power which they ought to retain and which they had at common law and to exalt the jury's power beyond anything which is wise or prudent, and to extend to the defendant the opportunity to reject all good men from the jury and to select the weak, the unin telligent and the irresponsible. The perversions of justice in my own city of Cincinnati and state of Ohio in 1884, led to the appointment of a committee of the bar to visit the legislature to see whether it was not possible to rid our criminal code of procedure of those features which placed the prosecution at great disadvantage in the trial of capital cases. The indignation of the public had led to a mob and to the burning of our court house, and it was thought that the time had come for some more active members of the community to organize and see if reform could not be effected. I had the honor of being one of those who waited upon the judiciary committee of the Ohio legislature and preferred the request, that the twenty-three challenges allowed to the defendant be reduced to twelve, and that the state be allowed a similar number, but we found that there were upon that committee lawyers, a substantial part of whose practice consisted in acting as counsel for the defendants in important criminal trials. When I protested that twenty-three challenges was an outrageous number, the chairman of the committee leaned back with the remark, "Many a time have I seen when I would have given all my fee to have had twenty-four challenges for the defendant." I cite this instance because I believe that the unjust disposition to curtail the power of judges, to exalt the power of the jury, to subject them to influences that ought to control them, and to give opportunity to the defendant's counsel to manipulate the selection of juries by the use of peremptory challenges is due, more or less, to the intervention of some members of the bar whose practice is more or less beneficially affected, as they conceive, by these obstacles to the course of justice.

The third reason for the distinction between the enforcement of law in England and in this country is to be found in the right of appeal which is given in every criminal case and in many cases the appeal is to two courts. The code of evidence with its complicated rules, the technical statutory limitations supposed to be in favor of the defendant, and all used as a trap to catch the trial court in some error, however technical, upon which in appellate proceedings a reversal of the judgment of the court below may be asked. The rule which obtains throughout this country is that any error, how ver small, which it is impos

sible to show affirmatively did not prejudice the defendant must lead to reversal of the judgment. The same disposition on the part of the courts to think that every provision of every rule of law in favor of the defendant is one to be strictly enforced, and even widened in its effect in the interest of the liberty of the citizen, has led courts of appeal to a degree of refinement in upholding technicalities in favor of defendants, and in reversing convictions that render one who has had practical knowledge of the trial of criminal cases most impatient.

In a case carried on error to the Supreme Court of the United States, the point was raised for the first time in the Supreme Court that the record did not show an arraignment of the defendant and a plea of not guilty, and on this ground the court, three judges dissenting, reversed the case. There was not a well founded doubt in that case that the defendant was arraigned and pleaded not guilty. The perusal of the record raised this as a presumption of fact and the judgment was reversed although there was not a pretense that the defendant had suffered any injury by reason of the alleged defect of the character in question. When a court of highest authority in this country thus interposes a bare technicality between a defendant and his just conviction, it is not too much to charge some of the laxity in our administration of the criminal law to a proneness on the part of courts of last resort to find error and to reverse judgments of conviction.

And now what has been the result in this country? Criminal statistics are exceedingly difficult to obtain. The number of homicides one can note from the daily newspapers, the number of lynchings and the number of executions, but the number of indictments, trials, convictions, acquittals or miss-trials it is hard to find. Since 1885 in the United States there have been 131,951 murders and homicides, and there have been 2,286 executions. In 1885 the number of murders was 1,808. In 1904 it had increased to 8,482. The number of executions in 1885 was 108. In 1904 it was 116. This startling increase in the number of murders and homicides as compared with the number of execntions tells the story. As murder is on the increase, so are all offenses of the felony class, and there can be no doubt that they will continue to increase unless the criminal laws are enforced with more certainty, more uniformity, mere severity than they

now are.

Certainly the result of the American criminal procedure as

distinguished from the English criminal procedure does not encourage us to think that it would be wise to introduce in the Philippine Islands a system of jury trial which now prevails in most of the states, especially under the restrictions of the power of the court which we find as we go west in this country. The cure for this growing cancer in the body politic is more practical and more available than most public evils because it may be found in statutory amendments. If laws could be passed either abolishing the right of criminal appeal and leaving to the pardoning power, as it is in England, the correction of judicial. wrong, or instead of that, if appeals must be allowed, then if a provision of law could be enacted by which no judgment of the court below should be reversed except for an error which the court after reading the entire evidence can affirmatively say would have led to a different verdict, ninety-nine reversals out of one hundred under the present system would be avoided.

Second, if the power of the court by statute to advise the jury, to comment and express its opinion to the jury upon the facts in every criminal case could be restored, and if the state and the defendant were deprived of peremptory challenges in the selection of a jury, twenty-five per cent of those trials which are now miscarriages of justice would result in the conviction of the guilty defendant, and that which has become a mere game in which the defendant's counsel play with loaded dice, would resume its office of a serious judicial investigation into the guilt or innocence of the defendant. I presume it is useless to expect that courts will turn from their present tendency to amplyfy technicalities in behalf of defendants until legislatures shall initiate the change by the broad limitation already suggested upon the powers of the court to reverse the judgment of the court below. Our country is disgusted by the number of lynchings that occur both in the north and in the south, and excuses are sought for the horrible and fiendish cruelties perpetrated by mobs in such cases in some other cause than the delays of justice. Instances are cited of where the mob has executed men whom they had every reason to believe were about to be justly punished under the law, to show that an improvement in the criminal procedure would not prevent lynchings. But every man of affairs who has studied the subject at all knows that if men who commit crime were promptly arrested and convicted there would be no mob for the purpose of lynching. A mob, after it has organized, loses all conscience and cannot be con

trolled, but it is the delays of justice that leads to its organization. Nothing but a radical inprovement in our administration of criminal law will prevent the growth in the number of lynchings in the United States that bring the blush of shame to every lover of his country.

William H. Taft.

INTERNATIONAL AGREEMENTS WITHOUT THE ADVICE AND CONSENT OF THE SENATE.

The Constitution of the United States 1 provides that the President "shall have power by, and with the advice and consent of the Senate, to make treaties, provided two-thirds of the Senators present concur." Judge Story, in his work on the Constitution in commenting on this passage, says: "The power to make treaties is by the Constitution general, and, of course, it embraces all sorts of treaties for peace or war; for commerce or territory; for alliance or succors; for indemnity for injuries or payment of debts; for the recognition and enforcement of principles of public law, and for any other purposes which the policy or interests of independent sovereigns may dictate in their intercourse with each other."

From this it might be supposed that an agreement with a foreign state, to which the approbation of the Senate has not been given, is a thing unknown to our constitutional practice. This is, however, not the fact, and it will be the purpose of this article to point out that there are certain classes of international agreements, in the making of which the Senate does not have a share.

I.

Before passing to an examination of the several classes it should be noted that the Constitution recognizes1 certain international agreements which are not treaties." While the states are forbidden to enter into "any treaty, alliance or confederation," they may, with the consent of Congress, make agreements and compacts with each other or with foreign powers. 3

The Articles of Confederation forbade the states, without the consent of Congress, to "enter into any conference, agreement, alliance or treaty with any king, prince or state," or, without the same assent, "to enter into any treaty, confederation or alliance ' with each other. The omission of " agreement" from the second list was apparently construed by certain states to permit

1. Constitution Art. II, Sec. 2.

2. Commentaries on the Constitution § 1508.

3. Constitution. Art. I, Sec 10, cl. 1 and 3.

4. Articles of Confederation, Art. VI, Secs. 1 and 2.

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