Page images

plies as well to nations as to persons. It is only by full recognition of its binding force in all human relations that a state can hope to deal successfully with its morally weak citizens. Judicial settlement of international disputes in accordance with fixed principles is indispensable to a complete scheme for the elimination of crime. The false lessons inculcated by a great war affect the moral tone of the people for generations. The nation should be the great teacher and exemplar of morality. When it voluntarily goes to war it becomes a great teacher of crime.


The functions exercised by a state are divided into legislative, judicial and executive. Briefly stated, the legislature declares the law, the judiciary interprets it and determines its application and the executive carries it into effect. It would seem that the business of a law making body would naturally be to formulate rules of conduct and of rights expressive of the moral law. The most casual examination of the work of any such body will disclose the fact that considerations of expediency largely predominate, and that the pure moral law is generally regarded as too good for practical use in a world where men are constantly seeking personal advantage by the use of more or less immoral expedients. In defining crimes the legislature gives names to certain classes of immoral acts. The list is brief when compared with one including all the immoral conduct of which people are guilty, but it includes those most vicious and common. Concerning some vices there is a tendency for public opinion to ebb and flow, and for legislatures to adopt extreme measures of repression at one time and at another to indulge the utmost toleration. Thus drunkenness, gambling, prostitution, liquor selling, usury taking and like offenses are sometimes visited with severe penalties, and at others with none. Heresy, witchcraft and other fictitious crimes are at times visited with death by torture and at others laughed at as absurd. Resistance of an oppressive ruler is treason when unsuccessful and patriotic revolution when it results in the expulsion of a

tyrant. Smuggling goods is an offense or not according to the prevailing policy of the government with reference to revenue and foreign trade. It involves no moral wrong when the trade is in useful articles and the parties to the transaction are mutually benefited, except as there may be a moral obligation to pay a tax on the goods.

On the other hand there are moral wrongs in great number which European and American states never attempt to punish as crimes. It is morally wrong for an able bodied man to live by begging instead of useful labor. This is sometimes punished though the beggar gets only the most meagre subsistence from the public. It is a far greater moral wrong for a strong healthy intellectual man to live in idleness and luxury on the labors of others, yet those who have means to do so are not only never punished, but are usually looked up to as of a superior class. It is always wrong to refuse to pay a just debt when able to do so, but it is not classed as a crime. It is a moral wrong to withhold from another anything that of right belongs to him, yet in many cases it is not regarded as a crime. The Chinese more logically classify all wrongful acts and failures to perform duties as punishable offenses. It is morally wrong to fail in any duty to aid another, yet rarely punishable. It is morally wrong to refuse to do a useful part in life and exchange service for service and kindness for kindness, yet it is not and seldom could be a punishable crime.

From the instances given it is apparent that a legislative body in selecting offenses to be punished is governed by views of necessity and expediency. It is utterly impracticable to have courts sitting in judgment on every trifling deviation from strict moral rectitude. Such trials would be an intolerable burden, productive of great harm and little or no good. The legislature therefore selects such crimes as appear most dangerous to society and imposes penalties for their commission. In dealing with these it is a matter of great difficulty for the state to keep within moral limits. With the abolition of whipping posts, pillories and the death penalty and the adoption of more humane treatment of prisoners in places of confinement, there are evidences of a grow

ing conviction that the state has no moral right to do evil to a criminal to gratify public hatred of the crime. The true theory of the relation of the state to criminals is that it is one of guardianship and similar to that assumed in the care of lunatics. Its duty is to protect the public against their violence and cunning, and at the same time promote the welfare of the culprit.

