Page images



reports is fast destroying their utility. The tendency 1. Escape arrest by escaping detection (so-called of the bench, in all appellate courts, is more and mysterious crimes). more to recur to fundamental principles, without 2. He may be suspected but never arrested, if much reference to what other tribunals may have the suspicions are not technically sufficient to jusdecided as to their application in particular causes. tify an arrest.

It is these fundamental principles, with their more 3. If he is arrested, he has two chances of escapimportant exceptions and limitations, that the law ing indictment, first, by being discharged by the student needs to apprehend, and so to apprehend committing magistrate, and, second, by a failure as to have them at his service at the moment when of the grand jury to indict him. he needs them. They must stand in order in the

4. If he is indicted, he has the following chances chambers of his mind, ready to come at call. He of never being tried, first, he may be bailed and can never attain this from the study of cases alone.— 'may jump his bail; second, the indictment may be Simeon E. Baldwin, in Harvard Law Review. pigeon-holed; third, the indictment may be

quashed; fourth, the witnesses for the prosecution

may die or disappear; fifth, he may be discharged THE COEFFICIENTS OF IMPUNITY.

on the recommendation of the prosecuting officer. (Being an Inquiry into the Social Defense Against 5. If he is brought to trial, his chances of escape Crime.)

may, in a rough way, be summed up as follows, first, acquittal for lack of proof of guilt beyond a

reasonable doubt; second, acquittal on a technical IN N THESE days of penal and criminal reforms it

defense, such as the statute of limitations; third, may well be asked, are we sufficiently pro

a disagreement of the jury, which generally means tecting the law-abiding majority against the attacks

discharge of the accused. of the enemies of law and order, which constitute a minority?" “ Does our criminal and penal legis

6. If he is convicted, his chances of escape are,

first, reversal lation and the machinery of the law, as at present

appeal; second, executive

clemency. operated, constitute an adequate social defense against crime?

Let us now examine these coefficients in The first step toward the ascertainment of a cor- detail. Unfortunately statistics on matters criminal rect answer must necessarily be a comparison be- i are not very complete and satisfactory. Statistical tween the means of offense within the reach of the data are especially lacking, as regards the question criminal with the means of defense used by the of “mysterious crimes,” in which the offender has State.

never been discovered. The police are naturally It should be understood that in fighting criminals, averse to making such records public, for they especially thieves, forgers, embezzlers, as well as essentially amount to a statement of the inefficiency the so-called born criminals, we encounter

of the detective bureau. common-place intelligence, but, as Major Griffiths | I have kept a record of murders in New York has amply shown in his recent book (“ Mysteries city from 1895 to 1898, in which the murderer of Police and Crime "), a lively and cunning escaped detection. There were, at least, thirty-five energy.

such, of which some twenty were of such a sensaIt will be my endeavor to show that the most tional and shocking nature that they elicited not dangerous and efficient weapon of offense in the only the special attention of the police and detechands of malefactors is what might be called the tive forces of the largest city in our country, but tenderness of our laws and customs toward per- also called into play the aid of an enterprising sons accused of crime. It is not my purpose to press. Yet the murderers of all these victims are examine the subtle distinctions which our courts still at large. have ingeniously made in the definition and applica- Before this appalling list of unpunished murtion of the ancient doctrine of “reasonable doubt.” ! derers minor crimes seem unimportant. Yet I am I examine it from the standpoint of the offender, informed that within a period of three years and and to him it means nothing more or less than during an honest police administration there were his chances of escape. These have been rightly over fifteen hundred burglaries, robberies and called “the coefficients of impunity," and it is these minor crimes committed in New York city, of that we must carefully study.

which the perpetrators were never discovered. These coefficients may be divided into two J. Holt Schooling, in a series of interesting staclasses, viz., those which may be called legal, tistics, arrives at the conclusion that only fifty out because sanctioned by law or not forbidden by it, of every one hundred crimes reported to the police and social, because arising from causes which are are traced to their perpetrators, although prosecuextra-judicial or extra-statutory.

