No science, experience, or philosophy and very little humanity has ever been considered in fixing punishments. The ordinary penalties are first: fines, which generally penalize someone else more than the victim; these with the poor mean depriving families and friends of sorely needed money, and the direct and indirect consequences are sometimes small and sometimes very great. These can be readily imagined. If instead of fines a prison sentence is given, a sort of decimal system has been worked out by chance or laziness or symmetry of figures; certainly it has been done wholly regardless of science, for there is no chance to apply science when it comes to degrading men and taking away a portion of their lives. Generally ten days is the shortest. From this the court goes to twenty, then thirty, then sixty, then three months, then six months, then one year.
Why not eleven days? Why not twenty-four days? Why not forty days? Why not seventy days? Why not four months or five, or eight or nine or ten months? Is there no place between six months in jail and a year in jail? The bids at an auction or the flipping of pennies are exact sciences compared with the relation between crime and punishment and the process of arriving at the right penalty. If in the wisdom of the members of the legislature the crime calls for imprisonment in the penitentiary, then the ordinary sentences run one, two, five, ten, fifteen, twenty, thirty years, and life, according to the hazard of the legislature, the whim of the court, the gamble of the jury, or the feeling and means of expression of the unthinking and pitiless crowd who awe courts and juries with their cries for vengeance.
Neither does punishment affect any two alike; the sensitive and proud may suffer more from a day in jail or even from conviction than another would suffer from a year. The various courts and juries of the different states fix different penalties. Even in the same state there is no sort of resemblance to the punishments generally given for similar crimes. Some jurisdictions, some juries and some courts will make these three or four times as severe as others for the same things. Some days the same judge will give a longer sentence than on other days. In this judges are like all of us. We have our days when we feel kindly and sympathetic toward all mankind. We have our days when we mistrust and dislike the world in general and many people in particular. Largely the weather influences those feelings. Therefore, the amount of time a person spends in prison may depend to a great extent on the condition of the weather at the time of conviction or when sentence is passed. The physical condition of judge or jury, and above all, their types of mind, are all-controlling. No two men have the same imagination: some are harsh and cruel; others kind and sympathetic; one can weigh wheat and corn and butter and sugar; one can measure water and molasses and gasoline. When one measures or weighs, one can speak with exactness regarding the thing involved. Justice and mercy and punishment cannot be measured or weighed; in fact there is even no starting point. The impossibility of it all makes many of the humane and wise doubt their right to pass judgment upon their fellow man. Society no doubt is bound by self-protection to resist certain acts and to restrain certain men, but it is in no way bound to pass moral judgments.
Under any system based on a scientific treatment of crime, men would be taken care of as long as it was necessary to restrain them. It would be done in the best possible way for their own welfare. If they ever were adjudged competent to enter society again, they would be released when that time came. Neither under a right understanding, and a humane, scientific and honest administration, would it be necessary that places of confinement should be places of either degradation or misery. In fact the inmate might well be put where he could enjoy life more than he did before he was confined. It might and should be the case also that he could produce enough to amply take care of himself and provide for those who would naturally look to him for support, and perhaps make compensation for the injury he had caused to someone else.
It is obvious that this cannot be done until men have a different point of view toward crime. In the last hundred years much has been done to make prisons better and to make more tolerable the life of the inmates. This has been accomplished by men who looked on criminals as being at least to a certain extent like other men.
Above all, as things are now, the prison inmate has no chance to learn to conform unless hope is constantly kept before him. He should be like the convalescing invalid, able from time to time to note his gradual progress in the ability to make the adjustments that are necessary to social beings. No patient in a hospital could be cured if he were constantly told that he could not get well and should not get well. His imagination should be enlarged by every means that science can bring to the teaching of man.
First of all there must be individual treatment. No one would think of putting hundreds or thousands of the ill or insane into a pen, giving them numbers, leaving them so that no capable person knows their names, their histories, their families, their possibilities, their strength or their weaknesses. Every intelligent person must know that this would inevitably lead to misery and death. The treatment of men in prison is a much more difficult problem than the care of the physically diseased. It requires a knowledge of biology, of psychology, of hygiene, of teaching and of life; it needs infinite patience and sympathy; it needs thorough acquaintance and constant attention. It is a harder task than the one that confronts the physician in the hospital, because the material is poorer, the make is more defective, and the process of cure or development much slower and not so easily seen.
No person is entirely without the sympathetic, idealistic and altruistic impulses, which after all are the mainsprings of social adaptation. Probably these innate feelings can be found in prisoners as generally as in other men. It is the lack of these qualities that often keeps men outside the jail. They "get by" where kindly and impulsive men fail. A large part of the crime, especially of the young, comes from the desire to do something for someone else and from the ease with which persons are led or yield to solicitation.
The criminal has always been met by coldness and hatred that have made him lose his finer feelings, have blunted his sensibilities, and have taught him to regard all others as his enemies and not his friends. The ideal society is one where the individuals move harmoniously in their various orbits without outside control. The governing power of a perfect order in its last analysis must be within the individual. A perfect system probably will never come. Men are too imperfect, too weak, too ignorant and too selfish to accomplish it. Still, if we wish to go toward perfection, there is no other road.
One of the favorite occupations of legislatures is changing punishments in obedience to the clamor of the public. In times of ordinary tranquility a penalty may even be modified or reduced, but let the newspapers awaken public opinion to crime by the judicious use of headlines and a hot campaign, let the members feel that there is a popular clamor and that votes may be won or lost, and the legislature responds. This is generally done without reference to the experience of the world, without regard to the nature of man, with no thought of the victim, and with no clear conception of how the legislation will really affect the public.
The demand is constantly made that such crimes as kidnapping, train robbing, rape and robbery should be punished with death, or at least with imprisonment for life. Irrespective of its effect on the criminal, what is the effect on the victim of the criminal? A man is held up on a lonely highway; the robber does not intend to kill. His face is exposed. If the penalty for robbery is life imprisonment, he kills to avoid detection. If it is death, he kills even before he robs. The same thing operates in rape, in burglary, and in other crimes. In all property crimes not only is no killing intended or wanted, but precautions are taken to guard against killing. All laws to make drastic penalties should really be entitled: "An Act to Promote Murder."
Making penalties too drastic destroys the effect meant to be produced. Public clamor does not last forever. Men grow tired of keeping their tongues wagging on the same subject all the time. A state of frenzy is abnormal and when it subsides the temperature not only goes back to normal, but as far below as it has been above. When the fury has spent itself jurors regain some of their human feeling and refuse to convict. History has proved this over and over again, and still politicians always seek to ride into power on the crest of the wave; when the wave moves back, they can easily go back with it. Even if the severe punishments should be continued without abatement, these soon lose their power to terrify. Communities grow accustomed to hangings; they get used to life sentences and long imprisonments and the severity no longer serves to awe. The cruelty serves only as a mark of the civilization of the day. Some day, perhaps, a wiser and more humane world will marvel at our cruelty and ignorance, as we now marvel at the barbarity of the past.
THE EFFECT OF PUNISHMENT ON OTHERS
The ordinary man who hears of a crime hates the criminal and wants him to suffer. He does not picture the malefactor as a man who, for some all-sufficient reason, has committed a dreadful act. Still less does he ask: "Has he a father or mother, a wife or children, brothers or sisters, and how are these affected by his deed?" No one can intelligently deal with the criminal without considering these. Practically no inmate of a prison stands alone. He is a member of a family or small social group, and inevitably the interests of these others are more or less closely bound up with his. If punishment is justified for its influence on society, these must be taken into account with the other members of the social organization.
The criminal, it must be remembered, is almost always poor. He has a mother, brothers and sisters, wife or children, dependent for support to a large extent, upon his casual earnings. He is placed in jail or the penitentiary and the family must make new adjustments to life. The mother or wife may go to work at hard labor for a small return; the children may be taken out of school and sent to stores or factories, be condemned to lives of drudgery that will often lead to crime. The family may be broken up and scattered through institutions and the poorest shelters. A complete transformation for the worse almost always comes over the home. It is safe to say that at least three or four are closely touched by the misfortune of every one. These lives must be readjusted, and the chances are that the new adjustments will not be equal to the old, if for nothing else than because the conviction is a serious handicap in their struggles. Let anyone go to a city jail on a visiting day and see the old mothers, the stunned and weeping wives, the little children, down to babes in arms, who crowd around the corridors to get a look at the man behind the bars. To them at least he is a human being with feelings and affections, with wants and needs. All of these can recount his many good qualities which the world cannot see or know. Their first step is to borrow or to sell what they can to provide means for his defense. Everything else is cast aside. Day after day they visit the jail and the lawyer, contriving means to save liberty or life. When the trial comes, they watch through its maze in a dazed, bewildered way. They know that the man they love is not the one who is painted in the court room, and at least to them he is not. If he is convicted and goes to prison for a term of years, then month by month the faithful family goes to see him for an hour in the prison, visiting across the table in open view of guards and others as unfortunate as they. The family follows all sorts of advice and directions and seeks out many hopeless clews for men of influence and position who can unlock prison doors. The weeks run into months and the months into years, and still many of them keep up their hopeless vigil; some are driven to drudgery, some to crime, some to destruction for the man whom the state has punished that society may be improved. It is safe to say that the state ruins at least one other life for every victim of the prison.
