back to the point in evolution where sexual propagation first began, and
which has been performed equally by both sexes through all the range of
species up to man, and even equally by both sexes of the human species
except during the comparatively short period of higher civilization, is
absurd. The difference between the sexes in degree of sexual
gratification is, _among those who transmit their instincts to
offspring_, not great even under civilization. There is probably more
excess in marriage than outside it. But apart from this fact, the fact
of cross-heredity is to be taken into consideration. The sexual is no
more than any other instinct a separate part of the individual
character; it is organically interwoven with all other instincts and
tendencies; and it is scarcely supposable that thus fused with the rest
of character, it would not be subject, as all other traits, to
cross-inheritance from father to daughter as well as from mother to
son,--that the father's life would not, in many cases, affect his
daughter's propensities, and the mother's life her son's. This _a
priori_ reasoning is supported by facts of observation, among which
those of pathology and criminology are naturally the most marked. Man is
an animal; but, as we have said before, he is not a beast, nor does he
need to imitate the beasts. He has his own social organization and must
determine his own moral laws. The old theory, that any restraint at all
of sexual passion is a crime against nature, and likely to result in
great physical evil, is now exploded. Even if it were true that some
evil to the individual was always the result of any restraint, the good
of the individual is not the absolute criterion of right, and cannot
stand against the claim of society as a whole; the unrestrained
indulgence of sexual passion could no more be justified on this ground,
and because of the fact that it is a natural instinct, than the absolute
indulgence of anger can be justified because anger is a natural passion,
and its expression doubtless a great satisfaction and relief to the
individual. But very many medical men, and among them such men as
Professor Krafft-Ebbing, the German authority on nervous diseases, are
now denying that self-restraint has such evil results as have been
attributed to it. Krafft-Ebbing says, on the contrary, that while
physical excess is very often the precursor of harm, self-restraint is
seldom so, except in cases of abnormal and morbid appetite.[282]
In other countries than the United States and England, the plea of
"poetry" or "romance" is often heard in defence of prostitution, and as
an excuse for the seduction of pure women. But if this is poetry, which
must so end in the bitter misery, the shame, degradation, despair, and
even often the utter destruction of its heroines, then, in the name of
pity, let us have less of poetry and more of common humanity. To a man
of anything but selfish instincts, "poetry" or "romance" could never be
an excuse for connivance at such misery, either by direct act or in any
way by influence. Nor is the poetry or romance of the highest order, in
any case. There is no romance so powerful, no poetry so thrilling, nor
any passion so strong, as that to which all the springs of intellectual
aspiration and moral aim converge, and which draws its sweetness and
force from a purity tainted by no degradation of ideals, galled by no
bitter and humiliating recollections, checked by no self-consciousness
of concealment and deceit. Compared with such a feeling, the romance of
the "man of the world" is tame and flat, his poetry but the doggerel
jingle of the third-rate variety-show. Physical passion the human being
shares with every dog and other brute down to nearly the lowest forms of
animal life; love is as truly of higher species as the aesthetic sense of
the artist is of higher nature than the delight of the savage in gauds.
The old idea that strong emotion of any kind was incompatible with
perfect morality has already been sufficiently discussed. But this
delusion has been the excuse of many a life of profound selfishness. It
has led to the theory that the artistic nature must necessarily be
unrestrained in the gratification of its impulses, and has furnished the
libertine with a fine sense of kinship with the poet through the
imitation of his sins. Perhaps the poetry of the lives of Robert and
Elizabeth Barrett Browning has been to the world as great a
gratification and of as high worth as any that they ever wrote on paper.
It has dispelled once and forever the false theory of the necessities of
the artistic temperament, and has enabled us to perceive the higher
beauty of enduring love.
It is often urged in defence of the sexual sins of the poet or the
musician, that they are natural to his temperament and that, moreover,
he must be acquainted with all phases of life. But why is it not also
urged, then, that he ought to be at liberty to give way to ungoverned
fury, if he has inherited a tendency in that direction, or that he is
justified in committing murder, arson, and all the other crimes in the
catalogue for the sake of the experience and the greater power of
portrayal thus gained? If the excuse suffices for one crime against the
welfare of human beings, it should suffice also for others. Dickens
might possibly have been able to draw the character of Bill Sykes, to
depict his crime and the succeeding emotions with greater power and
faithfulness, had he himself experienced all that which he wished to
portray; nevertheless, society cannot concede that he would have been
justified in killing for the sake of his art; and neither can it
concede, from a higher ethical standpoint, that any other act in direct
opposition to the general welfare is justifiable for the sake of art. It
may be possible for the artist, by torturing a slave to death, to paint
a more realistic picture of dying agony; but however glorious the art,
the man of finer sense and stronger sympathies must be revolted by it.
Society can even better miss a little of its art than take it at the
price of human misery.
But it is to be questioned whether the artist does not lose as much as
he gains, or even more, by an immoral license of any sort. True, the
artist must know human nature; but the best portrayers of criminal
characters have not themselves been criminals; and if ever we should
have a murderer-poet, we should in all probability feel the lack, in his
verse, of various things, among these of the higher realism which
comprehends higher as well as lower types. It is impossible to be merely
the spectator of one's own life even if one is an artist; and especially
is this true where passion is concerned. The emotions one feels, the
acts one performs, must mould one's character, one's thought, opinion,
the mental world in which one lives, and so one's creative genius.
