dence he expects to prove the guilt of the prisoner. The prose cuting attorney then summons his witnesses one by one, and examines them about the facts of the case. As he finishes with each witness the defendant's attorney may cross-examine.

The questions that may be asked of the witnesses are limited by rules of evidence, so that no irrelevant matter may be brought in, and the witness may be confined to testimony about the facts with which he is personally acquainted. The purpose of these rules is to prevent the jury from being misled or prejudiced by facts that are not closely connected with the case. If either lawyer believes that the other is asking an improper question, he may object, and the judge then decides whether the question should be allowed or not. If the lawyer against whom the court rules is dissatisfied, he takes an "exception. "

After the prosecution completes the presentation of its side of the case, the attorney for the prisoner presents the other side in about the same manner. He first makes an opening statement to the jury, and then calls and examines his witnesses, one by one, the prosecuting attorney being given a chance to crossexamine as soon as each direct examination is finished. The prisoner is not questioned at any stage of the trial unless he wishes to go on the stand as a witness in his own behalf, and in that event, the prosecuting attorney may cross-examine him in the same way as all the other witnesses for the defence.

After the taking of testimony is ended, the prosecuting and defending counsel make speeches to the jury; and upon their completion, the judge delivers his charge. He sums up the evidence brought out by each side, and states to the jurors what is the law applying to the case before them. Thus, he tells them what must be shown in order to constitute the crime with which the defendant is charged, describes the different degrees of that crime (if the particular offence happens to be divisible into degrees), and states how much proof is necessary. The jury must feel convinced beyond a reasonable doubt that the defendant is guilty in order to convict; otherwise it must find a verdict of not guilty.

When the judge finishes his charge,1 the jurors retire to deliberate. They must, as a rule, arrive at a unanimous verdict, and 1 If either lawyer is dissatisfied with any part of the charge he again excepts."

often that takes many hours. If they are absolutely unable to agree, they are discharged, and the prisoner has to be tried again. When the jury comes to an agreement, it returns to the courtroom and the foreman announces its verdict guilty or not guilty. If the defendant is found not guilty, he is discharged at once. If he is convicted, the judge imposes sentence either immediately or at some future date.

The punishment for most crimes is imprisonment. For minor offences a fine is often imposed, and sometimes the sentence consists of a combination of both. The term of imprisonment varies from a short confinement in the county jail or penitentiary to imprisonment at hard labor in a state's prison for life. The law generally lays down minimum and maximum limits of punishment for the various offences, and the trial judge has full discretion in imposing any punishment within those limits. In some southern states convicts are compelled to work in the open air in chain-gangs. At times they have been turned over to private employers to work for wages paid to the state; but this system has given rise to great cruelty and is being abolished because it is revolting to an enlightened public opinion.

For good behavior the prisoner usually receives a substantial reduction in the term of his sentence, and it often happens that he is pardoned by the governor before his term ends, if there are extenuating circumstances warranting mercy. A new system. of punishment known as the "indeterminate sentence" has been introduced in some states in recent years. Under this method the judge imposes a minimum and maximum term, and whether the prisoner is released at the close of the minimum term or is kept in prison longer, possibly until the expiration of the maximum term, depends on his behavior and on the promise of reform that his conduct shows. If he is liberated before the close of the maximum term, he is generally kept on probation for a while and is obliged to report to the prison officials at stated intervals, or to special probation officers.

For murder the death penalty is inflicted in most states, and in a few commonwealths it is also imposed for some other crimes.

1 In a few states in the West a verdict by nine or ten out of the twelve jurors is allowed in some cases; Readings, p. 88.

2 For an excellent illustration, see Readings, p. 448; on the pardoning power, above, p. 498.

Execution is generally carried out by hanging, but in a small number of commonwealths electrocution has been substituted for hanging, as a more humane and less painful method of putting to death. There are a few states - Maine, Michigan, Wisconsin, Rhode Island, and Kansas-in which capital punishment has been entirely abolished. Opponents of the death penalty claim that the fear of death does not diminish the percentage of crimes, and that juries are reluctant to convict where they know that the penalty will be death, often convicting of a less degree so that the prisoner may be punished by imprisonment. Although cases in which innocent persons are, by a miscarriage of justice, put to death are exceedingly rare, still a few are on record, and a mistake may be made at any time on account of the circumstantial character of the evidence frequently admitted. Finally, the reformation of the offender, as well as the protection of society

not retaliation —is the end of enlightened punitive justice, and the death penalty is altogether inconsistent with such a humane notion.

