The rights of personal security, personal liberty, and private property
have been called the “rights of the people of England,” and may be
said to constitute the richest heirloom in the Anglo-Saxon family.
While, in a certain sense, they belong to all civilized people, yet,
in their practical application, they are peculiarly the creation of
Anglo-Saxon common sense and love of order. The underlying principle of
these rights, clothed by the Latins in the seductive garb of _Liberté_,
_Egalité_, _Fraternité_, gave us a Reign of Terror, a Commune, and
finally a doubtful republicanism; but the same principle, embodied in
the less dazzling formula, “That no man shall be deprived of life,
liberty, or property without due process of law,” produced in the hands
of the Anglo-Saxons more enduring democracies “of the people, by the
people, and for the people.”
With the instinct of a race born for self-government, the Anglo-Saxons
have ever sought and almost always found the highest safeguard
for their ancient rights in the courts of law. Between a partisan
Legislature and a tyrannical Executive an honest judiciary has
generally been found ready to annul the excesses of the one and to
prevent any infringement by the other; so that it has become a belief,
having the force of faith, that in our courts will be found the bulwark
of those liberties which we consider essential to the full enjoyment of
life.
Laws and courts, however, are after all the creation of men, and, like
all such creations, they are necessarily imperfect and fallible; or,
more correctly, they are organisms which develop and improve. In other
words, justice and law are only relatively immutable and perfect.
They do, indeed, represent, in a sense, abstract perfection, and at
any given time they must be considered the highest criterion of human
conduct. But justice and law are not such divinities that they can
withdraw themselves from the operation of those forces which we call
progress. Seriousness, dignity, and venerability are not sufficient
to sustain the majesty of the law; it needs also adaptation to those
higher conditions and broader views which mark the growth of human
thought. The more we come to look upon law as the standard and gauge of
upright human action, the more do we grow to expect it in consonance
with the highest dictates of human knowledge and reason, for what is
above us must represent what is best in us, else it will be neither
respected nor obeyed. Whenever this consonance is not found, human
belief in the dignity of the law and in the efficacy of justice ceases.
For, theoretically at least, law is so near ideal perfection that the
least defect destroys it entirely; and by this “ideal perfection” is
meant that _laws must reflect the highest and soundest thought of
every age_. Laws that fail in this cease to be a power for good; they
are then looked upon either as ridiculous or as oppressive. If the
former, they defeat their ends by becoming dead laws; if the latter,
they become a source of disorder and discontent. Hence we see that
jurisprudence is essentially evolutionary and progressive, and that
the majesty of the law does not lie in its age but in its perennial
youth, or, more correctly, in its successive rejuvenescence. It is
true that in China the antiquity of a law is its highest prestige,
but, as a consequence, Chinese justice is proverbially inefficient and
barbarous. It therefore follows that the constant study and improvement
of what we have called the safeguards of our fundamental rights should
be our highest duty, and the object of the care and solicitude of the
State. It is not enough to rest contentedly in the thought that a Magna
Charta, a Petition of Rights, and sundry written constitutions protect
us. Their very existence is but an argument for our eternal vigilance.
Now, the question to be here examined is whether we have exercised that
care and vigilance which are essential to the free enjoyment of our
rights.
Let me premise the statement that the protection of the rights of life,
liberty, and property is peculiarly within the province of the criminal
law. What constitutes the right of life, liberty, and property can not
be defined or described, except negatively by a definition of what will
be deemed its infringements. These we call crimes. To declare what
acts come within the definition of such crimes is the function of the
criminal courts.
It is upon the criminal law, therefore, that we must rely for the
enunciation of what acts shall constitute a breach of the right of
life, liberty, and property, and it is to the criminal bench and bar
that we must turn for the correct interpretation and application of
such enunciations. Hence the more time and attention we devote to the
study of criminal legislation and to the enlightenment of the criminal
bench and bar, the more will the safety of our rights be increased and
strengthened. Likewise, the more we allow criminal legislation to be
the product of hasty consideration and the criminal bar to drift into
disrepute, the more the safety of our rights will be proportionally
weakened.
