XVIII
CRIMINAL LAW AND POLICE
There is no very general tendency toward new legislation in matters of felony, and many States are still content to remain with the common law. Such legislation as there is is mainly concerned with the protection of women and children, alluded to in the last chapter. In matters of less serious offences, of legislation creating misdemeanors or merely declaring certain acts unlawful, there are three main lines: First, legislation usually expressive of the common law against conspiracies of all sorts, combinations both of individuals and of capital, already fully discussed. Next, the general line of legislation in the interest of the health of the public, such as pure food and drug laws, and examination for trade or professional licenses; and finally laws protecting the individual against himself, such as liquor and anti-cigarette or anti-cocaine laws. It is hardly necessary to more than illustrate some of these matters. Then there are the laws regulating punishment for crime, laws for probation or parole, indeterminate sentences, etc., all based on the modern theory that reform, not retribution or even prevention, is the basis of penology. Such laws have been held constitutional, even when their result is to arbitrarily increase a man's sentence for crime on account of his past or subsequent conduct. Finally, and most important, there is the legislation regulating the actual trial of cases, indictments, juries, appeals,—the law of court procedure, civil as well as criminal, which for convenience we may consider in this chapter.
Of the first sort of legislation, we have noted that in many States adultery, in many States simple drunkenness, in other States mere single acts of immorality, are made felonies. In 1892 the State laws against food adulteration begin, which, by 1910, have covered milk, butter, maple sugar, and many other subjects. By the Federal pure-food law of 1906, applying to Interstate commerce in such articles, it became advisable for the States to adopt the Federal Act as a State law; also for the sake of uniformity a few States have had the intelligence to do so. The trades of fat-rendering and bone-boiling are made nuisances by statute.
In 1896 we note the first statutes against lynching. In 1897 local option prevails in Texas, and the blue laws of Connecticut are abolished to the extent that recreation on Sundays is no longer prohibited. Local option and anti-lynching laws continue during the next two or three years, and by 1900 twenty-four States have pure-food laws, which, however, are ineffective because they impose no sufficient penalty. In 1903, in consequence of the assassination of President McKinley, Washington and Wisconsin make the advocating anarchy a felony. Twenty-one more States pass pure-food laws, and nearly all the States have gone over to local option from State-wide prohibition, to which latter principle only three States now adhere. In 1904 Mississippi and Virginia adopt more stringent laws against vagrancy, and 1905 is the year of active legislation on the indeterminate sentence, juvenile courts, parole and probation, with two more statutes against mobs and lynching. In 1907 the States are busied with the attempt to enforce their prohibition regulations against the interstate commerce jurisdiction of the Federal government. Solicitation of interstate orders for liquor is forbidden in Mississippi, and it is provided that shipments sent C.O.D. are not to be moved one hundred feet or given away; also, that the mere possession of an internal revenue receipt from the United States government is prima facie evidence of an offence against the State law. Statutes of this kind led to renewed conflict between State and Federal authority. Virginia adopts the statute against giving tips or any commissions; see p. 244 above. In 1908 we find more parole and probation laws, two prohibition and three local-option laws, and four new pure-food statutes.
Coming to matters of court procedure, in 1890 one State provides that there should never be called more than six witnesses for each side in any criminal case, which oddly reminds one of early English trials by compurgation; but is, of course, quite unconstitutional in this country. In 1893 Connecticut adopts a statute that honorably discharged soldiers and sailors addicted to drink are to be "treated" free at the State hospital. The definition of the word "treated" seems ambiguous, but in any event it is a pleasing reminder of Bishop Berkeley's remark that he would "rather see England free than England sober." Some States provide for a jury of eight in criminal cases and for a verdict of three-quarters in civil cases—a statute of questionable constitutionality. Very generally throughout the twenty years studied by us, the States have adopted stricter rules for the admission of attorneys at law to practise at the bar.
In 1895 Pennsylvania yields to the physicians and passes a statute forbidding them to disclose communications of patients, but the statute only applies to civil cases. More States provide for verdicts by a majority of the jury. Maryland goes Pennsylvania one better in extending the professional privilege to newspaper reporters; that is to say, we find a statute that they may not be compelled to disclose their sources of information, an excellent statute for the yellow journal. In 1897 California abolishes capital punishment; there has been a general tendency in this direction, of recent years, although some States, having tried the experiment, have returned to it again, as has the Republic of France. In 1899 the privilege from testifying is extended in one State also to trained nurses, and in others to physicians, even in criminal cases, although they may testify with the patient's consent. The same law was adopted in Iowa in 1900, Ohio does away with the common law of libel, except the plaintiff can prove actual malice. By this year, seventeen States expressly allow women to practise law, and twenty-eight do so by implication. The Colorado statute for a three-fourths verdict is held unconstitutional.
