thing, from the start of the trial to its close. He must deal out abstract rules of law, and leave the jury to their own devices, with such blind guidance in endeavoring to apply that law to the facts. If he sees them swayed by misleading eloquence, he must not set them in the path of reason for justice's sake. He is a pilot who must not touch the wheel. The vigorous, commanding figure of the English judge is by law excluded from the great majority of our criminal courts. For example, the summary of facts in the charge which Justice Bigham gave a few years ago to an English jury in the sensational case of Whittaker Wright, the swindling promoter, would have meant an inevitable reversal and new trial for "error" in any lynch law state in this country.

The critics whom conditions of this kind have aroused are not solely among the laity. The demand for reform comes from an increasing number of law experts, who see in the criminal law itself the great wrong reason for the growth of American lawlessness. "Respect for the constitution is one thing, and respect for substantial fairness of procedure is commendable; but the exaltation of technicalities merely because they are raised on behalf of an accused person is a different and very reprehensible thing. There seems to be a constant neglect of the pitiful cause of the injured victim and the solid claims of law and order. All the sentiment is thrown to weight the scales for the criminal, — that is, not for the mere accused who may be assumed innocent, but for the man who upon the record plainly appears to be the villain the jury have pronounced him to be."

This balancing the scales for the criminal, which Professor Wigmore deplores in the caustic sentences just quoted, is also appreciated by the criminal classes. A negro arrested for a murder in the Indian Territory told his captor very coolly that "there was a man shot in Oswego, and nothing was done about it." This quotation is from the record of the United States Supreme Court, to which this ne

gro's case had to be appealed three times before his conviction was affirmed, showing that the murderer's confidence in the law was at least partially justified.

The jurist who dissented from each of the reversals of this negro's conviction for murder, who protested vainly against the reversals of the conviction of the Cherokee Strip murderer, by which that murderer finally escaped the gallows, believes in the abolition of the right of appeal in criminal cases. This is the English system. But when Judge Brewer announced this as his remedy for the intolerable condition of our criminal law some years ago, it found little favor. It did not impress our people as the American remedy for what is an American disease. The right of appeal is an integral part of the American ideal of justice. We look askance at the English system, under which the innocent Becker was twice convicted and punished for two separate crimes, neither of which he committed. We hesitate to adopt in America a system under which such injustice is possible. The right of appeal has legitimate uses. Without that right, Caleb Powers in Kentucky would have been hanged four years ago.

Our criminal law is essentially American, and not English. We must not tear the fabric in removing the spots. We must not in despair seize a desperate remedy.

With all its defects American criminal law represents in its spirit, as does perhaps no other branch of our law, the great, original American ideal of individual liberty, the rights of the individual as against the state, on which our government is founded. When our forefathers first began American government, they adopted the English common law covering civil cases, but they did not adopt to the same extent English criminal law. When we declared our independence and began the work of founding a government of our own, England was living under a criminal law in which the state was everything and the individual nothing, and under which the

liberty of the press was a theory and a name. It was a system under which one hundred and sixty crimes were punishable by death; under which a man on trial for his life on any charge except treason could not have counsel to address the jury in his behalf, could not testify for himself, or have his witnesses sworn, could not subpoena witnesses for his defense; under which the jury could be punished if they brought in a false verdict against the crown, but not if that verdict was against the miserable prisoner in the dock. We refused to adopt the barbarous and bloody legal shambles of that criminal law. We reacted against it. We established a system by which the individual was surrounded by mighty bulwarks of legal protection against any possibility of wrong or oppression from the state. We created a criminal law the most humane in the world; but it had and has the defect, of its virtues. Instead of a system which over-protected the state, we erected one which overprotects the individual.

While we did not adopt the barbarous penal statutes of the old country, we did adopt a mass of technical rules of law which were invented by humane English judges to avoid the necessity of imposing barbarous punishments. We had not adopted the barbarous punishments, and we should not have adopted the humane technicalities which those punishments alone excused or justified. The present trouble in our criminal law lies not only in what we have created, but largely in what we have thus adopted. The humanity which, by those technicalities, made justice in spite of law a century ago in England, makes law in spite of justice in America to-day. The vermiform appendix of old English law must be cut away.

There are two reasons why criminal law reform is a pressing problem to-day. One is the repression by that reform of lynch law. The other is not less important. We need that reform because the social condition of our day imperatively demands a substantial increase in the

scope and power of the criminal law, a system strong enough to meet the new and increasing requirements of our civilization for corrective and repressive criminal law.

