The indifferentist shrugs his shoulders and remarks to the conservative: "What have I to do with it? I will hunt nobody and I will save nobody. Let every one take care of himself. I pay my taxes; let the judges and the lawyers take care of the criminals. And as for you, Mr. Radical, you weary me. Your talk is too heroic. You want to play Atlas and carry the heavens on your shoulders. Well, do it if you like. But don't imagine I am going to act the stupid Hercules and transfer your burden to my shoulders. Rave away until you are tired, but let me alone."
"I will not let you alone. I am no Atlas. I am no more than a fly; but I will annoy you, I will buzz in your ears; I will not let you sleep. You must think about this."
That is about the height and power of my voice, or of any individual voice, in the present state of the question. I do not deceive myself. I do not imagine that the question of crime and punishment will be settled till long, long after the memory of me shall be as completely swallowed up by time as last year's snow is swallowed by the sea. Two thousand years ago a man whose soul revolted at punishment, cried out: "Judge not, that ye be not judged," and yet men and women who have taken his name upon their lips as holy, have for all those two thousand years gone on judging as if their belief in what he said was only lip-belief; and they do it to-day. And judges sit upon benches and send men to their death,--even judges who do not themselves believe in capital punishment; and prosecutors exhaust their eloquence and their tricks to get men convicted; and women and men bear witness against sinners; and then they all meet in church and pray, "Forgive us our trespasses as we forgive those who trespass against us!"
Do they mean anything at all by it?
And I know that just as the voice of Jesus was not heard, and is not heard, save here and there; just as the voice of Tolstoy is not heard, save here and there; and others great and small are lost in the great echoless desert of indifferentism, having produced little perceptible effect, so my voice also will be lost, and barely a slight ripple of thought be propagated over that dry and fruitless expanse; even that the next wind of trial will straighten and leave as unimprinted sand.
Nevertheless, by the continued and unintermitting action of forces infinitesimal compared with the human voice, the greatest effects are at length accomplished. A wave-length of light is but the fifty-thousandth part of an inch, yet by the continuous action of waves like these have been produced all the creations of light, the entire world of sight, out of masses irresponsive, dark, colorless. And doubt not that in time this cold and irresponsive mass of indifference will feel and stir and realize the force of the great sympathies which will change the attitude of the human mind as a whole towards Crime and Punishment, and erase both from the world.
Not by lawyers and not by judges shall the final cause of the criminal be tried; but lawyer and judge and criminal together shall be told by the Social Conscience, "Depart in peace."
* * * * * A great ethical teacher once wrote words like unto these: "I have within me the capacity for every crime."
Few, reading them, believe that he meant what he said. Most take it as the sententious utterance of one who, in an abandonment of generosity, wished to say something large and leveling. But I think he meant exactly what he said. I think that with all his purity Emerson had within him the turbid stream of passion and desire; for all his hard-cut granite features he knew the instincts of the weakling and the slave; and for all the sweetness, the tenderness, and the nobility of his nature, he had the tiger and the jackal in his soul. I think that within every bit of human flesh and spirit that has ever crossed the enigma bridge of life, from the prehistoric racial morning until now, all crime and all virtue were germinal. Out of one great soul-stuff are we sprung, you and I and all of us; and if in you the virtue has grown and not the vice, do not therefore conclude that you are essentially different from him whom you have helped to put in stripes and behind bars. Your balance may be more even, you may be mixed in smaller proportions altogether, or the outside temptation has not come upon you.
