Page:Popular Science Monthly Volume 56.djvu/485

From Wikisource
Jump to navigation Jump to search
This page has been proofread, but needs to be validated.
471
DECLINE OF CRIMINAL JURISPRUDENCE.

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