tions are held in seventy-five cases out of every one Looking first at the legal coefficients of impunity, hundred crimes. That is to say, twenty-five per let us see how many chances of escape a criminal cent of crimes are perpetrated so successfully that possesses as against the chances of conviction. He even a prima facie case cannot be established, while may

fifty per cent of all crimes go unpunished. And


this in a country like England, which is justly “ pull or to be able to procure bail, or has sense proud of its police system. Other statistics show enough to avoid the commission of any crime of an even greater percentage of impunity. Thus the a sensational or interesting character, such as will proportion between crimes and arrests in England enlist the professional sympathy of the prosecuting is stated to have varied from forty-four to forty-five officer. And how many more escape trial by havper cent in 1886-87, and to have risen to 46.8 per ing their indictments quashed on a technicality, cent in 1892-93. Turning to other countries, we which the district attorney seldom corrects, or by find that since 1825 it has been estimated that in i delaying the day of reckoning until the death of France there have been 80,000 crimes committed important witnesses, fills the prosecuting officer where the offenders were never discovered. In with a feeling of "convenient mercy" which Italy, according to the statistics of 1895, there were : induces him to recommend to the court the dis102,004 trials against known parties, as against charge of the prisoner! 36,751 unknown parties. The official statistics of

The sifting process goes on and guilty men disthat kingdom show that 44,113 crimes went unpun- entangle themselves from the thin, loose meshes of ished in 1885, 64.385 in 1890 and 63, 147 in 1892. the law until only a very few are left for trial. The poverty of statistical data, based on scientific Then the process begins again; but with a new principles in our country, makes it impossible to advantage to the accused, for, at the trial, he has give the percentage of impunity in the United the services of learned lawyers, well up in all proStates, but the figures furnished by the county of fessional tricks, distinctions and oratorical induceNew York, cited above, show that we have nothing ments. The legal battle may suddenly end in an to boast of in our success in detecting crimes and acquittal on proof that the crime is barred by time. bringing their perpetrators to justice.

If no' such plea is raised, what a titanic labor is We can hastily pass over the second point which before the prosecuting officer in order to obtain cannot be made a subject of statistical study. I a conviction! He must convince twelve men, I refer to those criminals against whom suspicion beyond a reasonable doubt, that a crime has been exists, but of such a slim nature that under our committed by the accused whom they are solemnly laws no arrest can be made cases where there is instructed to consider innocent until conviction; a moral certainty, which could be very easily con- he must prove to them, beyond a reasonable doubt, verted into a legal certainty by the prompt appre- that the accused is perfectly sane and was sane hension and close surveillance of the suspected. when he committed the act; he must establish by So that it may be said that a criminal may not even legal evidence the act and the motive which completely hide his tracks; it is sufficient, if he prompted it, and prove his guilt by the production covers the most damning ones!

of facts, which, by the very nature of the act A passing consideration of the third legal coeffi- charged, are well-nigh impossible of production; cient of impunity will suffice. It often happens he must offset the evidence of the defense, destroy that the police are certain that a suspected person its force and overcome the natural tendency of is the guilty one, but they do not possess sufficient jurors to acquit. He must do all this in conformevidence, or oftener, do not have the skill to make ity with countless ambiguous rules of procedure out a technically perfect prima facie case. The and principles of evidence, because one single slip committing magistrate, looking upon the evidence may suffice to give grounds for reversal on appeal. in a legal light, finds it insufficient to hold the If he succeeds in convincing only eleven of these prisoner and gives him the benefit of the doubt. twelve good men and true, if he cannot free the The police may afterward be able to perfect their conscience of the twelfth man of a reasonable case, but it is then, often, too late. Or, again, the doubt," his work has been all in vain, except in grand jury, in the pressure of other cases, may showing his hand to the defense. Or, if he falls fail to indict the accused, who thereupon on the into any pitíall prepared by the shrewdness of the application of his lawyer, who pleads the defense, his work, though otherwise perfect, will "undeniable right" of a man not to be unduly I likewise have been in vain. Disagreement of the restrained of his liberty, is set free.

jury or reversal on appeal means, in most cases, Of 1,475 arrests for felonies in New York county i acquittal. during three months, 615 were released during the With consistent tenderness toward the accused, said period. Of these, five died before trial, 117 our laws provide that no man's life shall be twice were acquitted and 493, or over sixty-two per cent, put in jeopardy for the same offense. The absence were discharged without trial. This may give an of the right of appeal on the part of the State in idea of how many escape at the preliminary skir- ! criminal cases which is restricted on the part of mish with the forces of law.