I am no disciple of that school whose doctrine is summed up in the teaching that Man's Will is nothing, his Material Surroundings all. I do not accept that popular socialism which would make saints out of sinners only by filling their stomachs. I am no apologist for characterlessness, and no petitioner for universal moral weakness. I believe in the individual. I believe that the purpose of life (in so far as we can give it a purpose, and it has none save what we give it) is the assertion and the development of strong, self-centered personality. It is therefore that no religion which offers vicarious atonement for the misdoer, and no philosophy which rests on the cornerstone of irresponsibility, makes any appeal to me. I believe that immeasurable mischief has been wrought by the ceaseless repetition for the last two thousand years of the formula: "Not through any merit of mine shall I enter heaven, but through the sacrifice of Christ."--Not through the sacrifice of Christ, nor any other sacrifice, shall any one attain strength, save in so far as he takes the spirit and the purpose of the sacrifice into his own life and lives it. Nor do I see anything as the result of the teaching that all men are the helpless victims of external circumstance and under the same conditions will act precisely alike, than a lot of spineless, nerveless, bloodless crawlers in the tracks of stronger men,--too desirous of ease to be honest, too weak to be successful rascals.
Let this be put as strongly as it can now, that nothing I shall say hereafter may be interpreted as a gospel of shifting and shirking.
But the difference between us, the Anarchists, who preach self-government and none else, and Moralists who in times past and present have asked for individual responsibility, is this, that while they have always framed creeds and codes for the purpose of _holding others to account_, we draw the line upon ourselves. Set the standard as high as you will; live to it as near as you can; and if you fail, try yourself, judge yourself, condemn yourself, if you choose. Teach and persuade your neighbor if you can; consider and compare his conduct if you please; speak your mind if you desire; but if he fails to reach your standard or his own, try him not, judge him not, condemn him not. He lies beyond your sphere; you cannot know the temptation nor the inward battle nor the weight of the circumstances upon him. You do not know how long he fought before he failed. Therefore you cannot be just. Let him alone.
This is the ethical concept at which we have arrived, not by revelation from any superior power, not through the reading of any inspired book, not by special illumination of our inner consciousness; but by the study of the results of social experiment in the past as presented in the works of historians, psychologists, criminologists, sociologists and legalists.
Very likely so many "ists" sound a little oppressive, and there may be those to whom they may even have a savor of pedantry. It sounds much simpler and less ostentatious to say "Thus saith the Lord," or "The Good Book says." But in the meat and marrow these last are the real presumptions, these easy-going claims of familiarity with the will and intent of Omnipotence. It may sound more pedantic to you to say, "I have studied the accumulated wisdom of man, and drawn certain deductions therefrom," than to say "I had a talk with God this morning and he said thus and so"; but to me the first statement is infinitely more modest. Moreover there is some chance of its being true, while the other is highly imaginative fiction.
This is not to impugn the honesty of those who inherit this survival of an earlier mental state of the race, and who accept it as they accept their appetites or anything else they find themselves born with. Nor is it to belittle those past efforts of active and ardent souls who claimed direct divine inspiration as the source of their doctrines. All religions have been, in their great general outlines, the intuitive graspings of the race at truths which it had not yet sufficient knowledge to demonstrate,--rude and imperfect statements of ideas which were yet but germinal, but which, even then, mankind had urgent need to conceive, and upon which it afterwards spent the efforts of generations of lives to correct and perfect. Thus the very ethical concept of which I have been speaking as peculiarly Anarchistic, was preached as a religious doctrine by the fifteenth century Tolstoy, Peter Chilciky; and in the sixteenth century, the fanatical sect of the Anabaptists shook Germany from center to circumference by a doctrine which included the declaration that "pleadings in courts of law, oaths, capital punishment, and all absolute power were incompatible with the Christian faith." It was an imperfect illumination of the intellect, such only as was possible in those less enlightened days, but an illumination that defined certain noble conceptions of justice. They appealed to all they had, the Bible, the inner light, the best that they knew, to justify their faith. We to whom a wider day is given, who can appeal not to one book but to thousands, who have the light of science which is free to all that can command the leisure and the will to know, shining white and open on these great questions, dim and obscure in the days of Peter Chilciky, we should be the last to cast a sneer at them for their heroic struggle with tyranny and cruelty; though to-day the man who would claim their claims on their grounds would justly be rated atavist or charlatan.
