posed by the entire
criminal class, and by that very considerable portion of the
population which is dependent on or affiliated with the criminal
class, which seeks to evade the law and escape its penalties. It is
also opposed by a small portion of the legal profession which gets
its living out of the criminal class, and it is sure to meet the
objection of the sentimentalists who have peculiar notions about
depriving a man of his liberty, and it also has to overcome the
objections of many who are guided by precedents, and who think the
indeterminate sentence would be an infringement of the judicial
prerogative.

It is well to consider this latter a little further. Our criminal
code, artificial and indiscriminating as it is, is the growth of
ages and is the result of the notion that society ought to take
vengeance upon the criminal, at least that it ought to punish him,
and that the judge, the interpreter of the criminal law, was not
only the proper person to determine the guilt of the accused, by the
aid of the jury, but was the sole person to judge of the amount of
punishment he should receive for his crime. Now two functions are
involved here: one is the determination that the accused has broken
the law, the other is gauging within the rules of the code the
punishment that, each individual should receive. It is a
theological notion that the divine punishment for sin is somehow
delegated to man for the punishment of crime, but it does not need
any argument to show that no tribunal is able with justice to mete
out punishment in any individual case, for probably the same degree
of guilt does not attach to two men in the violation of the same
statute, and while, in the rough view of the criminal law, even, one
ought to have a severe penalty, the other should be treated with
more leniency. All that the judge can do under the indiscriminating
provisions of the statute is to make a fair guess at what the man
should suffer.

Under the present enlightened opinion which sees that not punishment
but the protection of society and the good of the criminal are the
things to be aimed at, the judge's office would naturally be reduced
to the task of determining the guilt of the man on trial, and then
the care of him would be turned over to expert treatment, exactly as
in a case when the judge determines the fact of a man's