374 HARVARD LAW REVIEW. expressed itself in attacks on the court, the jury, the district attorney, and the criminal law in general. It is impossible within the limits of this note to review the evidence even briefly ; but of those who intelligently followed the course of the trial, few doubted the justice of the verdict. The jury in arriving at their decision performed a courageous act, and it is to be deplored that the conduct of certain of its members since their dismissal has not been equally deserving of commendation. Perhaps a suggestion as to the probable cause of the popular clamor will not be out of place. Ihe public mind does not work logically. The element of seeming unrelia- bility in the testimony of the government's chief witness, Charles Brown, furnished perhaps a reason for doubting the defendant's guilt as estab- lished by that particular evidence. It afforded no good grounds, how- ever, for entirely neglecting the circumstantial evidence which in the opinion of the majority of trained lawyers was amply sufficient to support the verdict. And yet this was the unconscious line of reasoning taken by the majority of those who denounced the finding of the jury. It indi- cates what is the root of the difficulty. People generally refuse to realize that proof beyond a reasonable doubt is precisely the same thing, whether the result is to be a fine, imprisonment, or death. Yet the fact is fairly obvious. The degree of punishment of a crime does not affect the logically probative force of the evidence, and a defendant is not innocent because his life is at stake. But the public thinks to compensate for its fallacious reasoning on the ground that it errs on the side of mercy. This is not so. The pitiable situation of a defendant on trial for a capital crime is not to be denied ; but on the score of mercy, the stifling sensa- tion which unpunished murder raises in the minds of perfectly innocent members of the community, especially in the weak and helpless, is en- titled to greater consideration. As has often been pointed out, exagger- ated sympathy with an accused is neither sensible nor kind ; it is not well considered and does not rest on a sound foundation ; it overlooks the fact that an important duty of the law is to punish the guilty. The Constitutionality of Minority Representation. — The ad- visability of the adoption of some scheme of minority representation is a constant theme of discussion among political reformers. The constitu- tional aspect of the question is often overlooked. That there may be grave doubts in some of our States whether a system providing for representa- tion of the minority can be formulated, which will not conflict with the provisions of the State Constitution relative to the electoral franchise, is shown by the opinion recently written by Judge John F. Dillon,^ to whom the question was referred by the committee for the preparation of a char- ter for Greater New York. The New York Constitution, Article II., Section I., provides that " every male citizen of the age of twenty-one years . . . shall be entitled to vote ... in the election district of which he shall at the time be a resident, and not elsewhere, for all officers that now are, or hereafter may be, elective by the people." This provision will of course be guarded by the courts with the utmost watchfulness. It was under the precisely similar section in the previous Constitution that the Court of Appeals, in Matter of Gage, 141 N. Y. it 2, held that 1 The opinion is printed in full in the Albany Law Journal for November 28, p. 346.
