exact knowledge that marks early societies. Still these societies relied
on punishments just as much as our present law-makers and enforcers,
possibly more, because presumably less enlightened. Further
investigation and experiences with the insane have convinced even the
most casual observer that they function somewhat differently from other
people; there is not the same certainty between stimulus and response.
What they will do and how they will act under given conditions cannot be
foretold with anything approaching the exactness that is possible with
the normal.
The origin of the insanity in many cases is clearly traceable: sometimes
to lesions; sometimes to illness; sometimes to the mode of life;
perhaps more is due to heredity than to any other cause. At any rate in
theory the civilized world has long since ceased to hold the insane
criminally responsible for their acts. This applies only to the clearly
insane. The border-line is impossible to find, and many cases are so
difficult to classify that there is often a doubt as to where the given
patient belongs. In times when the crowd is mad with the mob psychology
of hatred, people are impatient of insanity and do not care whether the
accused was sane or not at the time of the commission of the act. Many
insane are put to death or sentenced to long terms of punishments. Jails
and other penal institutions are constantly sorting their inmates and
finding many who were clearly insane at the time their sentences began.
Society is beginning to find out that even where there is no marked
insanity, many are so near idiocy that they cannot fairly be held
responsible for their acts. The line here is just as vague and uncertain
as with the insane. Thus far, society has not provided adequate
protection for the public against this class; neither has it properly
cared for these unfortunates. It has simply excused their conduct,
except in cases where some act is so shocking that it arouses special
hatred, and then it freely declares that it makes no difference whether
the accused is a defective or not; he is of no value to the world and
should die. Many of this class are put to death. I am inclined to think
that most of those executed are either insane or serious defectives; and
those who say that such people are of no value are probably right. It is
perhaps equally true that few if any are of value, for when value is
considered we are met with the question: "Value to whom, or for what?"
All you can say of any one is that he wishes to live, and has the same
inherent instincts and emotions toward life as are common to all other
men.
Even the legal tests as to insanity and feeble-mindedness are neither
logical nor humane. Often the definition is given by courts that if one
is able to distinguish between right and wrong, he is sane within the
meaning of the law. This definition of insanity is utterly unscientific.
If the insane or the defective above an idiot is questioned specifically
whether certain distinct things are right or wrong, he can generally
give the conventional classification. Often he can tell much better than
the intelligent man, for he has been arbitrarily taught the things that
are right and wrong and has not the originality or ability to inquire
whether the classification is right or how far circumstances and
conditions determine right and wrong.
Conduct is ruled by emotion, and actions depend not upon whether one has
learned to classify certain conduct as right or wrong, but whether from
education, life or otherwise, the thought of a certain act produces a
quick and involuntary reaction against doing it. No one believes or
feels that it is always really wrong to violate some statutes, and most
men indulge in many practices that are wrong and repulsive but not
forbidden by the criminal code.
Furthermore, the insane and subnormal are influenced by punishment and
fear. Even the animal responds to both. It is possible that in many
instances those who are insane and subnormal are influenced by fear more
than the intelligent and normal. The most that can be said is that they
have not the same power of resistance that is given stronger men. This
means only that they have not stored up the experiences of life so well;
that their nervous system has not so well conveyed impressions, or that
their power of comparison is less; this, in turn, means that it will
take greater stress or harder environment to overcome the inhibitions of
the sane than the insane. The treatment of the insane and the defective
is an acknowledgment that all conduct comes from a direct response of
the machine to certain stimuli and the machine can act only in a way
consistent with its mechanism.
In other cases, the courts often recognize the strength of hereditary
defects in nullifying environment with its strict ideas of right and
wrong. The kleptomaniac is generally recognized as being a well-defined
class of the insane. Most of the shop-lifters are women. This is
especially a female crime. It is useless to explain why. It is not a
daring crime; it is secretive in its nature; it requires more stealth
than courage; it especially appeals to women on account of their taste
for the finery exhibited at stores. The kleptomaniac, however, is
generally a rich or influential woman. She steals something she does not
need, and she is therefore held to be a kleptomaniac and not
responsible.
The poor woman who steals something she actually needs is not a
kleptomaniac. I have no doubt that the rich woman who could not resist
shop-lifting is a kleptomaniac. I have just as little doubt that the
poor woman, with an imperfect make, found her environment such that she
was forced to act as she did. If a rich woman is irresponsible and
cannot resist when she steals something she does not need, I can see no
reason why a poor woman is not likewise irresponsible when she takes
something that she needs or must have. The kleptomaniac finds herself in
a position where her emotions and her feelings are too strong for her
judgment and inhibitions. Everyone who acts must act from similar causes
or inducements. There is no special providence in the realm of mind.
