Unfortunately the criminal laws generally are drafted by criminal lawyers, who, as legislators, are seeking to protect a line of clientage, present and prospective, rather than their constituents. As government exists today in this country, the laws of the several states may be and often are so made as to form separate entrenchments behind which transgressors may retire successively and find protection.

Corporate interests that now possess as many avenues of escape from regulation that can be made effective only by criminal prosecution, as there are different state governments, are unwilling to have these regulations made and enforced by the undivided power and responsibility of one sovereign law. To them each state government is as a city of refuge. One of the great questions today is whether government shall control the corporations, or the corporations the government. The doctrine of state rights stands today barring the way to a proper solution of a problem that none of the framers of the Federal Constitution could have foreseen unless endowed with the vision of a seer, as Dumas gifted Cagliostro.

It is a deplorable fact that generally throughout this country the judges presiding in the trials of criminal cases in courts of record are not sufficiently versed in criminal law. This branch of law is as thoroughly distinct from civil law as admiralty law is from ecclesiastical law. Many of those judges are so mentally constituted that they are incapable of appreciating either the provisions or the purposes of the statute law, or even the principles of evidence in criminal law; and in the passing of sentence, act with little or no judgment. In appeals after conviction the situation with regard to the appellate court is, if possible, even more unfortunate. No judge should sit in review of a criminal case unless he is conversant with criminal law, and has criminal law sense as well as common sense. It would seem as though the only way in which the judicial system can be remodeled so as to properly protect the public interests, is to have judges move around in each state upon a criminal circuit, and to have, as England has, a suitable Court of Criminal Review. When weakness of the judiciary is added to weakness of law, public contempt becomes the fruitage.

Judge Taft in his address on the administration of criminal law, in June, 1905, before the Yale Law School, called attention to the small proportion of murderers that were punished. Possibly this is due in a degree to the lack of courage on the part of jurors. It seems as though the better results are secured in states that have abolished the death penalty. In New York State, as in many others, are statutes which the judge is obliged to state to the jury, if requested, to the effect that the defendant's neglect or refusal to testify does not create any presumption against him, and that in case of a reasonable doubt whether the defendant's guilt be satisfactorily shown, he is entitled to an acquittal. The first rule violates common sense, and few now seek to sustain the second by any argument. The more reasonable civil law rule that a fair preponderance of evidence is sufficient to sustain a verdict, should prevail in criminal trials. It is the guilty defendant who is kept off the stand by his shrewd lawyer. The elimination of the first rule, and a proper change of the second rule, would, without any violation of natural right or reasonable privileges of the defendant, take away from juries the two principal standing excuses for acquitting criminals whom they know to be guilty, but whom they do not care to expose to the chance that the judge upon the bench may be unduly severe in the matter of punishment. The crooks have had undue advantage long enough. It is time that the honest folk had their day.

The case of Harry K. Thaw, the murderer of Stanford White, has called the attention of the whole civilized world in the sharpest possible manner to the fact that the insane criminal is a person against whom society is doubly in need of protection, and that the vaunted laws of the Empire State are inadequate to secure proper confinement for such an insane criminal. That Thaw committed the act was unquestioned. That he knew the nature and quality of the act and that he knew the act was wrong, was disputed. The jury acquitted him on the ground of insanity. The court, deeming his discharge dangerous to the public peace and safety, committed him to the Matteawan State Hospital for Insane Criminals.

Section 70 of the insanity law of the State of New York provides: "Every superintendent or other person in charge of an institution for the care and treatment of the insane shall, within three days after the reception of a patient, make, or cause to be made, a descriptive entry of such case in a book exclusively set apart for that purpose. He shall also make or cause to be made, entries from time to time of the mental state, bodily condition and medical treatment of such patient during the time such patient remains under his care, and in the event of the discharge or death of such person, he shall state in such case book the circumstances thereof, and make such other entries at such intervals of time and in such form as may be required by the State Commission in Lunacy."

Section 73 provides: "Any one in custody as an insane person is entitled to a writ of habeas corpus, upon a proper application made by him or some friend in his behalf. Upon the return of such writ the fact of his insanity shall be inquired into and determined. The medical history of the patient, as it appears in the case book, shall be given in evidence, and the superintendent or medical officer in charge of the institution wherein such person is held in custody, and any proper person, shall be sworn touching the mental condition of such person."

