Workmen's advocate., 1888-12-08


 the Court-accordng to the authorities is at liberty to decide whether that withdrawal of the accessory were lat the right time or "tOO late
 So Prof. Francis Wharton, in his Criminal Law, ed. 1885, section 22S, says:
 But 1t the Criminality of the with drawing accessory does not cease simply because, after starting the ball, he changes his mind and tries, when too late, to stop it. To emancipate him from the consequences not only must he have acted in time and done everything possible to prevent the commission, but the consummation, if it takes place, must be imputabIe to some mdepeHdeRt cause. Thus the "benetit of the locus pcrRi- tcntU' dwindles down to nothing. It was indeed "too late" to stop the tenth man in our fancied case, but not too late to reduce the number of persons threat ened with death from 100 to 10; for, if all ten men had thrown their bombs a hundred persons instead of ten would have been killed. Therefrom results that a withdrawal of an accessory never is "too late,' not even in the last mo- ment. And in order to save all that possibly could be saved, the accessory should not be put on the same grade with the principal.
 It is originally not due to him the ac- cessory) that he should be. granted the allowance of lesser punishment than that of the principal, but 1t is due to threatened mankind, for the safe-keep- ing of which all laws are given. Sir, he who could succeed in impress ing the legal profession of America and the people in general with my theory, would not only save the lives of your seven clients, but perform the necessary task of sounding the signal for reform | of American law. And that reform must be accomplished. The erroneous belief | that the main purpose of criminal law is ''retrbution' to the offender must be supplanted with the higher idea that criminal law aims first at the protection of mankind and the prevention of crimes. From this view we provide for punishment of otfenses in order to re- strain people from the commission of | them; and we execute the punishment provided by criminal law not merely for the sake of ''retribution," but mainly to make true our threat and prevent the | further commission of crime. Then comes, as a matter of secondary consid- eration, "retributon' for or correction of the offender,
 This theory once accepted, the old common law or indictment of access sory as principal must be abolished The old common law had in view noth- Ing but 'retribution,' and from such view, indeed, both the principal and the accessory may sometimes be heinous in the same grade; the accessory may even sometimes be more heinOus than the ac- tual perpetrator, as, for instance, if the accessory aids, advises, etc., with ret1ec- ton, while the actual perpetrator may execute the plan In state of great eX- | citement. But sometimes the inStigator may act in excitement, and the actual perpetrator, on the contrary, in cool blood. We cannot judge in general of the state of mind of either the access sOry or the principal, and therefore we have to deny the business of the prin- Ciple that, in general, all concerned in the commission of a crime are to be treated in the same manner. But on modern society the question devolves,
 
 of consideration-the criminal on the one side, or threatened mankind on the other? Shall we have laws for protec- ton of mankind, or only for "retribu- tion' to the offender.
 You see, sir, the error of that common law is founded on a principle familiar with a less cultivated society, with a society in which the notion that all laws must be in accordance with the interests of the whole people was unknown. It may be deemed, sir, bold undertaking on the part of citizen of so recent a date as l am, of man who is no law yer by profession and of a writer in a position anything but commanding, to attempt the taking by surprise of legion of learned jurists and experienced statesmen of America. and of undernin- ing the old fortress of criminal law by the sudden cry of 'immoralty and un- constitutionallty. And 1 know only too well the difficulty of destroying opinions familiar to the people for centuries; nor am ignorant of the sus- picion with which the ignorant regard "foreign' ideas. I have meditated on this subieCt-this matter of fighting the COnstltutiOnallty of the law on access soryship-a whole long year. 1 weighed all chances pro and con, and have finally come to the conclusion that the ''acces. sorry law of this country is immoral, unjust. unconstitutional, and that there is no other way of reScuing your seven clients than by proving that the Illinois law, according to which they were sen- tenced, is unconstitutional. And there fore applied to you, after my endeavor to interest the American press in the question of the unconstitutionaity of the Illinois law proved unsuccessful. Nn11 nrn sir in a ,ncSitinr, L., ,,nnl.o ,,,,r