NEW CRIMINAL CLASSIFICATIONS; NEW MODES OF PROCEDURE; NEW RIGHTS AND REMEDIES. . PRINCIPLES set forth in this volume fundamentally impair the foundations and codifications of both common and statute law.* On the nineteenth of September, 1871, there was a meeting in the city of New York, of three commissioners-Montgomery H. Throop, Nelson J. Waterbury, and Charles Stebbins, Jr., whose duty it was to resolve upon a plan by which to revise the Statutes of the State of New York. But the revisions proposed amount to nothing more than a few simplifications in the text, indexes, titles, and modes of procedure: while the fundamental errors, and the consequent recurring evils involved in and inseparable from present theories and practices are left unnoticed and unreformed, with the stamp of ancient Rome and Old England thick with mould upon them. These profound old lawyers feel safe only when walking upon *Common laws 99 are derived from the decisions of ancient Roman courts, adopted by England hundreds of years ago, and by America as fundamental to all legal institutions and proceedings; but when Legislatures modify these old laws by amendments, the new construction is called "statute law." the decisions of ancient courts and judges-the original manufacturers of our much-revered "Common-Law." In these days this Law is exalted so high as to be called "The common-sense of mankind;" indeed, so deferential are these modern judges to ancient enactments that they behold "Their statutes rise like exaltations, But the harmonial philosophy is already in the world -a philosophy which recognizes that all forms and manifestations of mind and crime, however perverted and foreign to the common centre of welfare, as having a natural origin in ante-natal or circumstantial conditions, in which the individual was involuntarily conceived and prepared to exist as an independent volitional consciousness. Defects and injustice in existing statutes come to the surface under the blaze of our new thought-light; and the spirit of progress, swelling magnanimously in the heart of philanthropy, speaks in trumpet-tones these two words, to judges and legislatures "Repent! Reform!" What does this supreme spirit demand? And for whom? or what class? For the insane (or sick) and for the criminal (or unsound) the Spirit of God speaks : “MORE JUSTICE AND MORE SYMPATHY; LESS COLD DUTY AND LESS FALSE CHARITY!"* Under this new commandment mankind are admonished that cruelty, vindictiveness, and retaliation must be eliminated from existing penal and punitive institutions. "An eye for an eye" is at the bottom of all our "death penalties," and inspires every statute which visits the criminal only to bestow irreparable injury and hopeless desolation. The absence of a just discrimination concerning the relative proportions of crime to punishment is attributable largely to that barbaric and savage theology, still taught in all orthodox churches and popular catechisms, that for a few sins in this life an individual (dying, an unbeliever in the atoning blood) will be punished by indescribable tortures throughout the endless ages of eternity! This monstrous doctrine still lives and dictates in our penal institutions. Almost every law in the criminal code rests upon this barbaric basis. In Roman law you find that an insolvent debtor, without any other imputation of fraud than the fact of owing *Those who "perform " charity from the dictates of " Duty" are under the law of religion and civility, and thus are neither just to the criminal nor kind to the insane. Sympathy is compounded of healing love, mercy, and benevolence; while false charity is a popular mixture containing equal parts of impulsive pity, heartless duty, and cold contempt. the debt and not having paid it, could be taken home by the creditor and kept sixty days, fettered with irons not exceeding fifteen pounds in weight; at the end of which time, if the debt remained unpaid, he could be brought before the people on three market days; on the last of which his body could be cut into pieces according to the number of creditors, or, if they preferred, he could be sold into foreign slavery.* A false witness was punished with death; the same penalty was attached to slander, trespass, larceny (or stealing above the value of twelve cents), embezzlement, burning stacks of corn or hay at night, killing horses, sheep, or other domestic animals, injuring bridges or fish-ponds, cutting down shade or fruit-trees, tearing the garments of a person in the street, treason, arson, piracy—in all about one hundred and sixty offences, according to Blackstone, were by various acts of Parliament declared felonies without benefit of clergy, and therefore "punishable with death." With this history before us, we can easily mark the steps of progression taken during the last hundred years, but how much remains to be accomplished! * See Am. Cycl., vol. vi. It is but yesterday that "imprisonment for debt" was abolished. Is it abolished? Are we civilized? Alas! This moment I behold prisoners for debts (which they cannot pay) in the jail-pens of the city of New York! A new classification of crime, made under the strong inspiration of our new light shining into causes, is called for; whereon a new mode of procedure, and new systems of treatment (not punishment), may be instituted. Begin by accepting this rule: Erroneous reasoning from correct impressions, and correct reasoning from erroneous impressions, one or the other we find mixed with the inception of all mental unsoundness; therefore one or the other is, essentially, within the mainspring of all insanities and crimes. With this understanding, let us make In the foregoing scale is suggested simply the new classification which our law-manufacturers, and all administrative officers in the sphere of jurisprudence, should now contemplate and proceed to perfect accord |