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.**