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is assured. Even in such a case, however, no serious difficulty can arise. The principal offender should be prosecuted and his victim given immunity upon testifying as required by law. Nor will the fact that one of these persons is a bribegiver and the other a bribe-taker be of any significance or assistance in solving the problem. In one case, the bribegiver may be the chief offender, and the bribe-taker one who, though fairly honest, has been tempted beyond his power of resistance. In another case, the bribe-taker may be the principal felon and the bribe-giver a business man of ordinary honesty who submitted to the exactions of those in power very much as the solitary, unarmed traveler submits to the demands of a highwayman. Questions such as these afford no legitimate place for dogmatism or theorizing. Each case must be considered and dealt with upon its own peculiar facts and circumstances.
Effective as the immunity law thus is as a weapon in the hands of those engaged in the prosecution of official misconduct, it is even more powerful as a preventive of this species of crime. Wherever a statute of this sort exists, every person who plans or contemplates the commission of bribery is charged with notice that as soon as he attempts to put his unlawful intention into execution he will have placed himself at the mercy of his accomplice, who may at any time safely turn about and expose him. This consideration alone justifies the enactment of immunity laws, and well illustrates in this modern field of jurisprudence the wisdom of the ancient maxim, "an ounce of prevention is worth a pound of cure.
Provided with an honest grand jury and armed with an immunity law, any community can, if it will, root out and expose political corruption so far as legal agencies are capable of uncovering and arraigning at the bar of justice crime of any sort. But the conviction and punishment of those arraigned is a far more difficult task.
This is so from the very nature of the case. In bribery, for example, the testimony of the accomplice or partner in
crime, when clear and convincing is always sufficient for indictment, but may prove inadequate at the trial. The defendant, whether guilty or innocent, can, if he will, oppose his oath to that of his accuser as to every material circumstance in the case and summon to his assistance from among his friends the full complement of witnesses who will swear to his former good character and unspotted reputation. It is true that sometimes there may be additional corroborative facts upon the side of the prosecution; but ordinarily the case will go to the jury upon the oath of the State's principal witness, in opposition to that of the accused. The situation of this witness, moreover, is not above criticism, nor can his credibility be placed beyond question. Of necessity he is a self-confessed criminal, whom, if his testimony be true, the immunity law alone keeps outside of prison bars. Then, too, there are always the presumption as to the defendant's innocence and the burden of proof resting upon the State to establish his guilt beyond a reasonable doubt. Under these circumstances is it strange that in many cases where good people are well satisfied there was guilt there should be acquittals at the close of jury trials!
In such cases, however, the mere fact of prosecution is not without significance. Though ultimately unsuccessful a public trial may have accomplished all or nearly all that a conviction could. Here the facts are laid bare beneath the eye of the whole community, and public opinion draws its inferences from such facts quite independently of the verdict of the twelve men who happened to sit as jurors in the case. And, after all, the breaking up of a vicious system and the elevation of the standard of official honesty, not the punishment of any man or set of men, are the important things.
In like manner great good may be accomplished and a real victory for honest government won, wherever official misconduct is even fairly, impartially and fearlessly charged with crime. In a country such as ours, public opinion is unquestionably a mighty force. Anything which goes to mold it by
arousing public attention and directing public thought to specific wrongs which threaten the State, is of the highest significance and value. The average person, moreover, who commits bribery, or any of the crimes which involve political corruption, suffers quite as much punishment as a conviction can impose before his case is even called for trial. Exposure and disgrace, the deserved estrangement of old time friends, the inevitable and almost unconscious suspicion of even his nearest kindred, his own remorse, heightened and intensified a hundredfold because of an awakened public consciencethese are the things, more than prison stripes, which strike deepest into the heart and most mortally wound the pride of the average man who has risen in business or official station sufficiently high to have an opportunity or a motive for the commission of this species of crime.
