Laws and courts, however, are after all the creation of men, and, like all such creations, they are necessarily imperfect and fallible; or, more correctly, they are organisms which develop and improve. In other words, justice and law are only relatively immutable and perfect. They do, indeed, represent, in a sense, abstract perfection, and at any given time they must be considered the highest criterion of human conduct. But justice and law are not such divinities that they can withdraw themselves from the operation of those forces which we call progress. Seriousness, dignity, and venerability are not sufficient to sustain the majesty of the law; it needs also adaptation to those higher conditions and broader views which mark the growth of human thought. The more we come to look upon law as the standard and gauge of upright human action, the more do we grow to expect it in consonance with the highest dictates of human knowledge and reason, for what is above us must represent what is best in us, else it will be neither respected nor obeyed. Whenever this consonance is not found, human belief in the dignity of the law and in the efficacy of justice ceases. For, theoretically at least, law is so near ideal perfection that the least defect destroys it entirely; and by this “ideal perfection” is meant that laws must reflect the highest and soundest thought of every age. Laws that fail in this cease to be a power for good; they are then looked upon either as ridiculous or as oppressive. If the former, they defeat their ends by becoming dead laws; if the latter, they become a source of disorder and discontent. Hence we see that jurisprudence is essentially evolutionary and progressive, and that the majesty of the law does not lie in its age but in its perennial youth, or, more correctly, in its successive rejuvenescence. It is true that in China the antiquity of a law is its highest prestige, but, as a consequence, Chinese justice is proverbially inefficient and barbarous. It therefore follows that the constant study and improvement of what we have called the safeguards of our fundamental rights should be our highest duty, and the object of the care and solicitude of the State. It is not enough to rest contentedly in the thought that a Magna Charta, a Petition of Rights, and sundry written constitutions protect us. Their very existence is but an argument for our eternal vigilance. Now, the question to be here examined is whether we have exercised that care and vigilance which are essential to the free enjoyment of our rights.
Let me premise the statement that the protection of the rights of life, liberty, and property is peculiarly within the province of the criminal law. What constitutes the right of life, liberty, and property can not be defined or described, except negatively by a definition of what will be deemed its infringements. These we call crimes. To declare what acts come within the definition of such crimes is the function of the criminal courts.
It is upon the criminal law, therefore, that we must rely for the enunciation of what acts shall constitute a breach of the right of life, liberty, and property, and it is to the criminal bench and bar that we must turn for the correct interpretation and application of such enunciations. Hence the more time and attention we devote to the study of criminal legislation and to the enlightenment of the criminal bench and bar, the more will the safety of our rights be increased and strengthened. Likewise, the more we allow criminal legislation to be the product of hasty consideration and the criminal bar to drift into disrepute, the more the safety of our rights will be proportionally weakened.
The first question that presents itself is, “What is done by our law schools for the study of criminal law?” The answer is not very encouraging. Let us take those law schools which are of most importance, either by reason of their curriculum or of their attendance. Harvard, with a three years’ course, devotes two hours a week for one year to criminal law (including criminal procedure). Allowing nine months of four weeks each to the scholastic year, and a weekly average of eighteen hours, it will be found that the time devoted to the study of criminal law (including procedure) is a little over three per cent of the entire course. By a similar computation we find that Columbia devotes to criminal law (and procedure) a little over four per cent of the entire course, which is about the percentage given by Yale and a little lower than that of the Universities of Michigan, Cornell, and New York respectively.
These computations are based upon figures given in the catalogues of those universities, or kindly furnished by the deans. Nothing more eloquent of the decline of the study of criminal jurisprudence in our country could be cited. But the catalogues of these law schools add further proof. At none of them is there a professor whose instruction is confined solely to criminal law. Nearly all the instructors in criminal law devote but a small part of their time (and probably of their study) to the teaching of this subject. In Columbia the instructor in criminal law is professor of international law and diplomacy;[I] at Harvard the incumbent of the chair of criminal law teaches the law of carriers; that of Michigan teaches the law of bills and notes and of public corporations; that of the New York University the law of sales and wills. It is, moreover, a significant fact that the faculties of the above-named institutions, while recommending to law students the optional study of political economy, constitutional history, taxation, physical science, English literature, and modern languages as conducive to a higher standard of legal culture, utterly fail to advise them to pursue courses in criminal anthropology, criminology, or penology. In other words, it is deemed advisable that the future lawyer should bring to the aid of his civil practice the complementary knowledge of French and history, for instance, but it is of no importance that he should be acquainted with the results of modern criminologic and penologic research. Thus the conclusion is forced upon us that the study of criminal law, whose importance I have endeavored to set forth, has become a subject at sufferance in our universities, a practically optional course of little consequence to the student, and of no interest to the teacher.
[I] This has since been changed; but the change makes the case worse, as the new instructor in criminal law teaches not only two branches of the law (as under last year’s course), but five—viz., Criminal Law, Wills and Administration, Common-Law Practice and Pleading Bankruptcy, and Bailments and Carriers.
From the very beginning of his legal career the future lawyer is made to feel that the field of criminal law is not the one in which to exercise his best talents. Both the school curriculum and popular sentiment strengthen this prejudice. To the community at large our criminal courts have come to mean places where criminals are sentenced or rogues saved on technicalities; they have ceased to be centers of justice, where innocent men are saved and guilty men tried according to the law of the land. Hence has arisen the popular belief (despite the rule that the accused shall be considered innocent until his guilt is proved), shared in a measure by the bench and bar, that every man accused of crime is criminal and depraved, and that, therefore, contact with him should be avoided. Thus the criminal lawyer, who necessarily must come in touch with such alleged crime and depravity, is practically ostracized not only from the community but also from the civil forum.
The existence of such prejudice against the criminal bar is most deplorable. Men of ability and position will shun criminal practice, leaving the field clear to unscrupulous shysters. Let it be remembered that to a man charged with the commission of a crime and deprived of his liberty the lawyer appears a savior; that the accused is practically at his lawyer’s mercy, being under most trying duress and very easily influenced. The temptation for unprofessional dealing is here at its highest, because of the manifest advantage of the lawyer who is able, or whom the client believes to be able, to unlock the prison doors. It takes men of more than ordinary fiber to persistently resist such temptation in all its forms. Hence the necessity of upright and learned men at the criminal bar. But how few are our great criminal practitioners! How often have I heard lawyers, too young and clientless to allow themselves preferences, declare most decidedly that they were willing to do anything “except criminal law”! They had been trained to look upon it not merely as inferior but as degrading practice. Yet it is common knowledge that in European countries, where less boast is made of inalienable rights, it is the ambition of all lawyers to get a reputation at the criminal bar. It is there, in fact, that reputations are made.
It is likewise in those countries where many would make us believe that life, liberty, and property are not as sacredly guarded as in our own country, that the criminal laws are a constant object of scholarly study and investigation. The great progress made in the study of crime, the building up of a criminal science and a criminal sociology, is almost exclusively the work of Continental criminologists. Penology has indeed engaged our attention, but criminology has been almost practically ignored by us.
Of criminal law it was long ago said that, “by reason of the numberless unforeseen events which the compass of a day may bring forth,” the knowledge of its provisions “is a matter of universal concern.” Yet, despite this “universal concern,” our criminal law has been and still is inferior to our civil law. I have pointed out at the beginning of this article how the majesty of the law depended essentially upon its ever-recurring rejuvenescence; that law was a living organism, subject to change and the forces of evolution.