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Title: Resist not evil
Author: Clarence Darrow
Release date: July 19, 2025 [eBook #76531]
Language: English
Original publication: Chicago: Charles H. Kerr & Company, 1902
Credits: Peter Becker and the Online Distributed Proofreading Team at https://www.pgdp.net (This file was produced from images generously made available by The Internet Archive)
*** START OF THE PROJECT GUTENBERG EBOOK RESIST NOT EVIL ***
OTHER PUBLICATIONS BY CLARENCE S. DARROW
A PERSIAN PEARL AND OTHER ESSAYS
A volume of essays beautifully printed and bound. $1.50 net;
postage, 10 cents.
THE WOODWORKERS’ CONSPIRACY CASE
The argument of Mr. Darrow in the famous Kidd case. 10 cents.
THE RIGHTS AND WRONGS OF IRELAND
10 cents.
ADDRESS AT THE GRAVE OF JOHN P. ALTGELD
5 cents.
REALISM IN LITERATURE AND ART
5 cents.
CRIME AND CRIMINALS
An address delivered to the prisoners in the Chicago County
Jail. 10 cents.
RESIST NOT EVIL
A startling and vivid arraignment of the doctrine of force and
punishment. In press. 75 cents.
TALES FROM THE COURTS
A volume of short stories. Illustrated. In press.
FOR SALE BY
CHARLES H. KERR & COMPANY
PUBLISHERS
56 FIFTH AVENUE, CHICAGO
_Resist Not Evil_
_BY
CLARENCE S. DARROW_
[Illustration]
_CHICAGO
CHARLES H. KERR & COMPANY
MCMIII_
Copyright 1902
By
CLARENCE S. DARROW
TYPOGRAPHY BY
MARSH, AIKEN & CURTIS COMPANY, CHICAGO
PRESS OF THOS. P. HALPIN & CO., CHICAGO
[Illustration]
Judge not, that ye be not judged.
_Matthew 7:1._
Ye have heard that it hath been said: An eye for an eye, and a
tooth for a tooth. But I say unto you, that ye resist not evil,
but whosoever shall smite thee on thy right cheek, turn to him
the other also.
_Matthew 5:38, 39._
PREFACE
It is not claimed that the following pages contain any new ideas. They
were inspired by the writings of Tolstoy, who was the first, and in
fact the only, author of my acquaintance who ever seemed to me to place
the doctrine of non-resistance upon a substantial basis. After reading
Tolstoy I determined to make a careful study of the subject, but on a
thorough search of book stores and libraries could find next to nothing
dealing with the question, while the shelves were crowded with literature
extolling the glories of war and the beneficence of patriotism.
The first part of this volume which deals with the state is very
fragmentary, and in no wise so complete as can be found in many other
volumes, but in the portion which deals with crime and punishment, I have
found a much newer field, and one which has generally been discussed by
those who have little practical knowledge of the machinery of courts of
justice.
It has been my purpose to state the reasons which appeal to me in support
of the doctrine of non-resistance, rather than to give authorities to
sustain the theories advanced. Still, I believe that the student who
is interested in the subject of criminology, and wishes to carefully
investigate crime and punishment, will find that most of the great
historians, philosophers, and thinkers will amply corroborate the
views herein set forth, as to the cause of crime, and the evil and
unsatisfactory results of punishment.
CLARENCE S. DARROW.
CHICAGO, November 1, 1902.
CONTENTS
Chapter Page
I. THE NATURE OF THE STATE 11
II. ARMIES AND NAVIES 20
III. THE PURPOSE OF ARMIES 33
IV. CIVIL GOVERNMENT 41
V. THEORY OF CRIME AND PUNISHMENT 51
VI. REMEDIAL EFFECTS OF PUNISHMENT 59
VII. CAUSE OF CRIME 77
VIII. THE PROPER TREATMENT OF CRIME 92
IX. IMPOSSIBILITY OF JUST JUDGMENT 98
X. THE JUDGE OF THE CRIMINAL 106
XI. THE MEASURE OF PUNISHMENT 112
XII. WHO DESERVES PUNISHMENT 127
XIII. NATURAL LAW AND CONDUCT 131
XIV. RULES GOVERNING PENAL CODES AND THEIR VICTIMS 141
XV. THE MACHINERY OF JUSTICE 153
XVI. THE RIGHT TREATMENT OF VIOLENCE 165
Resist Not Evil
[Illustration]
CHAPTER I
THE NATURE OF THE STATE
In this heroic age, given to war and conquest and violence, the precepts
of peace and good will seem to have been almost submerged. The pulpit,
the press, and the school unite in teaching patriotism and in proclaiming
the glory and beneficence of war; and one may search literature almost in
vain for one note of that “Peace on earth, and good will toward men” in
which the world still professes to believe; and yet these benign precepts
are supposed to be the basis of all the civilization of the western world.
The doctrine of non-resistance if ever referred to is treated with
derision and scorn. At its best the doctrine can only be held by
dreamers and theorists, and can have no place in daily life. Every
government on earth furnishes proof that there is nothing practical or
vital in its teachings. Every government on earth is the personification
of violence and force, and yet the doctrine of non-resistance is as old
as human thought—even more than this, the instinct is as old as life upon
the earth.
The doctrine of non-resistance to evil does not rest upon the words of
Christ alone. Buddha, Confucius, Plato, Socrates, show the evil and
destruction of war, of conquest, of violence, and of hatred, and have
taught the beneficence of peace, of forgiveness, of non-resistance to
evil. But modern thought is not content to rest the conduct of life upon
the theories of moralists. The rules of life that govern men and states
must to-day be in keeping with science and conform to the highest reason
and judgment of man. It is here that non-resistance seems to have failed
to make any practical progress in the world. That men should “turn the
other cheek,” should “love their enemies,” should “resist not evil,” has
ever seemed fine to teach to children, to preach on Sundays, to round
a period in a senseless oratorical flight; but it has been taken for
granted that these sentiments cannot furnish the real foundation for
strong characters or great states.
It is idle to discuss “non-resistance” in its effect upon life and the
world without adopting some standard of excellence by which to judge
results. Here, as elsewhere in human conduct, after all is said and done,
men must come back to the fundamental principle that the conduct which
makes for life is wise and right. Nature in her tireless labor has ever
been developing a higher order and a completer life. Sometimes for long
periods it seems as if the world were on the backward course, but even
this would prove that life really is the highest end to be attained.
Whatever tends to happiness tends to life,—joy is life and misery is
death.
In his long and toilsome pilgrimage, man has come to his present estate
through endless struggle, through brutal violence administered and
received. And the question of the correctness of non-resistance as a
theory, like any other theory, does not depend upon whether it can be
enforced and lived now or to-morrow, but whether it is the highest ideal
of life that is given us to conceive. In one sense nothing is practical
excepting what is; everything must have been developed out of all the
conditions of life that now exist or have existed on the earth. But to
state this means little in the settlement of ethical questions, for man’s
future condition depends quite as much upon his mental attitude as upon
any other fact that shapes his course.
Everywhere it seems to have been taken for granted that force and
violence are necessary to man’s welfare upon the earth. Endless volumes
have been written, and countless lives been sacrificed in an effort to
prove that one form of government is better than another; but few seem
seriously to have considered the proposition that all government rests on
violence and force, is sustained by soldiers, policemen and courts, and
is contrary to the ideal peace and order which make for the happiness and
progress of the human race. Now and then it is even admitted that in the
far distant ages yet to come men may so far develop toward the angelic
that political governments will have no need to be. This admission, like
the common concept, presumes that governments are good; that their duties
undertaken and performed consist in repressing the evil and the lawless,
and protecting and caring for the helpless and the weak.
If the history of the state proved that governing bodies were ever formed
for this purpose or filled this function, there might be some basis for
the assumption that government is necessary to preserve order and to
defend the weak. But the origin and evolution of the political state
show quite another thing—it shows that the state was born in aggression,
and that in all the various stages through which it has passed its
essential characteristics have been preserved.
The beginnings of the state can be traced back to the early history of
the human race when the strongest savage seized the largest club and
with this weapon enforced his rule upon the other members of the tribe.
By means of strength and cunning he became the chief and exercised this
power, not to protect the weak but to take the good things of the earth
for himself and his. One man by his unaided strength could not long keep
the tribe in subjection to his will, so he chose lieutenants and aids,
and these too were taken for their strength and prowess, and were given a
goodly portion of the fruits of power for the loyalty and help they lent
their chief. No plans for the general good ever formed a portion of the
scheme of government evolved by these barbarous chiefs. The great mass
were slaves, and their lives and liberty held at the absolute disposal
of the strong.
Ages of evolution have only modified the rigors of the first rude states.
The divine right to rule, the absolute character of official power, is
practically the same to-day in most of the nations of the world as with
the early chiefs who executed their mandates with a club. The ancient
knight who, with battle-ax and coat of mail, enforced his rule upon the
weak, was only the forerunner of the tax-gatherer and tax-devourer of
to-day. Even in democratic countries, where the people are supposed to
choose their rulers, the nature of government is the same. Growing from
the old ideas of absolute power, these democracies have assumed that some
sort of government was indispensable to the mass, and no sooner had they
thrown off one form of bondage than another yoke was placed upon their
necks, only to prove in time that this new burden was no less galling
than the old. Neither do the people govern in democracies more than
in any other lands. They do not even choose their rulers. These rulers
choose themselves and by force and cunning and intrigue arrive at the
same results that their primitive ancestor reached with the aid of a club.
And who are these rulers without whose aid the evil and corrupt would
destroy and subvert the defenceless and the weak? From the earliest time
these self-appointed rulers have been conspicuous for all those vices
that they so persistently charge to the common people whose rapacity,
cruelty and lawlessness they so bravely curb. The history of the past
and the present alike proves beyond a doubt that if there is, or ever
was any large class, from whom society needed to be saved, it is those
same rulers who have been placed in absolute charge of the lives and
destinies of their fellow men. From the early kings who, with blood-red
hands, forbade their subjects to kill their fellow men, to the modern
legislator, who, with the bribe money in his pocket, still makes bribery
a crime, these rulers have ever made laws not to govern themselves but to
enforce obedience on their serfs.
The purpose of this autocratic power has ever been the same. In the early
tribe the chief took the land and the fruits of the earth, and parceled
them amongst his retainers who helped preserve his strength. Every
government since then has used its power to divide the earth amongst
the favored few and by force and violence to keep the toiling, patient,
suffering millions from any portion of the common bounties of the world.
In many of the nations of the earth the real governing power has stood
behind the throne, has suffered their creatures and their puppets to be
the nominal rulers of nations and states, but in every case the real
rulers are the strong, and the state is used by them to perpetuate their
power and serve their avarice and greed.
CHAPTER II
ARMIES AND NAVIES
How is the authority of the state maintained? In whatever guise, or
however far removed from the rudest savage tribe to the most modern
democratic state, this autocratic power rests on violence and force
alone. The first great instrument which supports every government on
earth is the soldier with his gun and sword. True, the army may be but
rarely used. The civil power, the courts of justice, the policemen and
jails generally suffice in civilized lands to maintain existing things;
but back of these, to enforce each decree, is the power of armed men with
all the modern implements of death.
Thousands of church organizations throughout the Christian world profess
the doctrine of non-resistance to evil, of peace on earth and good will
to men, and yet each of these Christian lands trains great bodies
of armed men to kill their fellows for the preservation of existing
things. Europe is made up of great military camps where millions of men
are kept apart from their fellows and taught the trade of war alone.
And democratic America, feeling the flush of victory and the glow of
conquest, is turning her energies and strength to gathering armies and
navies that shall equal those across the sea. Not only are these trained
soldiers a living denial of the doctrines that are professed, but in
obedience to an eternal law, deeper and more beneficent than any ever
made by man, these mighty forces are working their own ruin and death.
These great armies and navies which give the lie to our professions of
faith exist for two purposes: first, to keep in subjection the people of
their own land; second, to make war upon and defend against the other
nations of the earth. The history of the world is little else than the
story of the carnage and destruction wrought on battlefields; carnage
and destruction springing not from any difference between the common
people of the earth, but due alone to the desires and passions of the
rulers of the earth. This ruling class, ever eager to extend its power
and strength, ever looking for new people to govern and new lands to
tax, has always been ready to turn its face against other powers to
satisfy the ruler’s will, and without pity or regret, these rulers have
depopulated their kingdoms, and carried ruin and destruction to every
portion of the earth for gold and power.
Not only do these European rulers keep many millions of men whose only
trade is war, but these must be supported in worse than useless idleness
by the labor of the poor. Still other millions are trained to war and
are ever ready to answer to their master’s call, to desert their homes
and trades and offer up their lives to satisfy the vain ambitions of the
ruler of the state. Millions more must give their strength and lives
to build forts and ships, make guns and cannon and all the modern
implements of war. Apart from any moral question of the right of man to
slay his fellow man, all this great burden rests upon the poor. The vast
expense of war comes from the production of the land and must serve to
weaken and impair its industrial strength. This very force must destroy
itself. The best talent of every nation is called upon to invent new
implements of destruction—faster sailing boats, stronger forts, more
powerful explosives and more deadly guns. As one nation adds to its
military stores, so every other nation is also bound to increase its army
and navy too. Thus the added force does not augment the military power,
but only makes larger the burden of the state; until, to-day, these great
armies, aside from producing the moral degradation of the world, are
sapping and undermining and consuming the vitality and strength of all
the nations of the earth. Cost of labor and strength means cost of life.
Thus in their practical results these armies are destroying millions of
lives that a policy of peace and non-resistance would conserve and save.
* * * * *
But when these armies are in action how stands the case? Over and over
again the world has been submerged by war. The strongest nations of the
earth have been almost destroyed. Devastating wars have left consequences
that centuries could not repair. Countless millions of men have been used
as food for guns. The miseries and sufferings and brutality following
in the wake of war have never been described or imagined, and yet the
world persists in teaching the glory and honor and greatness of war. To
excuse the wholesale butcheries of men by the governing powers, learned
apologists have taught that without the havoc and cruel devastation of
war the human race would overrun the earth; and yet every government in
the world has used its power and influence to promote and encourage
marriage and the rearing of children, to punish infanticide and abortion,
and make criminal every device to prevent population; have used their
power to heal the sick, to alleviate misery and to prolong life. Every
movement to overcome disease, to make cities sanitary, to produce and
maintain men and women and children has received the sanction and
encouragement of all governments; and still these glorious rulers have
ruthlessly slaughtered in the most barbarous and cruel way tens of
millions of their fellow men, to add to their glory and perpetuate their
names. And philosophers have told us that this was necessary to prevent
the over-population of the earth!
No single ruler, however cruel or ambitious, has ever yet been able to
bring the whole world beneath his sway, and the ambitions and lusts of
these separate chiefs have divided the world into hostile camps and
hostile states. Endless wars have been waged to increase or protect the
territory governed by these various rulers. In these bloody conflicts
the poor serfs have dumbly and patiently met death in a thousand
sickening ways to uphold the authority and prowess of the ruler whose
sole function has ever been to pillage and rob the poor victims that
fate has placed within his power. To these brutal, senseless, fighting
millions the boundaries of the state or the color of the flag that they
were taught to love could not in the least affect their lives. Whoever
their rulers, their mission has ever been to toil and fight and die for
the honor of the state and the glory of the chief.