Nature is by no means all dunghill or reptile-haunted swamp, or even
common kitchen; she has also her seas and mountains, and skies, her
fields and woods, and even her sunny gardens and dainty parlors. The
snow-mountain glowing under the flush of dawn is as real as the reeking
dunghill; but the power to appreciate and portray the one may be lost by
too close association with the other, as the fine sense of smell is
dulled by sojourning in foul odors. To the rake, the character of the
self-controlled and virtuous becomes incomprehensible and chimerical;
and his attempts to represent it are likely to be tinged with an
atmosphere of unreality. Of this we have much evidence in literature. To
raise oneself to the higher standard in practice and comprehension
requires an effort; but it is comparatively easy to allow oneself to
sink to a level for which generations of one's ancestors has prepared
innate if latent tendencies. On the other hand, though we desire to know
men and things through art, we desire to keep with us through its aid,
above all, that which most pleases us in the actual world--the beautiful
in form, coloring, and idea, in nature outside man and in man himself;
the good, if it is the truly good, and not cant or hypocrisy, is also
the beautiful, and the loss of the power to portray it is a large one.
And beyond the more easily definable loss which we have noticed, there
is a still further one, felt in a subtle tone, a shade, an atmosphere;
and which, if closely knit with our moral perceptions, is still an
aesthetic as well as a moral one. The evolution of morality, could,
indeed, no more take place without leaving its impress on art than
without leaving it on humor. The higher sense of humor, in very
proportion to its keenness, experiences a revulsion at the grotesque and
gross vulgarity which passes for humor among the savage and
half-civilized; and with time, the immoral comes to revolt too much to
permit of aesthetic enjoyment. Had Dickens been a murderer himself,
instead of the tender-hearted man he was, the world would doubtless have
lost in every way aesthetically as well as morally by the fact. The old
theory of the total emancipation of art from all claims of morality
cannot be maintained from even the aesthetic standpoint, and certainly
not from the ethical standpoint. Art has every right to be non-moral (if
that which delights innocently is ever anything but positively moral),
but it has none to be immoral,--to use the mighty power it possesses in
the cause of evil of any sort.
Nor is it even true that all nature belongs to art. In all its history,
sculpture has never, except in a few isolated cases, reproduced the
forms of the withered and decrepit. The painter of the extreme realistic
school may occasionally portray the scenes of the dissecting-room, but
pictures of sores and ulcers are left to adorn the pages of medical
works or patent-medicine advertisements. There are moral sores and
ulcers as little suited to artistic literature, and belonging properly
to works on social healing alone. The depiction of evil in due
proportion and with such limitations belongs to the accurate
representation of human character. But let its portrayal include no sin
against man; let not the artist dip his hands in the dunghill, for
humanity's sake and also for his art's sake; lest his picture reek of
it, and we find the offal mixed with the colors.
The cant and superstition with which marriage has often been invested
has doubtless been the source of the rebellion of many vigorous and
original minds from the old morality; the morality founded on tradition
and not on reason and sympathy has always this disadvantage.
Undoubtedly, the sale of human flesh for gold or any other sordid
consideration, is evil, whether done under the sanction of the
marriage-law or without it. Undoubtedly also, the marriage-rite performs
no miracle or magic spell, as the superstition of the past has imagined.
Nevertheless, it is of importance as a civil contract, a public
acknowledgment, which furnishes data to the state, and places it in a
position to protect any injured party, and to fix the responsibility for
the maintenance and education of offspring. Considering the number of
individuals whose welfare is seriously concerned in these most intimate
relations of life, with all their passions, the state cannot relinquish
this right of arbitration, which should especially be employed for the
protection of the weaker individuals concerned--the wife and children.
Unfortunately, it has, as yet, too often been used rather in securing
the power of tyranny and abuse than in protecting. This fact is
perceptible even in modern law, as, for instance, in the unequal
divorce-laws of England, and in the fact that wife-beaters are often
treated with great leniency by English magistrates, while the man who
abuses his mistress is liable to relatively severe punishment as having
no especial power over the latter. It is, undoubtedly, the result of
such laws, together with other evils incidental to the average of
marriages under the present conditions of human character, that on some
sides a theory has grown up in favor of the total abolition of marriage.
But neither in its general application, nor in this particular instance,
is the Anarchistic conception which finds the source of all evil in law,
scientifically justifiable. The conditions of the evil lie in human
nature itself, in the incompleteness of its evolution; of the present
stage the injustice of present law is a part. The remedy lies,
therefore, as far as the law is concerned, in its correction, not in its
abolishment.
The ideal of love is enduring faithfulness. But when that ideal is not
only unfulfilled, but marriage brings, instead of happiness, only
misery, shall the bond be indissoluble, difficult, or easy to loose?
In countries where women are wholly dependent upon men, perfect facility
of divorce means substantially the power of repudiation on the part of
men. As long as women are incapable of efficient self-support, the
advantage of very easy divorce lies largely on the side of the husband.
