pellate Courts, has been to spread among the criminal classes a deeprooted feeling that you, Honorable Sirs, are their friends and exist for their protection. They have learned that to be convicted by a jury and to be sentenced to be hanged are matters of small importance. They have seen scores of their pals sentenced with all the forms of the law to be hanged on a certain day, but the oldest among them cannot remember an instance of the sentence being carried out on that day. They are not learned in law phraseology, they know little about supersedeas or habeas corpus, writs of error and the like; but this they do know, and it is enough for them, that there is a higher and greater power than that which confronts them with their crimes and adjudges their punishment. They have seen that this power can always be depended on to stay the day of doom. It steps between them and the gallows even when they have reached its foot. Thus the murderer comes to have great faith in you, O Honorable Gentlemen of the Appellate Courts. The trial court he detests. There are the witnesses who saw him commit the foul deed; there are the relatives of his victim: the widow, whose protector can never return to her; the children calling in vain for their father. There is the Judge, before whose stern and searching eye he quails; the jury whose verdict he anticipates without hope. As he confronts the crowded court-room, he feels that there is not a soul there who does not think him guilty, and wish to see him punished. But he knows, O Honorable Sirs, that you will not see him; he is glad of that, and he rejoices, too, as he remembers that you will not even try whether he is guilty, as the jury are doing, for if you should he would despair. No; he understands that what you will do will be to ascertain whether the lawyers have not asked too many questions or said too many things in their speeches, or whether the Judge has not given a wrong definition to a word, or whether the Clerk has not made a mistake in moistening the official seal of the court with a sponge, instead of following the old and well established practice of licking it with his tongue. He hears the verdict of "guilty," and the sentence of the judge that he is to be hanged by the neck until he is dead, with indifference; he goes back to his cell feeling quite comfortable, and does not lose an hour's rest that night. His faith is justified, as in the course of four or five months a message comes from you: "Reversed and remanded for a new trial."

Wake up, O Honorable Sirs. Engaged in solving judicial puzzles put before you by acute and tricky lawyers, you are

forgetting society and the public weal. Choked with your own food, you are sitting speechless and inane. But arise, for in the background, I see Judge Lynch preparing to turn you all out of doors.

I know, O Honorable Sirs, that you are honest men; to the credit of our American judiciary, be it said that the hands of our judges are clean; we have had few Macclesfields, we have had no Bacons. I know too that on principle you desire to punish crime. But your training at the bar has made you ready to look at procedure and to miss the right of the case. As I cast my eyes over my congregation, I see a few of you - your hair is very white and your number is small-who I remember very well fought hard, very hard, against the reform of the procedure in civil cases. You declared that the old system was a scientific one, and if it did cost the suitor more money and more time, it was a beautiful contest - that old special pleading-which only a great man could successfully conduct. But common sense prevailed, and the men that are sorry it did are now I think nearly all in the church-yard. I want to ask you a question. If the people should abolish the technicalities which I have declared delay and obstruct criminal justice, would you help them to carry out the reform? I really believe most of you would. But for you, Honorable Gentlemen of the Appellate Court of Texas, I have but little hope. I can not forget that but a little while since, the people of your State adopted what they called the Common Sense Indictment Act, whose object was to make it lawful in criminal trials to call a spade a spade; that it should be enough to say in an indictment that A. murdered B., or C. robbed D.; and I have not forgotten that you said that this was unconstitutional and that indictments must still be long enough and intricate enough to suit the criminals and the criminal lawyers.

What do I hear some one say? That the juries often acquit guilty men, and the odium of this should not be laid at your doors. I have no wish, O Honorable Sirs, to be unfair, nor to charge you with more than is your due. But go to the prosecuting attorneys throughout the land and ask them whether the jury system is the cause of the failure of the law to punish crime. They would, I think, say no. They are not afraid to trust the jury. It is the hair-splitting points in the Supreme Courts that they fear. Why, Gentlemen of the Appellate Courts, the most notorious murderer this city ever had was convicted by a jury three times, and given a new trial on a technicality twice, and released on a technicality the

third time. The last criminal hanged in this city was thrice found guilty by twelve men. No, Honorable Sirs, the jury system is not a failure; but on the contrary the only hope of thwarting the efforts of you, O Honorable Sirs, to free criminals, is in the pertinacity of juries in continuing to convict them. But often, O very often, you wear them out.

I am not delivering this sermon for the first time. I have preached it to the people more than once. They have heeded it little; it takes riot and bloodshed to stir them, as we found in Cincinnati the other day. I see on the outskirts of my congregation to-day men who are neither lawyers nor judges, but who are only members of that great society, the people of the United States. To them I would say a few words. The remedy is very simple, much simpler than burning court-houses, or even organizing vigilance committees. The remedy is but to return to the old common law the law of England to-day, which gives each man but one trial and makes the issue the question of guilt or innocence, not machinery and procedure. Let no conviction by a jury be allowed to be set aside by another court, unless it was wrong on its merits or unless the prisoner was prevented from making his defense. After a case has been heard once, let that be the end of it if there are grounds for mercy, present them to the Governor.

Finally, O Honorable Gentlemen of the Appellate Courts, I need hardly say that the cause of the failure of law is not in the law itself. It is written on the statute book, as you well know, that the murderer shall be hanged. Across the ocean, in that land whence our criminal law was brought, justice is sure and punishment is swift. Yet almost the same acts are crimes there that are crimes here, and the same penalties are provided in both countries. The difference is only in the administration of that common law; and because there it is justice and here machinery which is the primary object of the appellate courts comes the reason that that law which in Great Britain is an object of reverence and regard, the protection of the weak, the foil against the strong, the hope of the innocent and the terror of the guilty, is in the United States the shield of the criminal and the despair of the defenseless - a hissing, a by-word, and a reproach. And for this reason - because the failure of the criminal law has been brought about by these methods the most cultured and widely circulated magazine in this country is forced to say that "the failure of criminal justice which

makes room for mobs and lynching is a greater disgrace than even the savagery of the mobs."

Honorable Gentlemen of the Appellate Courts, my sermon is

ended.

THE END

.OF

MY

ASSIZE SERMON.

CHAPTER IV.

CRIMES AGAINST THE PERSONS OF INDIVIDUALS.

ABDUCTION -- “PURPOSE OF PROSTITUTION.”

COMMONWEALTH v. COOK.

[12 Metc. 93.]

A statute of Massachusetts provided that any person "who shall entice or take away any unmarried woman of a chaste life and conversation from her father's house or wherever else she may be found, for the purpose of prostitution," should be punished. Emily Forrest, who was seventeen years of age and unmarried, lived with her father in a Massachusetts town. She became acquainted with John Cook, who one day induced her to elope with him promising to marry her. Cook, after taking her to Philadelphia and living with her at a hotel there for a week, deserted her and she was obliged to go back to her parents. Cook was arrested and convicted under this statute.

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But on appeal the Supreme Court said that this was wrong and he was released. "The court are of opinion," quoth the judge, " that the offense made punishable by this statute is something beyond that of merely procuring a female to leave her father's house for the