The first question that presents itself is, “_What is done by
our law schools for the study of criminal law?_” The answer is
not very encouraging. Let us take those law schools which are of
most importance, either by reason of their curriculum or of their
attendance. Harvard, with a three years’ course, devotes two hours
a week for one year to criminal law (including criminal procedure).
Allowing nine months of four weeks each to the scholastic year, and
a weekly average of eighteen hours, it will be found that the time
devoted to the study of criminal law (including procedure) is a little
over _three per cent_ of the entire course. By a similar computation
we find that Columbia devotes to criminal law (and procedure) a
little over _four per cent_ of the entire course, which is about
the percentage given by Yale and a little lower than that of the
Universities of Michigan, Cornell, and New York respectively.
These computations are based upon figures given in the catalogues of
those universities, or kindly furnished by the deans. Nothing more
eloquent of the decline of the study of criminal jurisprudence in our
country could be cited. But the catalogues of these law schools add
further proof. At none of them is there a professor whose instruction
is confined solely to criminal law. Nearly all the instructors in
criminal law devote but a small part of their time (and probably
of their study) to the teaching of this subject. In Columbia the
instructor in criminal law is professor of international law and
diplomacy;[I] at Harvard the incumbent of the chair of criminal law
teaches the law of carriers; that of Michigan teaches the law of bills
and notes and of public corporations; that of the New York University
the law of sales and wills. It is, moreover, a significant fact that
the faculties of the above-named institutions, while recommending to
law students the optional study of political economy, constitutional
history, taxation, physical science, English literature, and modern
languages as conducive to a higher standard of legal culture, utterly
fail to advise them to pursue courses in criminal anthropology,
criminology, or penology. In other words, it is deemed advisable that
the future lawyer should bring to the aid of his civil practice the
complementary knowledge of French and history, for instance, but it
is of no importance that he should be acquainted with the results of
modern criminologic and penologic research. Thus the conclusion is
forced upon us that the study of criminal law, whose importance I have
endeavored to set forth, has become a subject at sufferance in our
universities, a practically optional course of little consequence to
the student, and of no interest to the teacher.
[I] This has since been changed; but the change makes the case
worse, as the new instructor in criminal law teaches not
only two branches of the law (as under last year’s course),
but five--viz., Criminal Law, Wills and Administration,
Common-Law Practice and Pleading Bankruptcy, and Bailments
and Carriers.
From the very beginning of his legal career the future lawyer is
made to feel that the field of criminal law is not the one in which
to exercise his best talents. Both the school curriculum and popular
sentiment strengthen this prejudice. To the community at large our
criminal courts have come to mean places where criminals are sentenced
or rogues saved on technicalities; they have ceased to be centers of
justice, where innocent men are saved and guilty men tried according
to the law of the land. Hence has arisen the popular belief (despite
the rule that the accused shall be considered innocent until his guilt
is proved), shared in a measure by the bench and bar, that every
man accused of crime is criminal and depraved, and that, therefore,
contact with him should be avoided. Thus the criminal lawyer, who
necessarily must come in touch with such alleged crime and depravity,
is practically ostracized not only from the community but also from the
civil forum.
The existence of such prejudice against the criminal bar is most
deplorable. Men of ability and position will shun criminal practice,
leaving the field clear to unscrupulous shysters. Let it be remembered
that to a man charged with the commission of a crime and deprived
of his liberty the lawyer appears a savior; that the accused is
practically at his lawyer’s mercy, being under most trying duress and
very easily influenced. The temptation for unprofessional dealing is
here at its highest, because of the manifest advantage of the lawyer
who is able, or whom the client believes to be able, to unlock the
prison doors. It takes men of more than ordinary fiber to persistently
resist such temptation in all its forms. Hence the necessity of upright
and learned men at the criminal bar. But how few are our great criminal
practitioners! How often have I heard lawyers, too young and clientless
to allow themselves preferences, declare most decidedly that they were
willing to do anything “except criminal law”! They had been trained to
look upon it not merely as inferior but as degrading practice. Yet it
is common knowledge that in European countries, where less boast is
made of inalienable rights, it is the ambition of all lawyers to get a
reputation at the criminal bar. It is there, in fact, that reputations
are made.
