CRIME

This book comes from the reflections and experience of more than forty years spent in court. Aside from the practice of my profession, the topics I have treated are such as have always held my interest and inspired a taste for books that discuss the human machine with its manifestations and the causes of its varied activity. I have endeavored to present the latest scientific thought and investigation bearing upon the question of human conduct. I do not pretend to be an original investigator, nor an authority on biology, psychology or philosophy. I have simply been a student giving the subject such attention as I could during a fairly busy life. No doubt some of the scientific conclusions stated are still debatable and may finally be rejected. The scientific mind holds opinions tentatively and is always ready to reexamine, modify or discard as new evidence comes to light.

Naturally in a book of this sort there are many references to the human mind and its activities. In most books, whether scientific or not, the mind has generally been more closely associated with the brain than any other portion of the body. As a rule I have assumed that this view of mind and brain is correct. Often I have referred to it as a matter of course. I am aware that the latest investigations seem to establish the mind more as a function of the nervous system and the vital organs than of the brain. Whether the brain is like a telephone exchange and is only concerned with automatically receiving and sending out messages to the different parts of the body, or whether it registers impressions and compares them and is the seat of consciousness and thought, is not important in this discussion. Whatever mind may be, or through whatever part of the human system it may function, can make no difference in the conclusions I have reached.

The physical origin of such abnormalities of the mind as are called "criminal" is a comparatively new idea. The whole subject has long been dealt with from the standpoint of metaphysics. Man has slowly banished chance from the material world and left behavior alone outside the realm of cause and effect. It has not been long since insanity was treated as a moral defect. It is now universally accepted as a functional defect of the human structure in its relation to environment.

My main effort is to show that the laws that control human behavior are as fixed and certain as those that control the physical world. In fact, that the manifestations of the mind and the actions of men are a part of the physical world.

I am fully aware that this book will be regarded as a plea or an apology for the criminal. To hold him morally blameless could be nothing else. Still if man's actions are governed by natural law, the sooner it is recognized and understood, the sooner will sane treatment be adopted in dealing with crime. The sooner too will sensible and humane remedies be found for the treatment and cure of this most perplexing and painful manifestation of human behavior. I have tried conscientiously to understand the manifold actions of men and if I have to some degree succeeded, then to that extent I have explained and excused. I am convinced that if we were all-wise and all-understanding, we could not condemn.

I have not thought it best to encumber the book with references and foot-notes, for the reason that statistics and opinions on this subject are conflicting and imperfect, and the results after all must rest on a broad scientific understanding of life and the laws that control human action. Although the conclusions arrived at are in variance with popular opinions and long-settled practice, I am convinced that they are old truths and are in keeping with the best thought of the time.

I am aware that scientifically the words "crime" and "criminal" should not be used. These words are associated with the idea of uncaused and voluntary actions. The whole field is a part of human behavior and should not be separated from the other manifestations of life. I have retained the words because they have a popular significance which is easy to follow.

CLARENCE DARROW.

Chicago, August 1, 1922.

CRIME

ITS CAUSE AND TREATMENT

I

WHAT IS CRIME?

There can be no sane discussion of "crime" and "criminals" without an investigation of the meaning of the words. A large majority of men, even among the educated, speak of a "criminal" as if the word had a clearly defined meaning and as if men were divided by a plain and distinct line into the criminal and the virtuous. As a matter of fact, there is no such division, and from the nature of things, there never can be such a line.

Strictly speaking, a crime is an act forbidden by the law of the land, and one which is considered sufficiently serious to warrant providing penalties for its commission. It does not necessarily follow that this act is either good or bad; the punishment follows for the violation of the law and not necessarily for any moral transgression. No doubt most of the things forbidden by the penal code are such as are injurious to the organized society of the time and place, and are usually of such a character as for a long period of time, and in most countries, have been classed as criminal. But even then it does not always follow that the violator of the law is not a person of higher type than the majority who are directly and indirectly responsible for the law.

It is apparent that a thing is not necessarily bad because it is forbidden by the law. Legislators are forever repealing and abolishing criminal statutes, and organized society is constantly ignoring laws, until they fall into disuse and die. The laws against witchcraft, the long line of "blue laws," the laws affecting religious beliefs and many social customs, are well-known examples of legal and innocent acts which legislatures and courts have once made criminal. Not only are criminal statutes always dying by repeal or repeated violation, but every time a legislature meets, it changes penalties for existing crimes and makes criminal certain acts that were not forbidden before.

Judging from the kind of men sent to the State legislatures and to Congress, the fact that certain things are forbidden does not mean that these things are necessarily evil; but rather, that politicians believe there is a demand for such legislation from the class of society that is most powerful in political action. No one who examines the question can be satisfied that a thing is intrinsically wrong because it is forbidden by a legislative body.

Other more or less popular opinions of the way to determine right or wrong are found to be no more satisfactory. Many believe that the question of whether an act is right or wrong is to be settled by a religious doctrine; but the difficulties are still greater in this direction. First of all, this involves a thorough and judicial inquiry into the merits of many, if not all, forms of religion, an investigation which has never been made, and from the nature of things cannot be made. The fact is, that one's religious opinions are settled long before he begins to investigate and quite by other processes than reason. Then, too, all religious precepts rest on interpretation, and even the things that seem the plainest have ever been subject to manifold and sometimes conflicting construction. Few if any religious commands can be, or ever were, implicitly relied on without interpretation. The command, "Thou shalt not kill," seems plain, but does even this furnish an infallible rule of conduct?

Of course this commandment could not be meant to forbid killing animals. Yet there are many people who believe that it does, or at least should. No Christian state makes it apply to men convicted of crime, or against killing in war, and yet a considerable minority has always held that both forms of killing violate the commandment. Neither can it be held to apply to accidental killings, or killings in self-defense, or in defense of property or family. Laws, too, provide all grades of punishment for different kinds of killing, from very light penalties up to death. Manifestly, then, the commandment must be interpreted, "Thou shalt not kill when it is wrong to kill," and therefore it furnishes no guide to conduct. As well say: "Thou shalt do nothing that is wrong." Religious doctrines do not and clearly cannot be adopted as the criminal code of a state.