No provision is made for the dependent families of the wretched man. Ruthlessly society sends the man to prison and sees the daughter leave school, a mere child, and go to work. What becomes of her it does not know or care. It seems not to know that she exists. The state sees the convict's boy working at casual tasks and growing up on the streets, while his father is paying the penalty of his act. He may on this account follow his father to jail; it is not society's concern.
Assuming that an offender must be confined for the protection of society, as some no doubt must be, still the effect on the family and how to prevent its destruction should be among the first concerns in the disposition of the case.
EVOLUTION OF PUNISHMENT
Among primitive peoples the penal code was always short. Desire for property had not taken possession of their emotions. Their lives were simple, their adjustments few, and there was no call for an elaborate code of prohibited acts. Their punishments were generally simple, direct and severe: usually death or banishment which often meant death, sometimes maiming and branding, so that the offender might serve as a constant warning to others.
Primitive peoples early asked questions about their origin and destiny. The unknown filled most of the experiences of their lives. The realm of the known was very small. They had no idea of law and system, of cause and effect. They early began evolving religious ideas. The manifestations of nature, the mystery of birth, the fear of death, the phenomena of dreams, the growth and harvesting of crops—all of these were beyond their understanding. They peopled the earth with gods to be propitiated and appeased. Everything was the act of a special providence. From early times religion and witchcraft furnished the chief subjects for the criminal code.
The penalties for the violation of the code were always severe, generally death, and by the most terrorizing ways. No other crime could be so great as to arouse the anger of the gods, and naturally no other conduct should demand so severe a penalty as calling down the wrath of the gods. This would fall not only upon the offending man, but upon the community of which he was a part. Even as man developed in knowledge and civilization, this sort of crime continued to furnish the greater proportion of victims and the most cruel punishments. Torture of the most fiendish sort was evoked to catch offenders and extort confessions. Difference of religious opinions was the worst crime. The inquisition became an established thing. Sometimes a nation was almost wiped out that heretics should be killed and heresies destroyed. The heretic was the one who did not accept the prevailing faith. The list of victims of punishment on account of religion, witchcraft, sorcery and kindred laws has in the past no doubt been larger than for any other charges.
This kind of laws always called out the greatest zeal in their enforcement. To the religious enthusiast nothing else was of equal importance. It involved not only the life of man on earth but his life through all eternity. Our statutes today are replete with such crimes, but the punishments have been lessened and, as a rule, communities will not enforce them. But laws against blasphemy, working on Sunday, and Sunday amusements of all sorts, are still on the books and enforced in some places. A large organization and an influential and aggressive part of the Christian Church are insisting that these laws shall be enforced to the limit and that still others shall be placed among the statutes of the several states.
The methods of inflicting the death penalty have been various, the favorite ways being burning, boiling in oil, boiling in water, breaking on the rack, smothering, beheading, crucifying, stoning, strangling and electrocuting. Until the middle of the last century they were carried out in the presence of the multitude so that all might be warned by the example.
The number of crimes for which death and bodily torture have been the punishment can scarcely be recorded, and if they could it would be of no value. They would run into the hundreds and probably the thousands. A large part of these crimes are now obsolete. Doubtless more men have been executed for crimes they did not commit and could not commit than for any real wrong of which they were guilty.
Prisons came into fashion later than the death penalty, and as a form of punishment have gradually come to take the place of most death penalties. Prisons in the past have been loathsome places and not much better than death. Prisoners have been packed together so closely that life was almost impossible. To incarcerate victims in prisons has brought terrible punishment not only on the prisoners and their families, but indirectly on the state. No doubt through the years prisons have been gradually improved. Many of their terrors have been banished. People have come to believe that even a prisoner should have some consideration from the state. Penalties have likewise grown less severe and terms have been shortened, but this course has not been regular or constant; the public readily relaxes into hatred and vengeance, and it is easy to arouse these feelings in men, since they lie very close to the surface. A constant struggle has always been waged by the humane to make man more kindly, and yet probably his nature does not really change. A few months of frenzy may easily undo the work of years.
So long as men punish for the sake of punishment, there will be a disagreement between the advocates of long punishment and short punishment, hard punishment and light punishment. From the nature of things, there is no basis on which this can be determined. The only thing that throws any light on the question is experience, and men can always differ as to the lessons of experience. Neither do they remember experience when feelings are concerned.
Punishment can deter only on the ground of the fear that flows from it. Fear comes from things that are more or less unusual. Man has little abstract fear of a natural death; it is so unavoidable that it does not even figure in the ordinary affairs of life. Extreme punishments may grow so common that few give them any concern. They probably are so common now that the impression they make is not very great. Lighter and easier punishments would have the same psychological effect. In many cases a lenient punishment would also eliminate much of the hatred and bitterness against the world that are common to all inmates of prisons.
The question of capital punishment has been the subject of endless discussion and will probably never be settled so long as men believe in punishment. Some states have abolished and then reinstated it; some have enjoyed capital punishment for long periods of time and finally prohibited the use of it. The reasons why it cannot be settled are plain. There is first of all no agreement as to the objects of punishment. Next there is no way to determine the results of punishment. If the object is assumed it is a matter of conjecture as to what will be most likely to bring the result. If it could be shown that any form of punishment would bring the immediate result, it would be impossible to show its indirect result although indirect results are as certain as direct ones. Even if all of this could be clearly proven, the world would be no nearer the solution. Questions of this sort, or perhaps of any sort, are not settled by reason; they are settled by prejudices and sentiments or by emotion. When they are settled they do not stay settled, for the emotions change as new stimuli are applied to the machine.
A state may provide for life imprisonment in place of death. Some especially atrocious murder may occur and be fully exploited in the press. Public feeling will be fanned to a flame. Bitter hatred will be aroused against the murderer. It is perfectly obvious to the multitude that if other men had been hanged for murder, this victim would not have been killed. A legislature meets before the hatred has had time to cool and the law is changed. Again, a community may have capital punishment and nothing notable happens. Now and then hangings occur. Juries acquit because of the severity of the penalty. A feeling of shame or some bungling execution may arouse a community against it. A deep-seated doubt may arise as to the guilt of a man who has been put to death. The sentimental people triumph. The law is changed. Nothing has been found out; no question has been settled; science has made no contribution; the public has changed its mind, or, speaking more correctly, has had another emotion and passed another law.
In the main, the controversy over capital punishment has been one between emotional and unemotional people. Now and then the emotionalist is reinforced by some who have a religious conviction against capital punishment, based perhaps on the rather trite expression that "God gave life and only God should take it away." Such a statement is plausible but not capable of proof. In the main religious people believe in capital punishment. The advocates of capital punishment dispose of the question by saying that it is the "sentimentalist" or, rather, the "maudlin sentimentalist" who is against it. Sentimentalist really implies "maudlin."
But emotion too has its biological origin and is a subject of scientific definition. A really "sentimental" person, in the sense used, is one who has sympathy. This, in turn, comes from imagination which is probably the result of a sensitive nervous system, one that quickly and easily responds to stimuli. Those who have weak emotions do not respond so readily to impressions. Their assumption of superior wisdom has its basis only in a nervous system which is sluggish and phlegmatic to stimuli. Such impressions as each system makes are registered on the brain and become the material for recollection and comparison, which go to form opinion. The correctness of the mental processes depends upon the correctness of the senses that receive the impression, the nerves that transmit the correctness of the registration, and the character of the brain. It does not follow that the stoic has a better brain than the despised "sentimentalist." Either one of them may have a good one, and either one of them a poor one. Still, charity and kindliness probably come from the sensitive system which imagines itself in the place of the object that it pities. All pity is really pain engendered by the feelings that translate one into the place of another. Both hate and love are biologically necessary to life and its processes.
Many people urge that the penalty of imprisonment for life would be all right if the culprit could be kept in prison during life, but in the course of time he is pardoned. This to me is an excellent reason why his life should be saved. It is proof that the feeling of hatred that inspired judge and jury has spent itself and that they can look at the murderer as a man. Which decision is the more righteous, the one where hatred and fear affect the judgment and sentence, or the one where these emotions have spent their force?
Everyone who advocates capital punishment is really ashamed of the practice for which he is responsible. Instead of urging public executions, the most advanced and sensitive who believe in killing by the state are now advocating that even the newspapers should not publish the details and that the killing should be done in darkness and silence. In that event no one would be deterred by the cruelty of the state. That capital punishment is horrible and cruel is the reason for its existence. That men should be taught not to take life is the purpose of judicial killings. But the spectacle of the state taking life must tend to cheapen it. This must be evident to all who believe in suggestion. Constant association and familiarity tend to lessen the shock of any act however revolting. If men regarded the murderer as one who acted from some all-sufficient cause and who was simply an instrument in an endless sequence of cause and effect, would anyone say he should be put to death?