It is likewise in those countries where many would make us believe
that life, liberty, and property are not as sacredly guarded as in our
own country, that the criminal laws are a constant object of scholarly
study and investigation. The great progress made in the study of crime,
the building up of a criminal science and a criminal sociology, is
almost exclusively the work of Continental criminologists. Penology
has indeed engaged our attention, but criminology has been almost
practically ignored by us.
Of criminal law it was long ago said that, “by reason of the numberless
unforeseen events which the compass of a day may bring forth,” the
knowledge of its provisions “is a matter of universal concern.” Yet,
despite this “universal concern,” our criminal law has been and still
is inferior to our civil law. I have pointed out at the beginning of
this article how the majesty of the law depended essentially upon its
ever-recurring rejuvenescence; that law was a living organism, subject
to change and the forces of evolution.
The theories on criminal responsibility and on crime in general, in the
light of modern medical, anthropologic, and sociologic sciences, have
completely supplanted the old doctrines, yet criminal legislation has
apparently taken no notice of them. Modern science tells us that our
antiquated tests of criminal responsibility result in sending hundreds
of men to prison who ought to be sent to asylums, but we do nothing to
avoid this scandal. Under our system the courts are obliged to let the
conclusions of the learned judges who occupied the bench three hundred
years ago have more weight than the positive investigations of the men
of science of our day, and so, consciously or unconsciously, numberless
crimes are committed in the name of _stare decisis_. True it is that in
some jurisdictions, and notably in New York, the courts have recognized
to some extent the progress of science and its influence upon juridic
theories. But even in these cases the concession has been made only
in _civil_ cases. Thus Mr. Bishop, in his Criminal Law, is obliged to
point out that our courts recognize _two kinds of insanity_--to wit,
_civil and criminal irresponsibility_. Why the test to be applied
in the case of the validity of a will should be different from that
applied in the case of murder does not seem very clear. The scientific
test as to insanity has been oftentimes recognized and applied by our
civil tribunals, but the criminal judges still cling with unabashed
attachment to the unscientific and unprogressive rule in McNaughten’s
case. The Guiteau trial, which followed that celebrated decision, added
fresh authority to the English view, and practically made the rule to
be applied in criminal trials a legal dogma.
In an able and exhaustive paper by Mr. J. H. Dougherty on this very
subject, before the Society of Medical Jurisprudence, the evils of
such dogmatism in criminal law are strikingly set forth. “Life,” he
said, “should be as sacred as property. While society needs protection
from the criminal, it does not require that the protection should be
insured through the application of a fallacious and discredited legal
dogma.”
This is but one example of the unprogressiveness of our criminal
jurisprudence. Yet, if we really have the ancient principle of the
right of life and liberty at heart we ought to recognize that this
legal dogma is a greater menace to the practical abrogation of the
right than the despotism of an unscrupulous executive. For while the
latter is an infringement of a right which the law forbids, the former
is a breach of a right which the law sanctions. Again, the theories
regarding the object of penal provisions have entirely changed.
Punishment has been scientifically shown to be practically useless
either as a deterrent or as a correctional remedy. Yet our penal codes
are confessedly based on the idea of punishment and retribution. We
have indeed made some little headway, such as indeterminate sentences
and suspension of judgment, but only in a scattered and tentative way.
The additions to or changes in our criminal codes have been unimportant
and unprogressive. What additions are made are slipshod in their
make-up, at times partisan in intent, seldom in harmony with the
teachings of modern science, and oftentimes in disregard of fundamental
principles. Our legislators grant “hearings” before passing a law
affecting the business of a few privileged men and give it due weight;
but criminal bills, which may affect the public, are generally “rushed
through,” probably because of an absolute lack of interest. This is but
a repetition of Blackstone’s complaint against criminal legislation in
his day. “It is never usual in the House of Commons,” he wrote, “even
to read a bill which may affect the property of an individual without
first referring it to some of the learned judges and hearing their
report thereon. And surely equal precaution is necessary when laws are
to be established which may affect the property, liberty, and perhaps
the lives of thousands.” And he thus concludes his observations: “The
enacting of penalties to which a whole nation should be subject ought
not to be left as a matter of indifference to the passions or interests
of a few, who upon temporary motives may prefer or support such a bill.”