In this uncertainty as to the basis of good and bad conduct, many appeal to "conscience" as the infallible guide. What is conscience? It manifestly is not a distinct faculty of the mind, and if it were, would it be more reliable than the other faculties? It has been often said that some divine power implanted conscience in every human being. Apart from the question of whether human beings are different in kind from other organisms, which will be discussed later, if conscience has been placed in man by a divine power, why have not all peoples been furnished with the same guide? There is no doubt that all men of any mentality have what is called a conscience; that is, a feeling that certain things are right, and certain other things are wrong. This conscience does not affect all the actions of life, but probably the ones which to them are the most important. It varies, however, with the individual. What reason has the world to believe that conscience is a correct guide to right and wrong?

The origin of conscience is easily understood. One's conscience is formed as his habits are formed—by the time and place in which he lives; it grows with his teachings, his habits and beliefs. With most people it takes on the color of the community where they live. With some people the eating of pork would hurt their conscience; with others the eating of any meat; with some the eating of meat on Friday, and with others the playing of any game of chance for money, or the playing of any game on Sunday, or the drinking of intoxicating liquors. Conscience is purely a matter of environment, education and temperament, and is no more infallible than any habit or belief. Whether one should always follow his own conscience is another question, and cannot be confounded with the question as to whether conscience is an infallible guide to conduct.

Some seek to avoid the manifold difficulties of the problem by saying that a "criminal" is one who is "anti-social." But does this bring us nearer to the light? An anti-social person is one whose life is hostile to the organization or the society in which he lives; one who injures the peace, contentment, prosperity or well-being of his neighbors, or the political or social organization in which his life is cast.

In this sense many of the most venerated men of history have been criminals; their lives and teachings have been in greater or lesser conflict with the doctrines, habits and beliefs of the communities where they lived. From the nature of things the wise man and the idealist can never be contented with existing things, and their lives are a constant battle for change. If the anti-social individual should be punished, what of many of the profiteers and captains of industry who manipulate business and property for purely selfish ends? What of many of our great financiers who use every possible reform and conventional catch word as a means of affecting public opinion, so that they may control the resources of the earth and exploit their fellows for their own gain?

No two men have the same power of adaptation to the group, and it is quite plain that the ones who are the most servile and obedient to the opinions and life of the crowd are the greatest enemies to change and individuality. The fact is, none of the generally accepted theories of the basis of right and wrong has ever been the foundation of law or morals. The basis that the world has always followed, and perhaps always will accept, is not hard to find.

The criminal is the one who violates habits and customs of life, the "folk-ways" of the community where he lives. These customs and folk-ways must be so important in the opinion of the community as to make their violation a serious affair. Such violation is considered evil regardless of whether the motives are selfish or unselfish, good or bad. The folk-ways have a certain validity and a certain right to respect, but no one who believes in change can deny that they are a hindrance as well as a good. Men did not arrive at moral ideas by a scientific or a religious investigation of good and bad, of right and wrong, of social or anti-social life.

Man lived before he wrote laws, and before he philosophized. He began living simply and automatically; he adopted various "taboos" which to him were omens of bad luck, and certain charms, incantations and the like, which made him immune from ill-fortune.

All sorts of objects, acts and phenomena have been the subjects of taboo, and just as numerous and weird have been the charms and amulets and ceremonies that saved him from the dangers that everywhere beset his way. The life of the primitive human being was a journey down a narrow path; outside were infinite dangers from which magic alone could make him safe.

All animal life automatically groups itself more or less closely into herds. Buffaloes, horses and wolves run in packs. Some of these groups are knit closely together like ants and bees, while the units of others move much more widely apart. But whatever the group may be, its units must conform. If the wolf gets too far from the pack it suffers or dies; it matters not whether it be to the right or the left, behind or ahead, it must stay with the pack or be lost.

Men from the earliest time arranged themselves into groups; they traveled in a certain way; they established habits and customs and ways of life. These "folk-ways" were born long before human laws and were enforced more rigidly than the statutes of a later age. Slowly men embodied their "taboos," their incantations, their habits and customs into religions and statutes. A law was only a codification of a habit or custom that long ago was a part of the life of a people. The legislator never really makes the law; he simply writes in the books what has already become the rule of action by force of custom or opinion, or at least what he thinks has become a law.

One class of men has always been anxious to keep step with the crowd. The way is easier and the rewards more certain. Another class has been skeptical and resentful of the crowd. These men have refused to follow down the beaten path; they strayed into the wilderness seeking new and better ways. Sometimes others have followed and a shorter path was made. Often they have perished because they left the herd. In the sight of the organized unit and the society of the time and place, the man who kept the path did right. The man who tried to make a new path and left the herd did wrong. In its last analysis, the criminal is the one who leaves the pack. He may lag behind or go in front, he may travel to the right or to the left, he may be better or worse, but his fate is the same.

The beaten path, however formed or however unscientific, has some right to exist. On the whole it has tended to preserve life, and it is the way of least resistance for the human race. On the other hand it is not the best, and the way has ever been made easier by those who have violated precepts and defied some of the concepts of the time. Both ways are right and both ways are wrong. The conflict between the two ways is as old as the human race.

Paths and customs and institutions are forever changing. So are ideas of right and wrong, and so, too, are statutes. The law, no doubt, makes it harder for customs and habits to be changed, for it adds to the inertia of the existing thing.

