ADDRESS

OF

R. T. BARTON,

President of the Association.

THE PUNISHMENT OF CRIME.

Gentlemen of the Bar Association:

Including the gathering in 1888 for purposes of organization, this is the sixth meeting of the association. This is our fifth annual session and we enter to-day upon the sixth year of our associate existence.

When we remember the small number that gathered together at Virginia Beach in 1888, increased in one year to two hundred and fifty-seven, and at our last meeting to four hundred and thirtynine, we may well congratulate ourselves upon the extended influence of this association, of which these facts are the strongest evidence, and we might well dwell to-day, with pleasure and without undue pride, upon the good already done by this body and upon the promising seed it has sown for future fruition. But pleasant as this sort of rumination would be, it is perhaps wiser to reserve such self-gratulations to the opening address of some future president, and rather to devote our time to considering some suggestions which, developed by the brooding wisdom of the many minds which annually gather here, may at length result in some public good and thereby afford a surer basis to that future president to boast that the purposes and promises of this association have eventuated, in part at least, in profitable fulfillment.

In attempting the performance, therefore, of my part of this duty, I have chosen for my theme to-day "THE PUNISHMENT OF

CRIME," thus following the examples of my distinguished predecessors in pursuing a practical line of remark, and hoping, like them, to so treat my subject that it may be agreeable to listen to and possibly profitable to read.

It will be seen that I have only gleaned in the old fields, where in the nature of things there is but little room for originality. But since to me so much that is old constantly appears to be very new, I may hope to present to you matters not too familiar, and which, if carefully considered, are full of food for reflection and perhaps of lessons of very practical value.

I have it in mind to review to some extent the origin and history of the criminal law; to regard its growth and fluctuations through altering degrees of leniency and severity; to mark its progress and retrogradations, as it was one time moved by wisdom and experience, and again fell under the insane control of superstition and its companion force; to consider the gradual effect which the birth and growth of sentiments of humanity among men had upon its condition and history; and at last to inquire how far the ultimate and natural reaction against tyranny and extreme severity in the administration of the criminal law may not have led us away from the prime origin and necessity for such a system, which was that guilty men might be so certainly and speedily punished as that good government may be preserved in the land, and the innocent live in peace and free from fear.

The history of jurisprudence, a modern writer has declared, is in great measure the history of civilization. But the science of jurisprudence has ever lagged in its course somewhat behind progress and enlightenment in material, and even in other intellectual sciences; for laws usually do and ought generally to come only after the necessity for them has manifested itself long enough and its demands have heen loud enough to awake to action the law-making power. This was true to a much greater extent when laws were the mere decrees of monarchs, for Parliaments and Legislatures feel much sooner than kings the pressure of public opinion and respond far more promptly to its demands. But in all times, in the laws enacted, we may read the story of habits, customs and crimes which demanded their enactment, and thus

the recorded law paints the picture of the character of the people.

In the nature of man criminal law, to quote again a learned writer, while the earliest in manifestation was the latest in reduction to a rational basis. Among the primitive barbarians violence was the habit, and the necessity for protection from it by law the rudimentary manifestation of the rule of reason. The first laws, like most of those which have succeeded them, were the results of some pressing necessity. Experience and reflection (after men came to profit by experience and learned to reflect) moderated the severity which the impulse of first enactment created. But all this was of very slow growth, and humanity, the companion and result of civilization, only after many years compelled revisions of the laws upon a rational and philosophic basis. We shall see, however, that undue severity started not with the birth of the criminal law. It came many years after, and retaining its vital force long enough to do countless cruelties and wrongs, sunk first into disuse before the rising impulse of human feeling, and at last was swept from the statute books long after much of it had ceased to be more than an archaic curiosity, and when law had at last become truly the expression of reason and the rule of fair government.

What may properly be regarded as crime is easier to understand than it is to define. "An act or omission in respect of which legal punishment may be inflicted"; "rules of conduct, obedience to which may be enforced by the collective strength of the society in which they exist"; "an act committed or omitted in violation of a public law, either forbidding or commanding it"; these are some of the definitions of the word crime. But they are quite unsatisfactory. To let a chimney become foul, or to fail to clean the snow from one's pavement, are acts of omission which are in violation of public law (for such the laws of great municipalities may be called), and these are punishable by the collective strength of society. To keep coal oil or gunpowder stored in a warehouse in dangerous quantities is to commit an offence for which legal punishment may be inflicted upon the person in default. to such offences.

And yet the term crime could not be applied

Neither is vice per se, such as sensuality, hard-heartedness, avarice, etc., called crime. The overt act exposes the criminal nature of the offender, but it is the act and not the nature which is crime, and which in our day is punished as such. Sin, although once so considered, is not per se crime under any civilized system of law.

But, in truth, the word has no technical meaning, at least in England and America, and times, circumstances and conditions have altered, from period to period, the acts and offences which may properly be classed under such a head. A distinguished author, for lack of a proper definition, has thus classified crimes : "(1) Attacks upon public order, internal or external; or (2) abuses or obstructions of public authority; or (3) acts injurious to the public in general; or (4) attacks upon the persons of individuals or upon rights annexed to the person; or (5) attacks upon the property of individuals or rights connected with and similar to rights of property."

But even if all this does not suffice for a definition, as I incline to think it does not, yet we have the satisfaction of knowing that when we talk about crimes we mutually understand what we mean, even though we may not be quite able to define it.

In a primitive and uncivilized state of society there was no such thing as crime in the sense in which we understand it; whatever wrong was done was a private matter between the perpetrator and the sufferer, and the penalty was the vengeance inflicted by the victim or by his kin and friends.

The first appearance of courts among the barbarous tribes of Europe was a rude tribunal which undertook only to adjudicate a fair compensation for the injury done. If, however, the sufferer or his friends was not content with this, he or they were at full liberty to exact such vengeance as they could with sword or axe. Hence, the penal law of such ancient communities was not the law of crime; it was the law of tort or personal wrong, and compensation was the penalty.

But in saying that barbaric law, so-called, did not impose penalties for crime; did not at least exact the death penalty, it is not to be supposed that there was no other way open to men for the gratification of their natural human instinct of cruelty ex