PREFACE TO VOLUME TEN

Though the trial of Edward D. Worrell (p. 1) is full of striking and interesting features, it is the great speeches to the jury, of Wright and Bay that entitles it to over 150 pages of this volume. And this suggests the question, how comes it that the speeches to the jury in great criminal trials are no longer given space in the columns of our daily newspapers or preserved to the public in some permanent form as soon as delivered? When Rufus Choate or Daniel Webster spoke in Massachusetts or Prentiss or Marshall in Kentucky or Wright in Missouri or Sampson or Brady in New York, they spoke not only to the crowd in the courtroom but to the American public. Their orations appeared almost verbatim in the press and were later reported in pamphlet form and were as eagerly purchased in the book-stores as the best selling works of fiction are today. When, for example, Daniel Webster made his great speech for the Commonwealth on the trial of the Knapps for murder in the little town of Salem (see 7 Am. St. Tr.), not only did it appear in full in the local papers, but it was reported in book form in Massachusetts and in New York by at least half a dozen different publishers. And this continued to be the practice until about the close of the civil war. It still exists in England; a speech to the jury by a leader of the bar in an important criminal trial will appear the next day in the newspapers almost word for word. What is the reason for this neglect by our press of the oratory of our bar? Is it that commercialism has killed eloquence and that it has become extinct like the dodo? that our modern advocate has

V

lost that gift of public speaking in the court-room
which so attracted the public a generation ago? It
might be worth while for some student in our newly-
founded schools of journalism to make a study of this
question and to give us the reason why the oratory of
the court-room is today practically ignored by the
press of the United States.

When John Hodges (p. 163) was indicted for trea-
son in the year 1815, he found that in the opinion of the
presiding judge, Mr. Justice Duvall, of the Supreme
Court of the United States, "Giving aid and comfort
to the enemy" was a very comprehensive phrase.
But the jury understood that he was no traitor and
fortunately the jury had the last word.

The last act of the case of Leo M. Frank (p. 182)
was the final scene in a Tragedy of Errors in which
Justice was the real victim. The murder of a young
factory girl caused a great sensation in the community
and the people and newspapers jumped to the conclu-
sion that Frank-a northern Jew and college graduate
and the last person who had seen her alive-was the
murderer and demanded that he should be hanged.
But Frank had his friends, too, and soon what looked
like an organized campaign in his behalf, was started
in the Eastern States and kept up with unceasing
vigor after his conviction and while his case was pend-
ing before the Appellate Courts and the Governor of
Georgia. People thousands of miles away wrote let-
ters to the newspapers and signed petitions in which
they maintained that Frank was not guilty-men and
women who had not seen or heard a single witness and
who had nothing but hearsay on which to found their
opinions. Very naturally the people of Georgia re-
sented this interference with their courts and this out-

side meddling served only to increase their determination that Frank should suffer death.

Here Justice received its first wound. Every civilized nation has determined that the guilt or innocence of one accused of crime and the punishment to be meted out to the criminal shall be decided by reg ular Courts of Justice presided over by trained jurists, assisted in most of them by twelve laymen-called a jury. This is the best that civilization has been able so far to evolve. These tribunals may sometimes err whereby innocent men are sent to the gallows and guilty men are set free, for no human system is perfect. But the agitation in the Frank case was a protest against this historical and well-ordered method. It was a clamor that questions of guilt or innocence should be decided not by the established tribunals but by popular vote. It was a demand that those tribunals should solve the problem, not according to the opinions of its judges founded upon the evidence, but upon the views of the multitude, founded upon sentiment and rhetoric. It is perfectly clear that this is a denial and negation of all law and of all authority. It is simply Lynch Law, exaggerated and popularized. We cannot try issues of this kind in this way; we cannot decide the guilt or innocence of an accused man or woman by a show of hands in a town meeting or by counting noses on the street. And the people of no state in the American Union are going to acquiesce in this kind of proceeding. No citizen of one state is willing to submit to the inhabitants of the other states the question whether the decisions of its own tribunals are right or wrong and should or should not be enforced. And this is what happened in Georgia.

From the citizens of Atlanta, indignant at the

crime and anxious to punish the criminal, twelve men were chosen to try the issue of Frank's guilt. They were ordinary men, shop-keepers and clerks, without any special education to fit them to follow logically the arguments pro and con and with no training at all in weighing evidence. After listening to the witnesses and the speeches of counsel for many days, and aware every moment, from the conduct of the audience in the court-room, that local opinion was practically unanimous against Frank, the jury found him guilty and the judge sentenced him to be hanged. Then the condemned man appealed to the higher courts where he contended that he was innocent and asked that those who sat in the high tribunals-because they were presumed to have all those qualifications which the twelve jurors lacked-should examine the evidence and pass upon the question of his guilt or innocence of the crime with which he was charged. But to this appeal judge after judge turned a deaf ear. The trial judge told him that he had listened to all the witnesses for many days, but was not convinced that he was guilty, but the jury had found him guilty and that was enough for him.1

The six judges of the State Supreme Court listened twice to long arguments and wrote several very learned judgments, but they were devoted solely to

1 "Even after the jury had brought in its verdict, Judge L. S. Roan, the presiding judge, was not convinced of the defendant's guilt. In denying the motion for a new trial he made this remarkable statement: 'I have given this question long consideration. It has given me more concern than any other case I was ever in and I want to say here, that, although I heard the evidence and the arguments during these thirty days, I do not know this morning whether Leo Frank is innocent or guilty. But I was not the one to be convinced. The jury was convinced and I must approve the verdict and overrule the motion."" Interview with Herbert Haas, one of the prisoner's counsel in the New York Times, March 2, 1914.