in Florida, that "the number of jurors for the trial of causes in any court may be fixed by law, but shall not be less than six in any case; " in Louisiana, that "in cases where the penalty is not necessarily imprisonment at hard labor or death, the general assembly, may provide for the trial thereof by a jury less than twelve in number." Some of these constitutional provisions go beyond and others fall short of the reforms I advocate. The views I have expressed are the result of much thought and observation, and I submit them for the careful consideration of your readers. came at a time when mankind was learning its first lesson of individual liberty. At such a period, and under such circumstances, human nature was especially sensitive to the horrors of prison methods brought to light by the great reformer; it saw in those poor wretches, manacled and chained amid filth and darkness, not malefactors and enemies of social order, but rather victims of tyranny and kingly prerogatives. It saw in them objects of pity rather than of justice, and thus arose what I have elsewhere called a "social tenderness" for those who rebel against the restraints of society. This social tenderness or pity for such unfortunates, while the factor of just and wholesome reforms tends in our day to carry the reaction to an unsafe extreme, that is, in the attempt to save the malefactor it seems to me that society is forgetting that its first duty is towards the honest citizen. It is now many years since Lord Chief Justice Cockburn found it necessary to call attention to the "THE prevention of crime," says Mr. Z. R. danger of forgetting this most important object of the penal system. "It may well be doubted," he Brockway in a recent letter to the writer, wrote, "whether in recent times the humane and "will, I judge, characterize much of philanthropic endeavor in the twentieth century." These words, criminal may not have produced too great a tenpraiseworthy desire to restore and reform the fallen coming from the most successful of contemporary dency to forget that the protection of society should practical penologists, may well be taken as a proph-be the first consideration of the law giver." A quarecy, and one which all thoughtful men must hope ter of a century has passed since these words were and endeavor to see realized. The results achieved by penologic science in the century just closed have furnished a basis for future work and fixed the lines along which future endeavors must be carried. (1) Investigation and observation in this field have given scientific sanction to the growing popular belief that it is safer, juster and even cheaper to prevent crime than to suppress it. Such being the case the question which naturally presents itself is, whether the State, through its laws, customs and tendencies, aims towards such an end. In endeavoring to find a correct answer it will be necessary to briefly examine the social and historic conditions which called for the enactment of many of the provisions that are contained in the Penal Codes of our day. It is a matter of common knowledge that the writings of Beccaria and the revelations of Howard about one hundred years ago started a wave of reaction against the barbarous treatment of criminals then in vogue. Such reaction brought about a change of public opinion in regard to the function of penal legislation, from the idea of retributive punishment to that of reformatory discipline. It should be borne in mind that this popular rebellion against medieval barbarities under the sanction of law began at a period in the world's history when human nature, ennobled by the spirit of fraternity and equality which was spreading over Christendom, recoiled from the frightful pictures drawn by the strong hand of John Howard; that this new light (1.) For an excellent summary of what has been done in the penologic field during the last century, see " Progress in Penology," by Hon. S. J. Barrows, in the Forum for December, 1900. written, yet they are still most timely and appropriate. With the just extension of rights towards malefactors which were denied them by an intolerable system, the law has, however, failed to extend in corresponding measure the safeguards of the lawabiding citizens against the enemies of social order. For we cannot lose sight of the obvious fact that, while to-day the State treats a criminal more justly and humanely than it did fifty years ago, the criminal has, naturally, not improved in his treatment of society; he is as bad and dangerous to-day as he ever was. Hence, if the State has extended his rights, if it has enlarged his privileges without strengthening the defenses against him correspondingly, it has performed only the lesser of its duties to the community, for it has given to the evildoer an additional weapon and forgotten to give the citizen a stronger shield. There is a great deal of misplaced sentimentality in regard to criminals and an erroneous popular belief as to their limitations in their power for mischief. Criminologists, prison wardens and prosecutors tell us that many of the enemies of law and order are men of great cunning and daring, keen to adopt new methods and endowed with a "patient inventiveness," backed up by "reckless audacity;" they have been known to wait a long time in the careful preparation of their misdeeds and have often shown remarkable administrative ability. "The bank burglar," for example, says Major Griffiths, (2) must be a man of wit, brain and nerve, fertile in resources, astute and far-seeing, quick to ferret out good business,' and ingenious in designing modes of attack." It is against such men that society has to protect its good members, and how effectively does it do so? Does it furnish an adequate juridic defense? Does it keep vigilant watch over the non-legal and social safeguards? As regards the legal machinery it is pertinent to notice what Major Griffiths says, in the book already cited, which has