Marriage concerns, in any case, the welfare, not of one person alone but
that of husband, wife, and children, and society as a whole must place
some restrictions on the selfish action of the individual which may be
to the lasting disadvantage of all others concerned. But as society
advances, as the education and social independence of women increase,
too great stringency becomes undesirable, its advantages continually
diminish in comparison with its disadvantages. Forced family relations
where all the affection that might render them for the good of those
thus related is lacking, are obviously in themselves undesirable, and in
most cases where wife and children can be provided for independently of
such relations, an evil to be avoided. Assuredly, it is undesirable that
the moral should be tied indissolubly, or practically so, to the
immoral,--that a mother, for instance, should not only be forced to
bring forth children to a father whose evil qualities they may inherit,
but be compelled to endure the further ruin of their character through
his influence, besides bearing the personal agony of the enforced
companionship with a man whose principles she can but despise. But all
character is at present faulty; and a desire for perfection in husband
or wife therefore certain to disappointment; hence, the relinquishment
of all divorce-restrictions whatsoever is too likely to lead to
promiscuity; and unless such appears desirable to society, neither
public opinion nor state-law can place the power of repudiation in the
hands of individuals. It is a choice of evils; the state must take human
nature as it finds it, and deal with it on this basis. It has sometimes
been proposed to make some substitution for the old form of marriage,
as, for instance, by the adoption of a period of probation, of two,
three, or five years' marriage before the signing of the final
life-contract; by this method, it was proposed to obviate the necessity
for divorce. As far as this last proposal is concerned, it may be
remarked that applications for divorce are by no means always made in
the earlier period of married life, and that, furthermore, any such
arrangement would offer the very best opportunities for the unscrupulous
libertine.
But beyond this, it may be repeated that, as Hoeffding has said, it is
not in the nature of love worthy the name to calculate the possibility
of its own ending, and that the highest form of love is enduring.
Enduring relation must, then, form the ideal on which we must fix our
eyes, even while failing to attain it; divorce, while given in cases
where union seems no longer desirable, must be looked upon as indicating
a failure of marriage to fulfil its end. The influence of an ideal held
in mind is the continual moulding of reality to a form more nearly
resembling it. But to descend to a form of contract which starts with
the assumption of separation as possible or probable is to lose sight of
the ideal, to relinquish it from imagination, and to do away with its
influence upon public opinion, and so upon the evolution of institutions
and habits. We certainly need better divorce-laws and the wider
recognition of the desirability of divorce in many cases, but not the
practical acceptance of an ideal of promiscuity.
The plan of such short contracts could never be carried out practically
for any length of time, in any modern civilized society. Even if adopted
for a time, it would speedily be abolished. Man naturally desires and
takes means of enforcing, at first with the lower means of compulsion,
then with the higher through the sympathies themselves, faithfulness in
woman; woman also, and equally, desires faithfulness in man, but is not
able to secure it. The gradual growth of woman's social independence
must, however, place her more and more in a position to know of the life
of men and to enforce the faithfulness she desires; that is, to punish
unfaithfulness with the same penalties of disability for marriage by
which men have hitherto enforced faithfulness in women. We may easily
perceive that this is the direction of development. In countries where
women are wholly dependent upon men, the character of a suitor in any
respect is a thing little inquired into, the chief object of the
parents, who ordinarily have the most to say about the matter, being to
secure a husband for the girl at any cost. With the progress of society,
women become less and less ready to accept the known drunkard or the
confessed libertine, and it is only the seclusion of women and their
consequent ignorance of the lives of men that makes marriage, at
present, still comparatively easy to the discreet and clever profligate.
The cooerdinate increase of regard for purity in wives with the
aggravation of the character of prostitution, supposed above for the
sake of the discussion, is possible only up to a certain point, as an
oscillation in one direction resistance to which is continually
accumulating, and must result in reaction in the opposite direction. The
two principles are mutually contradictory, incompatible, and impossible
as enduring factors in the same society. The growth of a more widely
diffused and stronger sentiment against prostitution and in favor of
faithfulness has, indeed, as yet led chiefly to the greater exclusion of
prostitutes from association with the rest of society, and made
profligacy more and more secret; but, at the same time, the gradually
increasing sympathy has formed an accumulating resistance which is
rapidly taking shape in the realization that the prostitute is not more
guilty in furnishing the supply than is the man whose demand makes
self-profanation a source of income, that the misery of prostitution is
immoral, and that the only remedy is prevention. There is no alternative
to this remedy that progress can realize except, as has been shown,
general promiscuity. It is best, then, that we should make up our minds
between these two and act accordingly; for the action of every
individual tells, for good or ill, upon society as a whole. What is the
ideal? I think the answer is plain; no man who has any conception of the
higher joys of love which is also friendship, intellectual
companionship, can hesitate; and if this is so, then duty is plain also.
No man has a right to deplore the evil by word who encourages it in any
way by his act.
