, 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 insanity.

If objection is made to the indeterminate sentence on the ground
that it is an unusual or cruel punishment, it may be admitted that
it is unusual, but that commitment to detention cannot be called
cruel when the convict is given the key to the house in which he is
confined. It is for him to choose whether he will become a decent
man and go back into society, or whether he will remain a bad man
and stay in confinement. For the criminal who is, as we might say,
an accidental criminal, or for the criminal who is susceptible to
good influences, the term of imprisonment under the indeterminate
sentence would be shorter than it would be safe to make it for
criminals under the statute. The incorrigible offender, however,
would be cut off at once and forever from his occupation, which is,
as we said, varied by periodic residence in