the advantage of being the result of an actual and long warfare against the criminal classes. "No doubt," he writes, "the British police are greatly handicapped by the law's limitations which in England act always in protecting the accused." which is equally true of our country. It is a matter of common knowledge that our legal procedure allows a very large number of guilty men to escape; indeed, carefully considered statistics show that forty to seventy-five per cent of crimes go unpunished. (3) Yet, as Lord Coke expressed it some three hundred years ago, "impunity always invites to greater crimes." What can be more obvious than that to free a guilty man is to convince him that he can repeat his crime and not be punished, or, in other words, to put a premium on well-planned and skillfully managed crimes. A defensive legal system which works such results obviously has something wrong about it, and as a preventive to crime it is even more objectionable. We have seen that it is the product of conditions which have greatly changed in our day; that it was justifiable and necessary under social and political circumstances, very different and more fraught with danger to individual liberty than exist now. Its continuance in the face of its inadequacy is an anachronism and a prolific source of danger; it is social tenderness misplaced and conservatism gone into stagnation. I am well aware of and a firm believer in the principle that the bulwarks of civil liberty must not be tampered with, but we must find a way of defending them at a less onerous price than that of letting so many malefactors escape under the cover of law; for, surely, no one will maintain that our forefathers ever intended that the Bill of Rights should be a shield for evildoers! Difficult as the problem of reconciling and combining such opposing elements must be, it is a problem whose solution is becoming more and more imperative and which must enlist the interest and learning not only of the jurist but of the man of science as well. (4) (3.) See my **The Coefficients of Impunity," in The American Law Register, Vol. 39, N. S. No. 11. I stated at the beginning that the State should strive, in conformity with the teachings and experience of penologic and criminologic science, to prevent crime. We have seen in brief outline how, through its antiquated legal machinery, it falls short of such preventive aim because it allows the criminal too many chances of escape. It is patent, however, that no legislative or constitutional change tending to improve the system will be possible without first modifying popular sentiment regarding criminals and showing the evil of an unreasonable social tenderness towards them. There is no doubt that if the law does not aim at prevention it is because society, in its ideas, customs and tendencies, fails to see its importance and necessity. But show that crime is as contagious and as far-reaching in its evil consequences as the most virulent of diseases, that for the public security as for the public health it is necessary to err on the side of severity, and public sentiment will surely appreciate the advisability of changing both its beliefs and the laws which declare them. This can best be accomplished by pushing the work of "conversion" along the lines of least resistance; that is, by concentrating public attention on, and enlisting a greater public interest for, those topics in the criminal field which either are most susceptible of popular demonstration or against which there is already a well-defined popular dissatisfaction. Thus we should popularize, without vulgarizing, what is of real value (not based on ingenious fancy) in criminal anthropology and sociology; and we should show that laws, to be just, must not only respect the past but take cognizance of present scientific progress; the most effective way of showing this being by pointing out the absurdity and injustice of the present legal test of insanity. (5) Another promising field wherein to work conversion is that of penal sentences. The popular mind has learned to appreciate the necessity of changing the antiquated method of fixed sentences. The statute books of many of our States now contain provisions for indeterminate sentences, probationary and suspended judgments. This means a great step forward in penal legislation. But, while we are beginning to recognize the reasonableness of this principle, there still seems to be great opposition in carrying it out to its logical and natural conclusion. I mean that those offenders who show that no amount of reformatory discipline will ever improve, and whose freedom must, in the judgment of experts, be a menace to society, should (5.) For a masterly presentation of the necessity of statutory Mandsley, "A Study of Crime and Criminals," Journal of changes in conformity with scientific progress see E. P. Payson's Mental Science, No. 110. J. Holt Schooling, "Crime," Pall Mall Magazine, 1898. G. Sergi, "Le Degenerazioni Umane." "Science in Law and Law in Science," by Chief Justice Oliver Wendell Holmes, in 29 Am. L. R. 610. Also my article on "The Decline of Criminal Jurisprudence," in Appleton's Popular Science Monthly, February, 1900. book "Suggestions toward an Applied Science of Sociology," Putnam's, 1898. I have considered this question of the evils resulting from unscientific legislation in a paper read before the Society of Medical Jurisprudence, on "Natural Law versus Statutory Law," reported in Albany Law Journal for May 13th, 1899. Regarding the absurdity of our legal test of insanity, see Dr. Carlos F. MacDonald's learned paper on "The Legal versus the Scientific Test of Insanity," in American Journal of In sanity, Vol. 56, No. 1, 1899. be eliminated by perpetual seclusion. To cite from Dr. Wines' book (and Dr. Wines is avowedly a champion of individual rights and an able opponent of the positivist criminal school), "not for an instant can we admit that the larger interest of the whole community, of which the criminal is a degenerate member, should be sacrificed to his personal interest. A healthy society like a healthy body eliminates from itself the morbid and morbific dejecta, whose retention would imperil vitality. * * * These degenerates, if they cannot be regenerated, are to be firmly, humanely secluded from such contact with their kind as will intensify their criminality and infect the innocent with it."