It is sometimes averred by those who oppose the economic independence
and educational equality of women with men, that women can mingle with
the world on a plane of equality with men only at the sacrifice of all
the chivalry and admiration which men now give to women. But this
objection opposes every step of women's progress, from the harem
upwards, and every step has proved its falseness. True, in the lands
where women are freest, they are less favored with insincere and fulsome
compliments, with vows and protestations which, when put to the test,
mean nothing, or worse than nothing. The case is, however, far otherwise
with the attentions which mark sincere regard, and the consideration
paid by physical strength to comparative weakness. It would, indeed, be
peculiar if higher intellectual powers, a clearer insight into the
"severely true," the cultivation of that nobility of character which
results from self-knowledge through knowledge of others and the habit of
self-reliance, should render women less attractive. The pioneers in any
cause need to be the hardier individuals, and so are often those who
please little aesthetically; and the kicks and scoffs of the world may
take from the disposition what little grace it at first possessed; but
this does not prove the moral rightness of the kicks and scoffs, or the
moral culpability of those who dare to adhere to their purpose in spite
of them. In the countries where excessive difficulties are placed in the
way of women's work in the higher professions (there are very few placed
in the way of her overwork in other directions), these have resulted
naturally in the suppression of effort on the part of the majority of
the more finely constituted and more sensitive, and have left the field
to the hardier and less fine; but in the United States, where women are
freest in every way, they have lost neither in natural grace nor in the
attention and regard of men; on the contrary, they have gained in both,
and they have, furthermore, left the mark of their refining influence on
the whole civilization of the country. As long as women are weaker than
men physically, a higher moral standard must have regard for this
weakness. When, through a more healthful life, women become more nearly
equal to men in endurance, certain forms of attention will be less
necessary, and will, doubtless, fall off somewhat, only to make room for
a higher plane of mutual helpfulness. Yet I doubt whether the time will
ever come when the grace and beauty of women, the associations of love
and the memories of family affection, will not stir men of finer fibre
to peculiar kindness, repaid as the appreciation of women can well
repay.
There is another protest--which comes especially from the party that
most exclaims against the evils of competition--against the
"superstitious" respect for age. The reason is, obviously, that age
tends by nature to conservatism. But the evils of the struggle for
existence are not those alone of outward conditions; these are often far
less hard than the bitter spirit of mental antagonism that sears and
saddens the heart. Youth is daring and originative; middle age is less
venturesome, but it possesses, on the other hand, a wider range of
experience. Between youth and youth, or youth and middle age, the battle
is more equal. But age no longer possesses the power to cope with the
world physically or mentally; it is fixed in habit, and apt to follow
one accustomed round of thought; we are certainly not likely to convince
it by violence. It has borne its share of violence and has done its part
in the battle. It has advanced with its generation, though it may not be
able to advance any longer with ours. Our ideal should certainly be that
of forbearance, not of intolerance towards it.
Modern opinion is becoming dissatisfied with the old methods of dealing
with criminals--with the methods which continually return the criminal
to society not bettered by incarceration, and ready to commit all manner
of crimes again. Both the protection of society and the welfare of the
criminal would be better served by a course of discipline that should
only then give him back to society when he is fitted to live in harmony
with it and to enjoy the advantages conferred by such harmony. Recent
experiments in reformatories have demonstrated the immense advantage of
methods which attempt something like this. Among the improved
reformatories for children, many of them without walls, bolts, or bars,
some have sent out cured from eighty to eighty-five per cent of the
offenders committed to them. The Elmira reformatory deals especially
with offenders sentenced for their first state's prison offence, and its
method is at once eminently humane and remarkably successful. Offenders
may be sent to it at the discretion of the judges. It contains three
grades. Members of the first of these wear better clothing, eat better
food, enjoy various special privileges, and are used, to some extent, as
officers and monitors for the other grades. Members of the second grade
are less well provided for and honored than those of the first; and
members of the third grade are worst clothed and fed, and have the
fewest privileges. Every man who enters the prison is submitted to a
minute examination as to his antecedents, his mental, moral, and
physical condition and capabilities. He is then placed in the second
grade, from which he may go up or down, according to his work and
conduct. Eight hours' work a day are required, and compulsory school is
held in the evening, at which the common English branches are taught,
and elementary instruction given in Law, Political Economy, Ethics, etc.
Discussion and thought on the subjects taught are encouraged, and
everything possible is done to awaken interest. "Perfect" work and
conduct for six months--the standard of "perfection" is high--and a mark
of 75 in a scale of 100 in the school secure a man advance into the next
higher grade; and the same standard maintained for six months in the
highest grade entitle a man to release on parole; so that the term of
imprisonment need not exceed a year. The man must be willing,
industrious, good-tempered, obedient, energetic, who gets release in
this time. Work is found for every man released; he is closely watched
for six months more, and if his conduct does not keep up the standard
required, he is returned to the reformatory and must begin over again;
if, on the other hand, his conduct and work, an attested report of which
must be handed in each month, is satisfactory for these six months, he
is honorably discharged. The obdurate malefactors serve out their full
sentence, as they would in state's prison. Of those who go out from the
institution, eighty per cent return to society reformed; and the
superintendent is of the opinion that this percentage could still be
raised were the time of detention made indeterminate and wholly
dependent upon reform. All prison reformers are coming to recognize the
desirability of such indeterminate sentences. The work of the men at
Elmira pays over two-thirds of the expenses of the institution, and even
if we consider only dollars and cents, this method of dealing with crime
is evidently the cheapest; for under the old method we have to take into
account the expenses of the later crimes of the men released without
improvement of character. The method of parole of first offenders, newly
introduced into France, and in use to some extent in other countries
also, seems to have rather less to recommend it, except in special
cases; since the moral, intellectual, and industrial discipline of the
reformatory are lacking.
