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.

Resist not evil · 第 5 / 16 章