But, to-day, even national preservation demands that the rule of peace
shall give place to the rule of war. In the older countries of the earth
the great drains made upon industry and life to support vast armies and
equip them for slaughter is depopulating states and impoverishing the
lands. And besides all this, so far as external power is concerned, no
nation adds to its effectiveness to battle with the others by increasing
its army and navy. This simply serves to increase the strength of the
enemy’s guns and to make new combinations between hostile lands, until
the very strength of a nation becomes its weakness and must in turn
lead to its decay and overthrow. The nation that would to-day disarm
its soldiers and turn its people to the paths of peace would accomplish
more to its building up than by all the war taxes wrung from its hostile
and unwilling serfs. A nation like this would exhibit to the world
such an example of moral grandeur and true vitality and worth that no
nation, however powerful, would dare to invite the odium and hostility
of the world by sending arms and men to conquer a peaceful, productive,
non-resistant land. If the integrity and independence of a nation
depended upon its forts and guns the smaller countries of Europe would at
once be wiped from the map of the world. Switzerland, Holland, Greece,
Italy, and Spain are absolutely powerless to defend themselves by force.
If these nations should at once disarm every soldier and melt every gun
and turn the worse than wasted labor into productive, life-saving work,
they could but greatly strengthen themselves amongst the other nations of
the earth. Not only this, their example would serve to help turn the tide
of the world from the barbarous and soul-destroying path of war toward
the higher, nobler life of peace and good will toward men.
But not alone are these small nations made still weaker by war, but
every battleship that is built by England, Russia, France, Germany, or
the United States really weakens those nations too. It weakens them
not alone by the loss of productive power but by the worse than wasted
energy which is required to support these implements of death, from the
time their first beam is mined in the original ore, until scarred and
worthless and racked by scenes of blood and violence and shame, they
are thrown out upon the sands to rot. But every battleship weakens a
nation by inviting the hostility of the other peoples of the earth, by
compelling other rulers to weaken their kingdoms, to build mighty ships
and powerful guns. Every preparation for war and violence is really a
violation of the neutrality under which great nations profess to live.
They are a reflection upon the integrity and humanity of their own people
and an insult to every other land on earth. The building of a man of war,
the rearing of a fort, or the planting of a gun can be likened only to a
man who professes to live in peace and quiet with his neighbors and his
friends and who goes about armed with pistol and with dirk.
* * * * *
But these patent evils and outrages are after all the smallest that
flow from violence and strife. The whole pursuit of war weakens the
aspirations and ideals of the race. Rulers have ever taught and
encouraged the spirit of patriotism, that they might call upon their
slaves to give their labor to the privileged class and to freely offer up
their lives when the king commands. Every people in the world is taught
that their country and their government is the best on earth, and that
they should be ever ready to desert their homes, abandon their hopes,
aspirations, and ambitions when their ruler calls, and this regardless
of the right or wrong for which they fight. The teaching of patriotism
and war permeates all society, it reaches to the youngest child and even
shapes the character of the unborn babe. It fills the soul with false
ambitions, with ignoble desires, and with sordid hopes.
Every sentiment for the improvement of men, for human justice, for the
uplifting of the poor, is at once stifled by the wild, hoarse shout for
blood. The lowest standard of ethics of which a right-thinking man can
possibly conceive is taught to the common soldier whose trade is to
shoot his fellow man. In youth he may have learned the command, “Thou
shalt not kill,” but the ruler takes the boy just as he enters manhood
and teaches him that his highest duty is to shoot a bullet through his
neighbor’s heart,—and this unmoved by passion or feeling or hatred,
and without the least regard to right or wrong, but simply because his
ruler gives the word. It is not the privilege of the common soldier to
ask questions, to consider right and wrong, to think of the misery and
suffering his act entails upon others innocent of crime. He may be told
to point his gun at his neighbor and his friend, even at his brother or
father; if so he must obey commands.
Theirs not to reason why,
Theirs but to do and die,
represents the code of ethics that governs a soldier’s life.
And yet from men who believe in these ideals, men who sacrifice their
right of private judgment in the holiest matter that can weigh upon the
conscience and the intellect, the taking of human life,—men who place
their lives, their consciences, their destinies, without question or
hesitation, into another’s keeping, men whose trade is slaughter and
whose cunning consists in their ability to kill their fellows,—from such
men it is expected to build great states and rear a noble humanity!
These teachings lead to destruction and death; the destruction of the
body and the destruction of the soul. Even on the plea of physical
evolution in the long sweep of time, these men must give way to the
patient, peaceful, non-resistants, who love their brothers and believe in
the sacredness of life. Long ago it was written down that “He who takes
the sword shall perish by the sword.”
CHAPTER III
THE PURPOSE OF ARMIES
But the great armies and navies are not really kept to-day for foreign
conquest. Now and then, in obedience to the commercial spirit that rules
the world, these vessels of destruction are sent to foreign seas. But
the rulers of the earth live on fairly friendly terms. Long since, the
most ambitious have abandoned their dreams of world power and are content
to exploit a portion of the earth. When warships are sent to foreign
seas they usually fire a salute rather than train their guns for death.
Monarchs the world over respect each other. They are bound together by
ties of common interest, if not of common love. When a ruler dies, even
though the most tyrannical and despotic, every other ruler promptly sends
condolences to the sorrowing court; their own subjects may die unwept,
but a touch of common feeling moves them to mourn a ruler’s death.
Nations are bound by many ties to preserve peace among each other. Scions
of royal families are handed round in marriage from court to court,
treaties of all sorts are made and ratified in most solemn form; and
even more than this, the real owners of the world, those who possess the
stocks and bonds which rest upon the wealth that the poor have labored to
create, these real rulers who make war or peace by giving or withholding
funds, these own the great bulk of the property of the various nations of
the world, and will not lightly suffer their possessions to be destroyed.
And yet these same real rulers, who stand behind the thrones of all the
world, approve of this preparation for war, approve of taking millions
of men from their homes and training them to kill, approve of every fort
and gun and battleship. More than this, they contribute largely of their
private funds to build batteries and equip militia, especially in the
great cities of the earth. Through the speeches of their agents and the
voice of their press, all this grim visage of war is for the stranger
without their gates. But in reality the prime reason for all the armies
of the world is that soldiers and militia may turn their guns upon their
unfortunate countrymen when the owners of the earth shall speak the word.
And these unfortunate countrymen are the outcast and despised, the meek
and lowly ones of the world, the men whose ceaseless toil and unpaid
efforts have built the forts and molded the cannon and sustained the
soldiers that are used to shoot them down.
To say that these armies and frowning forts and gatling guns are needed
to maintain peace and order at home is to admit at once that the great
mass of men are held captive by the more powerful few. Organized soldiers
and policemen, courts and sheriffs, with guns and forts and jails,
have the greatest advantage over the disorganized mass who cannot act
together, and who know not which way to turn to keep outside the meshes
of the law. Not one in a thousand need be trained to arms and authority
to keep the unorganized mass in the place reserved for it to live. The
purpose of guns and armies is to furnish the few an easy and sure way to
control the mass. Neither are these armies made of the ruling class. The
officers, it is true, are generally taken from the favored ones, but the
regular soldier is the man too poor and abandoned to find his place in
any other of the walks of life. He is only fit to be an executioner of
his fellow man. No ruler can love his subjects when he takes their money
and their labor to buy cannon and train men to shoot them down. That this
is the real purpose of standing armies and warlike equipments is plain
to all who have eyes to see. More and more the rulers have learned to
build their barracks and mass their troops not on the borders of their
land but convenient to great cities, in the midst of districts thickly
populated by working men. As nations grow older the opportunities of the
masses grow less. More men are called to serve the state, and greater
preparations are made to preserve the possessions of the rich. These
soldiers are moved from place to place, are massed at time of need, not
in accordance with the petition of the citizens from whose ranks the
soldiers come, but in response to the request of the ruling class.
* * * * *
Quite apart from the question of the rights of capital on one hand and
labor on the other, what must be the effect of this policy of force and
violence when reaching over long periods of time? A nation is really
great and possessed of the lasting elements of strength in proportion
as her people are strong, intelligent, and free. The rulers of a nation
should owe their subjects some duty in return for the homage and taxes
they receive. The ruler who deliberately governs his subjects by
violence and force, and through tyranny and fear, must find in time
that this policy of hatred and outrage is destroying and sapping the
foundations of the state; the more strength and vitality that he draws
from the poor and the more soldiers required to support arbitrary power,
the greater the chasm that yawns beneath his feet. The loyalty that is
kept through fear is lost with opportunity. The rulers of Rome before
her destruction, and of France before the Revolution, had drawn all the
soldiers from the people that the fields and shops could spare, and
used these to support their tottering power. Kings can gain nothing by
governing soldiers alone. They must have farmers, artisans, all sorts
of producers, or their conquest is not worth the price. The policy of
hatred and violence must in the end destroy the state. It can breed only
hatred in the hearts of the outcast and the poor. If their subjection is
incomplete, the throne is resting upon the shifting sands. If perfect
and complete, their subjects are lifeless machines and their empires
crumbling to decay. It is really idle to speculate as to whether love
and brotherhood could accomplish more; it is certain they could not do
less. To disband the armies and destroy the forts, to diffuse love and
brotherhood, and peace and justice in the place of war and strife, could
tend only to the building up of character, the elevation of the soul, and
the strength and well-being of the state. True, the class lines would
disappear. Brotherhood would have neither ruler nor ruled, would have no
authority of man over man, would treat all as brothers and co-equals, and
from it would grow a stronger state and a higher manhood than the world
has known. Peaceful industry relieved from the burdens of soldiers and
arms would inevitably increase, and life, rendered less burdensome by the
exactions of authority, would lengthen and sweeten through the beneficent
influence of love. No nation can be really great that is held together
by gatling guns, and no true loyalty can be induced and kept through fear.
CHAPTER IV
CIVIL GOVERNMENT
After the evolution of society through brute force and the first
stages of militarism, comes civil government. In its forms and methods
civil government differs from military government, but in its essence,
its real purpose and effect, it is the same. Civil government, like
military government, rests on violence and force. As society reaches the
industrial stage, it is easier and costs less waste of energy for the
ruling class to maintain its supremacy through the intricate forms and
mazes of civil government, than through the direct means of soldiers and
guns.
Civil governments, like military governments, are instituted and
controlled by the ruling class. Their purpose is to keep the earth and
its resources in the hands of those who directly and indirectly have
taken it for themselves. This can only be done by the establishment and
maintenance of certain rules and regulations concerning the disposition
of property and the fate of men. A vast army of officials, governors,
legislators, tax-gatherers, judges, sheriffs, policemen, and the like are
maintained by the governing class to enforce these rules and regulations
and keep the exploited in their place. The decrees of courts and the
various orders of civil government are enforced by violence, differing
only in kind from the general’s commands. The decrees of courts, whether
rightful or wrongful, must be obeyed, and the penalty of disobedience is
the forcible taking of property, the kidnapping and imprisoning of men,
and if need be, the taking of human life. If it shall ever occur that
the civil authorities have not sufficient force to compel obedience, the
whole power of the army and navy may at once be made subservient to the
civil power.
The vast army which is charged with enforcing and maintaining civil
law is drawn largely from the ruling class and those who contribute as
their willing tools. This class must be supported and maintained in
greater luxury than that enjoyed by the ordinary man, and the support
entails ceaseless and burdensome exactions from the producing class.
These exactions are a portion of the price that the worker pays for the
privilege of being ruled. It is true that a portion of the money forcibly
taken through the machinery of government is used for those coöperative
commercial purposes that are incident to a complex social life, but it
has never yet been shown that an autocratic power like a political state
is needed to provide the common resources incident to social life.
Practically the whole army of officials, with its wastefulness, its
extravagance and its endless peculation, is supported and kept in worse
than idleness for the purpose of ruling men through violence and force.
Even in so-called democracies the civil law, with its ponderous and
costly machinery, serves the same purpose as in monarchical states. It is
easy to understand that when the decrees of a ruler are absolute it can
matter little whether these decrees are issued to an army and carried out
by force of the bayonet and gun, or whether they are crystallized into
law and carried out by the orders of courts to be enforced by consigning
troublesome and rebellious subjects to the prison or the block. In either
event the will of the sovereign is law, and the law is made for the
benefit of the ruler, not the ruled.
In democracies, the form is somewhat changed, but the results are not
unlike. Every democracy begins with a great mass of regulations inherited
from the autocratic powers that have gone before. These laws and customs
are originally the same decrees that have gone forth from the absolute
rulers of the earth, and every change in forms and institutions is based
upon the old notions of property and rights that were made to serve the
ruler and enslave the world.
Then, too, authority has the same effect on human nature whether in an
absolute monarchy or a democracy, and the tendency of authority is ever
to enlarge its bounds and to encroach upon the natural rights of those
who have no power to protect themselves. The possession of authority
and arbitrary power ever tends to tyranny, and when autocratic orders
may be enforced by violence, liberty and life depend upon sufferance
alone. A close community of interest naturally springs up between those
circumstanced alike. The man who possesses one sort of power, as, for
instance, political privilege, is very friendly to the class who possess
another sort, as, for instance, wealth, and this community of interest
naturally and invariably arrays all the privileged classes against the
weak. The laws and regulations of a democracy tend no more to equality
than those of a monarchy. Under a democratic government inequality
of possession, of opportunity, of power, is quite as great as under
absolute monarchies. Given the right to use force of man over man and
the strongest force will succeed. You may forbid it in one direction,
it will but find a new method to accomplish the same result, like the
pent-up torrent that will find its outlet, in however circuitous a route
it is obliged to move. The legislators who make laws come either from
the ruling class or draw their honors, rewards, and emoluments from this
class; and the statutes of the most democratic state are not unlike the
dictates of the absolute monarch, and the decrees of both alike may
be enforced by all the power and violence of the state. But laws do
not execute themselves, and every official appointed or self-chosen to
enforce the law either comes from or naturally gravitates toward the
ruling class. Here again power grows by what it feeds on. Order is more
important than liberty, and at all costs order must be enforced upon the
many. The few have little need for law. Whatever is, is theirs, and may
they not use their own to suit themselves? The business of the courts and
officials is to enforce order upon the great mass who must depend upon
the few for the means of life. To enforce order upon them means that they
may only live in certain ways.
* * * * *
But admitting the orthodox view of government to be correct, then how
stands the case? The great majority of mankind still believe in the
utility of the state. They not only believe that society could not
exist without the state, but likewise that this political institution
exists and is maintained for the public good; that all its functions and
activities in some mysterious way have been conferred upon it by the
weaker class of society, and that it is administered to save this class
from the ravages of the vicious and the strong. Of course, there are many
humane officials, men who use their power to promote the public good,
as they see and understand the public good. These, in common with the
community, look upon the endless provisions of our penal code as being
the magical power that keeps the state from dissolution and preserves
the lives and property of men from the vicious and the bad. The idea of
punishment, of violence, of force, is so interwoven with all our concepts
of justice and social life that but few can conceive a society without
force, without jails, without scaffolds, without the penal judgments of
men. The thought never suggests itself to the common mind that nature,
unaided by man’s laws, can evolve social order, or that a community
might live in measurable peace and security moved only by those natural
instincts which form the basis and render possible communal life. To be
sure, the world is full of evidence that order and security do not depend
on legal inventions. From the wild horses on the plains, the flocks
of birds, the swarming bees, the human society and association in new
countries amongst unexploited people, suggestions of order and symmetry
regulated by natural instincts and common social needs are ample to show
the possibility at least of order or a considerable measure of justice
without penal law. It is only when the arrogance and the avarice of
rulers and chiefs make it necessary to exploit men that these rulers must
lay down laws and regulations to control the actions of their fellows.
