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Popular Science Monthly/Volume 56/February 1900/The Decline of Criminal Jurisprudence in America

< Popular Science Monthly‎ | Volume 56‎ | February 1900


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;[1] 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.

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.


  1. 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.