Is there, then, nothing in the basis of right and wrong that answers to the common conception of these words? There are some customs that have been forbidden longer and which, it seems, must necessarily be longer prohibited; but the origin of all is the same. A changing world has shown how the most shocking crimes punished by the severest penalties have been taken from the calendar and no longer even bear the suspicion of wrong. Religious differences, witchcraft and sorcery have probably brought more severe punishments than any other acts; yet a change of habit and custom and belief has long since abolished all such crimes. So, too, crimes come and go with new ideals, new movements and conditions. The largest portion of our criminal code deals with the rights of property; yet nearly all of this is of comparatively modern growth. A new emotion may take possession of man which will result in the repeal of many if not all of these statutes, and place some other consideration above property, which seems to be the controlling emotion of today.

Crime, strictly speaking, is only such conduct or acts as are forbidden by the law and for which penalties are prescribed. The classification of the act does not necessarily have relation to moral conduct. This cannot be fixed by any exact standard. There is no straight clear line between the good and bad, the right and wrong. The general ways of determining good and bad conduct are of little value. The line between the two is always uncertain and shifting. And, in the last analysis, good or bad conduct rests upon the "folk-ways," the habits, beliefs and customs of a community. While this is the real basis of judging conduct, it is always changing, and from the nature of things, if it could be made stable, it would mean that society was stratified and all hope of improvement dead.

II

PURPOSE OF PUNISHMENT

Neither the purpose nor the effect of punishment has ever been definitely agreed upon, even by its most strenuous advocates. So long as punishment persists it will be a subject of discussion and dispute. No doubt the idea of punishment originated in the feeling of resentment and hatred and vengeance that, to some extent at least, is incident to life. The dog is hit with a stick and turns and bites the stick. Animals repel attack and fight their enemies to death. The primitive man vented his hatred and vengeance on things animate and inanimate. In the tribes no injury was satisfied until some member of the offending tribe was killed. In more recent times family feuds have followed down the generations and were not forgotten until the last member of a family was destroyed. Biologically, anger and hatred follow fear and injury, and punishment follows these in turn. Individuals, communities and whole peoples hate and swear vengeance for an injury, real or fancied. Punishments, even to the extent of death, are inflicted where there can be no possible object except revenge. Whether the victim is weak or strong, old or young, sane or insane, makes no difference; men and societies react to injury exactly as animals react.

That vengeance is the moving purpose of punishment is abundantly shown by the religious teachings that shape the ethical ideas of the Western world. The Old Testament abounds in the justification of vengeance. A few quotations amply show the Biblical approval of this doctrine:

Whoso sheddeth man's blood, by man shall his blood be shed. Genesis 9;6.

No expiation can be made for the land for the blood that is shed therein, but by the blood of him that shed it. Numbers 35;33.

Wherefore should the nations [Gentiles] say, Where is their [the Jews'] God? Let the avenging of the blood of thy servants which is shed, be known among the nations in our sight. Psalms 79;10.

The righteous shall rejoice when he seeth the vengeance; he shall wash his feet in the blood of the wicked; so that men shall say, Verily there is a reward for the righteous, verily there is a God that judgeth in the earth. Psalms 58;10.

And I [God] will execute vengeance in anger and wrath upon the nations which hearkened not. Micah 5;15.

All things are cleansed with blood, and apart from the shedding of blood there is no remission. Hebrews 9;22.

For we know him that said, Vengeance belongeth unto me. ... It is a fearful thing to fall into the hands of the living God. Hebrews 10;30.

True it is often claimed that Jesus repudiated the doctrine of vengeance. The passage of 5th Matthew, 38-30 is often quoted in proof of this assertion—"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." But the gospels and the other books of the New Testament show plainly that non-resistance was not laid down as a rule for the guidance of mankind, but only as a policy by one sect of the Jews and Christians to save themselves from the Romans. The reason for the doctrine was the belief that resistance was hopeless, and that God who had the power would in his own time visit on the oppressors the vengeance that the Jews and Christians were too weak to inflict. Jesus and the early Christians knew of no people beyond their immediate territory, and they did not appeal to mankind as a whole, or to future generations.

The early Christians believed in judging and in punishment as vengeance, the same as the Jews and other peoples believed in it. (See 13 Matthew 41-43, 23 Matthew 33, 25 Matthew 46.) They believed that the end of the world was at hand; that the coming of the Lord was imminent; that some of that generation would not taste death, and that God would punish sinners in his own time. The New Testament is replete with this doctrine, which was stated and elaborated in the so-called "Revelations of St. Peter."

Probably this document was composed about the year 150 A.D. and by the year 200 it was read as "Scripture" in some Christian communities. Subsequently it disappeared and was known only by name until a substantial fragment of the document was discovered at Akhmim in Egypt, in the year 1887. A portion of it represents a scene in which the disciples of Jesus ask him to show them the state of the righteous dead, in order that this knowledge may be used to encourage people to accept Christianity. The request is granted and the disciples are shown not only a vision of the delightful abodes of the righteous, but also a vivid picture of the punishments that are being meted out to the wicked. It is interesting to note how the punishments are devised to balance in truly retributive fashion the crimes mentioned. It is this type of tradition that furnished Dante and Milton the basis for their pictures of hell.

The following is the more interesting portion of this document:

And the Lord showed me [Peter] a very great country outside of this world, exceeding bright with light, and the air there lighted with rays of the sun, and the earth itself blooming with unfading flowers and full of spices and plants, fair-flowering and incorruptible and bearing blessed fruit. And so great was the perfume that it was borne thence even unto us. And the dwellers in that place were clad in the raiment of shining angels and their raiment was like unto their country; and angels hovered about them there. And the glory of the dwellers there was equal, and with one voice they sang praises alternately to the Lord God, rejoicing in that place. The Lord said to us, This is the place of your brethren the righteous.

And over against that place I saw another, exceedingly parched, and it was the place of punishment. And those who were being punished there and the angels who punished them wore dark raiment like the air of the place.

Certain persons there were hanging by the tongue. These were they who blaspheme the way of righteousness, and under them lay a fire whose flames tortured them.

Also there was a great lake full of flaming mire in which were certain men that pervert righteousness, and tormenting angels afflicted them.