It is not easy to estimate values correctly. It may be that life is not important. Nature seems extravagantly profligate in her giving and pitiless in her taking away. Yet death has something of the same shock today that was felt when men first gazed upon the dead with awe and wonder and terror. Constantly meeting it and seeing it and procuring it will doubtless make it more commonplace. To the seasoned soldier in the army it means less than it did before he became a soldier. Probably the undertaker thinks less of death than almost any other man. He is so accustomed to it that his mind must involuntarily turn from its horror to a contemplation of how much he makes out of the burial. If the civilized savages have their way and make hangings common, we shall probably recover from some of our instinctive fear of death and the extravagant value that we place on life. The social organism is like the individual organism: it can be so often shocked that it grows accustomed and weary and no longer manifests resistance or surprise.
So far as we can reason on questions of life and death and the effect of stimuli upon human organisms, the circle is like this: Frequent executions dull the sensibilities toward the taking of life. This makes it easier for men to kill and increases murders, which in turn increase hangings, which in turn increase murders, and so on, around the vicious circle.
In the absence of any solid starting point on which an argument can be based; in the absence of any reliable figures; in the absence of any way to interpret the figures; in the absence of any way to ascertain the indirect results of judicial killings, even if the direct ones could be shown; in the impossibility through life, experience or philosophy of fixing relative values, the question must remain where it has always been, a conflict between the emotional and unemotional; the "sentimental" and the stolid; the imaginative and the unimaginative; the sympathetic and the unsympathetic. Personally, being inclined to a purely mechanistic view of life and to the belief that all conduct is the result of certain stimuli upon a human machine, I can only say that the stimuli of seeing and reading of capital punishment, applied to my machine, is revolting and horrible. Perhaps as the world improves, the sympathetic and imaginative nature will survive the stolid and selfish. At least one can well believe that this is the line of progress if there shall be progress, a matter still open to question and doubt.
STIGMATA OF THE CRIMINAL
Lombroso and others have emphasized the theory that the criminal is a distinct physical type. This doctrine has been so positively asserted and with such a show of statistics and authority, that it has many advocates. More recent investigations seem to show conclusively that there is little or no foundation for the idea that the criminal is a separate type. Men accustomed to criminal courts and prisons cannot avoid being impressed with the marks of inferiority that are apparent in prisoners. Most prisoners are wretched and poorly nourished, wear poor clothes and are uncared-for and unkempt. Their stunted appearance is doubtless due largely to poor food, the irregularity of nourishment, and the sordidness of their lives in general. One also imagines that a prisoner looks the part, and in his clothes and surroundings he generally does. It is hard for a prisoner to look well-groomed; he has neither the opportunity nor the ambition to give much attention to his personal appearance. The looks of the prisoners are of little value. Nothing but actual measurements could give real information, and these do not sustain the theory of their being different from other men.
It is not possible to see how the criminal can be of a distinct physical type. Criminality exists only in reference to an environment. One cannot be born a criminal. One may be, and often is, born with such an imperfect equipment that he cannot make his adjustments to life, and soon falls a victim to crime and disease. All that a physical examination could do would be to show the strength or weakness of the body and its various organs. What may befall him will depend partly on the kind and quality of his mind and nervous system, and partly on the physical structure and the kind of experiences that life holds in store for him.
No doubt thorough psychological examinations would reveal something of the brain, just as physical examinations certainly would determine the strength and capacity of the body. This would be of material aid in determining the kind of environment that should be found for the individual, and if such environment could be easily found it would avert most of the calamities which beset the path of the youth.
Something can be told of a person's character from his eyes, the expression of the face and the contour of the head, but this information is very misleading as our everyday experience shows. It is not necessary to find stigmata in the prisoner to know that he was born the way he is. One's character must be fixed before birth whether Nature marks it on one's head or not. Likewise every particle of matter moves from stimuli and obedience to law, regardless of whether it shows in the face or not. The strong are no more exempt from the law than the weak. All the difference is that they can longer and more easily avoid disaster.
Everyone is in the habit of forming a hasty opinion of another by reading his face and noting his expression. But the indication given by facial expression is mainly the product of the life that has been lived, and tells something of the part that the hidden emotions have played on the body.
It has been generally believed that mind has its seat in the brain and the nervous system. Later investigations, however, seem to show that it is the product of the whole physical organism. There is no chance to measure or weigh or still less assay the qualities of the machine. It is certain that the quality of the mind depends very little upon either the contour or size of the skull.
About all that can be learned of the mind and the character of the man must be gathered from the manifestation of the machine. It is shown by his behavior in action and reaction. This behavior is caused by the capture, storage and release of energy through the ductless glands.
A defective mechanism either inherited or acquired through imperfectly balanced glands will inevitably produce an imperfect mind and defective conduct. This it will be bound to do because the body is the mind.
As a matter of fact, no man is branded physically with the "mark of Cain." If criminology were so simple it would not be difficult to handle. The manifestations of the human machine are infinite and only patience and careful study can find the points of weakness and of strength. That all brains and bodies have both is beyond dispute. No physical human structure was ever put together where the organs were equally strong to do the work assigned to them. Some part of the body always needs watchfulness and repair and can never be depended upon in emergencies. In times of overstress and strain, the defective organ or organs will manifest their weakness. The intricate nervous system and the brain, the unseen instincts and emotions likewise do not work perfectly; but as a rule the ones that underwork or overwork cannot be seen by a physical examination. It generally requires great subtlety to find them, and careful treatment and environment to make the machine work fairly well in spite of these imperfections. This could be provided; in most cases the machine could be placed in an environment where it would work fairly well; but instead of this all the effort that is made to keep the machine in shape is a threat of the jail if it goes wrong; it is then left to run itself without help or assistance of any kind.
While examinations of the head do not show marked differences between prisoners and others, a great distinction is seen between the general proportion and the degrees of nourishment of prisoners and those not accused of crime. Nothing is more common than the weak and underfed condition of the delinquent and the criminal. This needs no expert examination. It is obvious to all. The poor, scanty clothes and personal belongings corroborate the fact that the accused is poor and has not enough to eat or wear, nor anything but the most scanty shelter. In addition to these facts, he is almost always ill. A report recently published, based on investigations by a special committee of the New York State Commission of Prisons, shows that in the New York Reformatory only eight per cent passed the required physical examination. In the penitentiary, where the average age was higher, only five per cent passed the test. In the work house—the home of the "down and outs"—only one per cent passed. The health tests employed were those for admission to the army. It was likewise found by the same commission that of those in good health or fair physical condition, eighty-five per cent were self-supporting, while only eighteen per cent of those in poor physical condition took care of themselves.
Disease and ill health, when found so generally, are in themselves indications of a defective system, and such machines are constantly exposed to temptation. Their needs are ever present and their poverty great. Sickness and disease weaken or destroy such inhibitions as the unfortunate are able to build up, and they readily yield to crime.
THE GOOD IN CRIMINALS
The criminal is confronted in court with an indictment charging him with a violation of the law. He is a human being, like all others, neither perfect nor entirely worthless. He has some tendencies and inclinations which the world calls good for lack of a better term, and some that it calls bad for the same reason. In this he is like the jury and the judge. The strength of the different tendencies is not the same in any two machines. The judge and jury are interested in determining whether he is good or bad; that is, better or worse than they themselves. In theory he is tried on the charges contained in the indictment.
In most cases by a constant stretching of the rules of evidence his whole life may be involved. That is, proof may be offered of any act of delinquency that constituted a violation of the law, if in any way similar, or in any way connected with the one charged in the indictment. He cannot meet these charges by proving the acts of kindness and charity and real worth that are rarely absent in any life. The proceedings show how bad he is, not how good. He may be able to call witnesses to show that up to the time of the bringing of the indictment his reputation for honesty was good; but he cannot show that he supported his grandmother, or helped his aunt, or educated his younger brother, or gave his money to the poor. All the good is irrelevant to the issue. This does not prove that he did not commit the act. It might clearly prove whether on the whole he should go to jail. Through this process he feels that the law and proceedings are unfair and that he is condemned, when, in fact, he is as good as those who judge him. Neither can he show the circumstances that hedged in his way nor the equipment with which he entered life. Under the legal theory that he is "the captain of his soul," these are not material to the issue. Neither can he show the direct motive that caused the conduct. It may have been a motive that was ideal, but the question involved is, did he violate the law?