Nothing or next to nothing did the Anabaptists know of history. For genuine history, history which records the growth of a whole people, which traces the evolution of its mind as seen in its works of peace,--its literature, its art, its constructions--is the creation of our own age. Only within the last seventy-five years has the purpose of history come to have so much depth as this. Before that it was a mere register of dramatic situations, with no particular connection, a chronicle of the deeds of prominent persons, a list of intrigues, scandals, murders big and little; and the great people, the actual builders and preservers of the race, the immense patient, silent mass who painfully filled up all the waste places these destroyers made, almost ignored. And no man sought to discover the relations of even the recorded acts to any general causes; no man conceived the notion of discovering what is political and moral growth or political and moral suicide. That they did not do so is because writers of history, who are themselves incarnations of their own time spirit, could not get beyond the unscientific attitude of mind, born of ignorance and fostered by the Christian religion, that man is something entirely different from the rest of organized life; that he is a free moral agent, good if he pleases and bad if he pleases, that is, according as he accepts or rejects the will of God; that every act is isolated, having no antecedent, morally, but the will of its doer. Nor until modern science had fought its way past prisons, exilements, stakes, scaffolds, and tortures, to the demonstration that man is no free-will freak thrust by an omnipotent joker upon a world of cause and sequence to play havoc therein, but just a poor differentiated bit of protoplasm as much subject to the general processes of matter and mind as his ancient progenitor in the depths of the Silurian sea, not until then was it possible for any real conception of the scope of history to begin. Not until then was it said: "The actions of men are the effects of large and general causes. Humanity as a whole has a regularity of movement as fixed as the movement of the tides; and given certain physical and social environments, certain developments may be predicted with the certainty of a mathematical calculation." Thus crime, which for so many ages men have gone on punishing more or less light-heartedly, so far from having its final cause in individual depravity, bears a steady and invariable relation to the production and distribution of staple food supplies, a thing over which society itself at times can have no control (as on the occasion of great natural disturbances), and in general does not yet know how to manage wisely: how much less, then, the individual! This regularity of the recurrence of crime was pointed out long before by the greatest statisticians of Europe, who, indeed, did not go so far as to question why it was so, nor to compare these regularities with other regularities, but upon whom the constant repetition of certain figures in the statistics of murder, suicide, assault, etc., made a profound impression. It was left to the new historians, the great pioneer among whom was H. T. Buckle in England, to make the comparisons in the statistics, and show that individual crimes as well as virtues are always calculable from general material conditions.
This is the basis from which we argue, and it is a basis established by the comparative history of civilizations. In no other way could it have been really established. It might have been guessed at, and indeed was. But only when the figures are before us, figures obtained "by millions of observations extending over different grades of civilization, with different laws, different opinions, different habits, different morals" (I am quoting Buckle), only then are we able to say surely that the human mind proceeds with a regularity of operation overweighing all the creeds and codes ever invented, and that if we would begin to understand the problem of the treatment of crime, we must go to something far larger than the moral reformation of the criminal. No prayers, no legal enactments, will ever rid society of crime. If they would, there have been prayers enough and preachments enough and laws enough and prisons enough to have done it long ago. But pray that the attraction of gravitation shall cease. Will it cease? Enact that water shall freeze at 100° heat. Will it freeze? And no more will men be sane and honest and just when they are compelled to live in an insane, dishonest, and unjust society, when the natural operation of the very elements of their being is warred upon by statutes and institutions which must produce outbursts destructive both to themselves and to others.
Away back in 1835 Quetelet, the French statistician, wrote: "Experience demonstrates, in fact, by every possible evidence, this opinion, which may seem paradoxical at first, that it is society which prepares the crime, and that the guilty one is but the instrument which executes it." Every crime, therefore, is a charge against society which can only be rightly replied to when society consents to look into its own errors and rectify the wrong it has done. This is one of the results which must, in the end, flow from the labors of the real historians; one of the reasons why history was worth writing at all.
