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 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 the comfortable houses belonging to the State.

A necessary corollary of the indeterminate sentence is that every State prison and penitentiary should be a reformatory, in the modern meaning of that term.  It would be against the interest of society, all its instincts of justice, and the height of cruelty to an individual criminal to put him in prison without limit unless all the opportunities were afforded him for changing his habits radically.  It may be said in passing that the