And the more fixed the caste, the better settled the community; the more
complete the private appropriation of land, and the longer the penal
code, the greater the number of victims that are caught within its snares.
Turning from the examples everywhere present of the naturalness of order
and system to what we observe of the daily acts of men, the thought
that right conduct has little relation to penal laws is still further
confirmed. In the myriad acts of men it is only rarely that one is
done directly because of law. To turn to the right when you meet your
neighbor on the street; to imperil your happiness and even your life
to help in dire need; to protect the helpless; to defend the weak; to
tell the truth; in fact, to obey all that natural morality or right
conduct requires, is the first instinct of man, and ever prevails, not
only regardless of human law but in spite of human law, and this, too,
for the best and most abiding reason that can influence the life of man.
Nature provides that certain conduct makes for life, and in the sweep of
time, those who conform to this conduct live and their offspring populate
the earth when they are gone; those who violate the laws of communal
life will die or leave no descendants or weak offspring to be the last
survivors of their line. The unschooled child and the uncivilized race
alike tell the truth; they obey the laws of nature and the laws of life.
It is only after the exploiter appears with his rules for enslaving man
that he must needs build jails in which to pen those who defy or ignore
their power.
CHAPTER V
THEORY OF CRIME AND PUNISHMENT
Those who believe in the beneficence of force have never yet agreed
upon the crimes that should be forbidden, the method and extent of
punishment, the purpose of punishment, nor even its result. They simply
agree that without force and violence social life cannot be maintained.
All conceivable human actions have fallen under the disfavor of the
law and found their place in penal codes: Blasphemy, witchcraft,
heresy, insanity, idiocy, methods of eating and drinking, the manner of
worshiping the Supreme Being, the observance of fast days and holy days,
the giving of medicine and the withholding of medicine, the relation of
the sexes, the right to labor and not to labor, the method of acquiring
and dispensing property, its purchase and sale, the forms of dress and
manner of deportment, in fact almost every conceivable act of man. On the
other hand, murder, robbery, pillage, rapine, have often been commended
by the ruling powers, not only permitted, but under certain conditions
that seemed to work to the advantage of the ruler, this conduct has been
deemed worthy of the greatest praise. The punishment for illegal acts
have been as various as the crimes. Death has always been a favorite
visitation for the criminal, but the means of death have varied with
time and place: Boiling in oil, boiling in water, burning at the stake,
breaking on the wheel, strangulation, poison, feeding to wild beasts,
beheading, and in fact every conceivable way down to the humane method of
electrocution and hanging by the neck until dead. Death, too, has been
made the punishment for all sorts of crimes, always for the crimes of
denying your Maker, or killing your ruler. After death, has come public
flogging, standing in the stocks, ducking, maiming, down to the humane
method of penning in a cage. No two sets of rulers have ever agreed upon
the relative enormity of the various crimes, the sort of punishment
they merited, the extent and duration of punishment, or the purpose to
be accomplished by the punishment. One age has pronounced martyrs and
worshiped as saints the criminals that another age has put to death. One
law-making body repeals the crimes that another creates. Some judges with
venerable wigs have pronounced solemn sentence of death upon helpless,
defenceless old women for bewitching a cat. Grave judges have even
sentenced animals to death after due and impartial trial for crime. The
judges who pronounced sentence of death on women for witchcraft were as
learned and good as those who to-day pronounce sentence for conspiracy
and other crimes. It is quite as possible that another generation will
look with the same horror on the subjects of our laws as we look upon
those of the years that are gone. It is but a few years since a hundred
different crimes were punishable with death in England, and the wise men
of that day would not have believed that the empire could hold together
had these extreme statutes been limited to one or two.
But however drastic the laws at different periods of civilization, they
have never been so broad but what a much larger number of blameworthy
acts were outside than inside the code. Neither have they ever been
enforced alike on all. The powerful could generally violate them with
impunity, but the net was there to ensnare the victim whom they wished to
catch.
Neither has the method of determining the victim for these various laws
been as accurate and scientific as is generally presumed. Sometimes it
has been by torturing until the victim is made to confess; sometimes by
wager of battle; sometimes by tying the feet and hands and throwing them
into a pond, when if they sank they were innocent, if they swam they
were guilty and promptly put to death. The modern method of arraying a
defendant in court, prosecuted by able lawyers with ample resources,
tried by judges who almost invariably believe in the prisoner’s guilt,
defended as is usually the case by incompetent lawyers, and without
means, is scarcely more liable to lead to correct results than the
ancient forms. From the nature of things it is seldom possible to be sure
about the commission of the act, and never possible to fix the moral
responsibility of the person charged with crime.
* * * * *
For ages men have erected scaffolds, instruments of torture, built jails,
prisons and penal institutions without end, and through all the ages a
long line of suffering humanity, bound and fettered, has been marching
to slaughter and condemned to living tombs; and yet human governments
charged with the responsibility of the condition and lives of these weak
brothers, have never yet been able to agree even upon the purpose for
which these pens are built. All punishment and violence is largely mixed
with the feeling of revenge,—from the brutal father who strikes his
helpless child, to the hangman who obeys the orders of the judge; with
every man who lays violent unkind hands upon his fellow the prime feeling
is that of hatred and revenge. Some human being has shed his neighbor’s
blood; the state must take his life. In no other way can the crime be
wiped away. In some inconceivable manner it is believed that when this
punishment follows, justice has been done. But by no method of reasoning
can it be shown that the injustice of killing one man is retrieved by
the execution of another, or that the forcible taking of property is
made right by confining some human being in a pen. If the law knew some
method to restore a life or make good a loss to the real victim, it might
be urged that justice had been done. But if taking life, or blaspheming,
or destroying the property of another be an injustice, as in our short
vision it seems to be, then punishing him who is supposed to be guilty
of the act, in no way makes just the act already done. To punish a human
being simply because he has committed a wrongful act, without any thought
of good to follow, is vengeance pure and simple, and more detestable and
harmful than any casual isolated crime. Apologists who have seen the
horror in the thought of vengeance and still believe in violence and
force when exercised by the state, contend that punishment is largely for
the purpose of reforming the victim. This, of course, cannot be held in
those instances where death is the punishment inflicted. These victims
at least have no chance to be reformed. Neither can it be seriously
contended that a penal institution is a reformatory, whatever its name. A
prisoner is an outlaw, an outcast man, placed beyond the pale of society
and branded as unfit for the association of his fellow man; his sentence
is to live in silence, to toil without recompense, to wear the badge
of infamy, and if ever permitted to see the light to be pointed at and
shunned by all who know his life.
CHAPTER VI
REMEDIAL EFFECTS OF PUNISHMENT
The last refuge of the apologist is that punishment is inflicted
to prevent crime. No one can speak from experience as to whether
punishment prevents what is called crime or not, for the experiment of
non-resistance has never yet been fairly or fully tried. To justify
killing or penning a human being upon the theory that this prevents crime
should call for the strictest proof on the part of those who advocate
this course. To take the life or liberty of a fellow man is the most
serious responsibility that can devolve upon an individual or community.
The theory that punishment is a preventive to unlawful acts does not
seriously mean that it is administered to prevent the individual from
committing a second or a third unlawful act. If this were the case
the death penalty should never be inflicted, as life imprisonment
accomplishes the same results. Neither would it be necessary to restrain
men in the way that is done in our penal institutions, to deprive them of
all pleasure and the income of their labor. All that would then be needed
would be to keep men safely locked from the world. But most unlawful acts
are committed hastily in the heat of passion or upon what seems adequate
provocation, or through sore need. Such acts as these would almost never
be repeated. Genuine repentance follows most really vicious acts, but
repentance, however genuine, gives no waiver of punishment.
Then, too, many men who commit no act in violation of the law are
known to be more likely to commit such acts than others who through
some circumstances may have violated a criminal statute. Men of hasty
temper, of strong will, of intemperate habits, often with no means of
support, all of these are more liable to crime than one who has once
overstepped the bounds. But it is obvious that this is not the real
reason for punishment; if it were it would be the duty of judge and jury
to determine, not whether a man had committed a crime, but whether he was
liable to commit one at some future time, an inquiry which is never made
and which it is obvious could not be made.
* * * * *
The safety aimed at through punishment is not meant the safety for the
individual, but it is contended that the fact that one person is punished
for an act deters others from the commission of similar unlawful acts;
it is obvious that there is a large class who are not deterred by these
examples, for the inmates of prisons never grow less, in fact prisons
grow and increase in the same proportion as other institutions grow.
But here, too, the theories and acts of rulers have been as various and
contradictory as in relation to other matters concerning crime and its
punishment. If the purpose of punishment is to terrorize the community
so that none will dare again to commit these acts, then the more terrible
the punishment the surer the result. This was generally admitted not many
years ago, but in its treatment of crime the world ever prefers to be
illogical and ineffectual rather than too brutal.
If terrorism is the object aimed at, death should again be substituted
for the various crimes, great and small, which ever justified taking
human life. Death, too, should be administered in the most cruel way.
Boiling, the rack, wild beasts, and slow fires should be the methods
sought. It should be steadfastly remembered by all squeamish judges
and executioners that one vigorous punishment would prevent a thousand
crimes. But more than all this, death should be in the most public way.
The kettle of boiling oil should be heated with its victim inside, out
upon the commons, where all eyes could see and all ears could hear. The
scaffold should be erected high on a hill, and the occasion be made
a public holiday for miles around. This was once the case even within
the last half century. These public hangings in Europe and America have
drawn great crowds of spectators, sometimes reaching into the tens of
thousands, to witness the value that the state places on human life.
But finally, even stupid legislators began to realize that these scenes
of violence, brutality and crime bred their like upon those who came to
see. Even governments discovered that many acts of violence followed a
public hanging. The hatred of the state which calmly took a human life
engendered endless hatred as its fruit. And in all countries that claim a
semblance of civilization, public hangings are now looked back upon with
horror and amazement. Hangings to-day take place inside the jail in the
presence of a few invited guests, a state doctor who watches carefully
to see that the victim is not cut down before his heart has ceased to
beat, a chaplain who calls on the Creator of life to take back to his
bosom the divine spark which man in his cruelty and wrath is seeking to
snuff out. Even the state is not so cruel but that it will officially
ask the Almighty to look after the soul that it blackens and defiles
and does its best to everlastingly destroy. A few friends of the jailer
are present to witness the rare performance, and the newspapers too are
represented, so that the last detail, including the breakfast bill of
fare, may be graphically set before the hungry mob to take the place of
the real tragedy that they had the right to witness in the good old days.
Many states to-day have provided that executions shall be inside the
penitentiary walls, that the victim shall be wakened, if perchance he is
asleep, in the darkness and dead of night; that he shall be hurried off
alone and unobserved and hastily put to death outside the gaze of any
curious eye; that this barbarism shall be done, this unholy, brutal deed
committed in silence, in darkness, that the heavens and earth alike may
cover up the shocking crime, from which a sensitive public conscience
stands aghast. The ever-present public press in many cases is allowed to
print only the barest details of the bloody scene, so that oblivion may
the more quickly and deeply cover this crowning infamy of the state.
The abolition of public hangings may speak something for the
sensitiveness, or at least, the squeamishness of the state. But it is
evident that all of this is a terrible admission of guilt upon the part
of those who uphold this crime. It is possible that one might believe at
least in the sincerity of those who argue that punishment prevents crime,
if these terrible scenes of violence were carried out in open day before
the multitude, and fully understood and discussed in all their harrowing,
shocking details of cruelty and blood. If the sight of punishment
terrorizes men from the commission of crime then, of course, punishment
should be as open as the day. In so far as the state is successful in
keeping secret the execution of its victim, in this far does it abandon
every claim of prevention and rests its case for punishment on vengeance
and cruelty alone. The rulers of this generation, who are ashamed of
their deeds, may be wiser and more sensitive than those of the last,
but our ancestors, although less refined, were much more logical and
infinitely more honest than are we.
The whole question of punishment is not only proven but fully admitted by
our rulers in their dealings with the death penalty. It is now everywhere
admitted that the brutalizing effects of public executions are beyond
dispute. It was only after the completest evidence that the believers in
the beneficence of punishment and violence abandoned public executions,
for to abandon these was to utterly abandon the principle on which all
punishment is based.
It would, of course, be impossible to prove the exact result of a public
execution. Somewhere in a quiet rural community, growing out of sudden
passion or some unexplained and temporary aberration, a man takes the
life of his fellow man. To the shock incident to this fatal act is added
a long public trial in the courts where every detail is distorted and
magnified and passed from tongue to tongue until even the lisping babe
is thoroughly familiar with every circumstance of the case with all its
harrowing details iterated and reiterated again and again. There grows up
in the public mind a bitter hatred against the unfortunate victim whose
antecedents, life and motives they can in no way understand or judge. It
is really believed that no one has the right to look upon this person
with any feeling save that of hatred, and the least word of pity or sign
of sympathy for the outcast is set down as sickly sentimentalism and the
mark of mental and spiritual disease. Weeks and months, sometimes even
years, elapse in the slow and unending process of the courts. The whole
tragedy has been well nigh forgot, at least it no longer has any vital
effect upon the community. Finally it is announced that on a certain day
a public hanging will take place. Once more every detail of the tragedy
is recalled to the public mind; once more each man conjures up a monster
in the place of the hunted, weak, doomed victim whose act no one either
fathoms or seeks to understand. A sightly spot is chosen perhaps upon
the village green. For several days men are kept busy erecting a strange
and ominous machine; the old men and women, the middle aged, the boys
and girls, the little children, even the toddling babes, filled with
curiosity watch the work and discuss every detail of the weird and fatal
trap. At length the day arrives for the majesty of the law to vindicate
itself. From every point of the compass comes a great throng of both
sexes, all conditions and ages, each to witness the most startling event
of their lives; children are there, babes in arms, and even the unborn.
A rope is tied around a beam, a noose is formed of the other end, a
trembling, helpless, frantic, friendless victim is led up the steps,
placed on a trap, his hands and feet are bound, a black cap is pulled
down to hide his face, the noose is securely fastened around his neck
below his ears. The crowd watches breathless with suspense, the signal
is given, the trap opens, the man falls through space, he is caught in
mid-air by the rope tightening about his neck, and strangling him to
death. His body heaves, his legs and arms move with violent convulsions,
he swings a few minutes in mid-air before the crowd, a ghastly human
pendulum moving back and forth, the mortal body of a man created in the
image of God whom the state has led out and killed to show the glory and
majesty of law!
The advocate of punishment is right in the belief that such a scene
will produce a profound impression upon all who see or hear or know.
The human being does not live who can witness such a tragedy or even
know its details and not receive some impression that the rest of life
cannot efface. The impression must be to harden and brutalize the heart
and conscience, to destroy the finer sensibilities, to cheapen human
life, to breed cruelty and malice that will bear fruit in endless ways
and unknown forms. No parent who loved his child and who had any of the
human sentiments that should distinguish man from the brute creation,
would ever dare to trust that child to witness a scene like this. Every
intelligent loving mother carrying an unborn babe would close her eyes
and stop her ears and retire to the darkest corner she could find lest
the unborn babe marked by the baleful scene should one day stand upon the
same trembling trap with a rope about his neck.
