The absence of specific clearness in our criminal law is of course accounted for by the fact that it is historical rather than scientific; consisting of a great number of legal enactments growing out of common-law rulings, and really founded upon a basis of long-established social customs; many of the definitions of crime being as old, as a distinguished jurist remarks, "as the days of Bracton" (J. Fitzjames Stephens). I can understand how a system of laws, arising from such a source, must necessarily include many unspecifically named offences under a general head; but I cannot understand why, when a sexual crime against society has acquired a long-established character for frequency, and gravity, it should be relegated to a class, and caption, which afford not the slightest clue to the character of the offence. Where is the sense of calling masturbation "onanism," or bestiality "sodomy," or pederasty "unnatural abuse"? Or, of giving to a jury the right of determining an offence, the nature of which, in the vast majority of cases, is entirely unknown to them?

Origin And Growth Of Law 56

Thus, Borne misdemeanors are punished far more severely than felonies, although nominally the lesser offences; and a person may offer for sale a flock of sheep or a drove of oxen, obtained by false pretences, and go quietly on his way, no peace officer daring to arrest him without a warrant; while a man offering for sale a piece of lead pipe supposed to have been stolen, may be apprehended on sight ("Crim. Law Consolid. Acts," Greaves). This greater facility for arresting the criminal for misdemeanor than for felony (practically the only two degrees or forms of crime known in this country), is as fundamental as it is vague and mischievous; and is only cited to show that certain amendments of our criminal statutes, suggested as to sexual crime, are not inapplicable in other matters. In assigning penalties, there should be no thought of retaliation, nor of terrifying the offender by making h'm an "example to others" (an idea only too frequently observable in recent court decisions); which deprive the culprit of whatever self-respect and moral sense may yet remain to him; but the chief purpose should be to deal with his moral and intellectual nature; and to prevent, by every means possible, further contamination, by contact with the hopelessly immoral and vicious. Then, if a person be found hopelessly irremediable, absolutely unfit to live, life should be withdrawn from him, as an ultimate social defence.