to its welfare; just as swearing, expectorat ing in certain public places, violation of building laws, etc., etc., are forbidden. Mor ality and ethics, although kindred sciences, are perfectly distinct from jurisprudence. The latter sometimes assists the former by embodying their principles in a prohibitory statute. Gambling, the keeping of houses of ill fame and the violation of the Excise laws, are acts mala prohibita because of legislative prohibition. . . . So far as the regulation of the subject of gambling has been guided by principle or rule, the view has been followed not to pun ish private or individual gambling, but to make professional gambling and the keep ing of gambling houses or instruments of gambling, criminal. At common law the whole subject was treated under the head of public nuisances, being such inconvenient and troublesome offenses as annoy the whole community in general. And all dis orderly inns or ale houses, bawdy houses, gambling houses, stage plays, unlicensed booths and stages for rope dancers, and the like, were public nuisances and indictable as such. The principle underlying the punishment of these offenses was that they were flaunted in the face of the public and tainted the tastes, habits and morals of the people. The law seemed satisfied to shut them out from public gaze. But law is a potent factor, and by indirectly making them disgraceful it may have aided the public conscience. The distinction between these several acts when conducted in private and when carried on as a business or profession in a way that would or might offend the eye, taste or sense of the community, runs through all intelligently-framed statutory law on these subjects. . . . To sum up, gambling, amateur or profes sional, public or private, thrives because the laws are unnaturally harsh, confused and conflicting, and convictions cannot be ob tained against technical defenses skilfully pleaded. But soaring far above all of these considerations is the impressive fact that this vice is deeply intrenched in the habits
845
of the people. Now and then some Chivalric Knight, like District Attorney Jerome, will leap into the area and begin a fruitless and expensive campaign for the total extinc tion of all vices; but after he is fatigued, or becomes functus officia, or the people tire of the subject, they will still be found to exist. Nothing in the history of modern legal reform has been found, in the treatment of the acts of gambling, prostitution and the illegal sale of intoxicating liquors, more ef ficacious than the remedies of the old com mon law. The mischief sought to be reme died was not to sanction any of these acts, but to sternly keep them from public view. The persons guilty of committing these of fenses were justly characterized as disor derly persons and persons guilty of disor derly conduct, and punished as misdemean ants. IN the La-ti' Magasine and Review (Lon don), W. D. Morrison, in an article on "The Report of the Commissioners of Prisons, 1903-4," takes up the important question: "Why it is that the number of sentences to imprisonment have increased during the last three years? He says: A continental statistician of considerable eminence (Dr. Starcke, I think,) pointed out some years ago, in the Bulletin of Interna tional Statistics, that one of the results of war was to increase the volume of crime. Dr. Starcke produced a striking body of facts to show that after continental wars crime had always increased among the pop ulation affected by these operations, and in the absence of any other cause it is exceed ingly probable that the recent Transvaal War has produced the same effects in this country, so far as regards the increase of crime, as continental wars have produced on continental communities. We cannot with impunity familiarize a population with the horrors of war. Constant tales of blood and slaughter, of disease and death, of the letting loose of the elemental passions of human nature, tend to deaden our higher susceptibilities and to excite the slumbering savage in the human breast. Loweringof the general tone of the community during the