In all such reformatory work it may be remarked that hard labor and
stringent discipline, as well as consistent kindness, are found
absolutely necessary; and it is to be noted that the disinclination of
criminals for labor and regularity of life is one of the greatest
obstacles in the way of their reform.[283] Judge Green quotes from Mr.
Hough on this point: "Those who are in control of penal institutions
meet with no more pernicious influence than that exerted by certain
well-meaning but mistaken philanthropists who are impelled by kindly
hearts to slop over with sentiment. No criminal is so hard to reach as
the one who fancies himself injured or has a grievance against society.
Aside from treatment that compels him to feel resentment, there is no
one thing that will so quickly bring this feeling as to have some
tender-hearted, benevolent person tell him that they think his penalty
is far more severe than his offence warrants, especially now that he has
promised to pray regularly and abandon his wicked ways."[284] In
connection with this point, we may notice Bellamy's theory of crime as
Atavism, to be treated in the hospitals. Whether or not we regard crime
as disease, a distinction must be drawn between the disease that may be
regarded as physical weakness and that which does not necessarily imply
such weakness, though it may imply some physical defect in the sense
that the psychical characteristic has always its physical cooerdinate.
We may call the places where our criminals are treated prisons, or we
may call them hospitals; but the name will not alter the fact that
crime, and even the crime the tendency to which manifests itself early
in life and is most incorrigible, needs, for the most part, a wholly
different treatment from that pursued with the sick or the insane.
Discipline and labor may come into play in the insane asylum, and
medicine and hygiene in the prison; but the methods are, nevertheless,
widely separated, and need to be so in order to attain any success.
Bellamy's conception of the character of the criminal by nature--such as
he imagines as alone existing under the conditions of his ideal
state--as rarely untruthful, does not at all accord with the facts of
Psychology and Criminology. Total unreliability is one of the chief
characteristics of the criminal by nature. He lies even where there is
nothing to be gained by lying and often much to be lost; he lies
apparently for the mere pleasure of lying; or he is crafty and cunning,
and the smallest gain suffices to furnish him with a motive for
falsehood. In mankind, as a whole, the love of truth, one of the latest
developments of the moral sense, is likewise one of those earliest lost
in any moral deterioration; and to suppose men, as a rule, strictly
truthful and yet capable of committing crimes of any sort, especially in
a general ideal state of society and morals, is to suppose a
psychological contradiction. Moreover, the antipathy of the criminal to
undergoing the penalty of his crime would still remain as long as the
discipline and labor of the places for criminal treatment were not
abolished; and even the restrictions of incarceration would render the
penalty disagreeable, since liberty is always preferable to confinement.
And if we consider the indefinite sentence, which all prison reformers
now regard as the first condition of the successful treatment of crime,
to be introduced, the reasons for pleading "Not Guilty" would by no
means be removed. But I doubt whether a society of high moral
development would sanction the doubling of the penalty which Bellamy
conceives, as the punishment of simply a lie to escape it.
The question of capital punishment is more difficult than at first
glance appears. One of the arguments often advanced in opposition to
this form of punishment is that the fear of it is no preventive of the
crime of murder (for which alone, in times of peace, it is still imposed
in civilized countries), since murder still takes place. But the
argument in this form is practically worthless; we might as well say
that art exhibitions do nothing to form taste, since many people who
visit them are still lacking in aesthetic feeling. The fact that men have
gone away from public executions and committed murder is more to the
purpose, as an indication that the influence of the spectacle is
probably a bad one. As to the private execution within prison-walls, it
is difficult to suppose that the mere knowledge of it could arouse a
desire for blood, as the sight of it may be imagined to do. If we
abandon capital punishment on this ground merely, ought we not, in
consistency, to do away with all representations of violent death on the
stage and all description of it in fiction, since these things must
affect the imagination full as vividly. The gladiatorial shows of Rome
were doubtless undesirable from a humanitarian point of view, not only
in themselves, but also in their results; and it might be undesirable
for most individuals to accustom themselves to the spectacle of the
butchering of their meat; but, whether or not we agree with the
vegetarians as to the social significance and influence of the use of
animal-food (necessarily, of course, we must concede that every fact has
an influence of some sort, and in some degree, upon the mind), it can
scarcely be claimed that the mere knowledge that beeves are slaughtered
somewhere is likely to influence the mind to such an extent as to lead
to a morbid desire to imitate the deed; nor, the stimulating excitement
of the actual spectacle of execution lacking, is it likely that the mere
knowledge of its actuality should incite to the taking of human life. On
the contrary, it appears far more likely that the would-be murderer
should connect the thought of it with the possibilities of his own
future in case of detection and arrest, and that he should, thus, be
rather deterred from crime by it.