The regulation of the liquor traffic is, perhaps, after the labor question, the most universal subject of legislation in occidental nations. Experts on the matter tell us (E.L. Fanshawe, "Liquor Legislation in the United States and Canada," Report to Parliament, 1892) that there have hitherto been but three, or possibly four, inventions—universal or State-wide prohibition, local option, license, high or low, and State administration. The last was recently tried in South Carolina with more or less success. Prohibition by a general law does not seem to be effective; local option, on the contrary, does seem to be so. But the general consensus of opinion, to which Mr. Fanshawe comes, and which seems still to be held by most intelligent American publicists, is that on the whole high license works best, and this the women themselves have just voted in Denver; not only because it actually prohibits to a certain extent, but it regulates and polices the traffic, prevents the sale of adulterated liquor, and to a considerable extent the grosser disorders and political dangers that attend the bar-room. On the other hand, the power of licensing should never be granted to any political body, but should be granted under fixed rules (determined by geographical position and the local opposition or desire) by the local government. These rules should not be arbitrary, and the person applying for license should have the right to appeal to some court.
Matters of bribery and political corruption have been somewhat anticipated under Chapter 14. Suffice it here to say that the States very generally have been adopting statutes making bribery criminal and a cause of permanent disqualification from all political right, either voting or holding office, and this applies both to the person bribing and the person receiving the bribe. Bribery by offers or promise of employment is a far more difficult matter, but this matter also certain States have sought to regulate.
There are, of course, thousands and thousands of city ordinances relating to the criminal law, but usually to minor offences or matters of police regulation. Undoubtedly the duplication of them tends to make us not a law-abiding community. It was the present Boston police commissioner who complained that there were more than eleven thousand ordinances in Boston, which everybody was supposed to know. We must let the whole matter go by saying that there is a general attempt at universal police regulation of all the actions of life, at least such as are conducted outside of a man's own house. Sunday laws, Sabbatarian legislation, have, of course, very largely been abandoned, except when restored in the interest, or supposed interest, of labor. In the State of New York, for instance, barbers could only shave on Sunday in the city of New York and the town of Saratoga; the reasons for the exception are obvious.
Coming to general principles of penology, there is no doubt that of the three possible theories, revenge, prevention, and reform of the criminal, it is the latter that in the main prevails throughout the United States. An investigation was conducted some years since by correspondence with a vast number of judges throughout the world, and it proved that this was also their principle of imposing sentences, in the majority of cases. More radical change is found in that legislation freeing prisoners on parole, providing indeterminate sentences, and in the creation of special courts for boys and young women, with special gaols and reformatories. Jury trial, of course, remains substantially unchanged from the earlier times, only that the jurors are now in most States permitted to read or to have read the newspapers, and that the government has a right of appeal when the verdict has gone for the prisoner on a point of law. This matter, upon President Roosevelt's recommendation, was embodied in an act of Congress.
The legislation making it criminal to advocate assassination or anarchism has been adverted to when we were considering the rights of aliens. In England, it is treason to imagine the death of the king. There is no constitutional reason why it should not be treason to imagine the death of the president, or perhaps even the subversion by force of organized society. Such laws have been passed in Washington, Wisconsin, and other States.
It has, in some States, been made a capital offence to kidnap a child, and, as has been elsewhere said, the rigor of the common law is very generally preserved for the crime of rape. The most active effort to-day for legislation in matters quasi-criminal is that to extend jury trial over cases of contempt of court, particularly when in violation of a chancery injunction when the act itself is criminal. The greatest need of criminal legislation is in the writer's opinion in matters of business or corporate fraud, and in revival of our older English law against the extortion or regrating of middlemen, the engrossing of markets, the artificial enhancing of the prices of the necessaries of life, and the withholding, destruction, or improper preservation of food. But most of all, as President Taft has urged, greater speed and certainty and less technicality in court trials for crime—a reform of our legal procedure.