There is no room for chance in any natural phenomenon. Possibly the
public will understand sometime, and law-makers and law-enforcers will
place crime and punishment on a scientific basis.
XXVII
SOCIAL CONTROL
Organizations and cults are forever coining new expressions that sound
"pat" and for this reason seem true. As a rule, these terms and phrases
are put in the shape of general statements that may or may not mean
something; but their "pat" sound is used to justify all sorts of
excesses and violations of individual rights. The term "social control"
is met everywhere now. It may imply much or little, according to the
construction of the users. It is meant at least to imply that somewhere
is lodged a power to bring under control or supervision the refractory
or evil elements of society for the well being of the whole. As a rule,
under this phrase anything is justified which seems in some way fit for
the community as a whole. The fact that the restraint interferes with
personal liberty seems to have no bearing on the matter. Social control
necessarily means that the majority of the members of a social unit
shall limit the freedom of action of the individual to conform to its
view. Of course, the majority has the right because it has the power. In
the discussion of political or philosophical questions, "right" means
little more or less than "power." A right must be based upon some custom
or habit with some power to enforce it, or it cannot be claimed. It can
never be enjoyed without the power to obtain it.
The relation of society to the individual has been one long conflict.
This is necessarily true because every human organism has instincts,
feelings and desires and is naturally impatient at any limitations
placed upon it unless self-imposed. On the other hand, organized society
functions to preserve itself, and if the activities of the individual
are hostile to this preservation the individual must give way. Theorists
of various schools are forever propounding social ideas, with the
positive assurance that, if followed, they would work automatically and
heal all social ills. But it must be evident that neither from history
nor philosophy can any such theory be proved. Between the extreme
anarchistic view that each person should be free of control by law, and
the extreme socialistic view of an extension of state organization until
all property and all industrial activity shall be administered by the
state and collectively owned, social life in its relation to the
individual is always shifting. No one can find the proper line, and if
there were a line it would forever change. On the one hand, the power of
the strongest element in social organization is always seeking to
enlarge the province of the state. On the other hand, the individual
unit following the natural instincts for its development is reaching out
for more freedom and life. When the theorists in each camp manage to
push so hard that both can no longer be maintained, the old organization
of society breaks up into new units, immediately to re-form in some new
way.
This struggle of contending forces is a prolific and unavoidable source
of crime. When organized society goes too far, the individual units
rebel and clash with law; when the units swing too far away from the
social organization and defy the power of the state, almost
automatically some sort of a new organization becomes the state. Whether
this new one discards all old forms and laws and acts without the
written law, is of no concern. It at least acts and sets limits to the
individual life. If it were possible for all legislative bodies to meet
and repeal all laws, the state would still remain; the people would live
and automatically form themselves into a certain order and protect that
order either by written law or vigilance committees. At least the people
would act together.
The majority generally has some religious creed, and to it this is all
important. This creed is made up of observances, such as holy days, the
support of the prevailing religion, the condemnation of witchcraft and
magic, and the like. These and other doctrines often have been enforced
upon those who have no faith in the regulations. The enforcement of
such laws in the past has been by the most drastic penalties and has
brought extreme suffering upon the world. No religious organization has
ever seemed willing to confine its activities to propaganda, teaching
and moral suasion; those methods are too slow, and the evils and
consequences of disbelief are too great. Laws of this drastic character
are still part of the penal codes of various states and nations, and
well-organized bodies are always strenuously seeking to extend the
application of such laws and re-enact at least a portion of the
religious code that has been outgrown.
Individuals have likewise found, or at least believed, that certain
personal habits were best for them, for instance, abstaining from
alcohol and tobacco in all forms. Not content with propaganda, they have
sought to force their views upon others, many of whom deeply resent
their interference.
It is not enough that certain things shall be best for the health and
physical welfare of a community. This does not justify the wise
law-giver in making them a part of the penal code. If so, the code would
be very long. No doubt coffee and tea, and perhaps meat, are injurious
to health. Most likely the strength of the community would be conserved
if regular sleeping hours were kept and if great modifications or
changes were made in dress. But this does not justify criminal statutes.
The code must take notice of something more than the general welfare.
Unless the end sought to be attained is very direct and plain and the
evil great so that a large majority believes in the law, it should be
left to education and to other voluntary social forces.