The vital questions appear to be whether we have a right thus to
sacrifice life, and whether the evil which the murderer brings upon
society may not be better prevented in some other way. Leaving out of
consideration, for a moment, a point which will be considered later, the
two questions will be seen to resolve themselves into one. If I should
perceive an innocent man about to be murdered by a villain, who was on
the point of plunging his knife into his victim's heart, and I had in my
hand at the time a loaded revolver, my duty would be plain. I should
have no choice as to the responsibility for one man's life; only the
choice would be left me as to which life I would be responsible for;
and to spare the murderer would be to make myself an accomplice in the
murder. The responsibility lies with every society to do the utmost in
its power to prevent the murder of citizens who are, in the majority of
cases, better men than their murderer; and the life, even, of the
murderer cannot stand out against the life of better men. If, then, the
death sentence is the best preventive of murder, and society refuses to
inflict it nevertheless, it makes itself the accomplice of the murderer
as much as is the man who stands by and permits the knife to be plunged
into the victim's heart, rather than shoot down its wielder. It is not
mercy that spares the guilty to sacrifice the innocent. If, then, we
must be responsible for the death of any man, let it be for that of the
murderer rather than for that of his victims. It is easy enough to say,
as do some on this point, that it should never become a principle of
society to do evil in order that good may come; but as long as there are
conflicting conditions in society, there can be no choice of absolute
good; the only choice is between lesser and greater evils. Forgetting
this, and looking only on the one side of the question on which their
sympathy has especially been excited, reformers are sometimes guilty of
choosing the greater evil in order that a lesser good may come. It is,
therefore, not sufficient to brand capital punishment "a relic of
barbarism," in order to prove that it should be abolished.
The problem of prevention of murder includes various elements: it
includes the question of the possible repetition of the crime by the
individual on trial, the question of his influence by precept and
example, and that of his possible propagation of offspring who may
inherit his evil propensities; and it also includes the question of the
check of fear in other would-be murderers.
It has been claimed that imprisonment for life would act as an effectual
preventive in all these respects. There may be, however, various
objections to this penalty. In the first place, an unconditional
life-sentence without hope of pardon is difficult to establish,
especially in democratic countries; and its justice is doubtful, in case
it were possible. Even if sentences of this sort were to be passed, pity
would be likely to interfere later with their execution. And then the
momentous question arises as to whether it would always be well-directed
pity. The men in whom the right of pardon is vested are not always wise
in their use of it, and in democratic countries they are guided to a
considerable extent by the will of importunate portions of society which
is often still less wise. The sentimentality which now vents itself in
loading down violent criminals with flowers, fruit, gifts of all sorts,
letters, photographs, commiserations for their "misfortune," and even
offers of marriage, is likely to stand in the way of the safety of
society in case the murderer lives. This sentimentality, which in many
countries exalts the criminal into a hero, and in France turns the
police court into a fashionable place of amusement, were it not to be
followed by the dread ending which the sterner members of society exact,
and were the hope of pardon still open, might invest arrest with even
some attractions to the murderer, who is frequently a hero in his own
eyes. The prominence of a desire for notoriety is evident in criminals
of the Jack-the-Ripper and other types. The sentimentality which is
unable to distinguish between a legitimate mercy, and the mercy to the
individual which amounts to the worst of cruelty to many others, is,
indeed, a continual danger to society and a hindrance to useful reforms.
Again, if the criminal be condemned to life-imprisonment, there is
always the possibility of his escape to be considered, and the fact that
he will probably stick at nothing to accomplish his escape. The dangers
of ultimate success may not be so large; our prisons are nowadays
strongly built, the warders and other officers are very seldom open to
bribes, and the proportion of escapes is extremely small. Nevertheless,
the hopelessness of a life-sentence must constitute a strong motive for
the stimulation of effort and ingenuity; and it can scarcely be hoped
that a man who has not before hesitated at murder, and who has no
greater penalty to fear in case of any number of repetitions of the
crime, will hesitate when his liberty and all it means to him of freedom
from irksome discipline and restraint of vice, is at stake. And in case
of escape society has to fear, not only repetitions of the crime, but
also the numberless and complex workings of the criminal's influence on
others, and the propagation of offspring who may inherit his evil
propensities.
And, furthermore, if the sentence of life-imprisonment is carried out,
the murderer's influence on the other tenants of the prison is to be
considered, in case he is not kept in solitary confinement. The
preservation of a large number of desperate criminals, in contact with
the less corrupt ones whose reform is being attempted, has many
objections. Criminals have more than once stated that they learned their
worst principles from companions in prison, and many of our prisons and
many of our reformatories have been called mere schools of vice.
Moreover, in maintaining our desperate criminals, we are spending large
sums for their comfort while hundreds of better men are left to starve,
and thousands are more poorly clothed and fed.
The fact that murder has not increased in some countries where the
death-sentence has been abolished may be admitted as evidence in the
matter, but cannot be regarded, alone, as conclusive. For, first, that
which is for the general good in one country may not be so in another,
the national temperament, form of government, and general habits of
which are different. And, furthermore, it may be said that, although
statistics undoubtedly must have some meaning in all cases, the
complication of social conditions renders it often difficult to say just
what the significance may be in the particular case. In the diminution
of murders, other circumstances may have been at work which would have
lessened the number even if the death-sentence had not been abolished.
At least, experiments with regard to the abolition of the death-penalty
have been too few to render any categorical assertion on the subject
possible.
But some of the above-stated objections to the abolition of capital
punishment might be removed by the provision of separate prisons for
malefactors condemned to life-imprisonment, with separate wards
according to the moral condition of the prisoners, little communication
being allowed between even those in the same ward, or communication only
under supervision, and such instruction being given as would enable the
individual to occupy the hours not devoted to labor in study, reading,
or other mental recreation.
