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.