He is convicted and sent to prison. As a rule, he will some time be turned back into the world. He needs careful treatment, involving instruction and an appeal to that part of his nature which may awaken sympathies and produce emotions that will make him more of a social being on his return to the world. In the loose language of the world, it is necessary for him not only to learn how to curb the evil but how to increase the good. His imagination should be cultivated and enlarged. The responses to better sentiment should be strengthened. This can be furthered only by skilled teachers who are moved by the desire to help him. The process should be similar to a hospital treatment. Instead of this, he is usually surrounded by men of little intelligence or education, men who have no fitness for the task; he is governed by strict rules, all of them subjecting him to severe penalties when violated. Every action in the prison reminds him of his status. With the exception of a few strong men who need suffering for their development it can have but one result. He must come out from prison poorer material than when he went in. There are only two reflections that can keep him out of trouble in the future: the remembrance of the past and the fear that a similar experience might come to him again.
When it is remembered that the greatest enemy to happiness and life is fear; when we realize that the constant battle of the primitive man was with the fear that peoples the unknown with enemies and dangers; when we remember that in some way, fear of poverty, of disease, of disaster, of loss of friends and life is the ever-present enemy of us all, it is evident that nothing but harm can come from the lessons of fear that are drilled into the victim in prison. Life furnishes countless ways to be kind and helpful and social. It furnishes infinite ways to be cruel, hard and anti-social. Most of these anti-social ways are not condemned by the law. Whether the life is helpful and kindly or hard and selfish can never depend upon the response of an organism to fear, but upon the response of an organism to the kindlier and more humane and sympathetic sentiments that to some extent at least inhere in the constitution of man.
It is a common thing for prisoners, even during the longest term, to be more solicitous about mother, child, wife, brother or friend than about themselves. It is common for them to deny themselves privileges, presents or favors to help other inmates. The consideration and kindness shown by unfortunates to each other are surprising to those who have no experience with this class of men. Often to find real sympathy you must go to those who know what misery means. Pride and coldness are usually due to lack of understanding, and life alone can bring understanding. Every intelligent man engaged in efforts to improve and help either criminals or children or any others, knows the need of an appeal to what passes as the better nature. Help does not come so much from directly inhibiting the bad as by extending the area of the higher emotions. To pull up weeds in a garden without planting something in their place is a foolish task. The human being is like the garden. Something must grow in the soil. If weeds are pulled up and nothing planted Nature will grow more weeds. Some feelings and emotions always possess every person. The best that is incident to the machine should be found and this be cultivated and extended until it dominates the man. Courts and prisons have no machinery to cultivate the best in their victims; they are always looking for the worst, aiding and promoting it until the prisoner is driven to hopelessness and despair.
THE DEFECTIVE AND INSANE
It is almost hopeless to bring any system or order out of the chaos that prevails in the discussion of the insane, the defective, the moron, and the feeble-minded. The world has so long believed that man is a specially created animal and that he does wrong from free choice, that much more time and investigation are necessary before sane and scientific theories can be formulated on this subject.
It has been a great many years since any semi-intelligent man believed that all sorts of physical abnormalities were due to one cause and could be cured by one method, and yet the prevailing opinion now, even among the fairly educated, is that all sorts of abnormal conduct are due to one cause, perversity and wickedness, and should be treated with only one prescription, punishment. Scientific men indeed have long known that there were causes for the abnormality of conduct and that there were various more or less satisfactory remedies for many cases. Still the time that scientists have worked on the problem is short and the data imperfect, and many years of patient study will be needed before there can be worked out the broad theories of responsibility for and treatment of crime which will replace the long accepted doctrines of original sin, and the expulsion of devils from the wicked by cruelty and punishment.
By far the largest part of the population of prisons is made up of the insane, feeble-minded, morons, defectives or victims of diseases that seriously influence conduct. This is especially shown by the increased percentage of the clearly defective that are repeaters, over those in prison for their first offense. There is no lack of statistics as to the various groups of defectives, but these figures cannot be reconciled. No two authorities agree as to percentages; the classifications are more or less uncertain; the dividing lines between the different groups are vague, one class easily fading into another. The investigations have largely been made by those not trained for the work, and above all the conclusions as to treatment are at variance, doubtful and necessarily not yet satisfactory. That the clearly insane and the plainly feeble-minded should not be punished would doubtless be admitted by all who speak in public or write for others to read. Many persons speaking in private, acting on juries and connected with the machinery of "justice" say that these should be punished like the rest. Still for a starting point, it may be assumed that most men would agree that these classes should be restrained rather than punished.
The chief difficulty is that between the most violently insane and the least emotional man are infinite numbers of gradations blending so closely that no one can mathematically or scientifically classify all the various individual units. While there are cases of insanity that can be clearly traced to injury or disease, the degree of sanity in most cases is still impossible to determine. Most insane people are sane on some things, generally on most things and are sane a part or most of the time. The periods of sanity and insanity can be distinguished only by conduct. How far any specific insanity may impair the brain and affect the inhibitions, is impossible to foretell.
When it comes to the defective, the problem is still more difficult. No two persons have the same degree of intelligence. Some are clearly lacking in mentality. Others are manifestly intelligent. The great mass range all along between these extremes. Various arbitrary rules have been laid down to aid in classifying different grades of defectives. Generally the feeble-minded can be sorted out. The defectives are supposed, if young, to be two years or more below the normal scholar in development; if older, three or more below. Their standing is fixed by asking certain test questions. Furthermore, a list of questions has been commonly used for an "intelligence test." These queries have nothing to do with the school work of the child, but are supposed to reveal only his native intelligence.
No doubt in a broad way such tests throw considerable light on the mentality of those who submit to the examination. Ordinary experience, however, shows that they cannot be fully relied on. Some children develop very slowly, others very rapidly. Some are much quicker, others slower in their perceptions and responses. No two children or grown-ups have the same turn of mind. One may be very bright in business affairs and very dull in books. One may be clever in arithmetic and hopeless in grammar. One may have marked mechanical ability and no taste for school. These tests are only valuable if given by well qualified examiners, and the method is so new that few have had the chance to thoroughly prepare for the work. For the most part the tests are given by people who are wholly unfit for so important a task.
Quite aside from all this it is not certain that intelligent people are necessarily safer to the community than stupid ones. There is always a tendency for the stupid to stick to the beaten path. Intelligence generally means individuality and divergence. On the other hand, the stupid and subnormal are moved much more directly by instincts and emotions. Their lack of imagination, poor perceptions and want of reasoning or comparing power, make their self-control weak. In sudden stress or an unusual situation, they are easily swept away and respond directly to instinct and feeling. In short the urge of the primitive through the long history of the race cannot be modified sufficiently by the new structure that civilization has built around more intelligent people.
The various distinctions between the feeble-minded and the normal must not be taken with too much confidence. As the motives that govern man are understood, it is easy to see that intelligence is a strong factor in regulating behavior. When it is seen also that at least the larger part of the inmates of prisons are subnormal and at the same time without property or education, it is evident that all these handicaps are dominating causes of conduct. This position is made still more certain by the further evidence that nearly all of the repeaters in prison are of this type.
Most states already make some allowances in their criminal codes for the defective and the insane. This is really an acknowledgment that the activity of the human machine is governed by its make and environment. The history of the treatment of the insane serves to show the uncertainty of all man's theories as to punishment and responsibility. Doubtless at a very early age in the history of man it was discovered that there were people who acted so abnormally that they could not be classified with the great mass. Such persons were supposed to be possessed of devils or demons, and various incantations and practices were used to drive the devils out. Failing in this they were put in prison, loaded with chains or put to death because of their danger to the community.
In other communities, however, insane persons were thought to be possessed of special gifts. God had come nearer to them than to common mortals, and they were seers or prophets endowed with a portion of the divine power.
Either view of the problem is explainable by the lack of scientific or exact knowledge that marks early societies. Still these societies relied on punishments just as much as our present law-makers and enforcers, possibly more, because presumably less enlightened. Further investigation and experiences with the insane have convinced even the most casual observer that they function somewhat differently from other people; there is not the same certainty between stimulus and response. What they will do and how they will act under given conditions cannot be foretold with anything approaching the exactness that is possible with the normal.
The origin of the insanity in many cases is clearly traceable: sometimes to lesions; sometimes to illness; sometimes to the mode of life; perhaps more is due to heredity than to any other cause. At any rate in theory the civilized world has long since ceased to hold the insane criminally responsible for their acts. This applies only to the clearly insane. The border-line is impossible to find, and many cases are so difficult to classify that there is often a doubt as to where the given patient belongs. In times when the crowd is mad with the mob psychology of hatred, people are impatient of insanity and do not care whether the accused was sane or not at the time of the commission of the act. Many insane are put to death or sentenced to long terms of punishments. Jails and other penal institutions are constantly sorting their inmates and finding many who were clearly insane at the time their sentences began.