(6) Thus by persistent effort along the most promising lines we may eventually bring about legislative enactments which will tend to lessen the chances of escape of criminals and prevent the increase and spread of crime. The social defense, however, will continue weak and inefficient if it stops at legislative and juridic reforms; its real and enduring strength must necessarily come from the popular conscience and the individual observance of civic duties. Their nonobservance amounts, as I have elsewhere endeavored to show, (7) to social complicity with crime, while a very small effort on our part may materially contribute to the social defense. Thus one way in which we all can fight crime is by our refusal to support those newspapers which, by sensational reports of crimes and the glorification of their perpetrators, become disseminators of evil principles. There is much latent criminality that will come to the surface if, through the medium of the press, wicked and unjust acts are given an alluring publicity. (8) If, by individual absention from the support of such newspapers, we force them by financial necessities to change their class of news, we are thereby contributing to the social defense. principles of justice and reason and the assertion that might makes right. The opportunities which it offers for the exercise of heroic qualities cannot compensate for the evil influence which it exerts on those among us who need but a slight stimulus to break the restraints of law and order. That war, in its train of horrors, carries also an impulse to greater wrongdoing and nonobservance of law, is not a mere suppositious statement but an undeniable fact. While it is true that during the actual continuance of hostilities, crimes against the person are often on the decrease (because men of violence join the ranks of legalized violence called the "army") after the cessation of hostilities there is always observable a marked increase in the number of offenses of all kinds. This is not surprising if we remember that besides its demoralizing influence, war also means a diminished interest in the administration of justice and in the enforcement of laws, and a weakening of the defensive strength of the State against its internal foes. When we bear in mind that during war periods the ratio between the births of males and females is disturbed by a perceptible increase in the number of males, we can begin to appreciate how far-reaching must be the influence of the war spirit on all social conditions: how, if it affects even the process of physiological forces, it must, a fortiori, affect the products of social and psychic causes such as crimes. Lastly, it may be well to mention that the absence of moral and religious convictions means the removal of one efficient check to criminality, and by this I mean religion and morals in their broadest sense, not in a fanatical or superstitious observance of certain rules of righteousness or practices. These are some of the means which each one has within his power to use for good or evil; if we use them for good we are helping in the preservation of social order and the prevention of crime. There are, of course, many other efficient means, some of which I have purposely omitted because they are not only well known but their efficiency has been uni There are countless social causes of crime which are within our individual or collective power of control. The enforcement and observance of hygienic measures is a great contribution towards moral re-versally recognized. Chief among these may be generation, and so is the supply of healthy, popular amusements and the reasonable and quiet suppression of indecent exhibitions. So, too, while the distinction between the rich and the poor must necessarily exist, if those that control capital will more adequately remunerate those who yield them, in a measure, their large profits, they will thereby contribute to the decrease of criminality. Nor must it be forgotten, especially at this period of our country's history, that war always means an increase in criminality; especially is this true of wars of conquest or against a greatly inferior enemy. War, no matter how glorified, is the negation of the (6.) F. H. Wines' "Punishment and Reformation." (7.) See, supra, "The Coefficients of Impunity." (8.) "Why Homicide Has Increased in the United States," by C. Lombroso, in North American Review, January, 1898, p. 9. mentioned the various associations here and abroad, founded for the protection of the young and their separation from old offenders, and the prison societies organized in most of our States for the purpose of helping discharged convicts and directing penal legislation. Thus society in its manifold manifestations must ever aim to protect itself against the enemies which threaten its orderly continuance; to this end it must seek to make justice swift, certain and untrammeled; to diminish the chances of impunity and increase the certainty of detection and conviction. Let it first do its utmost to prevent crime, and where it cannot prevent let it seek to reform, for its best protection against the lawbreaker is to transform him into a lawabider. But where preventive and reformatory measures fail, when society has done all that science and humanitarianism demand, let it not hesitate or regret or pity, but in its larger duties to the community let it eliminate the incorrigible by perpetual seclusion. GINO C. SPERANZA, Of the New York Bar. SOME OF THE LITERARY DIVERSIONS OF astounded at the magnificent