And there were also others, women, hanged by their hair over that mire that flamed up, and these were they who adorned themselves for adultery. And the men who mingled with them in the defilement of adultery, were hanging by the feet with their heads in that mire, and they exclaimed in a loud voice: We did not believe that we should come to this place.

And I saw the murderers and their accomplices cast into a certain narrow place full of evil snakes where these evil beasts smote them while they turned to and fro in that punishment, and worms like great black clouds afflicted them. And the souls of those who had been murdered said, as they stood and looked upon the punishment of their murderers, O God, just is thy judgment.

And other men and women were aflame up to the middle, and were cast into a dark place and were beaten by evil spirits, and their inwards were eaten by restless worms. These were they who persecuted the righteous and delivered them up to the authorities.

And over against these were other men and women gnawing their tongues and having flaming fire in their mouths. These were false witnesses.

And in a certain other place there were pebbles sharper than swords or any needle, red hot, and women and men in tattered and filthy raiment, rolled about on them in punishment. These were the rich who trusted in their riches and had no pity for orphans and widows and despised the commandment of God.

And in another great lake full of boiling pitch and blood and mire stood men and women up to their knees. These were the usurers and those who take compound interest.

The noted preacher, scholar and president of Princeton College, Jonathan Edwards, in his famous sermon, "Sinners in the Hands of an Angry God," put in forcible and picturesque language the religious and legal view of punishment as vengeance:

They [sinners] deserve to be cast into hell; so that divine justice never stands in the way, it makes no objection against God's using His power at any moment to destroy them. Yea, on the contrary, justice calls aloud for an infinite punishment on their sins. Divine justice says of the tree that brings forth such grapes of Sodom, "Cut it down, why cumbereth it the ground?" Luke xiii. 7. The sword of divine justice is every moment brandished over their heads, and it is nothing but the hand of arbitrary mercy, and God's mere will, that holds it back.

They are now the objects of that very same anger and wrath of God, that is expressed in the torments of hell: and the reason why they do not go down to hell at each moment, is not because God, in whose power they are, is not then very angry with them; as angry as He is with many of those miserable creatures that He is now tormenting in hell, and do there feel and bear the fierceness of His wrath. Yea, God is a great deal more angry with great numbers that are now on earth; yea, doubtless, with many that are now in this congregation, that, it may be, are at ease and quiet, than He is with many of those that are now in the flames of hell.

So that it is not because God is unmindful of their wickedness and does not resent it, that He does not let loose His hand and cut them off. God is not altogether such a one as themselves, though they imagine Him to be so. The wrath of God burns against them; their damnation does not slumber; the pit is prepared; the fire is made ready; the furnace is now hot; ready to receive them; the flames rage and glow. The glittering sword is whet and held over them, and the pit hath opened her mouth under them.

The God that holds you over the pit of hell, much as one holds a spider, or some loathsome insect over the fire, abhors you, and is dreadfully provoked; His wrath towards you burns like fire; He looks upon you as worthy of nothing else, but to be cast into the fire; He is of purer eyes than to bear to have you in His sight; you are ten thousand times more abominable in His eyes than the most hateful and venomous serpent is in ours. You have offended Him infinitely more than ever a stubborn rebel did his prince: and yet it is nothing but His hand that holds you from falling into the fire every moment; it is ascribed to nothing else, that you did not go to hell the last night; that you was suffered to awake again in this world, after you closed your eyes to sleep; and there is no other reason to be given, why you have not dropped into hell since you arose in the morning, but that God's hand has held you up; there is no other reason to be given why you have not gone to hell, since you have sat here in the house of God provoking His pure eyes by your sinful, wicked manner of attending His solemn worship; yea, there is nothing else that is to be given as a reason why you do not this very moment drop down into hell.

O sinner! consider the fearful danger you are in: it is a great furnace of wrath, a wide and bottomless pit, full of the fire of wrath, that you are held over in the hand of that God whose wrath is provoked and incensed as much against you as against many of the damned in hell: you hang by a slender thread, with the flames of divine wrath flashing about it, and ready every moment to singe it and burn it asunder; and you have no interest in any Mediator, and nothing to lay hold of to save yourself, nothing to keep off the flames of wrath, nothing of your own, nothing that you ever have done, nothing that you can do, to induce God to spare you one moment.

Consider this, you that are here present, that yet remain in an unregenerate state. That God will execute the fierceness of His anger, implies that He will inflict wrath without any pity.

Even though increasing knowledge may have somewhat softened the language of vengeance, still both religion and the law have found their chief justification for punishment in the doctrine of revenge.

The church has constantly taught from the first that God would punish the sinner with everlasting torment. It has taught that all are bad from birth and can be saved only by grace. The punishment to be suffered was as terrible as man's mind could conceive. It would continue infinitely beyond the time when it might be needed for correction or example. In spite of a few humane or over-sensitive ministers, the doctrine persists and is carefully preserved by the church. That the State likewise holds fast to the idea of vengeance, punishment for the sake of suffering, is just as evident. One needs only to note the force and degree of hatred of the good to the one accused of crime, and the zeal that is shown for a man hunt, to realize how deeply the feeling of vengeance is planted in the structure of man. The truth is that it was a part of life before religion and political institutions were evolved.

Still, most people are now ashamed to admit that punishment is based on vengeance and, for that reason, various excuses and apologies have been offered for the cruelty that goes with it. Some of the more humane, or "squeamish," who still believe in punishment, contend that the object of this infliction is the reformation of the victim. This, of course, cannot be urged of the death penalty or even punishment for life, or for very long-term sentences. In these cases there is neither inducement to reform nor any object in the reformation. No matter how thorough the reform, the prisoner never goes back to society, or he returns after there is no longer a chance for him to be of use to the world or to enjoy life.