I speak now, of course, only of those who, though guilty in fact, cannot be or have not been convicted. That there are many such no well informed person can doubt. Manifestly the great danger here, however, is that innocent men may be unjustly accused under circumstances which make it very difficult, if not impossible, for them completely to vindicate themselves. In such cases great and even irreparable harm may be done. The only safeguard against this possibility is the exercise of caution and sound judgment, equal care at all times for the rights of the accused and the State, and the prosecution of no one for a merely technical offense in which there is not also moral turpitude.
In the work of prosecuting these quasi-political offenders serious obstacles, of course, are encountered, at every turn. From the beginning to the end, not only of each case, but of each campaign against official dishonesty, they line the road at almost every point.
First in order of treatment, though possibly not of importance, is incompetence, timidity and disloyalty on the part of prosecuting officers. An illustration of what I mean was recently furnished in this State in a case where a district attorney was removed from office by the governor because of
his refusal to prosecute indictments for bribery which had been returned by the grand jury of his county. Fortunately instances of this kind are rare. But when they occur the gravity of the situation needs no comment. If the man who must bear the chief burden of this work is not equipped or lacks relish for his task, little indeed can be expected in the way of accomplishment.
Next and more important among these obstacles are weak and perverse juries, both grand and petit. Some trial juries seem to be immune to evidence of crimes involving official dishonesty and refuse to convict no matter how overwhelming the proof of guilt may be. Not to be outdone, grand juries have likewise refused to indict, although abundant evidence to warrant such action was submitted to them. It is matter of current history that the law relating to the manner of selecting grand jurors in this State was recently changed because it was found, at least in some localities, that grand jurors selected in the old way by aldermen and supervisors would not do their duty.
Unfit jurors are attributable principally to two causes; lack of care, judgment, honesty and discrimination upon the part of those who make up the lists and the disinclination of good men, when selected, to serve. The latter cause is constantly operative. It is a familiar scene upon the first day of each term of court to see the strongest and most capable men upon the panel file up, one at a time, before the judge to present their reasons, good, bad and indifferent, why they should be excused from jury duty, and to witness the best material thus melt away under the kindly, good-natured, and obliging disposition of the judge.
The witnesses called by the prosecution in actions involving political corruption often sympathize more with the defense than with the State and their disposition whenever possible to suppress evidence, distort facts and suggest defensive matter is another obstacle to the successful prosecution of this class of cases. At the trial it is not unusual indeed to find the State's principal witness in league with the accused and
willing to tell the truth only so far as he may be compelled to do so under fear of prosecution for perjury.
Another obstacle to reform along the line here proposed is hostile public sentiment. All men are opposed to dishonesty in the abstract and are willing to applaud an assault upon it undertaken in another city, county or State. But it makes a world of difference whose ox is gored. Outside of St. Louis the whole country approved Mr. Folk's conduct as circuit attorney; but had he, upon the record thus universally applauded, sought renomination and re-election to that office, it is safe to say that the voters of St. Louis would have overwhelmingly and enthusiastically defeated him. The treatment his candidacy for governor received there shows this. Mr. Henry once told a Los Angeles audience that when he was engaged in prosecuting timber and land thieves in Oregon he came to visit his old home in San Francisco and found the whole city back of him in his work. But when he came to San Francisco and began his campaign there against graft, only a divided city was back of him. And it is so everywhere. Reform of ourselves or of our city is seldom either pleasant or popular. Besides, to assail political corruption, no matter where, is to throw down the gauntlet to the most powerful political and financial influences. It is only natural that these forces should resist the assault with all the power at their command and should even assume the offensive and in turn make war upon the agencies of the law engaged in the task of enforcing its penalties against them. Thus, venal newspapers will be enlisted in the contest and an undercurrent of hostile sentiment will be started, which, sooner or later, will manifest itself in mistrials, perverse verdicts, adverse rulings by trial judges and indefensible decisions by courts of last resort.
Notwithstanding all these difficulties, however, political corruption may be repressed by legal means. Recent history proves this. To doubt that in the future this history will be repeated is to doubt the permanency of free institutions and the capacity of a free people for self-government.