When the prisoner has been found guilty and sentenced, his resources are not yet at an end. He may appeal to a higher tribunal if any mistakes have been made by the trial judge. Any alleged error in the admission or exclusion of evidence or any incorrect statement of the law applicable to the case made in the judge's charge, is ground for reversal. If the appeal is decided against the prisoner, he may, in some instances, carry the case still higher, until finally it is passed upon by the highest court. of the state or by the Supreme Court of the United States, if a federal question is involved. If he wins on the appeal, a new trial is usually granted, and the case is sent back for a rehearing to the court in which it was originally tried. If he loses his appeal, the defendant must acquiesce in the sentence, unless the governor can be persuaded to pardon him.

A great deal of criticism has been evoked against the liberality of the system of appeals in criminal as well as civil procedure and the consequent failure of justice. While it cannot be denied that verdicts are too frequently reversed for purely technical reasons, which could not have possibly injured the defendant, the evil is not as extensive as it is often supposed to be. Thus in New York County, during the five years from 1898 to 1902 inclusive, about 11,000 persons were convicted of felonies, of whom less

than nine in a thousand took an appeal; of these, less than a third were successful.1 But the cases that attract public notice because of their sensationalism are generally the ones in which delays incident to appeals occur. In a good many instances in which verdicts have been reversed, obvious injustice had been done to the appellant. This is particularly true where evidence offered in his defence has been wrongfully excluded by the trial judge, where the prosecution has failed to make out a prima facie case and show facts sufficient to constitute the offence, and where the trial judge has made a serious mistake in his charge to the jury. Nevertheless, in a considerable number of reversals, the errors are purely technical and do not involve at all principles of strict justice.

The remedy, however, does not consist in a narrow limitation of the system of appeals. If the prisoner has no absolute right to appeal, there will be cases of wrongs committed at the trial which will never be righted. But the appellate courts should adopt the practice of refusing to reverse a verdict if the errors complained of are not of such a nature as could have prejudiced the defendant in the eyes of the jury. Finally, a good many of the delays and technicalities of legal procedure will be avoided if at the trial the judge exercises a greater amount of control over the proceedings, as is done in England, and to a less extent in the federal courts.'

'Harvard Law Review, Vol. XVII.

2 Taft, Four Aspects of Civic Duty, p. 50.

CHAPTER XXVII

THE ORGANIZATION OF MUNICIPAL GOVERNMENT

MR. BRYCE, in his chapter on the working of American city governments, remarks that "there is no denying that the government of cities is the one conspicuous failure of the United States." If we accept this statement even without qualification, we must remember the special difficulties which are associated with municipal government in the United States. In the first place, our cities are of recent and rapid development, and are intimately involved with the remarkable and heedless advance of industry and commerce which accompanied the opening up of the country. When Washington was inaugurated, only about one-thirtieth of the population lived in cities of over 8000, and in a little more than a hundred years one-third of the inhabitants have become city dwellers.

It must be remembered, also, that a great portion of the city dwellers are collected from all the nationalities of the globe. The census of cities of 25,000 inhabitants and over, in 1900, showed that no less than 26 per cent were of foreign birth, to say nothing of those who were of immediate foreign descent. In New York City, the percentage of foreign-born was 37; in Chicago it was 34.6; in Lawrence, Massachusetts, 45.7; and in Woonsocket, Rhode Island, it reached 44.4. To this alien group must be added the negroes, who, while numerically insignificant in many northern cities, constitute a large portion of most southern cities — 56.5 per cent in Charleston, South Carolina. To the cities have been attracted also large numbers of the shrewd and ambitious inhabitants of the country districts largely in pursuit of economic gain.

1 In spite of these astounding figures it must also be noted that the percentage of aliens is really declining in our cities. See Goodnow, Municipal Government, pp. 25 ff.