Those who say that punishment is for the purpose of reforming the prisoner are not familiar with human psychology. The prison almost invariably tends to brutalize men and breeds bitterness and blank despair. The life of the ordinary prisoner is given over to criticism and resentment against existing things, especially to settled hatred of those who are responsible for his punishment. Only a few, and these are the weakest, ever blame themselves for their situation. Every man of intelligence can trace the various steps that led him to the prison door, and he can feel, if he does not understand, how inevitable each step was. The number of "repeaters" in prison shows the effect of this kind of a living death upon the inmates. To be branded as a criminal and turned out in the world again leaves one weakened in the struggle of life and handicapped in a race that is hard enough for most men at the best. In prison and after leaving prison, the man lives in a world of his own; a world where all moral values are different from those professed by the jailer and society in general. The great influence that helps to keep many men from committing crime—the judgment of his fellows—no longer deters him in his conduct. In fact, every person who understands penal institutions—no matter how well such places are managed—knows that a thousand are injured or utterly destroyed by service in prison, where one is helped.

Very few persons seriously believe that offenders are sent to prison out of kindness to the men. If there were any foundation for this idea, each prisoner would be carefully observed, and when he was fit would be returned to the world. Not even the parole laws, which provide various reasons and ways for shortening sentences, ever lay down the rule that one may be released when he has reformed.

A much larger class of people offers the excuse that punishment deters from crime. In fact, this idea is so well rooted that few think of questioning it. The idea that punishment deters from crime does not mean that the individual prisoner is prevented from another criminal act. A convicted man is kept in jail for as long a time as in the judgment of the jury, the court, or the parole board, will make him atone, or at least suffer sufficiently for the offence. If the terms are not long enough, they can be made longer. The idea that punishment deters, means that unless A shall be punished for murder, then B will kill; therefore A must be punished, not for his own sake, but to keep B from crime. This is vicarious punishment which can hardly appeal to one who is either just or humane. But does punishing A keep B from the commission of crime? It certainly does not make a more social man of B. If it operates on him in any way it is to make him afraid to commit crime; but the direct result of scaring B is not to keep him from the commission of crime, but to make him use precautions that will keep him safe from discovery. How far the fear of detection and punishment prevents crime is, of course, purely theoretical and cannot be settled either by statistics or logic. One thing is sure, that if B is kept from crime, it is through fear, and of all the enemies of man, fear is the one which causes most misery and pain.

There are many facts that show that the punishment of one does not deter others. Over and over again crimes are committed, by the young especially, that resemble in every detail a previous crime which has received large publicity through the newspapers, often through the hanging of some culprit. Even the unthinking public, always clamoring for severe penalties, does not believe that the example of punishment deters. The public forbids the exhibition of pictures of hangings and of crimes. Somehow, vaguely and dimly as most men see everything, the public realizes that instead of punishments preventing crime, punishments suggest crime. In the olden days when men admitted that vengeance and punishment went together, they were at least more logical, for executions were in the open light of day so all might see and be deterred.

But this sort of punishment was abolished long ago. Now executions are behind tightly-closed doors, often before day-break, with no one present but a doctor to pronounce the victim dead, a preacher to try to save his soul, and a few favored guests. The most humane individuals advocate suppressing the stories in the newspapers, beyond an obituary notice for the deceased, and forbidding the publication of the details of the crime and its penalty. So far as this succeeds, it is a confession that punishment does not deter, but instead suggests and encourages crime. The idea that crime is prevented by punishment, if believed, would be followed by requirements that the young should visit prisons that they might realize the consequences of crime, and that all executions should be public and should be performed on the highest hill.

So much has been written about the decrease of crime that follows the reduction of penalties, and likewise about the numerous crimes of violence which generally follow public hangings, that it is hardly necessary to recall it to the reader. The fact is, those who say that punishment deters have no confidence in their own statement.

The operations of the human mind have always been clouded in mystery and obscurity. The effect of what is seen and heard and felt has never been certain. The great power of suggestion, especially with the young, is only now beginning to be understood. Many things can be done by suggestion. The immature brain records everything that the senses carry to it through the nerves; these records, through lively imagination, are constantly suggesting and urging to action. All good teachers and observing parents know its power and, so far as such matters can be proved, it seems clear that the details of crime and punishment reproduce themselves over and over again by the suggestion carried to the mind, especially with the young. There is every reason to think that suggestions of crime will affect the mind as much as suggestions of adventure, love or war.

Does it then follow that no one shall be restrained from freedom on account of either his actions or his nature? It is really idle to ask this question. No matter what one may think of the so-called criminal and his responsibility, or quite regardless of whether we feel pity or hatred, the great mass of the community will not suffer one who has little self-control to interfere seriously and directly with the peace and happiness of the community in which he lives. Whether by the action of the law or by vigilance committees, some men will not be allowed to be at large. Doubtless under proper treatment and environment most of this sort of anti-social conduct would disappear, but for many years to come it will remain.

Taking away the liberty of another has only one justification. The great mass of people in any community must and will act for self-defense. It needs no fine-spun theories to justify it. Hatred should have nothing to do with it. The conduct of man in this regard is only like that of the animal which destroys the one that is inimical to the pack or herd. The self-protection of the group is the same as the self-protection of the individual. Both the group and the man will save their lives against a lunatic or any other menace, regardless of the nature of the menace.

Punishment, in the proper meaning of the term, cannot be justified by any reasoning. Punishment really means the infliction of pain because the individual has wilfully transgressed. Its supposed justification is that somehow the evil done is atoned for, or made good, or balanced if the author of the evil shall suffer pain. Punishment means that the suffering by the victim is the end, and it does not mean that any good will grow out of the suffering. It seems as if the question only needed to be stated for right-thinking men to deny the validity of punishment.