the defendant results, as was recently pointed out How many who are indicted are ever brought to in the American Law Review, in such delay and trial? No one knows, not even the district attor-, technical obstruction “that an outraged people ney. The invention of the pigeon-hole has been have become thoroughly tired of it.” And it canthe greatest boon to the criminal who is fortunate not be denied that the existence of this ancient enough (and many of them are) to have either a principle of not jeopardizing a man's life twice for


the same crime often means that, if a criminal is offenses which we think we condone out of pity acquitted by reason of a hastily-prepared case or or magnanimity, are really excused for the sake on a technicality, the most damning proof that may of saving ourselves time and trouble? We stifle thereafter be found against him will be useless and the voice of our consciences by saying it is a small unavailable. So that the social defense is so con- matter, or that it will never be repeated, or that ducted under our laws that we may not only have everyone should have a chance. Yet the most an unknown criminal at our side, which the State experienced penologists, the best scholars of crimihas been unable to detect, but we may also have nal science tell us that such forgiveness aids, instead to tolerate a known one, whom the law has bound of checking criminality, that it induces the offender itself to keep out of prison.

to repeat the act, having learned that it may go Let us now consider the last legal coefficient of unpunished. And, while it is true that offenses of impunity. Of the small proportion that are con- this kind are generally petty and insignificant, yet victed, what part pay the full penalties for their in criminal life, as in the moral life, nothing is so misdeeds? The abuse of the pardoning power is important as to “beware of small beginnings." an old subject, and a few statistics on that point There is also a marked social complicity among will suffice. The official records of New York' the better classes resulting from that esprit de corps State show that between 1846 and 1896 there were engendered by societies and clubs. How many granted 80 full pardons from life sentences, 4,453 minor offenses committed in a college, a club, or full pardons from lesser sentences, besides 226 con- a private community of men, are never reported to ditional pardons. Add to these il commutations the police, because it might injure the good name from capital punishment to life imprisonment and of the institution? 1,758 commutations from lesser sentences and we And let us not forget that there is also a prohave a total of 6,448 interferences with the decrees fessional and commercial complicity, such as that of the courts in half a century! It has been esti- of lawyers, who stoop to the fabrication of testimated (though I cannot vouch for its correctness), mony; of doctors, who aid in the avoidance of that the percentage of criminals released by natural duties and responsibilities; of business men, executive clemency is fifty in Massachusetts and who, by “ deceit and adulterations which furnisa thirty-three in Wisconsin; and that the average the illusion of cheapness,” set the example for time served by pardoned life prisoners is six and criminal imitation among the masses. As one of one-quarter years in Massachusetts and six and our best students of penal problems has justly one-half years in New York.

observed, many of the maxims and practices of Thus, from first to last, the social defense, as the business world are essentially dishonest and provided by our laws, by favoring the offender and they are glibly cited by convicted criminals in giving him numberless chances of escape, ignores justification of their own misconduct." the principle that the law's first object is the pro

These are a few examples of social complicity tection of the honest citizen.

with crime, a few of the coefficients of its impunity, But there are other coefficients of impunity out of the mass of passive or active potentialities besides these legalized methods, which may be that are arrayed against the inspfficient defenses of called the official protection, and which, as I have the State. If the consequences of such a state of tried to show, protect the offender and not the affairs, of such weakness of the social defense are offended. I refer to an imperfect or mistaken pub- not as serious as one would imagine, it is because lic morality. This social complicity in crime, as it the criminal class is not a large one. According has been aptly called, is observable under many to the census of 1890 the number of criminals in forms. There is, first, a popular tolerance, mis- our prisons was 82,329, a very small percentage takenly called pity, for certain criminal acts, of the population of 50,000,000. By the same cennotably crimes of passion or so-called crimes of sus there were 14.846 juvenile delinquents in asyhonor. Duelling is, fortunately, on the decline in lumis and 14.371,893 children in our public schools. our country, but emotional and hysterical acquittals. Even adding undetected criminals and what might of persons guilty of taking thie law into their own be called latent criminals, the total of the criminal hands to avenge their honor are, by no means, population would not, probably, reach a very large uncommon. The evils of such acquittals, which ' percentage of our entire population. But its small amount to a glorification of crime, are too obvious size cannot be an excuse for our inefficient social to require explanation.