Society is beginning to find out that even where there is no marked insanity, many are so near idiocy that they cannot fairly be held responsible for their acts. The line here is just as vague and uncertain as with the insane. Thus far, society has not provided adequate protection for the public against this class; neither has it properly cared for these unfortunates. It has simply excused their conduct, except in cases where some act is so shocking that it arouses special hatred, and then it freely declares that it makes no difference whether the accused is a defective or not; he is of no value to the world and should die. Many of this class are put to death. I am inclined to think that most of those executed are either insane or serious defectives; and those who say that such people are of no value are probably right. It is perhaps equally true that few if any are of value, for when value is considered we are met with the question: "Value to whom, or for what?" All you can say of any one is that he wishes to live, and has the same inherent instincts and emotions toward life as are common to all other men.
Even the legal tests as to insanity and feeble-mindedness are neither logical nor humane. Often the definition is given by courts that if one is able to distinguish between right and wrong, he is sane within the meaning of the law. This definition of insanity is utterly unscientific. If the insane or the defective above an idiot is questioned specifically whether certain distinct things are right or wrong, he can generally give the conventional classification. Often he can tell much better than the intelligent man, for he has been arbitrarily taught the things that are right and wrong and has not the originality or ability to inquire whether the classification is right or how far circumstances and conditions determine right and wrong.
Conduct is ruled by emotion, and actions depend not upon whether one has learned to classify certain conduct as right or wrong, but whether from education, life or otherwise, the thought of a certain act produces a quick and involuntary reaction against doing it. No one believes or feels that it is always really wrong to violate some statutes, and most men indulge in many practices that are wrong and repulsive but not forbidden by the criminal code.
Furthermore, the insane and subnormal are influenced by punishment and fear. Even the animal responds to both. It is possible that in many instances those who are insane and subnormal are influenced by fear more than the intelligent and normal. The most that can be said is that they have not the same power of resistance that is given stronger men. This means only that they have not stored up the experiences of life so well; that their nervous system has not so well conveyed impressions, or that their power of comparison is less; this, in turn, means that it will take greater stress or harder environment to overcome the inhibitions of the sane than the insane. The treatment of the insane and the defective is an acknowledgment that all conduct comes from a direct response of the machine to certain stimuli and the machine can act only in a way consistent with its mechanism.
In other cases, the courts often recognize the strength of hereditary defects in nullifying environment with its strict ideas of right and wrong. The kleptomaniac is generally recognized as being a well-defined class of the insane. Most of the shop-lifters are women. This is especially a female crime. It is useless to explain why. It is not a daring crime; it is secretive in its nature; it requires more stealth than courage; it especially appeals to women on account of their taste for the finery exhibited at stores. The kleptomaniac, however, is generally a rich or influential woman. She steals something she does not need, and she is therefore held to be a kleptomaniac and not responsible.
The poor woman who steals something she actually needs is not a kleptomaniac. I have no doubt that the rich woman who could not resist shop-lifting is a kleptomaniac. I have just as little doubt that the poor woman, with an imperfect make, found her environment such that she was forced to act as she did. If a rich woman is irresponsible and cannot resist when she steals something she does not need, I can see no reason why a poor woman is not likewise irresponsible when she takes something that she needs or must have. The kleptomaniac finds herself in a position where her emotions and her feelings are too strong for her judgment and inhibitions. Everyone who acts must act from similar causes or inducements. There is no special providence in the realm of mind. There is no room for chance in any natural phenomenon. Possibly the public will understand sometime, and law-makers and law-enforcers will place crime and punishment on a scientific basis.
Organizations and cults are forever coining new expressions that sound "pat" and for this reason seem true. As a rule, these terms and phrases are put in the shape of general statements that may or may not mean something; but their "pat" sound is used to justify all sorts of excesses and violations of individual rights. The term "social control" is met everywhere now. It may imply much or little, according to the construction of the users. It is meant at least to imply that somewhere is lodged a power to bring under control or supervision the refractory or evil elements of society for the well being of the whole. As a rule, under this phrase anything is justified which seems in some way fit for the community as a whole. The fact that the restraint interferes with personal liberty seems to have no bearing on the matter. Social control necessarily means that the majority of the members of a social unit shall limit the freedom of action of the individual to conform to its view. Of course, the majority has the right because it has the power. In the discussion of political or philosophical questions, "right" means little more or less than "power." A right must be based upon some custom or habit with some power to enforce it, or it cannot be claimed. It can never be enjoyed without the power to obtain it.
The relation of society to the individual has been one long conflict. This is necessarily true because every human organism has instincts, feelings and desires and is naturally impatient at any limitations placed upon it unless self-imposed. On the other hand, organized society functions to preserve itself, and if the activities of the individual are hostile to this preservation the individual must give way. Theorists of various schools are forever propounding social ideas, with the positive assurance that, if followed, they would work automatically and heal all social ills. But it must be evident that neither from history nor philosophy can any such theory be proved. Between the extreme anarchistic view that each person should be free of control by law, and the extreme socialistic view of an extension of state organization until all property and all industrial activity shall be administered by the state and collectively owned, social life in its relation to the individual is always shifting. No one can find the proper line, and if there were a line it would forever change. On the one hand, the power of the strongest element in social organization is always seeking to enlarge the province of the state. On the other hand, the individual unit following the natural instincts for its development is reaching out for more freedom and life. When the theorists in each camp manage to push so hard that both can no longer be maintained, the old organization of society breaks up into new units, immediately to re-form in some new way.
This struggle of contending forces is a prolific and unavoidable source of crime. When organized society goes too far, the individual units rebel and clash with law; when the units swing too far away from the social organization and defy the power of the state, almost automatically some sort of a new organization becomes the state. Whether this new one discards all old forms and laws and acts without the written law, is of no concern. It at least acts and sets limits to the individual life. If it were possible for all legislative bodies to meet and repeal all laws, the state would still remain; the people would live and automatically form themselves into a certain order and protect that order either by written law or vigilance committees. At least the people would act together.
The majority generally has some religious creed, and to it this is all important. This creed is made up of observances, such as holy days, the support of the prevailing religion, the condemnation of witchcraft and magic, and the like. These and other doctrines often have been enforced upon those who have no faith in the regulations. The enforcement of such laws in the past has been by the most drastic penalties and has brought extreme suffering upon the world. No religious organization has ever seemed willing to confine its activities to propaganda, teaching and moral suasion; those methods are too slow, and the evils and consequences of disbelief are too great. Laws of this drastic character are still part of the penal codes of various states and nations, and well-organized bodies are always strenuously seeking to extend the application of such laws and re-enact at least a portion of the religious code that has been outgrown.
Individuals have likewise found, or at least believed, that certain personal habits were best for them, for instance, abstaining from alcohol and tobacco in all forms. Not content with propaganda, they have sought to force their views upon others, many of whom deeply resent their interference.
It is not enough that certain things shall be best for the health and physical welfare of a community. This does not justify the wise law-giver in making them a part of the penal code. If so, the code would be very long. No doubt coffee and tea, and perhaps meat, are injurious to health. Most likely the strength of the community would be conserved if regular sleeping hours were kept and if great modifications or changes were made in dress. But this does not justify criminal statutes. The code must take notice of something more than the general welfare. Unless the end sought to be attained is very direct and plain and the evil great so that a large majority believes in the law, it should be left to education and to other voluntary social forces.
A large part of the community has always attributed many criminal acts to intoxicating drinks. I am convinced that with such crimes as murder, burglary, robbery, forgery and the like, alcohol has had little to do. Petty things, like disorderly conduct, are often caused by intoxicating liquor, and these land a great many temporarily in jail, but these acts are really not criminal. Men have been temporarily locked up for over-drinking. If over-eating had been treated the same as over-drinking, the jails would often be filled with gluttons. As to health, probably the glutton takes the greater chance. A very large percentage of deaths would have been materially delayed except for excessive eating. The statements ascribing crime to intoxicating drinks have generally been made by those who are obsessed with a hatred of alcohol. As a rule if one lands in prison and has not been a total abstainer, his downfall is charged to rum. Statistics have been gathered in prison often by chaplains who, in the main, are prohibitionists and interested in sustaining an opinion. The facts are mainly furnished by inmates of prisons, a poor source from which to gather facts and draw deductions, especially as to the cause of crime. Prisoners are interested in only one thing, and that is getting out. They understand perfectly well what kind of statistics the chaplain wants and these are given. It is the nature and part of the protective instinct of everyone to find some excuse for his acts. Alcohol has always furnished this excuse. It is a good alibi; it is readily believed, always awakens sympathy and at once turns the wrath of a provincial community from the inmate of the prison to the saloon-keeper.
Even if prisoners were unlike others and wished to tell the truth about themselves, they have not the art and understanding to give the causes of their plight. No man, however intelligent, can do this, least of all one of inferior brain power, little education and not trained in dealing with facts. The prison inmate, like everyone else, knows only that he followed what seemed to him the line of least resistance, and that every step in his course was preceded by another and that there was a reason for what he did. Most likely he does not know the reason. In the hours of his despair he goes over his life in every detail, at every crossroad, and at all the forks where paths branch, always wishing he had gone the other way.
