Appletons' Popular Science Monthly, February 1900: Vol. 56, November, 1899 to April, 1900Various
Science
Appletons' Popular Science Monthly, February 1900: Vol. 56, November, 1899 to April, 1900
Various
Science -- Periodicals; Technology -- Periodicals
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.
Public-domain text, read in full here on John Shaqi.
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