The true morality of a community does not depend alone upon the number of
men who slay their fellows. These at most are very few. The true morality
depends upon every deed of kindness or malice, of love or hatred, of
charity or cruelty, and the sum of these determine the real character
and worth of a community. Any evil consequences that could flow from a
casual killing of a human being by an irresponsible man would be like a
drop of water in the sea compared with a public execution by the state.
It would probably not be possible to find a considerable number of men
to-day who would believe that a public hanging could have any but bad
results. This must be true because the knowledge of its details tends
to harden, embitter and render cruel the hearts of men. Only in a less
degree does the publication of all the details affect the characters and
lives of men, but unless they are at least published to the world, then
the example is of no effect. The state which would take life without any
hope or expectation that the community would in any way be bettered could
not rank even among savage tribes. Such cruelty could only be classed as
total depravity.
But the effect of other punishment is no whit different save in degree
from that of hanging. Cultivated, sensitive people have long since
deplored the tendency of newspapers to give full and vivid accounts
of crimes and their punishment, and the better and humaner class of
citizens shun those journals which most magnify these details. All of
this has a tendency to familiarize man with violence and force, to
weaken human sensibilities, to accustom man to cruelty, to blood, to
scenes of suffering and pain. What right-thinking parent would place
this literature before his child and familiarize his mind with violence
practiced either by the individual or the state? And yet if punishment is
a deterrent, the widest publicity should be given to the story of every
crime and the punishment inflicted by the state.
That men even unconsciously feel that punishment is wrong is shown by
their attitude toward certain classes of society. A hangman would not be
tolerated in a self-respecting body of men or women, and this has been
the case for many years, in fact since men made a trade of butchering
their fellow man. A professional hangman is really as much despised
as any other professional murderer. A detective, jailer, policeman,
constable and sheriff are not generally regarded as being subjects of
envy by their fellows. Still none of these are as much responsible for
their acts as the real rulers who make and execute the law. The time will
come when the public prosecutor and the judge who sentences his brother
to death or imprisonment will be classed with the other officers who lay
violent and cruel hands upon their fellows.
If the imprisonment of men tended to awe others into obedience to law,
then the old ideas of penal servitude are the only ones that can be
logically sustained. A prison should be the most horrible, grewsome,
painful place that can be contrived. Physical torture should be a common
incident of prison life. The victim himself is beyond the pale of
society. His life should be used to aid the community by the frightful
example: Dark dungeons, noxious smells, vermin, rats, the hardest, most
constant toil, long terms of imprisonment, and the red mark to be branded
on his brow, when he at last is turned loose to the light of day. Prisons
should be open to the public, so that the old and young can constantly
witness the terrible effects of crime. Prisons and jails should be in
every community and in the most conspicuous place. The young should not
be left to casually hear of public punishments or to imagine a penal
institution. The living horrible example in all its loathsome, sickening
details should be ever kept before their eyes. Most men now regard these
public exhibitions of the malice of the state exactly as they now look on
public hangings, as tending to degrade and debauch and harden the hearts
of those who become familiar with the sight. But if the open sight and
knowledge of a penal institution tends to degrade and harden the heart,
then the secret, imperfect, covert knowledge produces the same effect
only in less degree.
All communities and states are in reality ashamed of jails and penal
institutions of whatever kind. Instinctively they seem to understand that
these are a reflection on the state. More and more the best judgment and
best conscience of men are turned toward the improvement of prisons, the
introduction of sanitary appliances, the bettering of jail conditions,
the modification of punishment, the treatment of convicts as men. All
of this directly disproves the theory that the terrible example of
punishment tends to prevent crime. All these improvements of prison
conditions show that society is unconsciously ashamed of its treatment
of so-called criminals; that the excuse of prevention of crime is really
known to be humbug and hypocrisy, and that the real motive that causes
the punishment of crime is malice and hatred and nothing else. The
tendency to abrogate capital punishment, to improve prisons, to modify
sentences, to pardon convicts is all in one direction. It can lead to but
one inevitable result, the abolition of all judgment of man by man, the
complete destruction of all prisons and the treatment of all men as if
each human being was the child of the one loving Father and a part and
parcel of the same infinite and mysterious life.
CHAPTER VII
CAUSE OF CRIME
If the punishment of so-called crimes tended in any way to prevent
violent acts, this tendency would be manifest in some conclusive way.
Whether brotherhood love and non-resistance would lessen crime may be
a matter of debate, but that punishment does not lessen it, seems to
be as well established as any fact that cannot be absolutely proved.
The death penalty was for years drastically enforced for the crime of
smuggling, but its enforcement in no way tended to prevent the practice
which flourished in spite of executions without number,—the common
consciousness would not accept this punishment as just and finally rulers
were forced to modify the punishment in self-defence. The punishment of
death for larceny did not prevent the crime. Nearly every religion has
made its way in the face of the severest penal statutes. Its converts
have all been criminals and they have accepted and taught their faith
at the risk of life. Every organization of working men has grown up in
violation of human laws, and the jails, prisons and scaffolds have been
busily engaged in suppressing this species of crime; but in spite of
the fact that judges still imprison and execute for this crime, these
associations are now almost as firmly established as any institution of
the world. All new political ideas, democracy, socialism, nihilism have
met the same fact and have made their way regardless of scaffolds and
jails. Even in the common crimes, like burglary and larceny, prisons have
had no effect. From the dawn of civilization an endless procession of
weak and helpless victims, handcuffed, despised and outlawed, have been
marching up to prison doors and still the procession comes and goes.
Time does not stay nor punishment make it less. In fact the older the
community and the better settled and undisturbed its life, the greater
the number of these unfortunates whom, for some mysterious reason,
the Infinite has decreed a life of shame and a death of ignominy and
dishonor. If scaffolds and prisons and judges and jailers have no effect
to prevent and lessen crime, common wisdom, to say nothing of humane
instincts, ought to seek some other plan.
Intelligent men have long since ceased to believe in miracle or chance.
Whatever they may think of ancient miracles and the original chance that
brought the universe into being, still most people now believe that the
world’s affairs, be they small or great, physical, intellectual, or
moral, come within the realm of law.
In the ordinary affairs of life, men everywhere seek the causes that
produce effects. Men are called into being, live their lives and pass
away in obedience to natural laws which are as immutable as the movement
of the tides. In our half civilized condition we partially comprehend
this fact. The defect of the born cripple, the idiot, the insane is no
longer charged to the poor victim who, unhampered by the world, still has
a burden as heavy as should be given to mortal man to bear. The physician
who would treat fever or measles or diphtheria without considering
the cause would be considered the veriest bungler and responsible for
his patient’s death. It is not so very long ago that a world about as
intelligent as our own believed that disease, deformity, and sin came
from the same cause,—some sort of an evil spirit that found its abode
in man. The way to destroy the evil spirit was generally to destroy the
man. The world will perhaps grow wise enough to not only believe that
disease, deformity, and sin have a common cause, but perhaps so wise as
to find their common cause. No skilful physician called to the bedside of
a child suffering with scarlet fever would upbraid the child for the evil
spirit that caused its pain; no more would he punish the consumptive for
his hacking cough; he would understand perfectly well that the physical
condition of each was due to some natural cause, and that the disease
could be cured in these patients and avoided with others only when the
cause was destroyed, or so well known that no one need fall a victim
to the malady. Even in diseases of the most contagious sort, where the
isolation of the patient is necessary to protect the lives and health of
others, this isolation would be accomplished not in hatred or malice but
in the greatest tenderness and love, and the isolation would last only
for the purpose of a cure and a sufficient time for cure; and every pains
would be taken to destroy and stamp out the cause which produced the
disease.
The theory of disease is so well understood to-day that our physicians
clearly recognize mental disease as well as physical. Insanity is no
longer punished as a crime as in the days gone by, and even kleptomania
is now a well classified and recognized disease. No intelligent person
doubts the disease of kleptomania; its symptoms are too well established.
When a person steals a thing he does not need, it is an evidence of
kleptomania, an ungovernable will. When a poor person takes a thing he
needs and cannot live without, there is no evidence of an ungovernable
will.
Many facts have been classified concerning physical disease and our
knowledge of its nature, cause, and cure grows year by year. Malignant
spirits and accident are no longer considered in reference to disease;
while the origin of all bodily ailments is not yet known, so many have
been ascertained as to make it sure that with sufficient knowledge, all
could be traced to their natural cause. And while the means have not yet
been found to cure each disease, still so much is known as to warrant
the belief that there is no physical ailment that will necessarily cause
death.
And intelligent research is constantly adding to the known and ever
narrowing the realm of the mysterious and unexplained. In physical
disease long observation has shown that certain climates and certain
localities are favorable to this disease or that; some places naturally
breed malaria, and the mind of man is turned to discovering methods to
overcome the conditions which produce the disease. If fevers abound, the
conditions are carefully observed to find what breeds the infectious
germ. It is not difficult to imagine that if the medical profession
should ever labor purely to cure disease, instead of to make money for
itself, and should continue its research and investigation, that few
would die until old age should terminate life as simply and naturally as
birth ushers it in.
But in the realm of the mental and the moral, the law has been content
for centuries to rest at ease. Our practical dealings with crime are
based on the same theories of evil and evil spirits that made wise
physicians drive the devils into swine and swine into the sea. If any
progress has been made it has been in believing that, instead of one
being possessed of a devil, he really is a devil. When the physical
condition of a man is sufficiently far removed from the physical
condition of the average which is supposed to represent the normal man,
he is treated for the disease. When the mental condition sufficiently
varies from that of the ordinary man, the normal man, he is promptly
imprisoned or put to death. Judges and juries debate and ponder over the
question of whether a man has done some act that is not commonly done by
his fellows, and if they determine that he is guilty of doing the act,
the judgment follows that he must have wilfully and perversely chosen to
do wrong. No one then inquires why he did the act and whether there are
conditions of disease present in the community that will lead others to
do like acts. There is but one thing to do. The man is evil. The state
must lay violent hands upon him—must meet evil with evil, violence with
violence. There is but one cure for malice and that is malice.
But however ignorant the law and its administrators, some of the rules of
conduct have been brought to light; while judges have been sentencing,
and hangmen and jailers plying their grewsome trades, there have been
thinkers and students and historians, who did not believe in the old
theory of witchcraft and evil spirits on which human punishment really
rests. These students and scholars have labeled and classified facts and
have at least learned something as to the cause and origin of what men
call crime. Enough at least has been discovered to prove that punishment
has absolutely no effect to lessen crime.
The ancients believed in the existence of the body and the soul as
independent entities. Each had its own sphere of action and neither one
had any relation to the other. This idea has come down to us and is
present in all our dealings with our fellow man. Particularly is this
the view of government in its tender care of those who are the subjects
of its laws. The care and treatment of the body come within the province
of the physician. The care and treatment of the soul belong to the priest
and the hangman. Whether man has a soul that ever existed or can exist
independent of the body may be a question that will remain forever open
to occupy our thoughts. But this at least is true: that the condition of
the body has the greatest influence over the mental and so-called moral
nature of man. The body and mind grow together and decay together. Health
in one generally indicates health in the other. The overfeeding or the
starvation of the one means the disease of the other. It is doubtful if
any mental characteristic or abnormal condition could not be traced to
its physical cause either in the individual or his ancestors, if science
were far enough advanced.
Everyone who is familiar with the inmates of jails and penal institutions
has learned to know the type of man that is confined as a criminal. In
nearly every case these are inferior physically to the average man. In
nearly every case they are also inferior mentally to the average man.
One needs but visit our criminal courts day after day to find that the
average criminal is a stunted, starved, deficient man. More than this,
almost universally they come from the poorer class—men and women reared
in squalor and misery and want, surrounded from youth by those who have
been compelled to resort to almost any means for life; people who,
whatever their own code of ethics, have not been able in their growth
to maintain those distinctions in conduct which to the common mind
constitutes the difference between lawful and unlawful acts. Here and
there, of course, one finds some one in jail who has been differently
reared; but these are the exceptions which in no way disprove the rule.
These cases too can be traced to their cause like all the rest. There are
certain moral diseases like speculation, for instance, that seize on men
exactly as the measles or the mumps. These diseases generally flourish in
great cities and are not indigenous to country life. Not only are these
prisoners deficient in stature and intellect, but the shape of their
heads shows them different from other men. As a class their heads are
much less symmetrical and what are known as the higher faculties are much
less developed than with the ordinary man.
If it were established even that the criminal type is inferior mentally
and physically and that they have all misshapen heads, this alone ought
to be sufficient to raise the inquiry as to who was responsible for their
acts. Long ago a wise man said that no one could by taking thought add a
cubit to his stature, and yet we hang and pen because these unfortunates
have not grown as tall, as large, or as symmetrical as the ordinary
man. But the mental actions of man have been shown to be as much due to
law and environment as his physical health,—certain sections of the
world are indigenous to men who kill their fellows; and more than this,
certain portions produce men who kill with guns, others who kill with
a knife, others still who administer poison. In certain sections, the
chief crime is horse stealing; in others, running illicit distilleries;
again, burglary; in some places, poaching; sometimes, robbery; and
again, smuggling. A study of conditions would reveal why each of those
crimes is indigenous to the particular soil that gives them birth, and
just as draining swamps prevents the miasma, so a rational treatment
of the condition caused by the various crimes would cure them, too. If
our physicians were no more intelligent than our lawyers, when called
to visit a miasmic patient, instead of draining the swamp they would
chloroform the patient and expect thus to frighten all others from taking
the disease.
Observation as to so-called crime has gone much further. The number of
inmates of our jails is much larger in winter than in summer, which
ought to show that there is something in the air that produces a wicked
heart in the winter, or that many persons directly or indirectly go to
jail because in winter, food and warmth are not easily obtained and
work is hard to get. For many years it has been observed that jails are
very much more crowded in hard times than in good times. If work were
sufficiently plenty or remunerative both jails and almshouses would
be compelled to close their doors. Long ago it was ascertained from
statistics that the number of crimes rose and fell in exact accord with
the price of bread. All new communities, where land is cheap or free and
labor has ample employment, or, better still, a chance to employ itself,
are very free from crime. England made Australia its dumping ground for
criminals for years, but these same criminals when turned upon the wide
plains with a chance to get their living from the soil, became peaceable,
orderly citizens fully respecting one another’s rights. England, too,
used certain portions of her American colonies where she sent men for
her country’s good. These criminals like all the criminals of the world
were the exploited, homeless class. When they reached the new country,
when they had an opportunity to live, they became as good citizens as the
pilgrim fathers who were likewise criminals themselves. As civilization
has swept westward through the United States, jails have lagged behind.
The jail and the penitentiary are not the first institutions planted
by colonists in a new country, or by pioneers in a new state. These
pioneers go to work to till the soil, to cut down the forests, to dig
the ore; it is only when the owning class has been established and the
exploiting class grows up, that the jail and the penitentiary become
fixed institutions, to be used for holding people in their place.
CHAPTER VIII
THE PROPER TREATMENT OF CRIME
Reason and judgment as well as an almost endless array of facts has
proven that crime is not without its cause. In showing its cause, its
cure has been made plain. If the minds and energies of men were directed
toward curing crime instead of brutally assaulting the victims of
society, some progress might be made.