A large part of the community has always attributed many criminal acts
to intoxicating drinks. I am convinced that with such crimes as murder,
burglary, robbery, forgery and the like, alcohol has had little to do.
Petty things, like disorderly conduct, are often caused by intoxicating
liquor, and these land a great many temporarily in jail, but these acts
are really not criminal. Men have been temporarily locked up for
over-drinking. If over-eating had been treated the same as over-drinking,
the jails would often be filled with gluttons. As to health, probably
the glutton takes the greater chance. A very large percentage of deaths
would have been materially delayed except for excessive eating. The
statements ascribing crime to intoxicating drinks have generally been
made by those who are obsessed with a hatred of alcohol. As a rule if
one lands in prison and has not been a total abstainer, his downfall is
charged to rum. Statistics have been gathered in prison often by
chaplains who, in the main, are prohibitionists and interested in
sustaining an opinion. The facts are mainly furnished by inmates of
prisons, a poor source from which to gather facts and draw deductions,
especially as to the cause of crime. Prisoners are interested in only
one thing, and that is getting out. They understand perfectly well what
kind of statistics the chaplain wants and these are given. It is the
nature and part of the protective instinct of everyone to find some
excuse for his acts. Alcohol has always furnished this excuse. It is a
good alibi; it is readily believed, always awakens sympathy and at once
turns the wrath of a provincial community from the inmate of the prison
to the saloon-keeper.
Even if prisoners were unlike others and wished to tell the truth about
themselves, they have not the art and understanding to give the causes
of their plight. No man, however intelligent, can do this, least of all
one of inferior brain power, little education and not trained in dealing
with facts. The prison inmate, like everyone else, knows only that he
followed what seemed to him the line of least resistance, and that every
step in his course was preceded by another and that there was a reason
for what he did. Most likely he does not know the reason. In the hours
of his despair he goes over his life in every detail, at every
crossroad, and at all the forks where paths branch, always wishing he
had gone the other way.
While this is true, he could know neither the dangers that lurked along
other roads, nor the fact that he had no choice about the way he went.
All he knows is that he stumbled along a certain path which led to
disaster. All the paths of life lead to tragedy; it is only a question
as to how and when. With some, the evil day is longer delayed and the
disaster seems not so hard to bear.
In a sense, all the classifications as to the cause of crime are
misleading and worthless. Your existence is the result of infinite
chances and causes appalling in their number. Out of a thousand eggs,
one is fertilized by perhaps one of a billion sperms, and from this you
have been given life. Each of your parents and grandparents and so on,
back for two hundred thousand years of human ancestors, and back to
infinity before man was born, was the result of the same seemingly blind
and almost impossible hazard. The infinitely microscopic chance that
each of us had for life cannot be approximated. All the drops of water
in the ocean, or all the grains of sand upon the shore, or all the
leaves on all the trees, if converted into numbers and used as a
denominator, with one for a numerator, could hardly tell the fraction of
a chance that gave us life.
The causes of human action are infinite, and no cause stands isolated
from the rest. In the first place we cannot tell the meaning of the word
"cause" when applied to a problem of this sort. In law the ordinary
rule for a "proximate cause" is "an event or happening in the direct
line of causation, not too remote, that has led to the result, and
without which the result could not have happened." But this means
nothing. Infinite are the causes which have led to every act, and
without each one of the infinite causes the act could not have resulted.
If it be something that affected a life, and had it not happened then
the life would have drifted somewhere else. In the end it would have
reached the same harbor of Nirvana. But the life would not have been the
same. A drop of water falls on the Rocky Mountains, it trickles along,
going around through pebbles and grains of sand; it joins with others,
meets trees and roots, winds and twists perhaps for hundreds, even
thousands of miles before one can tell by what channel it will reach the
sea. Infinite accidents determine even which sea it shall finally reach.
The most radical advocates of social control are never at a loss to lay
their fingers on causes or to know what would have happened if something
else had not happened; they never hesitate to forbid seemingly innocent
acts because they are certain that evil will follow. They are
contemptuous of one who wants to preserve the semblance and spirit of
freedom.
Life has none too much to offer where men are left to control
themselves, and to be forbidden to follow your inclinations and desires
because sometimes they may result disastrously, is to give up what seems
to be a substance for what is most likely a shadow.
All we can tell about the man whom we are pleased to call a criminal, is
that he had a poor equipment and met certain influences, motives and
conditions, called environment, on his journey. We know that at a given
time the journey has reached a certain point; it has met disaster or
success, or most likely indifference. At a certain point he has reached
a prison or is waiting for the hangman to tie a noose around his neck.