defense against it; by reason of its contagious The social complicity as a coefficient of impunity properties, and, unfortunately, of our lack of moral is especially harmful in those very numerous strength, crime stands as a perpetual menace to our instances in which honest men and women become welfare, and, though we cannot blot it out of existaccomplices in crime, either by timidity or by the ence, we must, at any rate, spare no effort to desire of avoiding trouble. How many crimes, minimize its power for evil. such as petty thefts, go unpunished because the It would be beyond the limits of this article to victim shrinks from entering a police court and examine the various methods of strengthening the going through the trouble of a trial? How many social defense which have been suggested by



sociologists and students of crime. But from the exercise within a State the right of eminent dofacts above set forth it may be stated, in a general main, that is, the taking of private property for way, that the social defense against crime, to be public purposes, a right which it exercises within successful and effective, must be two-fold; it must a territory, with or without the action of the terconsist, first, of a standing army, composed of ritorial government. The laws passed by territorial well-trained and experienced men, assigned to legislatures are subject to the approval or disvarious special duties. These are the judges of our approval of congress. The legislature of a terricourts, the prosecuting officers who represent the tory is, in fact, a body to which congress has delepeople, the police who do picket duty against gated powers that are to be exercised under its crime, the detective force which spies on the supervision. The people of a territory may in enemy, the experts who help to unravel difficult convention assembled adopt a Constitution satisquestions and the various officers, such as sheriffs, factory to themselves, yet congress may refuse to prison wardens and keepers who execute the man- recognize it. dates of the courts. But this standing army must

The Constitution does not give congress power be supported in the battle for the social defense to treat States in that way. Yet has anybody ever by a national guard or militia, recruited from all really been shocked because things prohibited in ranks of honest citizens who desire the continuance the States may be done in the territories? Except of the supremacy of the law.

for the purpose of opposing the administration, The co-operation of these two armies will not have sensible and sober-minded persons ever really eradicate crime, but it will minimize its power for been shocked by the proposition that the president evil; it will diminish the chances of impunity and or congress may do in the Philippines what the thereby deplenish the ranks of malefactors.

Constitution forbids them to do in the States? And let us remember that the battles fought by It would, indeed, be shocking if the president or these two armies against the enemies of law and congress should attempt to govern the Philippines order will furnish as excellent opportunities for the in a despotic and oppressive manner, without any redisplay of heroic civic virtues as are afforded by gard for the Bill of Rights — say as Spain governed the most imposing of military operations. There is them prior to the cession. The American people nothing so illogical as to imagine that our duty to know very well that no president, no congress, will the State is limited to our defending it against the attempt that. So they refuse to be shocked. Between armed aggressions of a foreign foe. There are what a monster and a fool might do and what any more insidious enemies which attack it from president trusted by the people will do is so great a within; to fight these is one of the great duties of gulf that persons standing securely on the hither citizenship.— Gino C. Speranza, of the New York side of the proposition are quite beyond the effectBar, in the American Law Register.

ive radius of the shock. Of course, every anti-imperialist in the country instantly jumps up to say

that the government of McKinley is worse than DOES THE CONSTITUTION FOLLOW THE the government of Spain, because we are killing FLAG?

off the Filipinos. So the government would use

the military arm to kill off men who should rise in In beginning his address at Ann Arbor ex-Presi- rebellion against its lawful authority in New York dent Harrison took pains to disclaim any intention or Michigan, where the guarantees of the Constituto make a legal argument. The address supports tion have full force and effect. the disclaimer by strong intrinsic evidence.

The American people, being sensible, have reIf Gen. Harrison had been making an argument cently expressed their belief that the president can before the Supreme Court in support of the propo- be trusted. They know that as soon as the rebelsition that the Constitution follows the fag, and lious spirit that actuates a small fraction of the that therefore the people of the Philippines and Filipinos has exhausted itself the work of civil Porto Rico are citizens, he would not have wasted administration in the islands will proceed in the the time of that eminently unsentimental bench temper of the president's instructions to the comby such an appeal as this:

mission. They know, in other words, that the “If the Constitution relates only to the States blessings of free institutions will be conferred upon and their people then all things prohibited in the the Filipinos under American rule just as fast and States may be done in the acquired territory, and just as far as they become capable of understanding this view of the Constitution is shocking. And if and enjoying them, and that under Spanish rule it could be done in Porto Rico, why could it not they never would have enjoyed anything of the be done in Oklahoma, Indian Territory, and kind. An unprejudiced mind is not shocked by Alaska?”

that situation, and would not be, even if ex-PresiWho is shocked by that view of the Constitution? dent Harrison was right about the law. It is good law to say that when we speak of the Daniel Webster, who was something of a hand States of the Union we mean also the territories. at expounding the Constitution, declared that "the They are a part of the national domain, not exterior Constitution cannot be extended over anything, possessions. Yet the federal government may not except over the old States and the new States

