This speech was delivered to the members of the grand jury at the beginning of the August term of court in 1895. The recent jail escape attempt by Cherokee Bill is mentioned prominently in the Judge's opening remarks.
When court opened Monday the court room was pretty well filled. But so far as this matter goes, there is always a good attendance on the opening day of this court. There are some who go through curiosity. Others who are idlers and who find the court room an interesting loafing place, and others still, by no means a small number, go to listen to the opening words of the court and his instructions to the grand jury.
Judge Parker questioned the grand jury carefully upon a number of points, particularly as to their scruples as to capital punishment. His charge was quite lengthy, and we regret that all are unable to publish but a synopsis of it. He said the endeavor of the court had been to let no guilty man escape, and no innocent man to be punished. The duties of jurors were to convict when the proof showed the party accused to be guilty, and to acquit when the proof showed the innocence of the accused party.
"In this country," said Judge Parker, "the laws are made and executed by the people. The will of the people is often defeated by those who are too far from the people, and the circumstances of the case. Although the law is placed in the hands of the people, it must be administered through the courts, and they must not resort to mob violence. One of the first steps in a prosecution is the presentment of an indictment by the grand jury. Until that is done, the court must keep its hands off, however guilty the criminal may be.
"The duties of this grand jury are much onerous than those of a federal grand jury usually are. Most federal courts only deal with cases directly affecting their government, but here we have nearly all the Indian Territory attached to this jurisdiction, and the laws of the United States are extended over it, to protect that country which for years has been cursed with criminal refugees. They committed some crime back at their homes, and fled from justice, taking refuge in the land of the Indian, where by their acts and their influence over the young men they have made a hot-bed of crime. The government in its treaties with the Indians, obligated itself to keep all these characters out, to remove them as fast as they moved in, but that promise has never been kept except insofar as the court having jurisdiction over that country has brought these criminals out to punish them. For years, this court stood alone in this work, but of late years the jurisdiction has been divided, and now other courts are exercising the same wholesome influence.
"Taken as a whole, the juries have done their duties fairly, honestly and impartially, though some grave mistakes have been made and the cause of justice scandalized. By finding a verdict of guilty where guilt exists, you are doing your duty, and also are teaching one of the greatest object lessons. Judging from the vast volume of crime, which has almost submerged us in a sea of blood, we have gone astray, and are almost at the mercy of the man of crime. The greatest question of the hour is, can we properly enforce the law? Crime is gaining strength, especially those crimes affecting human life. This is not caused entirely by the failure of the people to enforce the laws. There are other causes and sources. One of our leading newspapers, in commenting on the trial of Dr. Buchanan, printed an editorial under the head of 'The Laxity of the Law.' The article went on to say that technical pleas of cunning lawyers often defeated justice; that the appellate courts considered alleged flaws, and encouraged a system of practice of the law entirely in favor of the criminal and against the cause of right; that they never looked to the merits of the case, but seemed to be cooperating with the unscrupulous attorneys whose object was to circumvent the law.
In commenting upon this article Judge Parker said: "This is as true as the words of Holy Writ. However honest and fair the trial court may be, it is impossible to bring assassins to merited punishment when appellate courts allow these cases to linger along, and give these murderers the opportunity to take other innocent life in cold blood.
"I want you to return indictments in every case wherein it is probable that a murder has been committed, and first, I want you to take up the case of one Crawford Goldsby, alias Cherokee Bill, who has been regularly convicted in this court of a foul murder, but upon which the sentence was set aside by his appeal to the supreme court, which is now pending. He is accused of, while lawfully committed to jail, having secured a pistol and killed Larry Keating, one of the guards, as the result of a conspiracy on the part of the prisoners to escape from custody. I want you to especially give that case your attention, and if you think an indictment should be returned, do so speedily, that he may be put on trial to answer for his crime. There are a large number of murderers confined in the jail, and in the interests of good government, and humanity, you should act promptly. Something must be done to hold these characters in check.
"It is not the severity of punishment, but the certainty of it that checks crime nowadays. The criminal always figures on the chance of escape, and if you take that away entirely he stops being criminal. The old adage of the law, 'certainty of punishment brings security,' is as true to-day as it ever was."
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"Drunkenness is a crime, especially so in the Indian country with its mixed and to some extent reckless population. Congress has seen fit to make that a prohibition country, and it is a violation of the law to either take liquor into that country, or to sell or give it away there. Three fourths of the murders growing out of personal difficulties are due to the surreptitious sale of liquors there. Some man smuggles a few jugs into a neighborhood, then gets some of his strikers to get up a dance, so he may find a ready sale for his stuff. A drunken row springs up, and some one, often two or three, are killed. If you stop this nefarious traffic, you cut down largely this shedding of blood. It is highly important that these laws should be vigorously enforced.
"Much criticism has been indulged in regarding our jury system. The jury of the vicinage, is, to-day, the most complete humbug. It was all right when it was originated 500 years ago, but the jury system has been reversed since. Then the jury tried the case on their own knowledge of it; now that knowledge of it would disqualify you. The majority of criminals do not want a trial by a jury of the vicinage. They committed crimes at their former homes and fled because they did not have a good opinion of that law system. All they are entitled to is a fair trial by an impartial jury, and that I am sure they will get here."
As reported in the Fort Smith Elevator, August 9, 1895.