While this is true, he could know neither the dangers that lurked along other roads, nor the fact that he had no choice about the way he went. All he knows is that he stumbled along a certain path which led to disaster. All the paths of life lead to tragedy; it is only a question as to how and when. With some, the evil day is longer delayed and the disaster seems not so hard to bear.
In a sense, all the classifications as to the cause of crime are misleading and worthless. Your existence is the result of infinite chances and causes appalling in their number. Out of a thousand eggs, one is fertilized by perhaps one of a billion sperms, and from this you have been given life. Each of your parents and grandparents and so on, back for two hundred thousand years of human ancestors, and back to infinity before man was born, was the result of the same seemingly blind and almost impossible hazard. The infinitely microscopic chance that each of us had for life cannot be approximated. All the drops of water in the ocean, or all the grains of sand upon the shore, or all the leaves on all the trees, if converted into numbers and used as a denominator, with one for a numerator, could hardly tell the fraction of a chance that gave us life.
The causes of human action are infinite, and no cause stands isolated from the rest. In the first place we cannot tell the meaning of the word "cause" when applied to a problem of this sort. In law the ordinary rule for a "proximate cause" is "an event or happening in the direct line of causation, not too remote, that has led to the result, and without which the result could not have happened." But this means nothing. Infinite are the causes which have led to every act, and without each one of the infinite causes the act could not have resulted. If it be something that affected a life, and had it not happened then the life would have drifted somewhere else. In the end it would have reached the same harbor of Nirvana. But the life would not have been the same. A drop of water falls on the Rocky Mountains, it trickles along, going around through pebbles and grains of sand; it joins with others, meets trees and roots, winds and twists perhaps for hundreds, even thousands of miles before one can tell by what channel it will reach the sea. Infinite accidents determine even which sea it shall finally reach. The most radical advocates of social control are never at a loss to lay their fingers on causes or to know what would have happened if something else had not happened; they never hesitate to forbid seemingly innocent acts because they are certain that evil will follow. They are contemptuous of one who wants to preserve the semblance and spirit of freedom.
Life has none too much to offer where men are left to control themselves, and to be forbidden to follow your inclinations and desires because sometimes they may result disastrously, is to give up what seems to be a substance for what is most likely a shadow.
All we can tell about the man whom we are pleased to call a criminal, is that he had a poor equipment and met certain influences, motives and conditions, called environment, on his journey. We know that at a given time the journey has reached a certain point; it has met disaster or success, or most likely indifference. At a certain point he has reached a prison or is waiting for the hangman to tie a noose around his neck. Is heredity responsible? We know of many who apparently started out with an equipment no better. These may be business men and congressmen and deacons in the church. While we do not know and cannot know the trend and relative strength of the instincts in the various machines or the emotions that these and the whole equipment produced, apparently an equipment as poor as that of the criminal has met success, or at least kept its possessor out of jail. Was it then his environment? We have known men placed in the same environment, perhaps a brother, conquering difficulties and bringing success from what seemed to promise certain defeat. Why did one fail where the other conquered? Was it the "will" that caused one to be the "captain of his soul"? What then is the "will" and who gave the weak will to one and the strong will to another? And, if each was born with a certain "will" or the capacity to make a certain "will", who then is responsible for the result? Or, does the word "will" mean anything, as usually applied?
All we can tell is that a certain equipment met a certain environment, and the result was early disaster. A change of even the slightest factor of environment might have saved the victim from hanging, so that he could die a respectable and peaceful death from tuberculosis or cancer.
After all, the inevitable tragedy that in some form marks the end is not so important as the sensations and experiences that one meets on the road. Life is hopeless and colorless indeed if these experiences are chosen for the wayfarer and the sensations are enforced or denied, as the case may be. Nothing recompenses the individual for the denial of his chance to follow his own path.
INDUSTRIALISM AND CRIME
It was not until about the middle of the eighteenth century that the desire for the creation and accumulation of property began to rule the world. Up to that time such small amounts of property as man needed or coveted had either been produced in a simple manner by himself or taken in the easiest way.
This new passion has made a large part of the modern criminal code. A world of warriors, religious zealots and pastoral people could not readily adapt themselves to the change. Criminal codes were lengthened; methods of getting property and keeping it were provided for, and other ways condemned. It must be obvious that it was not easy for man with his age-old machine, his inherited institutions and his ancient folk-ways, to adjust himself rapidly to the change. New conditions and laws created new criminals.
With the growth of the factory system and accelerated industrial development, an overweening desire for material things was awakened. As neither individuals nor societies can be possessed of more than one overpowering emotion at a time, the devotion to property naturally weakened religious fervor. Religion became more an abstract belief and a social organization than a vital thing affecting life and conduct. Even before this time there was growing up in the world a protest against the religious superstition that had led to the cruelties of the past. The scientist and the modern philosopher were making their contributions to the world of thought, and these contributions were slowly affecting life and conduct.
A doubt of old creeds and doctrines and faiths was coming over the minds of men. Social conventions were loosening, new customs and habits were becoming folk-ways. In short, society and life were growing more fluid and adaptable. The growth of property holdings created new desires and new temptations. The accumulation of large fortunes brought envy and hatred and ambition. The rise of industries built the large cities, with palaces on one hand and hovels on the other. The vast inequality of wealth and the growth of workers' organizations, together with the spirit of skepticism which activity always brings, caused large numbers to doubt the justice of property rights, the utility of many institutions and the possibility of radical change by social organization. It is perfectly evident that all of this movement brought more conflict between social units, a constant lengthening of the criminal code to protect the interests of the controlling powers, an increase of prisons, and an apparent if not a real increase of crime.
Nothing but a strong government can long endure great inequality of wealth or social condition. The slaves of the past civilization were kept in subjection by main strength and fear. This enslavement was aided by the deep ignorance of the masses who had no means of information and nothing but vague feelings of the injustice of their lot. Even then the poor sometimes revolted, but such outbreaks were generally easily put down by the sword. The growth of political power and industrial independence has been accompanied by the constant conflict of social forces. This means conflict with the law, and the law has always taken its toll of victims.
New inventions and methods that bring power of any sort carry with them social clashes, protests, bitterness, conflicts and violations of law. The invention of gun-powder was the source of great conflict and still continues to add to the inmates of prisons. From the first, the far-reaching effects of high explosives were seen by the wise, and firearms were permitted only in the hands of those who could be depended upon to support the state. Gradually through the needs of the rulers in war they were given to the poor. When the American Revolution separated us from Great Britain, the spirit of democracy and revolt was strong in the world. A body of peasants had gained independence over the strongest nation on earth. This body, through its delegates, provided in the Constitution of the United States that the people should never be forbidden to bear arms. The cheap production of firearms placed them in the hands of all who wished to buy. This aided feuds and brawls. It also gave strength to the burglar and robber.
America was fast becoming a manufacturing and commercial nation. The accumulation of property was greater, and the inequalities perhaps more marked than in any other land; likewise the poor were more independent. Gradually we came to rely more and more upon the power of law and the force that goes with it to preserve the old order. Legislatures and city councils all over the United States began to limit and forbid carrying firearms. The Constitution of the United States was held no impediment to this legislation. Gradually laws have forbidden the carrying of guns by the common man, and these laws are growing stronger every year. In many states robbery with a gun may mean life imprisonment, while the mere carrying of a revolver is a serious offense. The passage of these drastic laws and the number of prison inmates confined for these offenses show that the invention and use of firearms has affected crime, and likewise that the government is constantly growing more doubtful of the common man.
Civilization largely has to do with the creation and protection of property. Although it is related to literature, architecture, politics, art and the like; even these things if not actually rooted in property are stimulated or affected by property. Civilization has created new crimes and new ways to commit crime. It has likewise created many wants and desires that furnish the motive power of property crimes. Each new invention of civilization adds to these needs and these desires, increases the power of committing crime, and necessitates stricter measures to prevent it. Civilization has likewise created many new outlets for the emotions, strengthened old ones, weakened others and added to the complexity of life. It has imposed added strain and stress upon man's nervous system and through this has caused the abnormalities and excesses that are either crimes or lead to crimes.
Civilization has created the big cities; in other words, the powers and forces that made civilization have made the big cities. The invention and development of the railroad has taken men from the air and sunlight and comparative freedom of motion of the country and the small village, and placed them in an atmosphere not really fitted for normal animal life, especially the life of the young. It has likewise stimulated crime by offering the opportunities and making the suggestions that are potent factors in crime. In country and village life everyone was known, the smallest detail of every life was an open book. This fact furnished a moral restraint to the individual and likewise made it hard for him to violate the rules of the game. The opportunities for collecting large numbers of people who might encourage each other with their conversation and association were very few in rural life. The man who would violate the law must do it alone. Not only this, but he must take his first steps almost without suggestion or aid. This confined criminal conduct largely to the feeble-minded and the seriously defective, and even these could generally live in a country atmosphere where life is simple and easy, without serious danger to themselves or others.