It may be argued that whether the victim is punished or simply restrained can make no difference. In this lies the whole difference between scientific and humane treatment of the unfortunate, and the vengeful punishments that have always been visited by the strong upon the helpless and the weak. Society restrains the imbecile, the dangerously insane, the victims of deadly, contagious diseases. All these are restrained without any feeling of hatred, but with pity and understanding. Society does not keep one of these persons under restraint after he has sufficiently recovered to make it safe to return him to the community; neither does it release one until he is safe. It uses the best methods for his treatment that may make him fit to live with his fellows, and the best efforts to place him in a proper environment when discharged. Neither does any disgrace nor humiliation nor handicap attach to the unfortunate when discharged. In a sense, the attitude of mind held by the group toward the "criminal" is the whole question. From this everything follows, and without it change or humanity or hope is not possible.

It is true that insane asylums, homes for the feeble-minded, and hospitals are not what they should be, nor what they will be some day. All of this is not due to the attitude of the mind of the public, but is due to the method of administration which is not within the scope of this book. If justice and humanity shall ever have to do with the treatment of the criminal, and if science shall ever be called upon in this, one of the most serious and painful questions of the ages, it is necessary, first, that the public shall have a better understanding of crime and criminals.

III

RESPONSIBILITY FOR CRIME

It is only lately that we are beginning to find out anything about the origin and nature of man. Laws have come down to us from old customs and folk-ways based on primitive ideas of man's origin, capacity and responsibility. It has been generally assumed that man was created different from all the rest of animal life; that man alone was endowed with a soul and with the power to tell good from evil; that in the beginning man was perfect but yielded to temptation, and since then has been the subject of an everlasting contest between the powers of light and the powers of darkness for the possession of his soul; that man not only knew good from evil, but was endowed with "free will," and had the power to choose between good and evil; and that when he did wrong he deliberately chose to do so out of an abandoned and malignant heart; and that all men alike were endowed with this power and all alike were responsible for their acts.

The old indictments charged that: "John Smith, being a wicked, malicious and evil disposed person, not having the fear of God before his eyes, but being moved and seduced by the instigation of the devil etc." It followed, of course, that John Smith should be punished or made to suffer, for he had purposely brought all the evil on himself. The old idea is still the foundation of the world's judgment of men, in court and out. Of course this idea leaves no room for mercy and understanding. Neither does it leave any chance to give the criminal the proper treatment for his defects which might permit him to lead a normal life.

As a matter of fact, every scientific man knows that the origin of life is quite different from this; that the whole current conception of the individual and his responsibility is a gross error; and that no correct judgments can be based on the old foundation; that no sane treatment of crime can follow this assumption of man's origin and nature; that the result of this foundation is almost infinite injustice and cruelty to a large and constantly growing number of men and women; and that it tends to endless injury and evil to society. The conception of man and the treatment of crime and criminals by the courts is not better nor more scientific than was the old-time doctors' treatment of physical ailments by magic, incantations and sorcery.

The origin and development of all animal life is the same. In fact, the development of plant life is on a similar pattern. The origin of a human being is a simple cell, an egg. This cell is fertilized and through growth after fertilization begins dividing and building and taking on the form and semblance of a human being. All children have the same origin, the same development and the same pattern, yet no two are alike. Each has a distinct and different equipment from any of the others. The size of the body, real and potential; the size and fineness of the brain; the delicacy and sensitiveness of the nervous system; the innate instincts upon which conduct mainly rests; the emotions which control action and which flow from the structure—in short, the degree of perfection and imperfection of the machine is all hidden in the original cell. No well-informed person now thinks of questioning the fact that the main characteristics of the human being, as of every other animal and plant, are hidden in the germ or seed from which it sprang.

The laws of growth and development which govern organic matter were not made for man and do not except man. Life begins with the cell and evolves according to pattern. If the cell is that of a human being, it will be black or white, male or female, tall or short, intelligent or stupid, sensitive or stolid; it will develop a large or a small brain, a fine one or a poor one, a sensitive nervous system or a defective one; it will be ruled by instincts that are all-powerful and controlling, and even the color of the hair and eyes are in the pattern. The whole structure, potentially, is in the original cell, and infinite knowledge could tell how the structure would respond to sensations as it passed through life.

It is obvious that the kinds and differences of human structures are infinite. It is no more possible for all men to respond equally to the same stimulus, than it is for all machines or all animals to respond alike. It is apparent that not one of the structures can ever work perfectly, and that from the best down to the poorest structures are infinite degrees of perfection, even down to the machine that has no capacity for any kind of work.

No ordinarily intelligent farmer doubts for a moment that all of this is true in the breeding of stock. He would never expect the same results from various breeds of cattle or even from all cattle of the same breed.

There is no exception to the rule that the whole life, with every tendency, is potential in the original cell. An acorn will invariably produce an oak tree. It can produce no other tree, and it will always develop true to its own pattern. The tree may be larger or smaller, more or less symmetrical, stronger or weaker, but always true to the general pattern of the oak. Variations will be certain, due in part to heredity and in part to environment.

That the baby had nothing to do with its equipment will readily be admitted by everyone. The child is born with a brain of a certain size and fineness. It is born with a nervous system made up of an infinite number of fine fibers reaching all parts of the body, with fixed stations or receivers like the central stations of a telephone system, and with a grand central exchange in the brain. If one can imagine all of the telephone wires in the world centered in one station, he may have some sort of a conception of the separate nerves that bring impressions to the brain and send directions out from it, which together make up the nervous system of man. None of these systems is perfect. They are of all degrees of imperfection down to the utterly useless or worse than useless system. These nerves are of all degrees of sensitiveness and accuracy in receiving and transmitting messages. Some may work well, others imperfectly. No one is much surprised when an automobile, equipped with a mechanism much simpler than the nervous system, refuses to respond properly.