It is often difficult to trace results, because their relations are not
always direct and plain. Even in the realm of physical facts it is always
easy to stray from the straight path between cause and effect. When we
observe the conduct of men and seek to find its cause the problem is
still more complex. Each human being is an entity made up of all that
is and of all that has gone before. It may not be possible to tell from
whence he obtained every quirk or peculiarity of his brain, but one
thing is sure, he did not form his own skull and could have but little
part in arranging the brain cells within the bone. This portion came
from his father, this his mother gave, this was bequeathed by a bloody
ancestor who died long generations since; but all who went before did
their part, and gave their little mite to make the composite brain that
drives its possessor here and there.
While the exact cause of any act may not be ascertained, still the
general causes are beyond dispute. A stunted body means that either
its owner or its ancestor has almost surely been starved and that want
and hunger have left their traces on the brain. An inferior mind means
some incapacity, disease or disadvantage, either in the individual
or his ancestor, that has left him different from his fellow men. An
unsymmetrical head may reach back to the early ape, and account for any
possible seeming deficiency or peculiarity in the brain, which after
all must be molded in the shape that the bone allows it to assume.
Starved bodies can be cured by food. True, it may take more than one
generation to cure them as it may have taken several to produce them,
but, after all, they can be cured by food; and a rational humane world
would commend itself more to thinking men and to the posterity which
will judge us, by feeding these starved bodies rather than imprisoning
them in pens. An inferior mind or an ill-shaped head can be reached in a
generation or more by feeding the body that supports it, by treating it
with tenderness, charity and kindness, rather than ruling it with hatred,
bitterness and violence.
Nearly every crime could be wiped away in one generation by giving the
criminal a chance. The life of a burglar, of a thief, of a prostitute,
is not a bed of roses. Men and women are only driven to these lives
after other means have failed. Theirs are not the simple, natural lives
of children, nor of the childhood of the world; but men and women can
learn these professions or be bred to them. After other resources are
exhausted they will be chosen for the simple reason that life is sweet.
With all its pangs and bitterness, it is the nature of life to send its
poor tendrils deep into the earth and cling with all its force and power
to this poor, fleeting, transitory world.
Men are slow to admit that punishment is wrong and that each human
soul is the irresponsible, unconscious product of all that has gone
before; and yet every kind and wise parent in the world proves by his
every relation with his child that he knows that he is the author of
his being and the molder of his character, and that he, the parent, is
infinitely more responsible for the soul he launches than is the child
himself. There might be some measure of justice in trying and punishing
the parent for the conduct of the child, but even this does not reach
back. The source of every life runs back to the Infinite itself. Every
right thinking father does his best to have his child reared in those
influences and surroundings which will best contribute to his physical,
mental and moral growth. Even then he feels that the future is doubtful
enough; that man is weak and finite and blind; that he sees but a little
way into the dim, uncertain future; that he is filled with passions,
emotions and desires; that he must travel a path beset with all sorts of
temptations and promises; that his weak sight will look upon beautiful
cities and fair prospects which are only mirages and sent to beguile and
insnare his soul. Few judges, if called upon, would not sooner slay their
innocent sleeping child with their own loving hands, than abandon him to
grow up in the streets or make his way unaided through the tangled mazes
that confront the homeless and the poor; and yet these same judges will
coolly arraign men who all their lives have walked in the shadows through
a tangled maze beset with passion and fear, and sentence them to death
and ask God to have mercy on their souls. Every man who loves his child
and seeks to surround him with what is best for his physical, mental and
moral needs denies in his very life the right of man to judge and punish
his fellow man.
CHAPTER IX
IMPOSSIBILITY OF JUST JUDGMENT
Natural laws rule the world. It is a mistake to believe that the conduct
of man is outside of natural law. The laws of being that move all the
sentient world rule him. His first impulse is to preserve his life, and
his next to preserve the species. Nature planted these instincts so
deeply in his being that no civilization can root them up. To destroy
these instincts would be to destroy the human race. The first instinct of
man is to preserve his life. To do this he must obtain the food, shelter
and raiment that enable him to live. His constant effort has been ever
to get these at the smallest expenditure of time and strength. In a
semi-coöperative state like ours the strongest choose the easiest, most
remunerative occupations society can bestow. The less fortunate the
next best, and so on down the scale. At the lowest place some are forced
to abject toil, to practical slavery, to beggary, to crime. Men would
not steal sheep if they had land on which to raise mutton. Men would
not explore their neighbor’s houses at dead of night, if their own were
filled; and women would not sell their bodies if society left them any
other fairly decent and pleasant way to live.
Even if punishment by the state could ever be justified, no man is wise
enough or good enough to administer that punishment. It is the theory of
the law that by means of its magical wisdom it is enabled to fix a code
enumerating the acts that are sufficiently evil to constitute a crime;
and for each of these enumerated acts it sets a penalty which it presumes
is sufficiently severe and drastic to in some mysterious way atone for,
excuse, absolve or at least in some way make right, or certainly make
better the commission of the act. Punishment must proceed upon the
theory that some are wilfully bad, possessed of devils, and the bad must
be punished when found bad, to prevent others who are bad from committing
crime. Men could only be punished because they were wilfully bad. If men
are part good and part bad it will not do to punish. How could the law
or courts fix the exact line as to how bad a man might be to deserve
punishment, and how good to excuse it? Neither is it the act that should
be punished, for it would be a hard and cruel and strange code of
negative ethics that should say that a man should be punished for an evil
act and not be rewarded for a virtuous one; and even judges might find
difficulty in balancing the good and bad; and besides, does not the law
in its wisdom say that an evil act shall be punished regardless of its
consequences? I may steal my neighbor’s horse at night and return it in
the morning. I am none the less a thief and my home is the prison. I may
burglarize a safe and find it empty, but the crime has been completed and
it deserves the penitentiary. In each case I deserve the penitentiary
because my heart is bad. Thus the old theory is the only one on which the
believer in punishment could rest for a moment, that some men are bad and
some are good—at least some are bad.
The law is not concerned with the good. Its business is not rewarding,
but punishment; not love but hate. How can human judgment determine what
heart is bad? Men’s lives are a strange mixture of thought, motive and
action; an infinite mixture of good and evil, as it is given to finite
man to know good and evil. No life is wholly good, and no life is wholly
bad. A life of great virtues may here and there be interspersed with an
evil act. The law picks out the evil and ignores the good. A life barren
of real affirmative goodness may still be free from serious positive
sin, and thus escape the condemnation of man and his courts. The conduct
which falls under the observation of others is not so much due to the
goodness or badness of the heart as to the emotion or placidity of the
nature. In balancing the evil of a life against the good, no one can give
the exact weight to each for no two men weigh moral worth or turpitude
with the same scales. Neither can a man’s standing be determined until
his life is done. Acts which seem evil if left to develop character are
often the means of softening the heart, of developing love and charity
and humanity, of really building up the moral worth of man. But no person
can be judged even by his conduct. Goodness and evil are both latent
in man and this fact shows the evil of resistance and force. One may
be intrinsically good and live a long life and still never be touched
upon the proper side to develop character and reveal to the world the
real self. It requires circumstance, opportunity and the proper appeal
to develop the best in man, the same as to develop the worst in man.
To judge the character of a human soul from one isolated act, would be
as impossible as to judge his physical health by testing his sight or
hearing alone. Every person’s first impressions show how often these
are really wrong, and how much they depend upon the circumstances of
time and place. To really judge another’s character requires almost
infinite knowledge, not of their acts alone, but of their thoughts and
aspirations, their temptations, and environment, and every circumstance
that makes up their lives. But if the administration of punishment is to
depend on the good or evil of the man, then each person must be judged
from his own standpoint. One’s merit or demerit depends not on what he
does but on his purpose and intent, upon his desire to do good or evil.
In short, upon the condition of his heart, which can only be told in part
from his isolated acts.
Each person has his own rule of conduct and of life. The highest that
can be done by any human soul is to live and strive according to his
best conception of the highest life. To one man an act appears harmless
which to another is a heinous crime. One man would blaspheme, but under
no circumstances would beat a dog or kill a fly. One might commit larceny
or even murder by the very strength of his love. Again, real character,
merit and demerit cannot be judged except in view of the capacity, the
opportunity, the teaching of the life. No honest judgment of the worth of
any soul can be measured except with full knowledge of every circumstance
that made his life, and with this knowledge the man who would accuse
would but condemn himself. But even if every act of every life were open
to the sight of man, this could furnish no guide to true character.
The same temptation does not appeal alike to all. One man may not be
tempted by strong drink and may never fall. Another with an appetite
born in a remote ancestor may struggle manfully and fail. The temptation
to take property by force does not appeal to one who can get it by
inheritance or gift or fraud. The desire to kill never moves the soul
of the placid man. To know what it means requires an intimate, infinite
knowledge of every emotion of the soul, of every fiber of the body, and
the understanding, not of how the temptations or inducements that he met
would affect the judge, but how they would affect the man. Science has
determined a way to measure the height, and the girth of an individual,
to tell the color of his eyes and hair, to determine the shape and
contour of his skull. It has not yet found a way to look beneath the
skull and weigh the actions and responsibilities of that hidden involved
mystery—the human brain, or to look at the real man,—the human soul, and
judge whether the Infinite Maker made it white or black. If every man who
passed an unjust judgment on his fellow should be condemned, how many
judges would be found so vain and foolish as to review and condemn their
Maker’s work?
CHAPTER X
THE JUDGE OF THE CRIMINAL
But even if some men deserve punishment, who is to judge? The old
injunction still comes back and ever will return when man arraigns his
fellow, “Let him who is without sin cast the first stone.” To find a
judge without sin in the ordinary meaning of the world is necessarily
out of the question. They must of course pretend to be holier than the
rest, and organized society helps out the farce and fraud. At the best,
one guilty man is set up to judge another,—one man filled with his
weaknesses, his infirmities, his shortcomings, sets himself up to judge
not only that his fellow man is a criminal but that he himself is better
than his fellow. And yet all the past and the present has conspired to
make him good, to keep him from temptation, that he might the better
pass judgment on another, while all the world has conspired to place the
victim where he is. Verily, in the light of infinite justice, no greater
crime could be committed than to judge and condemn your fellows, and if
there shall ever be a final day when the crooked is made straight and
the purpose of all shall be revealed and understood, safer far will be
the man who has received the sentence than the one who has dared to pass
judgment on another’s life and pronounce it bad.
But how is this judge to determine the guilt or innocence of his fellow?
He cannot know his life and does not seek to know. To understand fully
another’s life would require infinite pains and such research as no
judge could give or pretend to give. The judge cannot balance up the
character of his victim; he simply seeks in a poor, clumsy, imperfect
way to ascertain whether he did a certain act. Whatever else he did, his
attitude of mind, his necessities, his early training, his opportunities
and temptations, the number of temptations resisted before one proved
too much—all of this is beyond the power of a human judge to know; yet
all of it bears upon the real character of the man and should go to show
whether, on the whole, he deserves blame or praise, and the extent of
each.
In the light of all this, how many human souls could be guiltily cast
out as bad? It requires infinite pains and almost infinite knowledge to
judge one’s physical condition. A man is suffering from some ailment and
a doctor is called to treat him. The disease may be of long standing and
located in some organ beyond the reach of sight and hearing; he patiently
watches every symptom to know the real condition of the physical man and
the cause that made him ill. He calls the wisest surgeons to consult and
these may never be able to locate the disease, or the cause that made the
patient as he is. But twelve untutored jurors and a judge wantonly and
carelessly set themselves up to pass on the condition of a human soul—a
soul no man has seen or by any chance can ever see,—a life they do not
know and could not understand and do not even seek to understand. They
take this soul and, with their poor light, which at the best is blackest
darkness, they pronounce it bad, and in violence and malice deny it the
right of fellowship with its human brothers, each equally a portion of
the great Infinite which takes all of good and all of bad and makes of
these one great, divine, inclusive whole.
The judge must and does view the conduct of his victim according to
his own ideas of right and wrong. At his best he takes with him to the
judgment tribunal every prejudice, bias and belief that his education,
surroundings and heredity have left on him. He measures the condemned
by the ideal man, and the ideal man must be himself, or one made from
his weak, fallible concepts of right and wrong. Naturally he places
little weight or value upon those vices which are a portion of his own
character, or those virtues which he does not possess, or especially
admire. A judge can see no character or virtue in an accused man, who
would rather suffer imprisonment or death than to betray his fellows.
In the judgment of the courts the betrayer is rewarded, the man of
character and worth condemned. A judge reads the code, “Thou shalt not
steal.” He cannot understand how a so-called thief should have forcibly
taken a paltry sum. He cannot conceive that he, himself, could under any
circumstances have done the like. Such conduct must come from a depraved
and wicked heart—a devil that dwells within the culprit. The common
thief looks at the judge arrayed in fine linen and living in luxury and
ease, with nothing to do but pass judgment on his fellowman. He dimly
understands how much easier it is for the judge to obtain his large
salary than for him to get the poor wages of his hazardous and shifting
trade. But the judge does not begin to comprehend that, if he could
not have received his salary or obtained a tolerable life in any of the
endless grades of activity between his profession and the thief’s, very
easily he might have been the victim with some other fortunate man to
pronounce him bad. Human judgments are not passed in view of all the
circumstances of the case. If this was the condition of human judgments,
no man could be condemned.
CHAPTER XI
THE MEASURE OF PUNISHMENT
But admitting the right to punish, where is there a man with the wisdom
to inflict punishment? By what magical scales can he weigh the guilt of a
human being, and by what standard can he determine the judgment that is
proportionate to his guilt? It must be evident that the wit of man never
did invent or can invent a measure that shall determine the just amount
of punishment for any human act. The punishment administered does not in
any way indicate the extent of the culprit’s transgression, but simply
shows the degree of brutality of the law, and of those who are given the
power of fixing the extent of punishment to be imposed. The victim whom
the law catches in its net is at the mercy of the judge. His fate depends
not upon his life, not upon what society has done for him, nor upon how
he has repaid the debt. Nor does it depend upon the intrinsic value of
his soul, for no human judgment can reach this. Neither does it depend
upon the ratio between the brain he had, and the temptation he resisted,
or the ratio between the overpowering force he met and the weak will and
intellect which heredity had bequeathed to him. His fate rests with the
humanity or inhumanity displayed, the point of view, the experience,
the prejudice, the social surroundings, the physical condition, the
appetite or the breakfast of the judge, whose light and easy duty it is
to pronounce judgment on the life or liberty of a fellow man.
Given the best equipment and the greatest knowledge and sense of
responsibility on the part of the judge, how then will stand the case?
A prisoner is arraigned for forcibly taking a pocketbook on the public
street. The instinct to do the act may have come upon him in a moment’s
time, as the opportunity seemed suddenly present and the need seemed
great. Under the peculiar circumstances of the time and place, he may
have been impelled to act when a moment’s reflection would have stayed
his hand. In a hundred cases the opportunity for the reflection was
present, and he passed through unscathed, and then there came a time when
the judgment had no chance to speak and he was lost. The crime even at
its worst differs only in degree, perhaps not in that, from the actions
of our daily lives. We look at another’s pocketbook and covet it, or
covet his home or coat or wealth—the case presents the same evil heart.
Our action, however, is tempered and controlled by judgment and the power
of will.