The great city with its swarms of people, its wealth and poverty, its unhealthy atmosphere, its opportunities for everyone to have many associates and still be lost to the community at large, makes irregular lives not only easy, but almost necessary to large numbers of men. Civilization has no doubt created crime as it has created luxury, wealth, refinement and ease. Much luxury has always led to deterioration and decay and is doubtless leading that way now.
One of the latest products of civilization that has had a marked effect on crime is the automobile. Stringent laws are on the statute books of all states against stealing automobiles, yet stealing and selling automobiles is a flourishing and growing business. A large percentage of the boys in the juvenile courts of our cities are there for stealing automobiles. Yet this is the work of a very short period. I do not mean to say that many of the boys brought into court for stealing automobiles would not have committed some other crime, if automobiles had not been invented and come into general use, but I feel quite sure that many of them are victims of the automobile madness alone.
The automobile is one of the latest manias and fashions that civilization has provided. Almost no one is free from the disease. Conservative business men must have motor cars; clerks and salaried people who cannot afford them must get them; mechanics and professional men who have no need for them, except that others use them, must contrive to buy them. Automobiles are much more important today than houses. Men go into debt and struggle for money to buy gasoline so that they may drive somewhere for the sake of coming back. It has created a psychology all its own, a psychology of movement, of impatience, of waste, of futility. Men in Chicago start to drive to Milwaukee without the slightest reason for going there; they travel the road so fast that they could get no idea of the scenery even if there were something to see. They hurry as if going for a doctor. They reach their destination and then start back home. The specific desire that is satisfied by this expense and waste is a new one, an emotion of no value in the life processes and probably of great injury in life development. It is a craze for movement, for haste, for what seems like change.
The automobile has made its list of criminals, and it is making them every day. Probably it will continue to make them until the flying machine is perfected, and then to some extent at least the airplane will take its place.
The truth is that man is not adapted to the automobile. His reactions are too simple; his inherent needs are not adjusted to the new life; he has not been built up with barriers to protect him from this insidious temptation which is claiming its victims by the hundreds every day.
The boy is perfectly helpless in the presence of this lure. He wants to do what others do. He is by nature active and venturesome and needs to keep on the move. The mechanism itself appeals to him. He wants to work in a garage. He is anxious to be a chauffeur. He cannot resist an automobile. No such temptation should be placed before a boy. It has added a great deal to the responsibility of parents and teachers, and so far they seem not to have been able to meet that responsibility in any way. Aside from the boys' thefts it has played a great part in crime. The doctor, the real estate agent, the business man cannot afford to be without automobiles. No more can the burglar, the hold-up man, the bank robber, if he would keep up to date. The automobile has raised the robbery of country banks from a vagrant crime, infrequent and dangerous, to a steady occupation coupled with a great deal of excitement and some chance for profit. So far no one has ever suggested anything to counteract or lessen the evil effects except to increase penalties. The crimes committed with and for automobiles are a result of the conditions of life. Out of a thousand men and boys, a certain percentage must commit these crimes just as a certain percentage must die of tuberculosis. The temptation is very great. The human equipment is not strong enough in many people to withstand the temptation. They either buy them when they cannot afford to own them, or they steal them, and either way leads to disaster. No doubt men will some time become adjusted to the automobile as they have become adjusted to the horse, but until that time comes, it will demand its heavy toll of unfortunates.
Not only, it seems to me, does the growth of civilization mean the growth of crime, but that civilization likewise leads to decay. The world has seen the result over and over again, but it cannot learn. Man is an animal; the law of his being demands that he shall live close to nature; he needs the outdoors, the country, the air; he needs to walk and run; otherwise his digestive apparatus will fail, his brain power will decay, and the strength of his legs will be impaired. Civilization runs too much to stomach and nerves, and Nature will have revenge. To be sure, the professional American rhapsodist points out that we are immune from natural law because we have a chance to vote for presidents once in every four years. But there are ample signs that Nature knows little about political institutions or other man-made devices and that she will have her way.
How much the natural limitations of man will permit him to learn and understand; how far his instincts and emotional nature would allow him to be controlled by knowledge, if he had it; what would be the results to life if reason could control him, are pertinent questions that affect all discussion and which may never be satisfactorily answered. It is entirely possible that the student who tries to point out better ways and teach better methods does it only to satisfy his own emotions and is often conscious that it does nothing else. But, whatever the inducing cause or result, given a brain and nervous system and the material that civilization furnishes for reflection, these and other important subjects will be interesting topics of study and furnish material for the reflective powers of man.
WAR AND CRIME
All natural phenomena affect the activities of man. It has been repeatedly observed that the number of crimes of assault and murder increases in the summer months and fluctuates with extreme heat or a cooler temperature. The nervous system of man is responsive to all sorts of physical and psychological influences, and criminologists take these into account in considering crime, as doctors take them into account in treating disease. Man is influenced by substantially all the things that affect other structures and by many things that do not. His nervous system is more delicate, his emotional nature more complex, and his brain permits the handling of impressions in a way not possible to lower organisms.
The effect of war has always been manifest in human conduct. Man acts largely from habit and custom; he does as others do, without reflection as to why he should do it or why others do it. War is a sudden, violent and spectacular destroyer of all established habits. In its conduct and preparation it has rules of its own which have no analogy in civil life. The battlefield is a reversion to the primitive; a reversion which man finds it easy to make, for it appeals to fundamental instincts which civilization holds in leash with great difficulty and never with entire success. War especially appeals to the young. Their desire for activity, their impatience with restraint, their love of the spectacular, their untrained emotions, all find a ready outlet in war. Even those who are too young to fight still read of it, talk of it, play at it to the exclusion of other games. War is a profound and rapid maker of mental attitudes and of complexes that are quick to develop and slow to pass away. Both the quick development and slow decay are probably due to the fact that war meets a decided response in the primitive nature of man.
Nearly all the newspapers of America are now calling attention to the increase of crime since the close of the Great War. It is a topic of pulpit and platform discussion. Wild appeals are made for convictions and extreme penalties. Governors and boards of pardon and parole are urged to refuse clemency to prisoners and are roundly condemned when they do their plain duty, even though they do it very reluctantly and tardily.
It is probably true that the close of the war has shown a large increase in criminality, especially in crimes of violence. This is true not only of America but of all European countries. In some of the most afflicted ones civil government for a time has virtually broken down. Both the great need for food and clothing and the overthrowing of conventions, customs and habits are responsible for the change. Here we perceive a notable example of the almost instantaneous disruption of established folk-ways.
For more than four years most of the western world did nothing but kill. The whole world talked of slaughter and devoted its energy to killing. Every sentiment of humanity was forgotten. Even religious ties and religious commands were ignored. The prayers to the Almighty contained requests that He help the various fighting nations to kill their enemies. Everyone was taught to hate. The leaders in the war knew that boys could not do efficient killing unless they learned to fear and hate. The most outrageous falsehoods were freely circulated by every nation about its enemies and their conduct of the war. The highest rewards were offered for new and more efficient ways to kill. Every school was turned over to hate and preparation for war, and, of course, all the churches joined in the universal craze. God would not only forgive killing but reward those who were the most expert at the game.
The newspapers carried stories of battles every day, the dead and wounded often running into the tens of thousands. None of the reports was exact. Nothing was true. Everything was wild and exaggerated. Facts were not strong enough to make an impression. Lies were deliberately circulated to help the cause.
Every tradition and habit of life was broken and broken all the time. The commandment, "Thou shalt not kill," was repealed. Property was not only ruthlessly destroyed but openly confiscated. Lying was a fine art. When this bears a harvest after the war, the public loudly clamors for hanging boys whose psychology is a direct result of long and intensive training by the leaders of the world.
One life is not worth considering in the face of the holocaust that has taken its hundreds of thousands and has been defended in the schools and churches. It is not strange that the after-war harvest of crimes should come largely from boys, often those boys who did their part on the field of battle. Whether they got the psychology from killing or reading or hearing or playing soldier or training makes no difference. Everyone who has any reasoning power knows that they got it, that it was deliberately given to them if not forced upon them, and that just as deliberately the state is killing them because they took it.
It is not alone the young who show this psychology of killing that has grown out of the war. Organized society, the public, juries, judges, pardon boards and governors, show that war has made them cruel and wanton of human life. The great number of hangings since the war is patent to all observers. In normal times juries were very loath to pronounce the death penalty. With any possible excuse they always saved life. Now they pride themselves on taking life. Even insanity does not always prevent an execution.
Numerous are the evidences of the derangements the war has created and left behind. A few years ago a prize fight would not have been permitted in more than one or two states in the Union. Now state after state is passing laws to permit prize fights to take place, and even the best society has given its sanction to this sort of sport. Whether the state should permit prize fights is not the question. The fact is, as everyone knows, that it is permitted on account of a psychology growing out of the war. We content ourselves with saying it will never do to raise our boys as molly-coddles; they must learn to fight.