The child is born without knowledge but with certain tendencies, instincts, capacities and potential strength or weakness. His nervous system and his brain may be good or bad—most likely neither very good nor very bad. All of his actions both as a child and as a man are induced by stimulation from without. He feels, tastes, sees, hears or smells some object, and his nerves carry the impression to his brain where a more or less correct registration is made. Its correctness depends largely upon the perfection of the nervous system and the fineness of the material on which the registration is made. Perfect or imperfect, the child begins to gather knowledge and it is stored in this way. To the end of his days he receives impressions and stores them in the same manner. All of these impressions are more or less imperfectly received, imperfectly conveyed and imperfectly registered. However, he is obliged to use the machine he has. Not only does the machine register impressions but it sends out directions immediately following these impressions: directions to the organism as to how to run, to walk, to fight, to hide, to eat, to drink, or to make any other response that the particular situation calls for.

Then, too, stimulated by these impressions, certain secretions are instantly emptied from the ductless glands into the blood which, acting like fuel in an engine, generate more power in the machine, fill it with anger or fear and prepare it to respond to the directions to fight or flee, or to any type of action incident to the machine. It is only within a few years that biologists have had any idea of the use of these ductless glands or of their importance in the functions of life. Very often these ductless glands are diseased, and always they are more or less imperfect; but in whatever condition they are, the machine responds to their flow.

The stored-up impressions are more or less awakened under stimulation. As life goes on, these stored impressions act as inhibitions or stimulations to action, as the case may be. These form the material for comparisons and judgments as to conduct. Not only are the impressions imperfect and the record imperfect, but their value and effect depend on the brain which compares and considers the impressions. From all this mechanism, action is born.

That man is the product of heredity and environment and that he acts as his machine responds to outside stimuli and nothing else, seem amply proven by the evolution and history of man. But, quite aside from this, logic and philosophy must lead to the same conclusions. This is not a universe where acts result from chance. Law is everywhere supreme. Every process of nature and life is a continuous sequence of cause and effect. No intelligent person would ever think of an effect in the physical world which did not follow a cause or causes. It has taken man a long time to find this out. The recurrence of the seasons, the seed-time and harvest, the common phenomena of Nature, were once supposed to be outside the realm of cause and effect and due to the whim of some powerful being. But the laws of matter are now coming to be understood. Chance, accident and whim have been banished from the physical world. The acts of men alone are supposed to be outside the realm of law. There is a cause for the eternal revolution of the earth around the sun, for the succession of seed-time and harvest, for growth and decay; but not for the thoughts and actions of man.

All the teaching of the world is based on the theory that there is no free will. Why else should children be trained with so much care? Why should they be taught what is right and what is wrong? Why should so much pains be taken in forming habits? To what effect is the storing of knowledge in the brain of the child, except that it may be taught to avoid the wrong and to do the right? Man's every action is caused by motive. Whether his action is wise or unwise, the motive was at least strong enough to move him. If two or more motives pulled in opposite directions, he could not have acted from the weakest but must have obeyed the strongest. The same motives applied to some other machine might have produced an opposite result, but to his particular structure it was all-controlling. How any special motive will affect any special machine must depend upon the relative strength of the motive and make of the machine. It is for this reason that intelligent people have always taken so much pains to fortify the machine, so that it would respond to what they believed was right. To say that one could ever act from the weakest motive would bring chaos and chance into a world of method and order. Even punishment could have no possible effect to deter the criminal after release, or to influence others by the example of the punishment. As well might the kernel of corn refuse to grow upward to the sunlight, and grow downward instead.

Before any progress can be made in dealing with crime the world must fully realize that crime is only a part of conduct; that each act, criminal or otherwise, follows a cause; that given the same conditions the same result will follow forever and ever; that all punishment for the purpose of causing suffering, or growing out of hatred, is cruel and anti-social; that however much society may feel the need of confining the criminal, it must first of all understand that the act had an all-sufficient cause for which the individual was in no way responsible, and must find the cause of his conduct, and, so far as possible, remove the cause.

IV

ENVIRONMENT

The acorn will inevitably produce the oak tree and it will grow true to its pattern. All seeds and cells will do likewise. Still if the acorn is planted in good soil, where it is properly nourished and in a spot where it is sufficiently sheltered, the tree will be more likely to become large and symmetrical, than if it is planted in poor soil or in an exposed spot.

In one sense heredity is the seed, and environment the soil. The whole structure and pattern and inherent tendencies and potentiality are in the seed and cannot be changed. The child has nothing to do with its early environment during the period when impressions sink the deepest and when habits are formed. It is then that the meaning of facts is interpreted. At this time the child is fashioned by the teachings and environment in which it is placed. As the child receives its first impressions, and all along through its development, it is forming habits from those about it. These habits come to be strong, dominating forces in its life. Very few people, if any, can trace definite views of conduct or thought to their conscious effort, but these are born of their structure and the environment that formed their habits after birth.

The fact that an individual's political and religious faith depends almost entirely on his place of birth and early youth, shows the strength of environment in forming and shaping opinions and beliefs.

As the child grows and develops, it is influenced by all that surrounds it. The human machine moves in response to outside stimulation. How it will move depends upon two things, the character of the stimulant and the machine to which it is applied. No two machines will act exactly alike from the same stimulus. Sometimes they act in diametrically opposite ways. For instance, under the same stimulation, one may run and another may fight, depending perhaps on the secretions that the ductless glands empty into the blood.

No machine can act except according to its make-up. Even an ignorant person, who finds that the same stimulant produces different results on different machines, would know that the structures are not the same.