Section 68, in part, is as follows: “In no case shall any such insane person be confined in any other place than a state hospital or duly licensed institution for the insane, for a period longer than ten days, nor shall such person be committed as a disorderly person to any prison, jail or lockup for criminals, unless he be violent and dangerous, and there is no other suitable place for his confinement, nor shall he be confined in the same room with a person charged with or convicted of crime."

After Thaw had been confined a short time in Matteawan Hospital he was brought up on a writ of habeas corpus, and by oral direction of the judge presiding was committed to the custody of the sheriff of Dutchess County, wherein the hearing was, pending its determination. In the Dutchess County jail he was kept from May until September, except as he was riding around the country at frequent intervals on the strength of other court orders. He lived luxuriously and had a whole corridor of the jail for himself. Then another writ of habeas corpus was procured, and the hearing was set in Westchester County. Then Thaw was moved from the Dutchess County jail to the Westchester County jail. Finally this writ was dismissed, as had been its predecessor, and he was returned to Matteawan in October. The pretense on the part of the two Supreme Court judges for thus taking out of an asylum where, at public expense, the State had provided for the proper care and observation of homicides, a person declared by the same Supreme Court after a hearing, to be so insane as to be dangerous, and the placing of him in jail where there were no such arrangements, and where his confinement must inevitably disarrange the whole management and discipline, was, that in the article of the Code of Civil Procedure relating to habeas corpus, was the following provision: Ҥ2037. Pending the proceedings, and before a final order is made upon the return, the court or judge, before which or whom the prisoner is brought, may either commit him to the custody of the sheriff of the county wherein the proceedings are pending, or place him in such care or custody, as his age and other circumstances require."

The County Law as to jails and the Insanity Law were passed after section 2037. If the latter section is not limited by the later laws, then it is evident that legislation is needed to prevent future exhibitions similar to what the leading American papers denominate as the Great Scandal, of what it is any way charity to call defects of judgment.

The example of his trial was doubly pernicious: First, because the defense of insanity receives its greatest elaboration in cases where rich men are caught red-handed and where no other possible defense exists; and, second, because in many men sufficiently strong and evenly balanced for self-control, but so needing to curb a violent temper or strengthen a weak and yielding disposition as to stand near the brink of insanity, the scruples and fears that ordinarily would subdue their fierce passions and strengthen their weak wills, are neutralized by the prospect of avoiding punishment as well as by exhibitions of mawkish sentiment which invariably accompany such trials and which seek to glorify crime, especially when a prostitute's favor, or the loss of it, is the incentive for the crime.

The needs of society demand the incarceration of the insane, and far greater is the need when the insane person has criminal tendencies. Such being the case, let the jury in a criminal case simply determine whether or not the defendant committed the act denominated by law as a crime, and if it finds the defendant guilty, then let the court, advised if necessary by experts of its own selection, determine how, if at all, the defendant should be restrained. The trial should not be delayed even by a commitment to await restoration to sanity before trial, as in such cases evidence is lost by death or disappearance of witnesses. "The public welfare is the supreme law." The ancient theory that the purpose of punishment of criminals was retribution and the deterrent effect by example, has been abandoned. The accepted view now is that the detention, under sentence, of the offender should be for the protection and benefit of society, by reforming the criminal, if possible, and, if that can not be done, by keeping him where he can not commit crime. Insanity today is usually the monied defense. The fact that a rich man with a homicidal habit can produce experts, apparently respectable, who will swear that at the time of the commission of the crime he was insane by reason of a brain storm, but is sane at the time of trial, has brought such expert testimony into merited contempt, and the administration of criminal law into deserved distrust. The only thing to do with such a criminal is to keep him under lock and key, away from the stormy stress of free life.

Bad environment plays its part in the production of criminals, but there is a greater factor and one more easily eliminated. A large percentage of juvenile delinquents are afflicted with physical malformations and disorders, easily corrected, which stunt and tend to pervert them. It should be made obligatory upon municipalities to have frequent physical examination of the school children. If the child is in need of physical or medical aid, the fact should be called to the attention of the parent or guardian. The child should have aid at the public expense if the parent or guardian can not pay for the treatment. Recently Massachusetts has legislated on this subject. The results in New York City alone amply justify such a law for every municipality. Thus far Congress has failed to provide a parole or probation