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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

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than nine in a thousand took an appeal; of these, less than a third were successful. 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.
? Taft, Four Aspects of Civic Duty, p. 50.

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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.

Thus our cities are really vast conglomerations, composed of peoples of every nationality, and of the keenest and most enterprising natives; their populations are constantly shifting, besides being augmented by the inflow of foreigners. They are largely without civic traditions; their governments offer unparalleled opportunities for spoils and private gain to the politicians and sharp hunters of franchises and special privileges; and it is small wonder, therefore, that up to the present time the problem of American municipal government has not been solved to the satisfaction of any one.

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The City and the State Before taking up the study of the structure of municipal government in the United States, it is necessary to consider the position of the city as a local unit in the government of the state. The American city, in all except a very few commonwealths,' is largely subject to the state legislature, which creates its charter in the first place, establishes its form of government, fixes its powers, and from time to time imposes new institutions on top of those created under the charter. Thus the city lies completely at the mercy of the legislature, save where protected by constitutional provisions, and thus municipal affairs are drawn inevitably into the current of state politics. This situation has raised the vexatious question of municipal "home rule." 2

It is urged by the champions of municipal home rule— practical autonomy for each city — that the state legislature is unfitted to exercise control over many questions which affect only urban dwellers because it does not have the requisite time to look into the details of city government or the requisite knowledge of the problems of such government, and does not feel the proper responsibility to urban constituencies. Owing to the constitutional discrimination against cities in favor of the rural districts," the representatives of rural minorities are able to impose upon the cities laws and institutions wholly unsuited to urban conditions. In the next place, it is contended by the advocates of home rule that there are a number of purely city problems which cannot have any considerable interest for the people of the state at large. They say, for example, that the paving and lighting of the streets, the provision of means of transportation, the establishment of waterworks, the maintenance of markets, and many other similar matters, should be left entirely to the determination of the municipal voters.

1 Below, p. 583.

* See Goodnow, Municipal Home Rule, and Deming, The Government of American Cities.

3 Above, p. 520.

To these contentions the reply is made that there are few, if any, purely municipal functions which have no general interest for the state at large. If the city wishes to establish waterworks, it must go sometimes, as New York City has gone, a hundred miles or more into the country, and must, therefore, secure watersheds by a state concession. With the growth of the means of rapid communication, our city populations have spread far beyond the boundaries of municipalities, and the system of municipal transportation accordingly covers far more than the areas under city government. A notable example of this is New York City, which is really the urban centre for a vast area extending fifty miles or more in every direction. Owing to the large number of voters in the municipalities, the integrity of the whole state election may depend upon the effectiveness with which the municipal police uphold the election laws and secure an honest count. Finally, the tenements, industries, health, and progress of each city are inextricably woven with larger state and even national problems of the land, taxation, natural resources, labor legislalation, and social control. Speaking generally, therefore, the statė at large has a fundamental interest in the health and wellbeing of the city dwellers, and accordingly there is hardly a problem of municipal government that is not vitally connected with the larger problems of state government.

Indeed, Professor Goodnow has shown, by a survey of the historical development of cities, that the whole tendency of modern times is away from that autonomy enjoyed by cities in the Middle Ages. He points out that matters which were once of purely local interest have now become general; that in modern life commerce and industry have become state concerns; and that it is impossible to determine arbitrarily the point at which state interest ends and municipal interest begins. He cites the example of Massachusetts, where the competition of many cities for sources

Readings, p. 509.

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