Is heredity responsible? We know of many who apparently started out with
an equipment no better. These may be business men and congressmen and
deacons in the church. While we do not know and cannot know the trend
and relative strength of the instincts in the various machines or the
emotions that these and the whole equipment produced, apparently an
equipment as poor as that of the criminal has met success, or at least
kept its possessor out of jail. Was it then his environment? We have
known men placed in the same environment, perhaps a brother, conquering
difficulties and bringing success from what seemed to promise certain
defeat. Why did one fail where the other conquered? Was it the "will"
that caused one to be the "captain of his soul"? What then is the
"will" and who gave the weak will to one and the strong will to another?
And, if each was born with a certain "will" or the capacity to make a
certain "will", who then is responsible for the result? Or, does the
word "will" mean anything, as usually applied?
All we can tell is that a certain equipment met a certain environment,
and the result was early disaster. A change of even the slightest factor
of environment might have saved the victim from hanging, so that he
could die a respectable and peaceful death from tuberculosis or cancer.
After all, the inevitable tragedy that in some form marks the end is not
so important as the sensations and experiences that one meets on the
road. Life is hopeless and colorless indeed if these experiences are
chosen for the wayfarer and the sensations are enforced or denied, as
the case may be. Nothing recompenses the individual for the denial of
his chance to follow his own path.
XXVIII
INDUSTRIALISM AND CRIME
It was not until about the middle of the eighteenth century that the
desire for the creation and accumulation of property began to rule the
world. Up to that time such small amounts of property as man needed or
coveted had either been produced in a simple manner by himself or taken
in the easiest way.
This new passion has made a large part of the modern criminal code. A
world of warriors, religious zealots and pastoral people could not
readily adapt themselves to the change. Criminal codes were lengthened;
methods of getting property and keeping it were provided for, and other
ways condemned. It must be obvious that it was not easy for man with his
age-old machine, his inherited institutions and his ancient folk-ways,
to adjust himself rapidly to the change. New conditions and laws created
new criminals.
With the growth of the factory system and accelerated industrial
development, an overweening desire for material things was awakened. As
neither individuals nor societies can be possessed of more than one
overpowering emotion at a time, the devotion to property naturally
weakened religious fervor. Religion became more an abstract belief and a
social organization than a vital thing affecting life and conduct. Even
before this time there was growing up in the world a protest against the
religious superstition that had led to the cruelties of the past. The
scientist and the modern philosopher were making their contributions to
the world of thought, and these contributions were slowly affecting life
and conduct.
A doubt of old creeds and doctrines and faiths was coming over the minds
of men. Social conventions were loosening, new customs and habits were
becoming folk-ways. In short, society and life were growing more fluid
and adaptable. The growth of property holdings created new desires and
new temptations. The accumulation of large fortunes brought envy and
hatred and ambition. The rise of industries built the large cities, with
palaces on one hand and hovels on the other. The vast inequality of
wealth and the growth of workers' organizations, together with the
spirit of skepticism which activity always brings, caused large numbers
to doubt the justice of property rights, the utility of many
institutions and the possibility of radical change by social
organization. It is perfectly evident that all of this movement brought
more conflict between social units, a constant lengthening of the
criminal code to protect the interests of the controlling powers, an
increase of prisons, and an apparent if not a real increase of crime.
Nothing but a strong government can long endure great inequality of
wealth or social condition. The slaves of the past civilization were
kept in subjection by main strength and fear. This enslavement was aided
by the deep ignorance of the masses who had no means of information and
nothing but vague feelings of the injustice of their lot. Even then the
poor sometimes revolted, but such outbreaks were generally easily put
down by the sword. The growth of political power and industrial
independence has been accompanied by the constant conflict of social
forces. This means conflict with the law, and the law has always taken
its toll of victims.
New inventions and methods that bring power of any sort carry with them
social clashes, protests, bitterness, conflicts and violations of law.
The invention of gun-powder was the source of great conflict and still
continues to add to the inmates of prisons. From the first, the
far-reaching effects of high explosives were seen by the wise, and
firearms were permitted only in the hands of those who could be depended
upon to support the state. Gradually through the needs of the rulers in
war they were given to the poor. When the American Revolution separated
us from Great Britain, the spirit of democracy and revolt was strong in
the world. A body of peasants had gained independence over the strongest
nation on earth. This body, through its delegates, provided in the
Constitution of the United States that the people should never be
forbidden to bear arms. The cheap production of firearms placed them in
the hands of all who wished to buy. This aided feuds and brawls. It also
gave strength to the burglar and robber.