; William H. Drury, of Waltham, Mass. ; Charles S. Barker, of Rochester, N. H.; and Lewis A. Barker, of Bangor, Me.
  2. Plymouth County. R. O. Harris, district attorney, for prosecution ; N. Washburn for defense.
  3. Allen v. United States, 164 U. S. 492.
  4. Compare the newspaper reports of expected pardon with the following letter, which Mr. Robert T. Lincoln forwarded to Mr. Blaine on 24 June, 1892 (U. S. Pub. Doc. No. 3428, 54, Cong.) : — (Inclosure in No. 703, Marquis of Salisbury to Mr. Lincoln.)
  5. FOREIGN OFFICE, June 21, 1892.
    SIR, — With reference to my note of the 1st inst. I have now the honor to inform you that the petition in favor of the release of the convict Florence Elizabeth Maybrick has received the fullest consideration by her Majesty’s Secretary of State for the Home Department.
  6. Taking the most lenient view which the facts proved in evidence and known to her Majesty’s Secretary of State admit of, the case of this convict was that of an adulteress attempting to poison her husband under the most cruel circumstances, while she pretended to be nursing him in his sickbed.
  7. The Secretary of State regrets that he has been unable to find any ground for recommending to the Queen any further act of clemency toward the prisoner.
  8. It may be satisfactory to the petitioners to learn that Mrs. Maybrick is reported by the authorities to be in fair health, and to have gained in weight since her admission to prison.
  9. I have, etc.