Page:The Green Bag (1889–1914), Volume 02.pdf/76

 59 the average barrister (the very average and not over incorruptible ninth part of a man who usually constitutes a figure in the legis lative bodies of our republic) and of the stupid judge (not always product of bribery and caucus-packing, yet always of dense and cloudy view in the matter now under dis cussion) are not at all educated to discern the true nature of crime and the cause that produces the criminal as a common social phenomenon. Quote to your average lawyer or stupid judge this statement, for instance. "In everything which concerns crime, the same numbers recur with a constancy that cannot be mistaken, and this is the case even with those crimes which seem quite independent of human foresight, such, for instance, as murder, which are generally committed after quarrels arising from cir cumstances apparently casual." 1 Quote to him also this statement: — "It surely must be admitted that the existence of crime according to a fixed and uniform scheme is a fact more clearly attested than any other in the moral history of man." 2 Quote to him likewise this statement : — "The statistician shows that a certain condition of temperature increases the force of a passion, — or, in other words, the temptation to a particular vice; and then proceeds to argue that the whole history of the vice is strictly regulated by atmos pheric changes. The vice rises into prominence with the rising temperature, it is sustained during its continuance, it declines with its decline. Year after year, the same figures and the same variations are nearly reproduced. Investigation among the most dissimilar nations only strengthens the proof; and the evidence is so ample that it enables us within certain limits even to predict the future." * Alas! lawyer and judge alike, respectively, "as aforesaid," will impatiently respond that his literature does not recognize a precedent 1 Quetelet, Sur l'Homme, Paris, 1835, vol. i. p. 7. vol. i. p. 21. • W. E. H. Lecky, History of Rationalism, vol. i p. 11.
 * Henry Thomas Buckle, History of Civilization,

in what you offer, nor authority in the person from whom you quote " as aforesaid," and the same are not controlling to him or his learned ilk for any purpose in the wide world. Each of this sterile and self-sufficient gentry will probably take note, too, that the tome from which you cite is neither bound in mod ern sheep nor in the earlier and traditional calf, wherefore it has no caste at the bar and shall not influence the bench. So each denies it respect, and refuses it confidence. On this vari- and super-opinionated earth, full of doctrines and noisy doctrinaires, there are probably no more incorrigible sticklers for " wise saws and modern instances," than these two worthy individuals, providing saw and instance savor of the benched bag-wig, or some hoary obsoletism, be it as mummified even as Egyptian Rameses. Do not feudal system and Salic law still essentially hold their own in our modern jurisprudence, though both are, in fact, among the ghosts of dead history and wholly moribund in these quick times? Now, the instant this jurisprudence as well as our codified crimi nal law are viewed in the clarifying light of the facts set forth in the matter above quoted (not new by any means, since Quetelet's results were given to the world over half a century ago), both become largely ludicrous throughout. A certain feeling of contempt for them steals over one. It is seen at once that the law is all behindhand; that it has in no wise kept up with the forward stride of the times; that its cut and fashion are of a long-departed and wofully misinstructed era. At present it is confronted by a con dition of information with reference to the true inwardness of crime and criminals, which it neither knew nor suspected since its origin, which it still leaves unappreci ated, for which it was not formulated, which it never contemplated, which will not sub mit to its ancient tests, and is beyond the scope of any discovery or measurement by its crude, clumsy, superficial, mal-directed, and antediluvian methods. Thus it happens that the law's pretended remedies as to crime