Now the next point in the problem is the criminal himself. Admitting what cannot be impeached, that there is cause and sequence in the action of man; admitting the pressure of general causes upon all alike, what is the reason that one man is a criminal and another not?
From the days of the Roman jurisconsults until now the legalists themselves have made a distinction between crimes against the law of nature and crimes merely against the law of society. From the modern scientific standpoint no such distinction can be maintained. Nature knows nothing about crime, and nothing ever was a crime until the social Conscience made it so. Neither is it easy when one reads their law books, even accepting their view-point, to understand why certain crimes were catalogued as against the law of nature, and certain others as of the more artificial character. But I presume what were in general classed as crimes against nature were Acts of Violence committed against persons. Aside from these we have a vast, an almost interminable number of offenses big and little, which are in the main attacks upon the institution of property, concerning which some very different things have to be said than concerning the first. As to these first there is no doubt that these are real crimes, by which I mean simply anti-social acts. Any action which violates the life or liberty of any individual is an anti-social act, whether done by one person, by two, or by a whole nation. And the greatest crime that ever was perpetrated, a crime beside which all individual atrocities diminish to nothing, is War; and the greatest, the least excusable of murderers are those who order it and those who execute it. Nevertheless, this chiefest of murderers, the Government, its own hands red with the blood of hundreds of thousands, assumes to correct the individual offender, enacting miles of laws to define the varying degrees of his offense and punishment, and putting beautiful building stone to very hideous purposes for the sake of caging and tormenting him therein.
We do get a fig from a thistle--sometimes! Out of this noisome thing, the prison, has sprung the study of criminology. It is very new, and there is considerable painstaking nonsense about it. But the main results are interesting and should be known by all who wish to form an intelligent conception of what a criminal is and how he should be treated. These men who are cool and quiet and who move among criminals and study them as Darwin did his plants and animals, tell us that these prisoners are reducible to three types: The Born Criminal, the Criminaloid, and the Accidental Criminal. I am inclined to doubt a great deal that is said about the born criminal. Prof. Lombroso gives us very exhaustive reports of the measurements of their skulls and their ears and their noses and their thumbs and their toes, etc. But I suspect that if a good many respectable, decent, never-did-a-wrong-thing-in-their-lives people were to go up for measurement, malformed ears and disproportionately long thumbs would be equally found among them if they took the precaution to represent themselves as criminals first. Still, however few in number (and they are really very few), there are some born criminals,--people who through some malformation or deficiency or excess of certain portions of the brain are constantly impelled to violent deeds. Well, there are some born idiots and some born cripples. Do you punish them for their idiocy or for their unfortunate physical condition? On the contrary, you pity them, you realize that life is a long infliction to them, and your best and tenderest sympathies go out to them. Why not to the other, equally a helpless victim of an evil inheritance? Granting for the moment that you have the right to punish the mentally responsible, surely you will not claim the right to punish the mentally irresponsible!
Even the law does not hold the insane man guilty. And the born criminal is irresponsible; he is a sick man, sick with the most pitiable chronic disease; his treatment is for the medical world to decide, and the best of them,--not for the prosecutor, the judge, and the warden.
It is true that many criminologists, including Prof. Lombroso himself, are of opinion that the best thing to do with the born criminal is to kill him at once, since he can be only a curse to himself and others. Very heroic treatment. We may inquire, Is he to be exterminated at birth because of certain physical indications of his criminality? Such neo-Spartanism would scarcely commend itself to any modern society. Moreover the diagnosis might be wrong, even though we had a perpetual and incorruptible commission of the learned to sit in inquiry upon every pink-skinned little suspect three days old! What then? Is he to be let go, as he is now, until he does some violent deed and then be judged more hardly because of his natural defect? Either proposition seems not only heartless and wicked but,--what the respectable world is often more afraid of being than either,--ludicrous. If one is really a born criminal he will manifest criminal tendencies in early life, and being so recognized should be cared for according to the most humane methods of treating the mentally afflicted.