A system too complicated to deal out certain justice to common offenders, ignorant and brutal, poor in purse and influence, can never adequately deal with our new class of big business criminals, with the men who get rich by fraud, the corporation inflaters and wreckers, the faithless trustees and grafting directors, the exploiters of municipalities, the magnates who give bribes and the bosses who take them, the trust operators who sin against honesty in business, who break the law against monopolies, who give and take forbidden rebates. How can predatory wealth, powerful, influential, often intrenched in office, be punished by a system which creaks, groans, and often breaks down, in bringing a border ruffian to justice?

President Roosevelt is not alone in his disgust at his inability to get at what he aptly described on his recent Southern trip as his "own particular scoundrels," the thieves in federal officialdom. His experience is not an unusual one. It represents the rule rather than the exception. The frightful disclosures of the corruption of the Police Department in New York made by the Lexow investigation are not yet forgotten, nor the almost complete absence of convictions obtained from the criminal courts of those whose blackmail operations filled hundreds of the sickening pages of that committee's testimony. The more recent experience of Mr. Folk is worth noting. He convicted the St. Louis boodlers, Faulkner, Lehman, Schneller, and big "Ed" Butler, the boss of St. Louis, for bribery, and one of them for perjury. These cases made a sensation all over the country. A great city was being cleaned. The big boodlers were being brought to justice, -civic righteousness was triumphing, the newspapers told us from one end of the land to the other.

Does the country know that all these convictions were subsequently reversed? Does it know that the decision that reversed the conviction of Butler himself ordered his discharge from the custody of the law on so narrow a construction of the statute against bribery on which he was convicted that, if it is followed, bribery is as safe in St. Louis as directing an insurance company in New York?

Space will not permit a discussion of those cases separately. One brief citation must suffice to indicate the spirit in which the highest court of Missouri met its responsibility when men guilty of the highest crimes against the very existence of the state were brought to its bar.

This is from Faulkner's case:"This record contains so much uncontradicted evidence of venality that it is little wonder that decent people of all classes are appalled at its extent. The sole consideration of this court has been to determine whether the defendant was convicted in compliance with the laws of the state. If guilty the defendant should be punished, but it is the high and solemn duty of this court, from which it shall not shrink, to require and exact that, however guilty he may be, he shall be punished only after having been accorded every right and guarantee which the organic law of the state secures to him."

The court then reverses the conviction for bribery of a man clearly found guilty on a record "reeking with venality," for two minor errors in the rules of evidence, and a quibble about a "variance" between the indictment and an instruction!

As I write, the afternoon paper at my elbow contains a notice of the third indictment of Senator Burton of Kansas. The public will remember the charges made against him two years ago as a part of the post-office scandal. He was tried and convicted in 1903 for taking a socalled retainer of $500 a month while senator, for using his influence with the Post-Office Department in favor of a concern called the "Rialto Grain and Securities Company," which feared that

the Post-Office Department would issue a fraud order against it. Burton's conviction was reversed on appeal because of a "variance" between the indictment and the proof as to where he got this money. The indictment said he got it in Washington, and the proof showed that he got it in St. Louis. After this reversal, a new indictment was found against him in St. Louis in March, 1905. Thereupon Burton's lawyer successfully raised technical objections against it, and it was "quashed." The Grand Jury has now been hastily called together, and a new indictment found, and the newspaper says that if this latest indictment is found defective, Burton will escape trial altogether, as, through the lapse of time, the statute of limitations will prevent a new indictment being found against him.

It is this spirit in the courts which makes for lawlessness among the people, gives confidence to the criminal, encouraging him to continue in his career.

In most American states, the person accused of crime has thrown around him by law not only extraordinary protections against injustice, but also opportunities of escape more numerous than exist in any other jurisprudence in the world. Consider a few of them. When the accused person is arrested, he is brought before a magistrate, who examines his accusers and hears their evidence to see whether there are reasonable grounds for believing that a crime has been committed, and by him. If the magistrate thinks that this evidence is insufficient to warrant such a belief, the prisoner goes free. If he thinks it sufficient, the case goes to a grand jury. There again the witnesses are heard, their testimony scrutinized and weighed. If the grand jury finds the evidence insufficient, it refuses to indict, and the prisoner goes free. If it indicts him, the district attorney or prosecuting official next scrutinizes and studies this evidence of the crime charged. If he thinks it is not sufficient to secure a conviction, he recommends that the indictment be dismissed,