Assuming the man is bad, where is the judge who can measure the
punishment he ought to have? How many endless, silent, shameful days,
each made of hours that seem eternities, should he be confined for
this? How many days should drag their endless weary length into months
and years before the act should be atoned? And is justice done when the
victim, old and bent, and silent, and gray, with health destroyed and
character and hope forever gone, is once, more led out into the strange,
bewildering light of day?
There can be no measure for human conduct. All scales, rules and measures
are valueless when used to judge the soul. Even time cannot be counted.
The judge upon the bench lightly consigns his victim to a prison pen. He
measures the victim’s years by the swiftly gliding days that pass like
magic in his joyous life. To the judge, time strides with seven league
boots; even the grim specter at the end, the one skeleton at his feast,
even this ever-present shadow but hastens the magic flight of years. But
the clock that ticks away the joyous wasted moments at the banquet hall
is not the same time-piece that hangs upon the penitentiary walls. One
pendulum leaps gladly back and forth; the other moves with the weight and
gravity of human life, of human death, of endless agony, of unmitigated
pain. Time is the most obstinate of the delusive gifts that fate
bequeathes to man. When we would have her speed she moves with leaden
foot. When we would have her halt she flies with magic wings.
* * * * *
Rulers have invented and used all sorts of punishments and constantly
alternated from one to the other; each one in use seeming to be inferior
to some one hitherto untried. Corporal punishment has respectively come
and gone. Public floggings and private floggings, tortures, and death
in various ways, have met the approval and then the disapproval of
the governing power. But with all of them, crime has gone on and on,
unmindful alike of the form or extent of the punishment in vogue.
The effect of an act of cruelty and violence can never be measured or
understood. No one can tell the full consequences that occur to every
human being when the state puts one to death, or flogs, or maims, or
imprisons, or even fines. A violent act produces injury, hardship and
suffering to the victim who is powerless in the strong grasp of the law.
But the evil does not end with him.
In ever-widening circles the results of cruelty move on and on until to
some degree or part they reach every member of society. Unless punishment
lessens the sum of human suffering, increases the measure of human joy,
and thus lengthens and adds to life, it has no right to be.
Punishment brings positive evil. Any possible good that it may produce is
at the best problematical and wholly impossible to prove. From the first
victim whom the state degrades with punishment, the evil and the hardship
and suffering moves on to family and friends. In no theory of the law is
compensation, or recompense, or making good, any part of punishment. If
taking the life of the prisoner could bring to life the victim whom he
killed there might be some apparent excuse for the punishment of death.
If imprisoning in the penitentiary in any way retrieved a wrong or made
up a loss, a prison might be tolerated, and some relation might be shown
between punishment and crime. Even in cases where a fine is administered,
in place of imprisonment, the fine does not go in any way to retrieve
any loss, but goes to the state as pure punishment and nothing else.
Everywhere in the theory and administration of punishment is the rule the
same. The one purpose is to injure, to harm, to inflict suffering upon
the individual whom society sets apart.
When traced to the end, the sole theory on which punishment is based,
is that a certain man has committed an act of violence and crime, and
that, therefore, in some mysterious way this is to be made right by
inflicting an injury on him. That the original wrong will not be undone
has no bearing on the case—that others entirely innocent may suffer more
grievously than the accused is not to be considered in the infliction
of punishment. The father may be taken from the helpless children, and
these left to grow up as best they can, with their own hardships and
their father’s evil name to bear, but society stands unmoved. Though
the heavens fall, justice must be done, and justice can only be done by
inflicting pain. The execution or imprisonment of the father may not
unreasonably turn the children to follow in the path the state marked
out for him. This is not the affair of government,—not prevention or
recompense, or reward is the function of the state; but vengeance,
vengeance sure and complete.
Justice is not the function of the state; this forms no part of the
scheme of punishment. Punishment is punishment. A wife and helpless babes
may be left in want when the state lays its hand in wrath upon the man.
Under the law of natural justice the child has a right to support and
care from the father, who is responsible for its life. Still, the state,
not with a prior right, but with a greater power, takes the father from
his child, kills him or pens him, and turns the child into the byways
of the world, giving it only the heritage of the father’s shame. It is
no answer to say that such a father is of no value to the child. Many a
kind, indulgent father has violated the penal codes of man. Many a father
has been sent to prison because he so loved his child that he committed
crime.
From the nature of things there can be no justice in punishment. Justice
imposes relation between act and consequence. The judgment of man is
utterly powerless to pass upon the merits or elements of a human soul.
But justice from the state to its citizens imports some ratio between the
rewards, opportunities and punishments meted out to each. As to rewards
and opportunities, the state does nothing except to assist the strong to
despoil the weak. It furnishes no opportunity for its helpless, no chance
for development and life, and gives no rewards for meritorious conduct,
and makes no allowance for resisting temptation from crime. But aside
from all this, within the realm where the state pretends to do justice,
there is no equality meted out between its various members. The code is
unyielding, the positive dead letter of the law is man’s highest and
profoundest judgment as to the conduct of his fellows.
* * * * *
Each human soul is a separate entity, with its own hopes, desires and
fears; some impassive and stolid, some sensitive and shrinking. To be
accused of crime means more to some natures than years of imprisonment to
others. The body is not alone the subject of punishment. Man, with his
tortures and cruelties, seeks to reach the mind even more than the body.
Striped clothes furnish the same warmth as other garments, but to some
the stripes are an ever-consuming flame. To others, properly educated and
hardened by the state, this consciousness does not add to the punishment
involved. One day of forced confinement, or one moment of the indignity
of handcuffs, means more to some than a year of hard labor. The terms
of imprisonment are not the same to all. To some a term, however short,
means the blighting of a life, and the destruction of a family—perchance
a wife and child, a father or a mother, whose sorrow and shame are
greater for being indirect. With a sensitive soul no punishment ends when
the prison gates are opened up. Its consciousness lives as long as life
endures. No day is so bright, and no prospect so pleasing, but the black
shadow is ever present, blighting life, and driving hope and sunshine
from the soul.
In cases where fines are meted out those who can afford to pay escape
with comparative ease; others are forced to shift a burden of debt upon
father, mother, wife, children, or friends, who are thus punished for
years, not for crime, but for their loyalty and love. If, perchance,
through any effort the money for a fine can be obtained, the state
cruelly and brutally takes the unholy, ill-gotten cash, although it may
mean that a home is scant of food and shivering in cold or darkness; or
a little child is forced from school to a factory or store. It may mean
a plundered girlhood and abandoned womanhood, that the vengeance of the
state may be appeased. The taking of money by the state in payment of
crime is infinitely more damnable than private theft. The evils of force
and violence are unending—bold and ignorant, indeed, is he, whether
ruler, official, or private citizen, who sets in motion bitterness and
hate. It is an evil force set loose upon the earth to wander up and down,
cankering, polluting and despoiling all it meets, augmented by every
other force, to be conquered and subdued, if ever conquered and subdued,
only by infinite mercy and charity and love.
Every man, whether ruler, juror, judge or whosoever that is called
upon or volunteers to pass judgment on the conduct of others, must do
it according to his own flickering, feeble light, according to the
experiences that have made up his life. It is for this reason that good
men are so bad, and bad men so good. Life ordinarily means breadth.
Some, of course, are born deaf and blind, and the longer they travel
the road the more contracted, cold and uncharitable they become; but to
the ordinary person life means suffering and, above all other lessons,
it teaches charity. As the real man grows older, less and less does
he believe in or administer punishment, and more and more does he see
the extenuating circumstances that explain and excuse every act. The
stern and upright judge is an impossibility. No one can be stern and
upright. In proportion as he becomes truly upright, really just, the
more nearly he approaches the character of the ideal judge, the more
nearly does he understand the injustice of violence and cruelty, and
the eternal unfailing righteousness of charity and love. Where is the
man so wise or the judge so great and just that he could take any two
human beings with their different ancestry, environment, opportunities,
passions and temptations, and pronounce a judgment that would equalize
the two? Lawmakers, since the world began, have been busy undoing each
other’s wrongs. Courts have been established whose sole duty it is to
correct other courts. Unjust judgments are necessarily incident to the
infirmities of man. The wise judge who looks back over a long career, the
judge who knows human life and has a human heart, the judge who seeks to
be ruled by his conscience, will find much in his past career he would
wish undone. He will look back on many unjust judgments, on many things
done in anger and hatred, cruelty and wrong, on blighted hopes and ruined
lives. But in his whole career he will regret no act of charity, no deed
of mercy that he has been moved to do. He will look back on judgments
he would reverse, but these are not judgments of love or forgiveness or
charity, but judgments of force, of violence, of hate.
CHAPTER XII
WHO DESERVES PUNISHMENT
If there is any justice in human punishment it must be based upon the
theory of intrinsic evil in the victim. Punishment cannot be justified
because of the violation of human law. To violate law is often the
highest, most sacred duty that can devolve upon the citizen, and even
were it not, the condition of the heart is the test of the evil or
good purpose, not the good or evil of the act. The world worships and
venerates many of its dead because they violated human law. Every new
religion, every social advancement has been carried on in violation
of human law. The criminals who, in the face of contumely, hatred or
violence, have led the world to a higher standard and brought humanity to
a diviner order, have so loved truth and righteousness as to defy the
law, and in every age these men have met the life of outcasts, and the
death of felons. Whatever may be said of the necessity of government to
protect itself, no one can believe that any human being merits punishment
for following his own highest ideal. Punishment can only be in any wise
defended upon the theory that the individual is untrue to himself, that
his heart is bad. But all schemes of human punishment seem specially
contrived to exempt this class of men. Those who are untrue to themselves
find no difficulty in obeying the state, or at least in seeming to be
subservient to its laws. The cunning man without strong convictions of
right and wrong can always find ample room to operate his trade inside
the dead line the law lays down. Even Blackstone wrote that a man who
governed his conduct solely by the law was neither an honest man nor a
good citizen. The penal code cannot pretend to cover all the vicious acts
of men. If there is a distinction between vicious acts and righteous
acts, each are so numerous that even to catalogue them would be beyond
the power of the state. The most that the penal code pretends to do is to
choose a number of fairly well classified acts and to set penalties for
these crimes. The men who really entail the most evil and suffering on
mankind easily shape their conduct to avoid these acts. If perchance they
wish in effect to do some things forbidden by the law, they are able by
their wealth to have skilled lawyers who can show them how to accomplish
the same object by indirect means. The hollow hearted man, the whited
sepulcher is the last to violate the law. To support the state and be
noisily patriotic is a large part of his stock in trade. As a rule it is
only the weak or the extremely conscientious or devoted that violate the
law, and it does not follow that these or any other class really intend a
wrong or consider it in any such light as their judge, when they commit
an act forbidden by the law.
A very large number of acts of individual violence come from sudden
feeling and passion, which is purely a physical, or more properly, a
mechanical act. Certain motives or feelings operating upon a given brain
produce a given result; whereas operating upon another brain, they might
produce a very different effect. It is like a body in mechanics operating
upon another smaller or larger body. The laws of the universe are not
at work in one place and held in abeyance in another. In these cases
reason and judgment have no opportunity to act. Reflection and conscience
in no wise enter into the affair. Feeling, emotion, passion alone are
responsible for the deed. The human feelings as they sweep through that
uncharted land the human soul, produce infinitely varied results, like
the moving wind, whose sound depends entirely upon the unconscious
instrument with which it toys.
CHAPTER XIII
NATURAL LAW AND CONDUCT
Many of the crimes fixed by law are purely arbitrary. To commit them
or to refrain does not necessarily imply innocence or guilt. Of such
a character, for instance, are revenue laws, the observance of holy
days and the like. A large number of forbidden acts that are generally
supposed to imply moral guilt are also purely arbitrary. Most of the laws
governing the taking and obtaining of property, which constitute the
great burden of our penal code, are arbitrary acts, whose sole purpose
is to keep the great mass of property in the hands of the rulers and
exploiters and to send to jail those who help themselves and who have
no other means within their power to sustain their lives. Most of the
so-called thieves and other offenders against property dimly know this
fact. Without being able to analyze or logically realize it, they, after
all, feel that they have committed no wrong, and that they took the only
road life had left open for their feet.
Nearly our whole criminal code is made up of what may be called property
crimes, or crimes against property, if they may be so called. These
crimes are burglary, larceny, obtaining property by false pretenses,
extortion, and the like. The jails and penitentiaries of every nation
in the world are filled to overflowing with men and women who have been
charged with committing crimes against property. Probably nine-tenths of
all the business of criminal courts come directly from property crimes.
A very large proportion of the balance comes indirectly from this cause.
Nothing could more completely show the humbuggery, knavery and the
absolute hypocrisy of all punishment by the state than the patent facts
with reference to these crimes. From first to last these inmates of
jail and penitentiary, these suffering outcast men are utterly without
property and have ever been. In the penal institutions of the world are
confined a motley throng charged with committing assaults upon property,
and yet this whole mass of despised and outcast humanity have ever been
the propertyless class, have never had aught whereon to lay their heads.
But where is all the property that has been the subject of these dire
assaults? No matter where you turn your eyes in the world, the whole
property is in the hands of a chosen few, and the so-called owners of all
this wealth created by the labor of man and the bounty of nature—these
so-called owners have committed no crime against property. The statement
of the fact is sufficient to show the inequality of the whole system
under which the fruits of the earth are kept in the possession of the
few. These despised and outcast ones have violated no law of conscience
or justice, have committed no unrighteous assault on property. The plain
fact that will one day stand clearly forth to explain the whole brutal
code which is used to imprison and enslave,—the plain reason and object
of these laws is the fact that the rulers who have forcibly seized the
earth have made certain rules and regulations to keep possession of the
treasures of the world, and when the disinherited have reached out to
obtain the means of life, they have been met with these arbitrary rules
and lodged in jail.
* * * * *
The advocates of punishment believe that law controls the natural world.
The movement of the earth about the sun, the changes of the moon, the
rising and falling of the tide, the change of seasons, all these depend
on natural law. It is even known that the distribution of animal life
upon the earth is due to natural law. Certain climates and locations
produce certain animal life. Particular seasons of the year increase or
diminish insect life. The wild fowl flies north in summer and south
in winter. The swarming of bees, the homes of ants, in short all the
activities, lives and deaths of the brute creation are surely seen to be
the subject of natural law. The distribution, growth and decay of plant
life is no less within the realm of law, than is the animal life, which
depends upon the same powers and forces, the same great source of life.
But when man is reached it would seem that the rule of law is at an end.
His life and death, his goings in and out, his myriad acts are due to
no rule or system or law, but are the result of capricious will alone.
True, in many of his acts man recognizes the great force in whose mighty
power he is like the insect, or the grain of sand tossed by the angry
sea. Here and there he seems to dimly understand the great laws of
necessity, of sequence, of consequence, that govern human life. Every
father who takes pains in the rearing of his child, who surrounds it with
the influences that build up character and develop judgment and reason,
recognizes the law of necessity, the controlling power of environment,
the strength of habit and circumstance. The life of tribes and races and
nations show that fixed laws control in the actions of men, as everywhere
else within the realm of nature. Man is a part of nature, the highest
evolution of all, but still a part firmly bound by law to every atom of
matter and every particle of force which the wide universe contains. The
life and death of man, his distribution over the earth, his permanency
as an individual or a tribe, depend upon all other life. Man draws his
sustenance from the animate and inanimate world. The lives of bees depend
upon the flowers, their number and condition, their coming and going;
their birth and death is due to this natural cause outside the control
of the individual bee. The life of man depends upon his supply of food
and shelter, upon his ability to obtain the necessities of life. It
is true that in his progress he is no longer bound so closely to the
earth as in his early stages. He has learned something of the laws of
nature and is able to take some thought for the morrow; but yet famine
destroys him, disease overcomes him; severe droughts, protracted heat,
great inundations of flood, all these affect his life, change population,
destroy vast numbers, always the weaker, those less able to provide
for themselves, those who, from circumstances, have taken the smallest
thought for the morrow.