[ocr errors]



[ocr errors]



that shall come hereafter, when they do come in.” POPULATION OF THE UNITED STATES. Until that time congress was the source of their government. The slave holders


HE following is the official announcement of eagerly seized upon General Harrison's doctrine,

the population of the United States in 1900, the doctrine that the Constitution, of its own force, by States. In the tables the first column repreextends to the territories. They wanted, as Ben- sents the census of 1900, the second that of 1890 ton put it, to carry the Constitution, “ the slavery and the third column when given, represents the part of it, into the territories, overruling and over- number of Indians not taxed: riding all the anti-slavery laws which it found

1R90. there, and placing the institution there under its


1,828,697 1,513,017 own wing and maintaining it beyond the power


1,311,564 1,128,179 of eradication, either by congress or the people


1,485,053 1,208,130 1,549 of the territory.”


539,700 412,198

597 Courts are sensible, as well as the people. They


908,355 746,258 are never shocked by anything. They may even

Delaware .

184,735 168,493 approve and give their lasting supreme sanction


528,542 391,422 to conditions that have prostrated the anti


2,216,329 1,837,353 imperialists.- New York Times.

Idaho .

161,771 84.385

2,297 Illinois

4,821,550 3,826,351 Indiana.

2,516,463 2,192,404 WOMEN LOSE CITIZENSHIP.


2,251,829 1,911,896 Kansas.

1,469,496 1,427,096 The Albany Law Journal, speaking editorially, Kentucky

2,147,174 1,858,635 says: “The recent decision by Judge Summerville,

| Louisiana

1,381,627 1,118,587 chairman of the Board of Classification of the Maine . .

694,366 661,086 United States Appaisers, to the effect that Ameri- Maryland

1,189,946 1,042,300 can women who marry foreigners are no longer


2,805,346 2,238.943 American citizens, seems us good law, and Michigan .

2,419,782 2,093,889 ought to be sustained as such. The decision was


1,751,395 1,301,826 1,768 made in the case of Mrs. Mattie Dulie, of Helena,


1,551,372 1,289,600 Mont., an American artist residing abroad. She


3,107,117 2,679,184 went abroad in 1887, intending to return and reside : Montana

243,289 132,159 10,746 in this country, but she met Thomas Dulie in 1888 Nebraska .

1,068,901 1,058,910 and married him. Judge Summerville, in his de- Nevada .



1,665 cision, declares that a wife's political status follows

New Hampshire..... 411,588 376,530 that of her husband, and that her nationality and New Jersey.... 1,883.669 1,444.933 domicile for business purposes must always be New York...

7,268,009 5,997,853 4,711 deemed that of her husband. In marrying a for- | North Carolina....... 1,891,992

1,617,947 319,040


4.692 eigner he holds that the artist must be presumed North Dakota.. by law to have lost both her citizenship and her Ohio . .

4,157,545 3,672,316 domicile in this country. The only exception


413,532 313.767 would be where the wife required a different domi- ' Pennsylvania


5,258,014 cile from that of her husband for the purpose of a

Rhode Island...

428,556 345.506 suit between herself and her husband. The de- South Carolina...

1,340, 312 1,151,149 cision is one of great importance, for, by reason

South Dakota.


328,808 10,932 of it, many American women will lose their citizen- Tennessee .

2,022,723 1,767,518 ship in this country who believed that, notwith- Texas .

3,048,828 2,235,523 standing their marriage, they were still

Utah .

276,565 207,905

1.418 residents of the United States."


343,641 332,420 It has been pretty well understood that the law Virginia . .

1,854,184 1,655,910 is stated by Judge Summerville, and Washington .

517,672 349,390 2,531 Mrs. Stanton Blatsh has written a good deal about West Virginia.... 958.900 792,794 the injustice of it. But there would seem to be a

Wisconsin .

2,068,963 1,686,800 1,657 very good reason for not having a divided family Wyoming .


60,703 allegiance. The law should, however, bear equally on both sexes, the citizenship following the domi

Total for 45 States.. 74,627,907 62,116,811 44,617 cile, so that which ever country the parties live

TERRITORIES. in of that they should be deemed citizens for business purposes. The citizenship of either should be Alaska (estimated).... 44,000 instantly regained by the return to the country of Arizona ...



59,620 24,644 birth.- Woman's Tribune.

District of Columbia.. 278.718 230,392



« PreviousContinue »