The second, or criminaloid, class is the most numerous of the three. These are criminals, first, because being endowed with strong desires and unequal reasoning powers they cannot maintain the uneven battle against a society wherein the majority of individuals must all the time deny their natural appetites, if they are to remain unstained with crime. They are, in short, the ordinary man (who, it must be admitted, has a great deal of paste in him) plus an excess of wants of one sort and another, but generally physical. Society outside of prisons is full of these criminaloids, who sometimes have in place of the power of genuine moral resistance a sneaking cunning by which they manage to steer a shady course between the crime and the punishment.
It is true these people are not pleasant subjects to contemplate; but then, through that very stage of development the whole human race has had to pass in its progress from the beast to the man,--the stage, I mean, of overplus of appetite opposed by weak moral resistance; and if now some, it is not certain that their number is very great, have reversed the proportion, it is only because they are the fortunate inheritors of the results of thousands of years of struggle and failure, struggle and failure, but _struggle_ again. It is precisely these criminaloids who are most sinned against by society, for they are the people who need to have the right of doing things made easy, and who, when they act criminally, need the most encouragement to help the feeble and humiliated moral sense to rise again, to try again.
The third class, the Accidental or Occasional Criminals, are perfectly normal, well balanced people, who, through tremendous stress of outward circumstance, and possibly some untoward mental disturbance arising from those very notions of the conduct of life which form part of their moral being, suddenly commit an act of violence which is at utter variance with their whole former existence; such as, for instance, the murder of a seducer by the father of the injured girl, or of a wife's paramour by her husband. If I believed in severity at all I should say that these were the criminals upon whom society should look with most severity, because they are the ones who have most mental responsibility. But that also is nonsense; for such an individual has within him a severer judge, a more pitiless jailer than any court or prison,--his conscience and his memory. Leave him to these; or no, in mercy take him away from these whenever you can; he will suffer enough, and there is no fear of his action being repeated.
Now all these people are with us, and it is desirable that something be done to help the case. What does Society do? Or rather what does Government do with them? Remember we are speaking now only of crimes of violence. It hangs, it electrocutes, it exiles, it imprisons. Why? For punishment. And why punishment? "Not," says Blackstone, "by way of atonement or expiation for the crime committed, for that must be left to the just determination of the Supreme Being, but as a precaution against future offenses of the same kind." This is supposed to be effected in three ways: either by reforming him, or getting rid of him altogether, or by deterring others by making an example of him.
Let us see how these precautions work. Exile, which is still practised by some governments, and imprisonment are, according to the theory of law, for the purpose of reforming the criminal that he may no longer be a menace to society. Logic would say that anyone who wished to obliterate cruelty from the character of another must himself show no cruelty; one who would teach regard for the rights of others must himself be regardful. Yet the story of exile and prison is the story of the lash, the iron, the chain and every torture that the fiendish ingenuity of _the non-criminal class can devise by way of teaching criminals to be good_! To teach men to be good, they are kept in airless cells, made to sleep on narrow planks, to look at the sky through iron grates, to eat food that revolts their palates, and destroys their stomachs,--battered and broken down in body and soul; and this is what they call reforming men!
Not very many years ago the Philadelphia dailies told us (and while we cannot believe all of what they say, and are bound to believe that such cases are exceptional, yet the bare facts were true) that Judge Gordon ordered an investigation into the workings of the Eastern Penitentiary officials; and it was found that an insane man had been put into a cell with two sane ones, and when he cried in his insane way and the two asked that he be put elsewhere, the warden gave them a strap to whip him with; and they tied him in some way to the heater, with the strap, so that his legs were burned when he moved; all scarred with the burns he was brought into the court, and the other men frankly told what they had done and why they had done it. This is the way they reform men.