Even in the most civilized, progressive lands man is dependent on nature.
The constant thought of much the largest portion of mankind is for the
procurement of those things that will sustain, prolong and render their
lives more comfortable. The vast majority of men are closely bound to the
soil and their whole life is a struggle for the means to live. Even the
large majority of those whose condition is the most tolerable, find life
an endless struggle and anxiety their constant companion. Such a thing
as a free choice of life is out of the question for the vast majority
of men born upon the earth; their residence, occupation, hours of labor,
method of life, are fixed almost irrevocably in obedience to the demands
of their physical being. After those whose conditions of life are the
most tolerable, come a great mass whose existence is most precarious,
dependent upon the condition of the harvest, the condition of trade,
the amount of rain or snow, the quantity of sunshine, and a thousand
circumstances far beyond their control.
As a consequence of his desire for life and the means that make it
certain and pleasant, man has ever turned his attention toward the
conquest of nature, reducing vegetable and animal life to his control.
But his conquest does not end here. Not vegetables and animals alone must
be his slaves, but man as well. Ever has man enslaved his fellow; from
the beginning of his career upon the earth he has sought to make his own
existence pleasanter and more certain by compelling others to toil for
him. In its more primitive stages slavery was enforced by the ownership
of the man. In its later and more refined stages it is carried on by
the ownership of the things from which man must live. All life comes
primarily from the earth and without access to this great first source of
being, man must die. Passing from the ownership of individuals, rulers
have found it easier and more certain to own the earth—for to own the
earth is to fix the terms on which all must live. More and more does the
master seek to control access to land, to coal, to timber, to iron, to
water—these prime requisites to life. More and more certainly, as time
and civilization move on, do these prime necessities pass to the few.
Every new engine of production makes it easier for the few to reduce the
earth to their possession. Even land itself is of no value without the
railroads, the harbors, the mines and the forest. Everywhere these have
passed into the hands of the few. From the private ownership of men, the
rulers have passed to the private ownership of the earth and the control
of the land. The rulers no longer have the right to buy and sell the man,
to send him here and there to suit their will. They simply have the power
to dictate the terms upon which he can stand upon the earth. With the
mines, the forests, the oil, the harbors, the railroads, and the really
valuable productive land in the rulers’ hands, the dominance and power
of man over his fellows is absolute and complete. It is not necessary
to show that it is the ruling class who own the earth—the owners of the
earth must be the ruling class.
CHAPTER XIV
RULES GOVERNING PENAL CODES AND THEIR VICTIMS
The rulers make penal codes for the regulation and control of the earth
and all the property thereon—the earth which was made long ages before
they were evolved, and will still remain ages after they are dust. Not
only do they make these rules to control the earth for their brief,
haughty lives, but they provide that it may pass from hand to hand
forever. The generations now living, or rather those that are dead and
gone, fixed the status of unborn millions, and decreed that they shall
have no place to live except upon such terms as may be dictated by those
who then controlled the earth. To retain all the means of life in the
hands of the few and compel the many to do service to support these few
requires the machinery of the state. It is for this that penal laws are
made, and the effort of the despoiled to reach out in their despair and
obtain a small portion of the natural heritage of all, is directly and
indirectly the basis of all property assaults.
Every person who has observed cattle knows that if the pasture is good
the animals are quiet, and will stay where they are placed; but let the
pasture grow thin until hunger comes and they will learn to jump. There
were never cattle so quiet and well behaved that they could not be made
to jump, and never cattle so breachy that they could not be made tame.
Even successive generations of starving and abuse will not so far pervert
their nature but that successive generations of kind treatment will
bring them back to a peaceful, gentle life. Human beings are like cattle
in a field. They are cattle in a field. Give them a chance to live and
prosper, and violent acts will be unknown; but bring them close to the
line of starvation or want and their natural rights assert themselves
above the forms and laws that man has made to hold the earth and
enslave his fellows. Of course here and there may be found cases where
generations of outlawry and exploitation have left their marks upon men,
until they seem to prefer this life; but in those cases fair treatment
would generally remove this in the first generation, and always before
many generations had come and gone.
All energy manifests itself along lines of least resistance, and the
first energies of man are devoted to the procurement of the means of
life. It is only where organized tyranny has made violence and force the
line of least resistance that men will deviate from the normal path,
and so long as the cupidity and brutal selfishness of man shall make
this the line of least resistance, all the laws on earth cannot overcome
the primal instincts and feelings upon which life depends. A race that
would starve, or beg, or accept alms before violating the brutal laws
that fence the children of nature from their source of life, would
quickly degenerate into abject slavery and finally into nothingness. All
so-called criminals do not reason out the cause that placed them where
they are. Instinctively they feel that they are doing what they must.
This class have generally lived for years, sometimes for generations,
so near the border line, have lived such precarious lives that their
callings and avocations have grown as natural and normal as monopolizing
the earth has grown to another class. They are fully aware of the dangers
incident to their craft, of the scanty recompense that their lives
afford, and, like all other men, would at once abandon their calling for
an opportunity to lead more normal lives. They are in no sense devoid
of these common instincts of humanity upon which nature rests all life.
Given a child falling into a river, an old person in a burning building,
a woman fainting in the street, and a band of convicts would risk their
lives to give aid as quickly at least as a band of millionaires.
* * * * *
Nature takes little account of atoms, her operations are on a wide field,
a broad scale. She brings famine, a million men must die; she does not
seem to pick out the individual men—she draws a straight hard line, and
those who step across cannot return. Nature and man combine to make hard
the condition of human life for the great majority that live upon the
earth. A very few choose the roads of luxury and ease; the vast mass
are scattered in all the avenues of life; some serve by abject toil;
some enter the hazardous callings of the railroads and the mines; some
the extra hazardous of making gunpowder and nitro-glycerine; and some
the still more hazardous—these are thieves or burglars or robbers or
prostitutes, as the case may be. Conditions improve, and man moves up in
the scale; the toilers have greater luxury; those in hazardous callings
take an easier place; the extra hazardous rise to the hazardous; and
the still more hazardous to the extra hazardous. The conditions of life
become more severe and the current flows the other way. It is then that
the jails and the penitentiaries are crowded to the utmost limit they
will hold.
Statistics have shown that the number of inmates in our prisons increases
with every rise in the price of food. If a combination increases the
price of flour a cent a pound and ten thousand men are sent to jail
throughout the world, in the judgment of infinite wisdom and justice who
will be held responsible for the crime? Every time that the trust raises
the price of coal some poor victims are sent to jail, and at every raise
in the price of oil some girls are sent out upon the streets to get their
bread by a life of wretchedness and shame.
That these property laws are purely arbitrary is shown by the slightest
thought. The criminal statutes forbid extortion and swindling, and
yet the largest part of business is extortion, and much of the balance
is swindling. When the law forbids extortion and swindling, it simply
forbids certain forms and methods of these acts, and these forms and
methods are the ones not practiced by the ruling class. They are so
small and insignificant as not to constitute business but only petty
annoyance to the ruling class. To go directly to a victim and by threats
of violence compel him to pay more for some commodity than it is really
worth is generally extortion, but this is a very clumsy and infrequent
act. Real extortion is taking for any service more than it is fairly
worth by means of agencies created by the extorter to despoil his victim,
and this is the business of the business world. Nearly every street-car
line and every gas plant in the world operates its business by means
of special privileges, and from one-half to three-fourths of the money
they receive is extorted from that portion of the community that has no
redress. The railroad companies, who, through watered stocks and bonds
and combinations, charge the consumer twice and more the value of the
service given, touch the pocket of everyone who lives in a modern state.
The production of iron, clothing, many kinds of food, in fact the largest
part of what is used in daily life, is controlled by combinations whose
sole purpose is extortion; they scheme to absolutely control the market
and take from the consumers what they have. And yet for this extortion
which reaches every home and despoils every fireside, the law furnishes
no redress. Either it does not come within the provisions of the law or
else those who are charged with its enforcement do not care to reach this
sort of extortion which is the only kind that really affects the world.
In either case it shows that the penal code is made and enforced by the
ruling class, not upon themselves, but to keep the weak at the bottom of
the social scale.
The law forbids swindling at least in certain ways, and yet a large part
of business consists in making the public believe that they are getting
more value for what they give than the tradesman can possibly afford. The
daily papers are filled to overflowing with lying advertisements, each
contradicting the other. Our fences, rocks and buildings are defaced with
vulgar, hideous lies in order to swindle men out of their much coveted
cash. All our merchants and tradesmen frantically call out their lies in
every form, that they may sell their wares for a larger price than they
are really worth. And yet, to all of this, the criminal code has no word
to say. This is not the class of swindlers it was made to reach. The man
who can buy the space of a great paper to tell the wondrous qualities of
the wares he has to sell is not the sort of man to come within the meshes
of the penal code.
People in the jail and people out, when reproached for certain conduct,
almost invariably respond that they have done no worse than some one
else who stands uncondemned, and this retort is true when motives are
fully analyzed and conduct thoroughly understood. The actions of men are
wondrously alike. When we look at the criminal in the jail, or at our
enemy in the street, we do not see the man. This is not due to him. It
comes from the malice, the hatred, the want of human charity that dwells
in our own hearts. Through this fog and mist there can be no clear true
sight. “To the pure all things are pure.” To the just all souls are
really white.
* * * * *
The web of the law reaches so far that there are very few who have not
in some way been touched by its meshes. One infallible proof as to
the real nature of crime and the character of the criminal is open to
almost everyone who wishes to observe. Few men are so poor and outcast
as to have no friends. The victims who cluster around the corridors
and entrances of our jails are as pitiable as those who dwell inside.
To those friends who know him the criminal is a man, a man for whom
they will sacrifice time, money, sometimes honor and even life. If it
is nothing but a poor wife, or a helpless child who has known the kind
heart of a husband or a father, these are there to prove that the wretch
is not a monster, but a man—these are the ones who knew him, who saw his
life, who touched him on the human side, the side that shows the real
true kinship of man. Judges, lawyers, clergymen, physicians, all classes
of men readily come forward and tell of the virtues of the criminal whom
they know, they tell of the extenuating circumstances that led to his
act, or they show that, in spite of these, they understand the worth of
the man. The criminal is always the man we do not know or the man we
hate—the man we see through the bitterness of our hearts. Let one but
really love his fellow and he knows full well that he is not a criminal.
He sees his pulsing heart, he knows his weak flesh, his aspiring soul,
his hopes, his struggles, his disappointments, his triumphs and his
failings, and he loves the man for all of these.
CHAPTER XV
THE MACHINERY OF JUSTICE
The state furnishes no machinery for arriving at justice. Even if it
were possible under any circumstances to judge, and even though men
were really criminals, the state has no way of arriving at the facts.
If the state pretends to administer justice this should be its highest
concern. It should not be interested in convicting men or punishing
crime, but administering justice between men. It is obvious to the most
casual observer that the state furnishes no machinery to accomplish this
result. The penal law simply takes a man into its hopper and grinds out
a criminal at the end. A force of able-bodied, well fed, well paid men
are kept busy in their search for crime. These find pecuniary reward in
the crime of their fellows. An indictment is easily returned against
a friendless man—a suspicion is enough in any case where the victim
has no friends. If he is poor he is at once lodged in jail. Later he
is placed on trial in the courts. When he steps into the dock both
judge and jurors look on him as a guilty man—believe he has committed
crime. He is carefully guarded by officers, like a guilty, hunted thing.
Arrayed against him is an able prosecutor, well paid, and having personal
and political ambitions dependent on the number of men he grinds into
criminals. The prosecutor has ample means for the conduct of the case.
The prisoner, helpless enough at best, is rendered absolutely powerless
to prepare his case by being lodged in jail. Without money he has no
advocate with either the learning, influence or ability to help his
cause. If he is silent he is convicted. If he speaks no one believes his
words. Innocent or guilty, it is a miracle if he escapes, and in this
miracle the fact of his innocence or guilt plays but the smallest part.
Given a few suspicious circumstances, a helpless prisoner, an indictment,
and another victim is the sure result. And in the hands of a shrewd
lawyer, or under the belief of guilt, any circumstances are suspicious
circumstances. Almost all acts are subject to various interpretations,
and the guilt or innocence of a circumstance depends not upon the act
but upon the mind that passes judgment on the act. We look back with
horror at the criminal courts of England, of Spain, of Italy, even upon
our own Puritan judges who sentenced witches to death. These judges were
doubtless as intelligent as our own. Their brutal, cruel judgments did
not grow from a wicked perverted heart, but from the fact that they were
passing judgment on their fellow man. These unjust judgments are the
fruit of the cruel system of force and barbarism which clothes one man
with the authority and power to condemn his fellow. All prosecutions are
malicious, and all judgments are meted out in anger and hatred. Our own
judges are constantly showing this. In nearly every instance they condemn
a prisoner to a term of servitude, and when passion has fled and the sane
and holy feelings of mercy, of charity, of humanity once more regain
their sway, they call on the pardoning power to rescind their cruel
acts. In all these cases of pardons reflection shows the judges that the
punishment meted out was at least too severe. The difference is in the
frame of mind of the judge when engaged in the business of administering
judgment, and when in the mood for listening to those feelings of human
charity which are the diviner part of man.
Punishment, to in any way be justified, should diminish the sum of human
misery, the result of the bitterness and hatred of men. But here, as
everywhere else, punishment falls short. Wherever the judgment of courts
enters it is to corrupt and to destroy. The misery and suffering entailed
on man by scaffolds, racks, blocks, dungeons and jails has never yet
begun to be told. Blood and misery and degradation has marked the
administration of punishment
Since man first penned his fellow men,
Like brutes, within an iron pen.
Let any reasoning being consider the tens of thousands who have
been burned, and hanged, and boiled, and otherwise put to death for
witchcraft; the millions for heresy; the thousands of noble victims who
have suffered for treason; the victims of fire, of torture, of scaffold,
of rack and of dungeon, for all the conceivable crimes since time began.
Let him consider the oceans of blood and rivers of tears shed by the
force and brutality of the rulers of the world; the cruelty, torture
and suffering heaped upon the helpless, the weak, the unfortunate; and
then ask himself if he believes that punishment is good. Even could
violence ever prevent crime, the brutality, suffering, blood and crime
of the rulers has towered mountain high above that of the weak and
obscure victims whose wrongs they have pretended to avenge. And this
cruelty does not abate. It is simple madness that doubts the justice of
past condemnations and believes in the righteous judgments of to-day.
No condemnation is just, and no judgment is righteous. All violence and
force are cruel, unjust and barbarous, and cannot be sustained by the
judgment of men.
But the evil of judgment and punishment does not end with the unfortunate
victim. It brutalizes and makes inhuman all who are touched with its
power. Under the influence of punishments jailers, policemen, sheriffs,
detectives and all who deal with prisons are brutalized and hardened.