It is not alone murder that can be traced directly to the war psychology. Robbery and burglary have rapidly increased, and much of this is due to the emotions of boys. The robbing of country banks has grown to be almost a pastime, and often one or more participants in these raids is a returned soldier.
What should be done to meet these new conditions? Common honesty, common sense and common humanity alike plainly show that a large part of the crimes of violence are due to the war. Will hangings and life sentences stop them? And, if so, is it right for organized society to ignore its responsibility and place it on the young men that they innoculated with the universal madness? It is expecting too much to think that there is any process by which society can be made to think and feel. Some day, however, when the war fever passes away crime will again take its normal place.
This phenomenon is not new in the world. Everyone interested has noted it before. It has followed all great wars. War means the breaking up of old habits, the destruction of many inhibitions, which in the strongest civilization are only skin deep at the best. It means the return to the primitive feelings that once ruled man.
The Napoleonic Wars left a long heritage of crime. Every nation in Europe was affected by them. Many years passed before the world grew tranquil. Our Civil War brought its harvest of crime. It was felt both North and South. It was not confined to homicide but was shown in all sorts of criminal statistics, especially crimes of violence.
I do not write as a pacifist. There is nothing in the constitution of man that makes pacifism anything but a dream. Man is largely ruled by fear and hate, and it is not possible to imagine an individual or a race that under sufficient provocation will not fight. Neither is it possible that nations will not always, from time to time, find the provocation sufficiently great. Individuals and nations can philosophize and reason and make compromises when they are calm; but let them be moved by fear and hatred, and these emotions will sweep away every other feeling. The conditions for war were ripe in 1914, and it was inevitable that America should be in it too. This should not make one wish for war nor believe in war nor close one's eyes to its horrors and results. Much less should it prevent him from trying to do his part to restore sanity to the world.
Another consequence of war which America is passing through is the spirit of super-patriotism. This is always aroused and must be aroused to carry on the war. It is potent in creating the psychology that makes men fight. Every people teaches that its own country is the best; that its laws and institutions excel those of all other lands. This spirit is taken advantage of and used by designing men. It is used to send to jail those who criticise existing things. It is used to hamper and destroy any effort to change laws and institutions. The one who criticises conditions is a disturber and a traitor. Those who profit by existing things are always intense patriots and by means of cheap appeals and trite expressions seek to stifle discussion and criticism. This war has borne a deadly harvest of restrictive legislation in America. We are no longer an asylum for political offenders. We no longer stand for freedom of speech. Old traditions and constitutional and legal guarantees have been swept aside under the hysteria which has prevailed during and since the war. These results were inevitable and will follow war as long as man is man.
All the after-effects of the World War show how completely man is ruled by forces over which he has no control. If considerable numbers of the people have been moved by war hysteria, and if a large part of crime is directly traceable to war, it seems plain that all human action could be traced to some controlling cause, if only man could be wise enough and industrious and humane enough to find the cause. It is plain that the law of cause and effect influences mental phenomena as it does physical acts, and sometime, perhaps, men will seek to avoid the effect by removing the cause.
CIVILIZATION AND CRIME
As children we have all amused ourselves by looking into a kaleidoscope, turning it around and around and watching the changing patterns formed from the mixing bits of different colored glass in the other end. Each turn makes a different pattern and each bit of glass seems to seek a spot in the general medley where it can be settled until another turn drives it to find a resting place somewhere else. The organization of individual units into a group is more or less such a formation, each seeking to adjust itself to a pattern and finding that the pattern is ever-changing and the individual units obliged to seek new positions and make new adjustments.
It is vain for social theorists to talk of a perfect order, a system of social organization that will find the proper place for each unit and bring social symmetry out of the whole. Such a society is not consistent with the varied capacities and wants of men. Neither is a perfect order possible with ever-changing and moving physical forces, with new mental conceptions, with new needs and wants, with constant births and deaths, and with the innate instincts of man.
Some system may be the best for a time but must in turn give place to new formations. In this process the old is ever mixed with the new. The past hangs on to plague the present, and the vision of the future disturbs the quiet and stability that the present inherited from the past. Organizations of society are necessary and automatic. The frost on the window pane takes its pattern, the crystals in the glass and stone have their formations, the grain of sand, the plant—all forms of animal life—the solar system and, doubtless, an infinite number of other systems which the eye cannot see or the mind comprehend take on form and order. The symmetry and shape of any of these organizations may be shattered by growth or catastrophe, and new forms may take their place. All life is constant friction and constant adjustment, each particle in a blind way trying to find a more harmonious relation, but never reaching complete rest.
The social and political patterns that men have taken have been of many forms. All through the past these have changed, and the laws and habits that were meant to hold men together, have been made and discarded as fast as new emotions or ideas have gained the power to make the change. Men are of all degrees of adaptability. Some can readily conform to the new. Some adjust themselves very slowly. Man's structure is fixed; his inherent instincts are of ancient origin, always urging him to primitive reactions; his habits are slowly formed and slowly changed. Slowly he settles himself to the conditions that surround him. He learns their demands; he manages to conform, but the folk-ways that he knew and the way of life he learned must be changed to something else. Every new adjustment, every change of organization, every modification made by civilization, bears its toll of victims who have not been able to adjust themselves to the new order.
The first criminal regulations, doubtless, had to do with the personal relations of men. The number of offenses was small for life was simple, wants were few, and ambition rare. The growth of religion created a ferocious criminal code, regulating every thought and action that God's agents thought might offend the Deity or threaten their power on earth. Anyone interested in the story of punishment for heresy, sorcery or other crimes growing out of religious fanaticism, can read the story in Lecky's History of Rationalism in Europe, in White's A History of the Warfare of Science with Theology in Christendom, in Draper's Intellectual Development of Europe, and in many other books. The Spanish Inquisition alone furnished about 350,000 victims in the two centuries of its power. Many of them were burned alive, many others were killed by the most cruel torture that could be devised by man. Up to recent times more victims have been put to death for heresy and kindred crimes against religion than for any other cause. Next to this no doubt stand political crimes. Even America hanged old women for witchcraft, a crime they could not commit. Practically all the victims of religious and political persecution have been guiltless of any real crimes, and among them were always many of the noblest of their age.
Every general change of religious or political ideas bears its quota of crimes. For whatever the religious or political organization, it always uses every means in its power to perpetuate itself. This is as true of republics as of monarchies, although the severity of punishment and the amount of heresy permitted change from time to time. Each age is sure that it has the true religion and the God-given political organization. In every age the accepted religion is true, and the king and the state can do no wrong.
One thing only seems to be sure. Human nature does not change. Whether it was the theological systems of the ancient world fighting to keep Christianity out, or Christianity fighting to preserve itself, the same cruel, bigoted, fanatical majority has been found to do its will, and the same reasons and excuses have served the law from the earliest times down to today.
A letter of the younger Pliny, who was then governor of Bythinia-Pontus, a province of Rome, asking the Emperor Trajan for instructions in dealing with the early Christians shows how persistent are intolerance and bigotry. This might have been written yesterday to seek advice in the suppression of opinion and punishment for sedition in any of the most advanced governments of the modern world, as it was in the most advanced of the ancient world. The letter is here reproduced as an interesting exhibit of human nature and it fixity.
Pliny, the younger, was born in 61 A.D. and became governor of the province of Bythinia-Pontus about the year 112 A.D. under the Emperor Trajan. In the discharge of his duties as governor, Pliny discovered that the conversion of many of his subjects to Christianity had resulted in a falling off of trade in the victims usually purchased for sacrifices at the temples and in other commodities used in connection with pagan worship. As a good governor, Pliny sought to remedy this economic situation, and his plan was to restore his subjects to their old forms of worship. Thus he was brought into contact with Christianity. The following letters, one from Pliny to Trajan, and the other, Trajan's reply, show the situation. These documents are from the Tenth Book of Pliny's Correspondence, Letters 97 and 98.
PLINY ASKING INSTRUCTIONS OF TRAJAN ON TRIALS OF CHRISTIANS
It is my invariable rule, Sir, to refer to you in all matters where I feel doubtful; for who is more capable of removing my scruples, or informing my ignorance? Having never been present at any trials concerning those who profess Christianity, I am unacquainted not only with the nature of their crimes, or the measure of their punishment, but how far it is proper to enter into an examination concerning them. Whether, therefore, any difference is usually made with respect to ages, or no distinction is to be observed between the young and the adult; whether repentance entitles them to a pardon; or if a man has been once a Christian, it avails nothing to desist from his error; whether the very profession of Christianity, unattended with any criminal act, or only the crimes themselves inherent in the profession are punishable; on all these points I am in great doubt. In the meanwhile, the method I have observed towards those who have been brought before me as Christians is this: I asked them whether they were Christians; if they admitted it, I repeated the question twice, and threatened them with punishment; if they persisted, I ordered them to be at once punished: for I was persuaded, whatever the nature of their opinions might be, a contumacious and inflexible obstinacy certainly deserved correction.