The lack of public interest and of intelligent consideration by the
people and the bar in criminal problems and criminal legislation are
clearly shown by the paucity of criminal statistical data furnished by
various States.
Penological research is based on an intelligent study of statistics,
and civilized nations, recognizing this fact, have provided elaborate
systems of records based on the suggestions of statistical science.
But with us statistical facilities in the field of crime are not
merely primitive or old-fashioned, but in many cases shamefully
absent. In reply to requests addressed to the Secretaries of State of
various States for official statistics of crimes committed in their
respective jurisdictions, the answers I received were in a number of
cases negative. The officials mentioned replied that no statistics
were published by the State in Illinois, Georgia, New Jersey,
Tennessee, Kentucky, Maryland, Vermont, California, Idaho, Missouri,
South Carolina, Connecticut, Texas, Wisconsin, Nebraska, Mississippi,
Virginia, Colorado, and Kansas. It is true that in some of these
States this lacuna is filled in by special prison reports or reports
of commissioners or of the attorneys-general. But even in these cases,
as well as in those published officially by the State (Ohio, Indiana,
New York, Massachusetts, and Louisiana), the information furnished is a
monument of antiquated methods and of very little value to the student
of criminology. How, then, can we study the grave questions of crime
and criminals without a basis of computation?
It may be true, as some claim, that Continental jurists have refined
the criminal law to an unpractical degree and too much on classic and
theoretic lines, but it will not be claimed that by adhering to an
old-fashioned and obsolete criminal jurisprudence the Anglo-Saxons
are safeguarding their fundamental liberties. That there is something
essentially wrong, or at least antiquated, with our criminal law is
evidenced by the popular discontent against it, which is too widespread
and insistent to be the result of ignorance or sentiment. If there is
inertia as to changes in the law it is probably because, while feeling
that there is something wrong, the people either can not define it or
the conservatism of centuries in this field is unconsciously affecting
their better intentions. Who will deny (and I address this question
to lawyers and judges) that, under our system, guilty men escape and
innocent men suffer in larger numbers than it should be, even allowing
for the defects inherent in all human systems?--that technicalities and
not facts often save scoundrels; that unscrupulous lawyers do not avoid
them, and the best of judges are obliged by legal dogmas to respect
them? Who will deny (and I address this question to sociologists
and penologists) that the penal provisions of our present laws are
inappropriate, inelastic, and unscientific; that they neither prevent
nor reform; and that the basic principle of our penal codes is still
retribution and punishment? Can it be that the right of life, liberty,
and property is becoming a pious fraud? Of course, it is not claimed
that we have less liberty now than our fathers had three centuries
ago; progress never stops, and each day is something gained; but it
seems clear that the juridic basis and form of our liberties have
not kept up with the progress of those very liberties. Yet, what we
call rights must have a counterpart or reflection in our laws. We may,
while enjoying those rights, forget that the juridic basis on which
they stand is crumbling with age. Unless that basis is rejuvenated the
entire edifice must eventually fall. While we are in full possession of
our rights we need no laws to guarantee them; but it is when those laws
are encroached upon that there arises the necessity of juridic sanction
for them.
The right of life, liberty, and property constitutes the essence of
the “law of the land.” But the conception of rights, as we have seen,
changes and progresses. The law of the land must likewise change and
progress.
Laws may be the highest and best creation of man’s intellect, but they
are not “hedged in by any divinity.” That is why they are neither
infallible nor unchangeable. Yet, as the highest and best creation of
man’s intellect, and as the final criterion of human public conduct,
they should conform to the best thought and to the highest scientific
progress. If they do not approach this standard they are worse than
useless, for they become legalized means of oppression. It is then that
Justice needs a bandage over her eyes, not to avoid partiality, but to
hide her shame.