The iniquities produced upon helpless prisoners leave their effects upon
the captor as well as the captives. To witness the constant suffering
and indignities of prison life is to destroy the finer sensibilities of
the soul. Men who are otherwise kind in the various relations of life do
not hesitate at cruelty to these despised prisoners whom the law has
placed outside its ban. To underfeed and overwork, to insult, degrade
and beat are common incidents of prison life, and this, too, not because
jailers are naturally cruel and bad, but because prisons are prisons,
and convicts are outcasts. Instead of approaching these unfortunates as
brothers in fellowship and love, their only concern is to make them feel
that the heavy hand of the state has been laid upon them in malice and
violence.
* * * * *
However thoroughly the futility, cruelty and injustice of punishment may
be shown, men will still persist that it must exist. The thought that
society could live without prisons and policemen seems to be beyond the
conception of the common man. If punishment has no effect to diminish or
prevent crime, then no danger would be incurred to dismiss our jailers
and jurors and close our prison doors. The results of this policy can,
of course, not be proven absolutely in advance, but so sure as the
existence of man is consistent with justice, charity and love, so sure is
this policy right and would produce good results. It is not necessary to
prove the theory of non-resistance to show that this policy is practical
to-day. Society, as now organized, rests upon violence and wrong. The
non-resistant pleads for a better order, one in which the law of love
and mercy will be the foundation of every relationship of man with man.
The present unjust system is supported by violence and force. The unjust
possessions of the rich are kept in their place by soldiers, guns and
policemen’s clubs. If these were withdrawn would the weak at once take
the earth and all its fullness from those who for ages have ruled the
world?
No violent and forcible readjustment of this sort could come. Force is
wrong both to commit and to redress evil. In the rule of force the weak
must always fall. For the poor and oppressed to advocate the use of force
means that they must still be the victims, for the strongest force must
win. All that can help the weak is the rule of brotherhood, of love.
Unless this can be proved there is no way to destroy the injustice that
is everywhere the rule of life. To make the weak strong, and the strong
weak, could neither destroy injustice nor permanently change the wretched
order of the world. A bayonet in the hand of one man is no better than in
the hand of another. It is the bayonet that is evil and all of its fruits
are bad.
The world must learn that violence is wrong. Individuals who understand
this truth must take no part in violent acts, whether to enslave or to
free. The inherent cohering forces will hold society together and cause
man to coöperate for his highest good. A large part of present society is
purely voluntary and due to natural law. It is for force and violence and
injustice that the aid of the state is called. Society should not punish.
The great burden that rests upon production to support armies, courts
and prisons with all their endless officers and staggering weight should
be taken from the shoulders of the poor. This of itself would so relieve
industry and add to the possibilities of life that the very hazardous
occupations that we call criminal would almost wholly disappear. The
class from which these victims come is known to be the outcast and the
poor. A small fraction of the vast sum squandered for violence and force
would easily place all these dangerous persons beyond the temptations
of criminal activity. Even now, with all the injustice of to-day, the
expenditure of public money to relieve suffering, to furnish remunerative
employment, to rationally prevent crime by leaving men with something
else to do, would produce better results than all the imagined benefits
that follow in the wake of scaffolds and of jails.
The effort of the penal codes has never been to reach any human being
before violence is done, except to awe him by the brief transitory show
of force; but after the act is done the state must spend its strength
and substance for revenge. Most men are driven to criminal acts from the
necessities of life and the hatred bred by the organized force they meet.
Remove dire poverty, as could be easily done with a tithe of what is
now spent on force; let organized society meet the individual, not with
force, but with helpfulness and love, and the inducement to commit crime
could not exist. Let society be the friend not the tyrant, the brother
not the jailer, and the feeling will be returned a thousandfold. No man
or no society ever induced love with clubs and guns. The emblem of the
state is the soldier, the policeman, the court, the jail. It is an emblem
that does not appeal to the higher sentiments of man—an emblem that so
long as it exists will prevent true brotherhood and be a hindrance to the
higher sentiments that will one day rule the world.
Even if now and then passion and feeling should gain control of
man, this passion and feeling would be brief and transitory; if it
accomplished destruction, no power could make it whole. The concern
of society would then be to call back this soul to saner thoughts and
a truer, nobler life; not to blacken and destroy, nor to plant bitter
hatred and despair in the soul of one who might be brought to a fine and
high realization of human conduct and human life. Under this sort of
treatment a large proportion of those who commit violent deeds would be
brought to a full realization of their acts, and they themselves would
seek in every way to repair the ill effects of their evil deeds.
CHAPTER XVI
THE RIGHT TREATMENT OF VIOLENCE
Sentimental and humane thoughts and purposes are often, perhaps
generally, based on real life, and have a natural reason for their
being. To “turn the other cheek” or to “resist not evil” may seem at
first glance to have no support in the facts of life, but after all that
which makes for a higher humanity, a longer life, and a more vigorous
community, is the true philosophy. To use violence and force upon the
vicious and the weak must produce the evil that it gives. Like produces
like. Clubs, jails, harsh language, brutal force inevitably tend to
reproduce the same state of mind in the victim of the assault. This is
not merely a fact in human nature. It is a fact in all nature, plant and
animal and man. So long as the gentle springtime rather than the cruel
winter brings vegetable and animal life to an awakening earth, just so
long will kindness and love triumph, produce joy and life, where force
and violence bring only evil and death. Harsh treatment kills plant life,
and kind treatment builds it up. Violence and brutality produce their
like in animal life, and kindness tames and subdues. With gentleness and
kindness a swarm of wild bees may be handled and controlled, but approach
them with violence and force and each bee is converted into a criminal
whose only purpose is to destroy.
With all animal life the same rule exists; even those beasts whose nature
calls for a diet of flesh and blood may be subdued in time by gentleness
and love. Man with his higher intellect and better developed moral being
is much more susceptible to kindness and love. Likewise he more easily
learns to fear and hate. Man readily discerns the feelings and judgment
of his fellows, and as readily renders judgment in return. The outcast
and abandoned form not the slightest exception to the rule—they know
and understand the ones who meet them with gentleness and love, for
these they make sacrifices, to these they are faithful, to these they
exhibit the higher qualities that show the possibilities of the soul.
Cases where one convicted of crime comes from a place of safety and risks
his liberty and life to help save his friend are not rare in the least.
True comradeship and loyalty is met quite as often here as in the higher
walks of life. Nothing is more common in ordinary selfish society than to
see one man refuse all aid and help to another in financial need. Many
convicts and outcasts could teach a much needed lesson of loyalty and
generosity to the exemplary man.
No amount of treatment can reclaim an evil heart if the treatment is
administered without love. As children at school we knew with our young
natural instincts the teacher who loved us and the teacher who despised
us—the one awoke feelings of love and kindness, the other hatred and
revenge. No heart is so pure that it may not be defiled and hardened
by cruelty, hatred and force, and none so defiled that it may not be
touched and changed by gentleness and love. Unless this philosophy of
life is true the whole teaching of the world has been a delusion and a
snare. Unless love and kindness tends to love, then hatred and violence
and force should be substituted and taught as the cardinal virtues of
human life. The mistake and evil of society is in assuming that love
is the rule of life, and at the same time that large classes of people
are entirely outside its pale. No parent ever teaches his child any
other philosophy than that of love. Even to quarrelsome playmates they
are taught not to return blows and harsh language, but to meet force
with kindness and with love. The parent who did not depend on love to
influence and mold the character of the child rather than force would be
regarded not as a real parent but a brute. Force is worse than useless
in developing the conduct of the child. It is true that by means of
force the little child may be awed by superior brute power, but he gives
way only under protest, and the violence that he suppresses in his hand
or tongue finds refuge in his heart. Violent acts are not evil—they
are a manifestation of evil. Good conduct is not goodness. It is but a
manifestation of goodness. Evil and goodness can only be conditions of
the inmost life, and human conduct, while it generally reflects this
inmost life, may be so controlled as not to manifest the real soul that
makes the man.
Every child needs development, needs training to fit him to live in
peace and right relations with his fellow man. Every intelligent and
right-thinking person knows that this development must be through love,
not through violence and force. The parent who would teach his child to
be kind to animals, not to ruthlessly kill and maim, would not teach
this gentleness with a club. The intelligent parent would not use a
whip to teach a child not to beat a dog. The child is not made into the
good citizen, the righteous man, by pointing out that certain conduct
will lead to punishment, to the jail or the gallows. The beneficence of
fear was once considered a prime necessity in the rearing of the child,
and this theory peopled the earth with monsters and the air with spooks
ready to reach down and take the helpless child when he wandered from the
straight and narrow path; but this method of rearing children does not
appeal to the judgment and humanity of to-day. The conduct of children
can only be reached for good by pointing to the evil results of hatred,
of inharmony, of force, by appealing to the higher and nobler sentiments
which, if once reached, are ever present, influencing and controlling
life. The code of hatred, of violence and force, too, is a negative code.
The child is given a list of the things he must not do, exactly as the
man is furnished a list of the acts forbidden by the state. At the best,
when the limits of this list are reached and the forbidden things are
left undone, nothing more is expected or demanded. But no code is long
enough to make up the myriad acts of life. Kindness or unkindness can
result in a thousand ways in every human relationship. If the child or
the man observes the written code through fear, the unwritten moral code,
infinitely longer and more delicate, will be broken in its almost every
line. But if the child or the man is taught his right relations to the
world and feels the love and sympathy due his fellow man, he has no need
of written codes; his acts, so far as those of mortals can be, will be
consistent with the life and happiness of his fellow man. And this not
through fear, but because he bears the highest attitude toward life.
* * * * *
With our long heredity and our imperfect environment, even if the
organized force of the state should disappear, even if the jails and
penitentiaries should close their doors, force would only completely die
in course of time. Evil environment and heredity may have so marked and
scarred some men that kindness and love could never reach their souls.
It might take generations to stamp out hatred or destroy the ill effects
of life; but order and kindness most surely would result, because nature
demands order and tolerance and without it man must die. No doubt here
and there these so-called evil ones would arouse evil and hatred in
return, and some sudden act of violence would for a time occasionally
be met with violence through mob law in return. But uncertain and
reprehensible as mob law has ever been it is still much more excusable
and more certain than the organized force of society operating through
the criminal courts. Mob law has the excuse of passion, of provocation,
not the criminal nature of deliberation, coldness and settled hate. Mob
law, too, generally reaches the object of its wrath, while evidence is
fresh and facts are easily understood and unhampered by those rules and
technical forms which ensnare the weak and protect the strong. And unjust
and unwise as the verdicts of mob law often are, they are still more
excusable, quicker, more certain and less erring than the judgments of
the criminal courts.
But neither civil law nor mob law is at all necessary for the protection
of individuals. Men are not protected because of their strength or their
ability to fight. In the present general distribution of weapons, in one
sense, every man’s life is dependent on each person that he meets. If
the instinct was to kill, society as organized presents no obstacle to
that instinct. When casual violence results it is not the weakest or most
defenceless who are the victims of the casual violence of individuals.
Even the boy at school scorns to war upon a weaker mate. The old, the
young, the feeble, children and women, are especially exempt from
violent deeds. This is because their condition does not call for feelings
of violence, but rather awakens feelings of compassion, and calls for aid
and help. The non-resistant ever appeals to the courageous and the manly.
Without weapons of any kind, with the known determination to give no
violence in return, it would be very rare that men would not be safe from
disorganized violence. It is only the state that ever lays its hands in
anger on the non-resistant.
Neither would non-resistance in the state or individual indicate
cowardice or weakness or lack of vital force. The ability and inclination
to use physical strength is no indication of bravery or tenacity to life.
The greatest cowards are often the greatest bullies. Nothing is cheaper
and more common than physical bravery. In the lower animals it is more
pronounced than in man. The bulldog and the fighting cock are quite as
conspicuous examples of physical bravery as the prize-fighter or the
soldier. The history of all warfare shows either that physical bravery is
not an indication of great excellence or that supreme excellence is very
common, in fact almost a universal possession. Under the intoxication
of patriotism, or the desire for glory, or the fear of contempt, most
men will march with apparent willingness into the face of the greatest
danger. Often it requires vastly more courage to stay at home than to
enlist—more courage to retreat than to fight. Common experience shows
how much rarer is moral courage than physical bravery. A thousand men
will march to the mouth of the cannon where one man will dare espouse
an unpopular cause. An army well equipped and ready for action has
less terror for the ordinary man than the unfavorable comment of the
daily press. True courage and manhood come from the consciousness of
the right attitude toward the world, the faith in one’s own purpose,
and the sufficiency of one’s own approval as a justification for one’s
own acts. This attitude is not that of the coward, for cowardice is
really disapproval of self, a consciousness of one’s own littleness and
unworthiness in the light of one’s own soul, which cannot be deceived.
* * * * *
Intelligent men are willing to accept many truths that they believe
are not fitted for the universal acceptance of mankind, and however
they may feel that punishment is wrong they still urge that it will not
do to teach this doctrine to the great mass of men and to carry its
practice into daily life. But sooner or later all conduct and all life
must rest on truth. It is only fact that can form a basis for permanent
theories that tend to the preservation of the race. No one is too poor,
or too young, or too vicious to know the truth, for the truth alone is
consistent with all the facts of life, and this alone can furnish any
rule of life. The truth alone can make free. When society is taught the
truth that it is wrong to punish, to use force, to pass judgment on man,
it will have no need for jails. The man who really knows and understands
this truth can have no malice in his heart, can use no force and violence
against his fellow, but will reach him with love and pity. The man or
society that understands this truth will know that so-called crime is
only so-called crime; that human conduct is what the necessities of life
make of the individual soul. Then in reality, as now only partially, men
will turn their attention to the causes that make crime. Then will they
seek to prevent and cure, not to punish and destroy. Then man will learn
to know that the cause of crime is the unjust condition of human life;
that penal laws are made to protect earth’s possessions in the hands of
the vicious and the strong. Man will learn that poverty and want are
due to the false conditions, the injustice which looks to human law and
violence and force for its safeguard and protection. Man will learn
that crime is but the hard profession that is left open to a large class
of men by their avaricious fellows. When new opportunities for life are
given, a fairer condition of existence will gradually be opened up and
the need for violence and the cause of violence will disappear.
Instead of avenging a murder by taking a judge, sheriff, jurors,
witnesses, jailer, hangman, and the various appendages of the court,—by
taking these and staining their hands with blood and crime, the world
will make the original murder impossible, and thus save the crimes of
all. Neither will the vicious control without the aid of law. Society
ever has and must ever have a very large majority who naturally fall
into order, social adjustment and a rational, permissible means of life.
The disorganized vicious would be far less powerful than the organized
vicious, and would soon disappear.
Punishment to terrorize men from violating human order is like the threat
of hell to terrorize souls into obedience to the law of God. Both mark
primitive society, both are degrading and debasing, and can only appeal
to the lower instincts of the lower class of men. Most religious teachers
have ceased to win followers by threats of hell. Converts of this sort
are not generally desired. The religion that does not approach and appeal
to men along their higher conduct is not considered worthy to teach
to man. And those souls who cannot be moved through the sentiments of
justice and humanity, rather than threats of eternal fire, are very, very
rare, and even should such a soul exist the fear of hell would cause it
still further to shrivel and decay.
Hatred, bitterness, violence and force can bring only bad results—they
leave an evil stain on everyone they touch. No human soul can be rightly
reached except through charity, humanity and love.
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