Do you think people come out of a place like that better? with more respect for society? with more regard for the rights of their fellow men? I don't. I think they come out of there with their hearts full of bitterness, much harder than when they went in. That this is often the case is admitted by those who themselves believe in punishment, and practice it. For the fact is that out of the Criminaloid class there develops the Habitual Criminal, the man who is perpetually getting in prison; no sooner is he out than he does something else and gets in again. The brand that at first scorched him has succeeded in searing. He no longer feels the ignominy. He is a "jail-bird," and he gets to have a cynical pride in his own degradation. Every man's hand is against him, and his hand is against every man's. Such are the reforming effects of punishment. Yet there was a time when he, too, might have been touched, had the right word been spoken. It is for society to find and speak that word.
This for prison and exile. Hanging? electrocution? These of course are not for the purpose of reforming the criminal. These are to deter others from doing as he did; and the supposition is that the severer the punishment the greater the deterrent effect. In commenting upon this principle Blackstone says: "We may observe that punishments of unreasonable severity...have less effect in preventing crimes and amending the manners of a people than such as are more merciful in general..." He further quotes Montesquieu: "For the excessive severity of laws hinders their execution; when the punishment surpasses all measure, the public will frequently, out of humanity, prefer impunity to it." Again Blackstone: "It is a melancholy truth that among the variety of actions which men are daily liable to commit, no less than one hundred and sixty have been declared by act of Parliament to be felonies...worthy of instant death. So dreadful a list instead of diminishing _increases_ the number of offenders."
Robert Ingersoll, speaking on "Crimes Against Criminals" before the New York Bar Association, a lawyer addressing lawyers, treating of this same period of which Blackstone writes, says: "There is something in injustice, in cruelty, which tends to defeat itself. There never were so many traitors in England as when the traitor was drawn and quartered, when he was tortured in every possible way,--when his limbs, torn and bleeding, were given to the fury of mobs, or exhibited pierced by pikes or hung in chains. The frightful punishments produced intense hatred of the government, and traitors increased until they became powerful enough to decide what treason was and who the traitors were and to inflict the same torments on others."
The fact that Blackstone was right and Ingersoll was right in saying that severity of punishment increases crime, is silently admitted in the abrogation of those severities by acts of Parliament and acts of Congress. It is also shown by the fact that there are no more murders, proportionately, in States where the death penalty does not exist than in those where it does. Severity is therefore admitted by the State itself to have no deterrent influence on the intending criminal. And to take the matter out of the province of the State, we have only to instance the horrible atrocities perpetrated by white mobs upon negroes charged with outrage. Nothing more fiendishly cruel can be imagined; yet these outrages multiply. It would seem, then, that the notion of making a horrible example of the misdoer is a complete failure. As a specific example of this, Ingersoll (in this same lecture) instanced that "a few years before a man was hanged in Alexandria, Va. One who witnessed the execution on that very day murdered a peddler in the Smithsonian grounds at Washington. He was tried and executed; and one who witnessed his hanging went home and on the same day murdered his wife." Evidently the brute is rather aroused than terrified by scenes of execution.
What then? If extreme punishments do not deter, and if what are considered mild punishments do not reform, is any measure of punishment conceivable or attainable which will better our case?
Before answering this question let us consider the class of crimes which so far has not been dwelt upon, but which nevertheless comprises probably nine-tenths of all offenses committed. These are all the various forms of stealing,--robbery, burglary, theft, embezzlement, forgery, counterfeiting, and the thousand and one ramifications and offshoots of the act of taking what the law defines as another's. It is impossible to consider crimes of violence apart from these, because the vast percentage of murders and assaults committed by the criminaloid class are simply incidental to the commission of the so-called lesser crime. A man often murders in order to escape with his booty, though murder was no part of his original intention. Why, now, have we such a continually increasing percentage of stealing?
Will you persistently hide your heads in the sand and say it is because men grow worse as they grow wiser? that individual wickedness is the result of all our marvelous labors to compass sea and land, and make the earth yield up her wealth to us? Dare you say that?
It is not so. =The reason men steal is because their rights are stolen from them before they are born.=