Green, in his book on crime, calls attention to the very undesirable
vindictiveness sometimes aroused, by sentence of death, in the minds of
the condemned and of his friends, and notices the general evil of the
feeling in the minds of criminals that the state is their deadly foe,
defiance of the laws being thus raised to the plane of legitimate
warfare upon an enemy. The Hon. John J. Wheeler, in a paper quoted by
Green, lays especial stress on the desirability of convincing the
criminal that not revenge but the protection of society is aimed at in
state-punishment.
Again, the question may be asked whether the sentimental
tendency to regard the criminal as a hero is not fostered by the
death-sentence--whether the pity aroused at so extreme a fate would not
be inclined to take a less harmful form if the treatment of the criminal
were at once firm and humane but less sensational. Doubtless, the glory
of crime and half its attractiveness for a large class of morbid
criminals would be departed, if we could come to regard the latter with
commiseration as of a lower and abnormal type of humanity and to treat
them as such. But it must be remembered that society, as a whole, is yet
far from so scientific a conception; and that combined firmness and
kindness of treatment is difficult to secure, both in prison-officials
and in those officers who have the power of pardon at present placed in
their hands. We need obviously many reforms in our system of sentence
and pardon, as well as in the management of our prisons. We need more
men like Mr. Brockway of Elmira, Mr. Wardwell of Virginia, and those
other modern reformers of prison-life whose office is to them a matter
of humanity and not merely of business. And especially, we need more
firmness in society as a whole; sympathy and mercy may be evils in the
path of human progress when they deteriorate into a weakness which
sacrifices the innocent in a mistaken humanity towards the guilty. In
order to be well directed, sympathy must consider all men, and not the
individual alone; only then is it an unmitigated good.
But as for the argument noticed above with regard to the employment of
large sums of money for the maintenance of the criminal classes while
the class of honest laborers is yet in destitution, it cannot be
considered, on close inspection, as of great weight. Certainly it would
not be well to maintain the criminal in luxury while other reforms were
waiting. But if we act on the principle of deferring all less important
reforms until all the more important ones are accomplished, we shall be
in danger of not reforming at all. Any reform that is well-timed and
possible is important; for the complication of social relations makes
all reforms of weight in their wider significance. No reforms can or
should be made in a lump; improvement must come from all sides and
little by little; sympathy must be consistent and influence social
conditions in every direction gradually as it gradually increases. It is
the superficial Utilitarianism which bids us wait such a reform as this,
though possible, for another,--the same sort of Utilitarianism which
advocates the introduction of the Spartan custom of preserving only
well-formed and vigorous infants, and advises the administration of
painless poisons to those hopelessly ill and suffering. All these things
have their relation to character, and, therefore, to other social evils,
or reforms.
And here we are brought finally to the consideration of the point
hitherto left out of account,--a point which bears, however, a strong
argument; namely, the fact of the possible condemnation of innocent men
to death. Even since the limitation of capital punishment to cases of
murder the innocent have been hung or guillotined in mistake for the
guilty. And for such mistakes there is no reparation; the grave never
gives up its dead. Men have sometimes been discovered to be innocent in
spite of the strongest evidence against them; human observation is
defective, human memory fallible, human character--especially such as
often appears in evidence against the murderer--by no means always
strictly honorable and honest. Even confessions of guilt have sometimes
been proved false. As with regard to other propositions to place the
power of the life or death of individuals in the hands of their fellow
men, the question presents itself as to whether the use of so great
power is not dangerous. And this appears to me the decisive point of our
inquiry.
Societies are being formed for the abolition of capital punishment, and
feeling is growing strong in its favor. Let us hope, however, that the
reformers will adopt a policy stringent and judicious as well as
merciful;--that they will not forget that, in order to render the
preservation of the murderer harmless to society we need other reforms
in law and prison management.
In general, it may be said of all questions, that the conflict between
the principles of justice and mercy, known to theological Ethics,
resolves itself, from a higher point of view, into the question of
justice only. The mercy which is not justice, is either mercy to one at
the expense of others, or mercy that spares the offender in one respect
to his own greater disadvantage in another. The ideal character is thus
at once gentle and strong.
We have followed the development of altruism from egoism up to the point
where the thought of punishment ensuing upon the non-performance of duty
ceases to play a large part in the motive to action, the reward of the
pleasure of others and of their gratitude and love forming a complex
motive. But beyond even the incentives of love there lies still a higher
motive which, in cases of conflict, must figure as the highest morally.
In an ideal state, the social sanction could not conflict with duty; but
until we reach such a state, the independence of moral motive must be
observed, the moral man must do what appears to him right, in spite of
public opinion. The course has its dangers, and the principle must be
carried out with caution, the questions involving such a course be
carefully considered from all sides and in all lights. But when this has
been done, the sense of duty remains supreme. In the ideal man, the
consciousness of duty performed should constitute the strongest
pleasure, the consciousness of failure in duty the severest pain. This
is the solution of the problem Ibsen gives us in "Rosmersholm"; society
has not advanced from savagery by permitting all pleasures which the
individual desires; nor can it advance further towards the ideal by
permitting the individual to choose those pleasures which the future
shall regard as evidence of our present semi-barbarous state, since they
are pleasures inimical to the peace of others and the general good of
society; as in the past, so in the present and future, the harmony
between pleasure and duty (that is between the conflicting pleasures of
individuals) can be attained only by habit which shall bring the desires
of the individual into harmony with duty. Thus only can all desires, the
happiness of all individuals, attain to harmony,--to "full" equilibrium.