In dealing with the rules governing what are termed civil cases the legislature has a far wider field to cover. Crime is abnormal and exceptional, but in highly civilized states the people are interdependent, and the rules governing their dealings and relations have more or less effect on all. It would seem to be the business of the law-making power to elaborate and arrange in logical order all rules which are to be observed as law. It would also appear to be its duty to make every rule conform to the moral law; in fact to make rules which are merely expressive of the moral law applicable to each different class of relations and transactions. Neither of these things, however, has ever yet been accomplished. Nothing can better illustrate human selfishness and fallibility than the deficiencies and imperfections of the great codes which have been promulgated in different ages and parts of the earth. Cases continually arise for which there is no provision, and doubts as to what rule governs under a given set of circumstances perplex the judges. All great codes have been in main compilations of the rules already observed in the courts, and have naturally embodied whatever unjust and immoral system had been before firmly established. Thus the Code of Manu, so exalted in much of its principles, is based on classifications of the people designed to maintain the supremacy of the priestly and military orders; The code of Justinian merely continued the laws concerning slavery, personal relations and property rights with slight modifications, none of which reached their fundamental immoralities, and the Chinese code adheres to the theory of the inferiority of women and cruel punishments for all serious derelictions.

The absence of any general codification of the law in English speaking countries may be accounted for in part by the

greater complexity of industrial and commercial affairs, the rapid substitution of new methods for old, and the adherence to judicial precedents to supplement the statutory law. The difficulty in bringing a large representative body like the British Parliament or an American legislature to an agreement on so many and such varied topics as would necessarily be included in a code covering the whole field of civil law is too great to allow a complete codification at one time and as a single act. Codification by topics is more feasible, and some progress has been made in this way in several states. The rapid multiplication of judicial precedents, the disposition of some courts to draw nice and even fanciful distinctions in order to reach a desired result, the breaking down of wholesome rules by the multiplication of exceptions to them, and the growing impracticability of administering substantial justice by the system now followed, call for some form of more concise and authoritative statement of the law. The multiplication and diversification of business enterprises and combinations have complicated the law of agency, employer and employee, corporations and kindred topics. Continuing development will doubtless cause many more rapid changes in methods. The law governing the new relations thus developed cannot lead, but must necessarily follow the new conditions. Codification for the future can only cover the field of past and existing needs; it cannot adequately provide for the unknown.

The principal functions ordinarily exercised by all legislative bodies relate to the creation of offices, defining their functions, designating the manner of filling them, levying taxes, expending public money and regulating the various branches and departments of the governmental system. In exercising these functions they work in the true field of expediency. There is nothing in the moral law indicating the number of officers needed by a state, the duties properly attributable to each, the length of time each should serve or the mode of their selection. It does, however, require that each public servant should render a just equivalent in service for the salary he receives, and impose restrictions on his invasion

of the rights of the people. In devising and constructing the machinery of government the law-making power has the task of providing governmental agencies to restrain the people from doing wrong and to compel them to do right. In this it undertakes to exert a moral force superior to that which directs the conduct of such of its citizens as it is designed to regulate. All experience proves that the men chosen for official positions, no matter what the form of the government, are not distinctly superior in moral purposes to the average citizen. They are however superior to the classes most needing restraint and supervision. By carefully defining their duties and strictly limiting their powers the officers are restrained from misconduct and instructed in the performance of their duties.

The law-making power constructs the judicial system, establishes courts, provides for the selection of judges, fixes their compensation and tenure of office, prescribes rules of procedure and is responsible for the principles of law administered in them. It also outlines the organization of all the executive branches of the government, fixes the number and prescribes the duties of each class of officials and provides compensation for their services. It authorizes the organization and equipment of armies and imposes taxes to maintain them. In doing each of these things it is evident that the end to be accomplished should be a moral one, but in devising means to accomplish it, the legislature necessarily chooses such instruments and methods as it deems best adapted to the end. Considerations of expediency are controlling. If these were necessarily considerations of public expediency, the state would be in no danger except from errors of judgment, but unfortunately personal and party expediency are quite too cften controlling considerations. Where autocratic power is given to one man, his ambitions and personal interests usually outweigh the public welfare. If he has the instincts of a robber, he makes war on his neighbors for his own aggrandizement, and leads his subjects out to be maimed and slaughtered in the effort to kill others. Where the law-making bodies are composed of many members, factional and party

« PreviousContinue »