What the Law Allows
WHAT THE LAW ALLOWS inadequacies of contemporary criminal jus tice—target of the columnist and theme of the reformer—are probably due to permanent limitations of the human species. During...
...Large numbers of people are carried in and out of business centres every day, to live their economic lives in one place, with one set of associates, and their social lives elsewhere with different associates...
...As to organized religion, its lessened hold is manifest...
...We do not profess to know whether Mr...
...The souls who cling to it hunger, at least now and then, for grace and personal improvement...
...As a consequence, the room allotted to "discretion" has grown larger and larger...
...One's everyday relationships are not necessarily with his neighbors...
...His Honor merely glanced at the statutes (at least so his enemies declared) and if a pertinent ruling seemed to be available, he stood by that...
...The public no longer scrutinizes its neighbors...
...Thus the police can batter the most innocuous of mortals, under cover of the third degree, without so much as raising a disturbance among other people in the apartment house where the victim resides...
...Yet there is a sense in which one might desirably qualify the statement concerning religion...
...Today the Church is a communion of the willing...
...First of all it is a criminal case of the kind which, if one excludes the more sensational varieties of amatory murder and gangland massacre, attracts the widest attention...
...This dissatisfaction is akin to old group disapprovals, but none the less differs widely from them...
...But the affair in which he figures seems almost a cross-section of the existing legal situation...
...Accordingly the inquiry has been reopened and there will be something else to write about shortly...
...The ruling of an ecclesiastical tribunal had social consequences at least as great as those which followed a civil judgment...
...Formerly the authority of the Church rested to a great extent upon its legal status...
...In earlier, simpler days, criticism of the courts usually flayed their literalness...
...It was often unjust...
...After having pointed out the efficacy of domestic discipline, the neighborhood opinion and organized religion as supporters of the moral code in former times, the Dean goes on to say: "Obviously the hold of all these is much less in the urban, industrial society of today...
...There is a radical change in the policy of the law as to legal proceedings by children against parents, and domestic discipline is relaxed to a point of extinction...
...Despite much evidence seeming to contradict the statement, one may rightly declare that the influence of the Church, in this sense, is increasing...
...The only authority which now constrains anybody to do anything is the power of the police...
...Doubtless this rigid system had its virtues, but unduly steadfast literalness is abhorred, in the long run, by the social conscience...
...Ewald is innocent or guilty...
...It keeps an eye only on its exemplars—the politically eminent, the theatrically prominent, the illustrious clergy, the scions of the rich...
...But the public, which read the accounts of the hearing supplied by the press, was far from content with the verdict...
...Unless it does, and unless the emphasis generally is henceforth placed upon the personal good will of citizens rather than upon autodidactic rulings, one sees no hope for the progress of law observance...
...In practice we have, therefore, a legal situation which—in so far as moral issues are concerned—endorses discretion but does not supervise discretion...
...This is no idle supposition...
...The problem thus created has been written about frequently and we have enjoyed reading the discussion of it in Dean Roscoe Pound's Criminal Justice in America (New York: Henry Holt)—a lucid little book which ought to find a large audience...
...There is every reason why it should grow still more noticeably...
...Today those only serve the just interests of society who work at the task of their own perfecting with fear and trembling and yet with a great joy, because the Lord God is the Father of all...
...The Mayor deftly tried to turn the pack to another scent...
...But societies organized like our great cities are unjust in almost the opposite way...
...The social importance formerly attributed to religious organizations has waned, quite true...
...Nobody was particularly worried over—or by—the inspectors...
...We doubt his ability to succeed...
...The district attorney in question was free to press the case or not—at least until the political implications of popular dissatisfaction became obvious...
...Should an eminent prelate express an opinion on this or that issue, his remarks would carry scarcely any greater weight than those of a university president or a popular essayist...
...The household is no longer an economic unit and there are little more than vestiges of its legal unity...
...General interest in the matter can be awakened, and the resultant efficacy of public opinion can be scrutinized...
...During centuries the canniest and best-intentioned of men have sought to develop a law ample and reasonable enough to serve the purpose of societies compelled to take notice both of the right desires of the community and the needs of the individual...
...No existing alliance between church and state is any longer genuinely real...
...Certainly in the United States the diversity of faiths, and the belligerent one-track mentality of some, has virtually forced ecclesiastical authority out of the legal and political foreground...
...The opportunities to disobey are now so complex and subtle, the chance to influence the discretion of administrative authority is now so great, that democracy confronts "the natural man," once so deeply admired, with genuine fear...
...WHAT THE LAW ALLOWS inadequacies of contemporary criminal justice—target of the columnist and theme of the reformer—are probably due to permanent limitations of the human species...
...Excommunication imposed a penalty which could be sensed materially, sometimes physically...
...Thus we must rely on the law and the policeman for much that was once in the province of neighborhood opinion...
...How much progress has been made...
...For example it sometimes treated a woman who had gone astray with the cruelty which the movies have since put to generous use...
...And if grace and increasing perfection come to them through the ministrations of their faith, they will possess treasure which others will envy and society admire...
...A fairly satisfactory test case is the recent New York investigation of Judge Ewald's appointment to a magistracy...
...Even a reign of terror would help us little...
...Nor can the complex legislation of today, which tries to reckon with the numberless facets of industrial civilization, be tacked down neatly to fit every given situation...
...They are indifferent to the individual unless he happens to range himself under one of several appropriate categories...
...These remarks are so true that they seem trite...
...Evidence was submitted to a grand jury, purporting to show that the Judge had purchased the office with a fat check, the migrations of which had been traced in a measure by the proper official...
...Generally speaking, the efficacy of public opinion as a deterrent from crime is now a myth...
...Anyhow the district attorney did not press for an indictment and the jury dismissed the case...
...The neighborhood is no longer an economic unit...
...Mayor Walker outlined it by a process of elimination when he suggested to assembled representatives of civic and business associations that joining hands to keep inspectors straight would be an excellent thing...
...Secondly, the conduct of the case revealed clearly what has happened to legal procedure...
...There is just one group which, if conditions are favorable, will set every citizen's ear to cocking gingerly...
...And yet it is thinkable that Catholicism and the religions which, in one manner or another, are dissident from it, are near to possessing greater influence than has ever before accrued to them...
...What was really disturbing great masses of people was the thought that while times were hard and a dollar elusive, eminent servants of the municipality were getting magnificent and shady rewards for services rendered...
...All this has passed, but its passing was without much effect upon the voluntary desire of men and women—that wish to do good upon which the law must eventually rely—for order and betterment...
...In the placid days of yore, family, church and neighborhood sentiment had a direct bearing upon evidences of misbehavior...
Vol. 12 • September 1930 • No. 20