And this leads me to remark that we have reason to doubt the moral
conviction of very many who protest against the "immoral" and
"superstitious" restriction of personal pleasure in certain directions.
Were such individuals morally convinced, were duty to their fellow men
really uppermost in their minds, they would not choose darkness and
secrecy for their deeds, but after careful and thorough statement of
their opinions and reasons would show the earnestness of their belief by
open act. The man whose moral conviction is to him the highest duty does
not fear public opinion, but dares to follow that which seems to him
right, in the face of slander; therefore, we suspect the man who hides
his deeds, of seeking his own pleasure and not that of society as a
whole.
"Conscience is harder than our enemies,
Knows more, accuses with more nicety,
Nor needs to question Rumor if we fall
Below the perfect level of our thought.
I fear no outward arbiter,"
says Don Silva in "The Spanish Gypsy."
But for our encouragement, let us contemplate the heroic characters
which progress has developed. From these we may take hope and courage,
in these we may find the best results of the moral evolution of our
race, and the promise of the better future which man alone can work out
by ever-renewed effort. The love of such characters, and even the
knowledge that they exist, is the highest joy of human association, a
joy which the present age may feel in a degree that no former age has
known; and herein lies the greater beauty of the present time over all
others. The thought of such characters can sustain us even in our own
self-doubt. What man has done, man can do. Nay, he shall do more, much
more.
The question as to the final destruction of the human race, whether by
sudden catastrophe or slow decay, can little affect happiness, at
present, or for very many ages to come. As yet, evolution is in the
direction of a greater harmony that means continually greater pleasure
to life. We have not reached our maximum, we are evolving upwards
towards it. The pessimist is fond of making much of the final end of our
planet; but the healthy and successful will be happy in spite of future
ages, and the extent and degree of happiness will continue to increase
for such an immense period of time that there is no reason for
considering the destruction of our race as exerting any important
influence on ethical theory. The loss of our faith in individual
immortality is a far greater source of present pain. It leaves death a
harder sorrow;--but it lends life new meaning. The good we strive for
lies no longer in a world of dreams on the other side the grave; it is
brought down to earth and waits to be realized by human hands, through
human labor. We are called on to forsake the finer egoism that centred
all its care on self-salvation, for a love of our own kind that shall
triumph over death, and leave its impress on the joy of generations to
come. There is something lost in the dissolution of the old faith to us
who were reared in it. The hope of restitution, to the individual, from
supernatural cause, here or hereafter, is forever done away with. There
is no restitution. In our favorite novel, when the doors are closed and
the lights extinguished, that some unspeakable sorrow may hide itself in
darkness and silence, we can always turn back the leaves till we are
again in the midst of light and music and dancing, and the heart for
which the tragic knife is pitilessly sharpening in the hand of Destiny,
is yet untouched. But in the book of Reality, there is no turning back;
the pages are burned before our eyes as we read. Sooner or later, we all
of us reach the point where that which made life most worth living has
passed away from us forever. There is no help save the knowledge of the
fact, that shall make us all draw closer in sympathy and by mutual
kindness render loss less bitter. As we accept the Truth, and bow our
head to the Inevitable, we may learn a less narrow happiness for this
life and for the Hereafter, from the great pioneers of Scientific Doubt
and pure Humanitarianism, one of whom has written:--
"Oh, may I join the choir invisible
Of those immortal dead who live again
In minds made better by their presence; live
In pulses stirred to generosity,
In deeds of daring rectitude, in scorn
For miserable aims that end with self,
In thoughts sublime that pierce the night like stars,
And with their mild persistence urge man's search
To vaster issues.
So to live is heaven:
To make undying music in the world,
Breathing as beauteous order that controls
With growing sway the growing life of man.
*....*....*....*
This is life to come,
Which martyred men have made more glorious
For us who strive to follow. May I reach
That purest heaven, be to other souls
The cup of strength in some great agony,
Enkindle generous ardor, feed pure love,
Beget the smiles that have no cruelty,--
Be the sweet presence of a good diffused,
And in diffusion ever more intense.
So shall I join the choir invisible,
Whose music is the gladness of the world."
FOOTNOTES:
[275] It should be said, in justice to the play in question, that the
idea of purification by evil was evidently not present to its author.
[276] See Part I. p. 33, this book; "Social Statics," 87-89.
[277] "Le Luxe," p. 2.
[278] "Le Luxe," p. 12.
[279] "Fabian Essays in Socialism," pp. 27, 145, etc.
[280] I have used the word here as elsewhere in its more general, not in
its specific, technical sense.
[281] "Fabian Essays," p. 57.
[282] See "Jahrbuecher fuer Psychiatrie," 1889, "Ueber Neurosen und
Psychosen durch sexuelle Abstinenz."
[283] See essay by Charles Dudley Warner in the "North American Review"
for April, 1885.
[284] S. M. Green: "Crime," Art. III. Chap. V.
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