470 POPULAR SCIENCE MONTHLY, 



a criminal sociology, is almost exclusively the work of Continental 

 criminologists. Penology lias 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 uni- 

 versal concern." Yet, despite this " universal concern," our crimi- 

 nal 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. 



The theories on criminal responsibility and on crime in general, 

 in the light of modern medical, anthropologic, and sociologic sci- 

 ences, have completely supplanted the old doctrines, yet criminal 

 legislation has apparently taken no notice of them. Modern sci- 

 ence tells us that our antiquated tests of criminal responsibility 

 result in sending hundreds of men to prison who ought to be sent 

 to asylums, but we do nothing to avoid this scandal. Under our 

 system the courts are obliged to let the conclusions of the learned 

 judges who occupied the bench three hundred years ago have more 

 weight than the positive investigations of the men of science of 

 our day, and so, consciously or unconsciously, numberless crimes 

 are committed in the name of stare decisis. True it is that in 

 some jurisdictions, and notably in ISTew York, the courts have rec- 

 ognized to some extent the progress of science and its influence 

 upon juridic theories. But even in these cases the concession 

 has been made only in civil cases. Thus Mr. Bishop, in his Crimi- 

 nal Law, is obliged to point out that our courts recognize two hinds 

 of insanity — to wit, civil and criminal irresponsibility. Why the 

 test to be applied in the case of the validity of a will should be 

 different from that applied in the case of murder does not seem 

 very clear. The scientific test as to insanity has been oftentimes 

 recognized and applied by our civil tribunals, but the criminal 

 judges still cling with unabashed attachment to the unscientific 

 and unprogressive rule in MclSTaughten's case. The Guiteau trial, 

 which followed that celebrated decision, added fresh authority to 

 the English view, and practically made the rule to be applied in 

 criminal trials a legal dogma. 



In an able and exhaustive paper by Mr. J. H. Dougherty on 

 this very subject, before the Society of Medical Jurisprudence, 

 the evils of such dogmatism in criminal law are strikingly set forth. 

 " Life," he said, " should be as sacred as property. While society 

 needs protection from the criminal, it does not require that the 