results then accomplished in spite of these limitations. The science and the practice of the law have made wonderful strides in the last one hundred years; and, yet we can hardly claim that the principles of justice, right and equity are more firmly established or find abler exponents. As I sit at my desk, a reminder of the past hangs on the wall above me. It is an old parchment, AT THE CLOSE OF THE EIGHTEENTH time stained and creased, but with its faded writing CENTURY. By GILBERT RAY HAWES, of the New York Bar. W still clearly legible. This is the license to practice law, granted to my grandfather, Peter Hawes, in 1795, and reads as follows: "By RICHARD VARICK, Esquire, [L. S.] "Mayor of the City of New York. "To all to whom these Presents shall come, Greeting: Know ye that Peter Hawes, Gentleman, having been duly examined and regularly admitted an Attorney at Law in the Court of Common Pleas of the City and County of New York, called the Mayor's Court, on the Sixteenth day of September, One thousand Seven hundred and Ninety Five, I do hereby license & authorize him to appear in said Peter Hawes. be with reference to the nineteenth and not to the eighteenth century. If we go back to the days of the administration of Washington, we find ourselves groping in the dim and distant corridors of time, whence shadowy forms appear upon our summons like "spirits from the vasty deep," to remind us of manners and customs long since vanished. In this period of steam and electricity, of telegraphic communication which "makes the whole world kin," of the telephone and phonograph and other marvelous products of modern science and civilization, .we can hardly realize the limitations which prevailed in the first years of our history as a nation. And, on the other hand, we are Gilbert Ray Hawes. Court, and there to practise as an Attorney at Law, according to the Rules and Orders of the said Court, and the Laws of this State. Given under my hand and Seal at the City of New York the Sixteenth of September, One thousand Seven hundred and Ninety Five. [Signed] RICHD. VARICK." Peter Hawes was the son of Joseph Hawes, one of "the embattled farmers" who, at Lexington in 1775, "fired the shot heard round the world." After the war was over Peter was sent to Rhode Island College (now Brown University), where he graduated with high honors, and as salutatorian of his class, in 1793. He then came to New York city, and in the "New York Directory and Register." we find his name entered as "Peter Hawes, student of law, 91 Beekman street." In those days there was no Code of Civil or professional arena with license to prey upon a longsuffering public. Even the women are now permitted to transfer the scenes of their disputes from the chamber to the forum and to raise their shrill voices in legal controversy. Criminal Procedure. Although we had achieved trained incompetents are yearly sent forth into the our independence in matters political, we still adhered to the old common-law forms derived from England. In New York city the Court of Common Pleas, which has existed down to a recent period, was known as the Mayor's Court, and in 1795 was presided over by that sterling Knickerbocker, Mayor But, it may be said, have we not need for more Richard Varick. All the intricate forms of plead- lawyers? Are not our courts clogged with cases? ing, such as the declaration, plea, reply, rejoinder Are not the calendars years behind? Very true; but and sur-rejoinder, were then employed. A suit at the solution is to be found, not in an increase of solaw was quite a serious affair, and the counselors called lawyers, but in the expedition of business, in who appeared in court and conducted the litiga- the necessary increase of courts and judges and in a tion were given full opportunity to display their new system, approaching that of England, whereby forensic eloquence, as well as their legal erudition. the lawyers may be divided into two classes, namely, Classical and Biblical quotations frequently dropped those who confine themselves to office work and from the lips of the advocate, who, as a rule, was those who try cases in court as counsel. consisting of accident cases brought against our transportation companies, as the result of the activity of the ubiquitous "ambulance-chaser," will it be asserted that the fountain of justice is purer or that the profession is on a loftier plane? With all our concentration of wealth and amassing of colossal fortunes, does the business lawyer of to-day, who guides and directs these aggregations of capital, occupy a higher place in the esteem of his fellowmen than the old-fashioned lawyer of the eighteenth century? a man of education, culture and training. No In spite of the great increase in litigation, largely speech was accounted great, unless permeated with this literary flavor. Now, alas, in the wild scramble for wealth literature is sadly neglected. The successful lawyer of to-day is not the one who has drunk deep at the Pierean spring" and enriched Rather is it he who has the necessary sagacity and his mind and vocabulary by the study of the classics. tact to bring about great combinations of capital, organize large corporations and trusts and point out to his clients how they can evade the meshes of the law. Many complaints are heard that no longer are we practitioners of a noble profession. But, lest I be accused of pessimism or wandering with duty as our watchword, but that instead thereof, from my subject, let me hasten to describe some the profession has degenerated into a business, and of the ways in which the young lawyers and litterathat sharp and shrewd promoters of schemes and teurs in the latter part of the eighteenth century enterprises have taken the place of the dignified were wont to amuse themselves in their spare and learned old-time lawyers. A college education moments. is no longer requisite. Scores of illiterate, half I have in my possession a quaint volume bound |