the question as to whether the judicial machinery had been run properly, whether any inadmissible evidence had been admitted, whether the jury had heard the cheers given to the prosecuting attorney by the crowd in the streets and so forth. And when finally the prisoner's lawyers were able to get the case before the most august tribunal in the world-the Supreme Court of the United States-that great Court forgot entirely the vital question of the guilt of the prisoner; the energy of its nine justices was expended on the question, should or should not the verdict of the jury be set aside because the counsel and judge had agreed that Frank should not be in court when the jury returned their verdict, and in accordance with this agreement he was in his cell in the jail at that time and received the news of it there instead of in court. And on this question, while the judges differed, a majority of them decided that it did not matter.

Here Justice received its second wound. The Supreme Court of the state learned that the trial judge was doubtful as to Frank's guilt, but it learned it in the wrong way. The trial judge expressed his doubt in the bill of exceptions, but failed to do so in his order, overruling the motion for a new trial. "Had he taken the latter mode of informing the Court of his doubt, the Supreme Court would certainly have granted a new trial. But since it was not put in that order under a technical rule of practice which is unbending in our Supreme Court, a new trial was denied, not because the doubt of the judge did not exist (for he certified to that himself in the bill of exceptions), but because he did not express that doubt in his written order rather than in the bill of exceptions.""

2 49 Am. Law Rev. 947.

Just think of this, O! shades of Bentham and Brougham, who more than half a century ago helped to wipe out these absurdities from the old English Procedure which, the work of churchmen in the middle ages, had lived unto the nineteenth century. Is there any other part of the civilized or uncivilized world where such things as Courts of Justice are known, that such a condition of things exists, outside of some of the American states? A man's life or liberty, the question of his guilt or innocence, depend not upon the evidence or upon the idea of justice, but upon whether or not somebody has put the necessary thing in the right document or in the wrong one. The people of Georgia, in establishing their Supreme Court, must have believed they were creating a high tribunal, where beyond the prejudice of particular localities, a convicted man would have justice administered in its highest form. Who made this limit to the court's jurisdiction? Did the people ever demand that the court should shut its eyes to what it could see and its ears to what it could hear? Or was it not the court itself which made this rule which denies justice unless it is asked in a particular form?

And the Supreme Court of the United States had not a word to say on the only question that either the prisoner or the people of the state cared a rap about, viz.: did Leo M. Frank murder Mary Phagan? Whether Frank was in the court-room when the verdict was returned had as little to do with the fairness of the trial or of his guilt, as would the question whether he wore a black or a grey coat or a red or a blue tie when the witnesses were examined and his counsel addressed the jury.3

3 In Continental practice the prisoner is excluded from the room when the jury announce their verdict. The editor inquired of a

When will our appellate judges recognize that their duty is to do justice, not simply to see that the judicial machine is run according to rule? When will our tribunals arrive at that very different point of view of the English and Continental Courts? Not so long as in American courts, Procedure is King; for while the claims of this tyrant are respected, it matters not what may become of Justice.

Frank now made his last appeal to the Governor of the state in whom is vested the ancient prerogative of the King-the power to pardon one unjustly convicted or to mitigate a punishment which he finds too severe. And the Governor of Georgia, after a patient and exhaustive examination of all the evidence, was of opinion that there was a reasonable doubt of his guilt and that the jury had made a grievous mistake in convicting him. And it will be difficult to find an unprejudiced reader of the evidence as set out in this volume who will not agree with him. Conley's story seems a pure fabrication. Frank could not have committed the crime and disposed of the body in the time alleged by the negro; it is utterly inconceivable that the notes found near the body could have been dictated by a man of Frank's education; the Saturday afternoon was spent by him in making up a complicated financial sheet requiring hours of time, and Conley admitted he was so drunk on that day that he did not know where he was or what he did. The GovParis judge why this was so, and he replied it was on humanitarian grounds, to spare the feelings of the prisoner. And whoever has watched a man on trial for his life in an American court room and has seen the awful strain the prisoner is under while the jury is filing into court and the judge is preparing to put the question to them as to what their verdict is, will appreciate the delicacy of the French point of view, which thinks it more kind to convey the result through his friends or lawyers in the quiet of the prison.

ernor, however, did not set Frank free. He sentenced him to imprisonment for life. But if Frank murdered Mary Phagan was there one extenuating reason why he should escape the gallows? the evidence shows none; his friends, his counsel, he himself never suggested one. If, as may be the case, the Governor's intention was to keep him in prison until the public excitement had gone down and he could be safely released, then the state of Georgia was pledged to protect him against the mob. And when it was not strong enough to do this, Justice received its final wound and lay stricken to death.

The causes of the "Boston Massacre" which led to the trial of the British Soldiers, Weems and seven others (p. 415), Captain Preston (p. 509), and Edward Manwaring and others (p. 511) are set out in the narrative (p. 415.)

The funeral solemnities of those who were killed by the fire of the soldiers were conducted with great pomp and splendor. Crispus Attucks, a mulatto, and James Caldwell, who were strangers in Boston, were borne from Faneuil Hall, Samuel Maverick, a youth of seventeen, from his mother's house in Union Street and Samuel Gray from his brother's in Royal Exchange Lane. The other, Patrick Carr, was still alive, although mortally wounded and died a few days afterwards. The four hearses formed a junction in King Street at the place where the deceased fell and thence an immense procession marched in columns of six deep through the main street to the central (Granary) burying ground where the four bodies were deposited in one tomb, amidst the solemn tolling of all the bells in Boston and the neighboring towns.

As might be expected, this tragedy wrought the whole people of Massachusetts, and above all, the inhabitants of Boston, to the highest pitch of rage and indignation. The populace breathed only vengeance. Even minds better instructed and of higher principles than the multitude, in the excitement of the moment could not endure the doctrine that it was possible for an armed soldiery to fire upon and kill unarmed citizens and commit a crime less than murder. Political animosity and natural antipathy to troops stationed in the metropolis sharpened this vindictive spirit. The friends of the government were either silent or only expressed regret and lamentation at the event. The friends of freedom were loud in their indignation and clamorous for that justice which declares that blood shall be the penalty of blood.

Meanwhile there had been several meetings of the people and a committee was appointed which proceeded to the examination of witnesses "in order to show to the world and especially to the friends of the colonies in England that there were just grounds for insisting upon the removal of the troops." A narrative was also given of the transaction which was adopted by the town and was widely distributed, differing materially from the facts as subsequently proved and calculated to increase the excitement. Under such circumstances the British soldiers were to be tried for their lives and serious fears were entertained, not only by their friends but by the candid and moderate of all parties, that they would not be dealt with by even-handed justice.

But among the friends of freedom there were men who viewed this matter in the calm and rational light of truth and justice. Anxious for the honor of the