MORNING SESSION.

WEDNESDAY, July 11, 1900.

The association was called to order by the president, and the fol

lowing papers were read:

THE LEGAL RIGHT OF THE NEXT GENERATION.

PAPER BY FRANK S. ROBY.

Not long ago a young man was arraigned in one of the northern counties, charged with assault and battery, with intent to commit rape, upon a woman seventy-four years of age, quite infirm, and extremely unprepossessing in appearance. He was told before leaving the jail, by some of his fellow-prisoners, that he "would have to marry the old woman,” and at once expressed a willingness to do so, although he said that he did not think he would like to live with her very well. He did not seem to be a violent or particularly dangerous man, but was manifestly without any inherent integrity. Susceptible to environment in an unusual degree, confinement in the penitentiary and contact with habitual criminals would make an habitual criminal of him. Able to work and earn enough money to live upon, it would still be impossible for him ever to become a desirable citizen. He was the son of parents who possessed sufficient intelligence, with the aid of the township trustee, to keep out of the poor house, and the oldest of six children.

Section 18 of the bill of rights provides that the penal code shall be founded on the principles of reformation, and not of vindictive justice.

The right of society to inflict punishment for crime depends upon the right of self-defense. In the absence of the provision quoted, it would still have no right to punish other than with a view to the reformation of the offender.

The illustration is designed to show the difficulty of applying the principle. Reformation implies the existence of a subject capable of being reformed.

The criminal law takes cognizance only of acts committed. Its penalties are declared upon the theory that all men are equally responsible for and equally able to refrain from crime. The personality of the offender is not taken into account.

Prior to the enactment of the indeterminate sentence law, the courts could only speculate as to the results of the maximum, minimum or intermediate terms of imprisonment provided for by the statute. Since that wise and wholesome measure, the prison board is able to moderate punishment with some regard to the developing condition of the convict.

The result of the law, well administered, is satisfactory from every standpoint. The board should at the first opportunity be made distinctly non-partisan, not on account of anything that has been or is likely to be done, but in order that the suspicion of political influence in connection with its work be impossible. Judges are not able, at present, to balance one miscarriage of justice by an extreme sentence in the next case. There is now no occasion for men upon the bench entering judgments one day and signing petitions for executive clemency the next.

The fact still remains, however, that the personality of the accused is not taken into account by the statutes defining crime. The discretion of the judge is therefore tested to the uttermost in his constant effort to guard against injustice and hardship in individual cases.

The rule of reasonable doubt and the presumption of innocence have been many times used to defeat the letter of the law, when guilt was only doubtful by reason of the harshness of the statutory penalty applied to such a man as the defendant happened to be, and in view of the circumstances surrounding him.

The conclusions of the American jury are never wrong when the truth is made plain. What has been called its "equity power" enables the jury to make the law endurable where its literal enforcement would shock the civilized conscience to such an extent as to

breed revolt and rebellion. But for the elasticity imparted by the humanity of those who administer them, many prescribed penalties would be unendurable.

It is not proposed in this paper to suggest that there should be different laws for different men. Judges viewing with compassion the weak, the blind, the ignorant and the unfortunate as they pass in ceaseless procession through the courts can be trusted in the main to temper justice with mercy, while as long as twelve jurors have power to decide both fact and law, guilty men may escape, but innocent ones will not be punished.

One effect as well as purpose in the punishment of crime is by example to deter others from the commission of similar offenses. The influence of fear thus inspired is an influence not to be underestimated in the maintenance of the public peace and safety.

The power of the state thus to protect itself and its citizens has not been doubted. Neither is the right of self-protection confined to the infliction of severe punishment. The power is as broad as the need. The right to punish crime and the right to prevent crime are inseparable. The progression of the law is in the direction of preventing crime. The only satisfactory disposition of the ignorant criminal is to improve him out of existence.

To educate and enlighten the community reduces the tendency to lawlessness, obedience to authority and conformance to custom being enjoined by both selfish and unselfish considerations.

Those things that contribute to the improved physical or mental condition of any member of the community tend to the security of the state, and to aid mankind in reaching those high levels of morality and intelligence from which the results of digression and wrong-doing can be seen in all hideous and hateful forms.

Ignorance is a comparative term, applicable in some degree to all. Determined by average standards, it gives moral quality to the acts and omissions of men.

The transgressor of the written law may be responsible, not a fit

subject for an insane asylum, and yet lack perception and be incapable of the mental activity necessary to enable him to remain a law-abiding and useful member of society.

For such a man there ought to be much pity and some of the human sympathy that makes itself manifest in tangible form; but pity and sympathy do not avail much, while harshness and severity avail nothing at all.

Is it any wonder, with such material to deal with as they have, that the courts sometimes make mistakes? That an ideal admin

istration of justice has not been attained?

We pay much attention to the enactment of statutes defining crime and prescribing rules of conduct.

We pay much attention to the formation of courts, the selection of officers, and the fashioning of the machinery with which to enforce the statutes.

There is no danger that the statutes will ever be too carefully written or construed, or that the integrity and efficiency of the courts will be raised too high; but there will be less need of statute and less work for court when more attention is paid to the individual for whose benefit and restraint these things are.

The average character of the community depends upon the number of the wise and capable who belong to it, and also upon the number of its incapable and incompetent.

Whatever raises the average simplifies the problems of society and government. They are problems not confined to the criminal courts. They embrace the relations of the many to the few; of the many to each other. They include the distribution of wealth, the compensation of labor, and the wise direction of that gigantic and essential force inherent in combined effort and accumulated wealth. Ignorance and hatred complicate, but can not solve such problems. Charitable institutions, schools and missions have a proper place of high accomplishment, but they alone can not make men capable