and the prisoner goes free. If he thinks it sufficient, and the indictment is brought to trial, the lawyer for the accused may induce the court, after hearing the evidence, to dismiss the charge, and the prisoner goes free. If the judge does not dismiss the indictment, or direct the jury to acquit the prisoner, the jury deliberates on the evidence, and if it finds for the accused, he goes free. If it finds against him, the prisoner has one and sometimes two or three successive appeals which he may take to a higher court. At what a disadvantage does organized society struggle for justice to obtain the punishment of the guilty! In every criminal law suit, on one side is a living, visible, concrete personality, the man or woman accused of crime. On the other is nothing but an invisible abstraction, the ideal of justice. It has no voice; if wronged or outraged, it has no appeal, for under the American system the state, the people, cannot appeal from the verdict of acquittal, and with that verdict the prisoner must go free. When a jury, led away by the eloquence of a gifted lawyer, or by mawkish sentiment, brings in a verdict which acquits a criminal of a clearly proven crime, the ideal of justice, wronged by that verdict, suffers. But how few are those who see and feel that wrong, in comparison with those who daily plead for unmerited freedom for wrong-doers who have sinned against the law! Against what odds what great difficulties overcome does organized society in our country to-day win its triumphs in our criminal courts! As we study its struggles for vindication by law, the ideal of justice which punishes wrong, which protects by that punishment the rights of the innocent, seems at times not only an abstraction, but a friendless abstraction. When the laws of trade prove themselves weak or inefficient, the commercial world, directly touched and interested, demands and obtains their correction. Its associations plead for statutory amendments to correct and strengthen the commercial

code. But among the hundreds of associations organized wholly or in part for the enactment of more efficient laws, where is the association whose special purpose is to make society stronger to punish the guilty, to vindicate the majesty of justice by criminal law?

It is because such associations do not exist, because this great question of criminal law reform has no active organization behind it and depends for its success on the occasional efforts of associations of lawyers, that a public discussion of the necessity of that reform is needed. It may be said that this subject is a dull one, and that the problems which this reform presents are expert questions for the jurist, the bar associations, and through them the legislatures. To a certain point this is, of course, true, but there is need that these bodies of experts and the legislatures should feel upon them the pressure of an enlightened popular demand, or this reform so much needed will be slow. It is not a matter for experts alone to observe that of all the great civilized countries of the world, America is the one in which crime increases, while it diminishes in the others. It is not for the law experts alone to note that four times as many murders were committed in our country last year as were committed here twenty years ago, and that other felonies tend to increase in like proportion.

The subject which this essay has considered is in this sense a great public question, on which an enlightened, earnest, widespread public sentiment cannot too soon be aroused. When that public opinion has been so aroused, and its just demand has been felt, then, and not till then, will be done the work of restoring strength to our criminal law, — of giving it certainty and speed to equal its justice, — then, and not till then, will we be cleansed of the shame of lynch law, and become once more a law-abiding people, under a law which protects the innocent and punishes the guilty.

THERE are two ways of getting outdoor privacy at home. If your house is placed on a hillside, you may build a retaining wall, and so provide yourself with a terrace which lifts you above the surrounding country, and which, if well planted, affords charming vistas, breezes, sunlight, and shade, and a privacy that only the skies can give; but such roofless outdoor rooms will be few, compared with those obtained by building a wall or planting a hedge on the level ground.

I suppose there are quite as many persons occupying houses to-day who want to add gardens, as there are of those about to build who can place their houses with a view to the garden; and such places, often very dear to the occupants, may be so treated as to include something very delightful for an outdoor room.

The mere mention of a wall disturbs

the equilibrium of many Americans; one or two actual walls have stimulated the pen to action, and fears of the "revival of feudalism" have appeared to warn us that such treatment of our grounds would place us in a most precarious condition; but there is the hedge, and if the difference between mineral and vegetable matter will produce such a calamity as “feudalism," let us by all means keep to the vegetable, and have the hedge. If your hedge is properly planted, with the trees not more than one foot apart, your boundary will, in time, be almost as protecting as a wall. The evergreen is preferable, for then you may have a winter garden. Nothing can exceed in beauty the deep, green hemlock in spring; there appears, almost before you are aware what beauty nature holds in store for you, a dainty pale green spring gown for your hemlock;