Endless discussions have been devoted to the relative importance of heredity and environment in human conduct. This is a fruitless task. In a sense, each one is of supreme importance in the outcome of a life. It is obvious that some structures are so perfect that almost no environment will overcome them. Instances of strong men developing out of poor environment are not rare. Many of these may be subject to doubt as to whether the heredity caused the strength, for the smallest particle of luck at some special or vital time may make all the difference possible in the outcome of a life. While some heredities withstand a poor environment, others are so poor that, no matter how good the environment, the machine cannot survive. An idiot is an illustration of one whom environment cannot change. No heredity will overcome the hardest environment. The old saying, "every man has his price," is true in this sense, that every machine will stand just so much and no more. Some machines reach the breaking point soon and some later, but all have their limit. Most people have a heredity that is not the best nor yet the worst. Given an imperfect machine, they are thrown into a certain environment, and then up to the capacity of their machines the outcome depends entirely on the environment. Given an environment easy enough they will succeed, or at least "get by." Given a hard environment they will fail, or "go down." Tens of thousands of men live in a comparatively easy environment and pass their lives as useful citizens with no taint of criminality to their names, who under a hard environment would be found in prison. On the other hand, perhaps most of the inmates of prisons would have lived as respected citizens if their environment had not been so hard. Heredity has everything to do with making the machine strong and capable, or weak and useless; but when the machine is made and thrown on the world in its imperfect shape, environment has everything to do in determining what its fate shall be.

V

ADJUSTING HEREDITY AND ENVIRONMENT

Most people live a narrow existence. Perhaps the great majority of men and women find their safety in this kind of a life. The adjustment of heredity and environment is not an easy task to one who lives an unsheltered life. The ordinary person, thrown on his own resources, is poorly equipped for existence. His opinions on most matters are not sound. He uses poor judgment as to how he shall spend the little money he gets. He is generally driven by debts and harassed in all his efforts to get a living. A large family adds to his trouble and his existence is a constant struggle with what, to him, is an almost hopeless fate.

Industrial conditions for the most part are relentless and hard. The poor man is thrown into competition with his fellows for work. He may get along when work is easy to get and wages are good, but in dull times he falls behind, and is in hopeless trouble. His life is a long, hard struggle to make adjustments to his environment, and it is not strange that he goes down so often before the heavy task. Failure to make proper adjustments directly and indirectly often means prison to him.

Again, the ordinary and especially the weak man is hopelessly puzzled by his environment. It must never be overlooked that man has a lowly origin. The marks of his humble birth are in his whole structure and life. His make-up has been the work of the ages. He is a late development of a life that knew nothing of law, as law is understood today. His ancestors were hungry and went out after food, they killed their prey and took their food by main strength whenever they had the power. They were subject to certain customs which were very strict, but which were few and did not seriously complicate life. They knew only the law of force. Their existence was simple and primal, and they were governed by no "rights," except such simple ones as were made by might and custom.

Civilization is a constant building-up of limitations around heredity; a persistent growth of environmental control as it progresses, or at least moves along. This structure, especially the legal structure, is built by the more intelligent and always by the strong men. It is always shifting and moving, and it is impossible for the inferior man to adjust his emotions and his life rapidly to the changes. Things which are not condemned by his feelings of right and wrong are condemned by laws that meet with no response from his emotions and moral ideas. To him at least these are not different from the things that are done by others with impunity and without rebuke. Especially is this true of the rapidly growing class of property laws that have had no counterpart in the early history of man. This list has grown so fast that it is beyond the power of a large class of men to find in their feelings any response to many of these criminal statutes. The ever-growing social restrictions are of the same modern growth, and it is equally impossible to feel and understand them. What we call civilization has moved so fast that the structure and instincts of man have not been able to become adjusted to it. The structure is too cumbersome, too intense, too hard, and if not breaking down of its own weight, it is at least destroying thousands who cannot adjust themselves to its changing demands. Not only are the effects of this growing body of social and legal restrictions shown directly by their constant violation, generally by the inferior and the poor, but indirectly in their strain on the nervous system; by the irritation and impatience that they generate, and which, under certain conditions cause acts of violence.

VI

PSYCHOLOGY OF CRIMINAL CONDUCT

No one can understand conduct without knowing something of the psychology of human action. First of all, it must be understood that reason, which so many have idealized and placed in control of the human machine, has little to do with the actions of men. It is a common habit with most men to find fault with and bewail the fact that human beings do not act from reason. However much the truth is impressed upon us, we never seem to realize that the basis of action is in instinct and emotion. It is really useless to quarrel with Nature. Whether it would have been better to have made man some other way is not worth discussing. He has been evolved in a certain way and we must take him as he is. Our impatience with the method that Nature has provided for influencing human conduct is largely due to our idea of the meaning of life.

Man has fancied himself in a position in the animal world that facts of life and nature do not sustain. We seem to feel that man has some high calling; that he should make something of himself which cannot be accomplished; that he should form some sort of a perfect order that he never can reach; in short that man has a purpose and a mission. It is manifest that all we know is but a mite compared with the unknown, and it may be that sometime a purpose will be revealed of which man never dreamed. Still from all that we can see and understand, Nature has but one desire, and that is the preservation and perpetuation of life. This is its purpose or, rather, its strongest urge not only with men but with all animal life. Sometimes to create one fish a million eggs are spawned. Nature is profligate both in spawning life and compassing its destruction. In the human species the capacity for life is immeasurably beyond its fruition. A large portion of those who are born die an early death. And that human life shall not be extinct, Nature plants the life-giving desire deep in the constitution of man. The creation of life comes from an instinct so profound and absorbing that it carries a train of evils in its wake. Many are overweighted by the sex instinct to their positive harm. Nature somehow did not trust such a fundamental duty as the preservation of the race to reason. If intellectual processes were responsible for life, the world no doubt would soon be bare of animate things. Neither could the care of the young be trusted to anything but the deep-seated instinct that causes the mother to forget her own life in the preservation of the life of her child.

The functions of body, on which life is founded, do not depend upon reason. The heart begins to beat before birth; it continues to beat until the end of life. The reason has nothing to do with the heart performing its function. Man goes to sleep at night confident that it will still be beating in the morning. The blood circulates in the veins independent of the thoughts of man. The digestive processes go on whether he sleeps or is awake. Many of his muscles never rest from birth to death. Life could not be preserved through the intellectual processes.

Human action is governed largely by instinct and emotion. These instincts and emotions are incident to every living machine and are the motor forces that impel the organism. They do not think. They act, and act at once. All the mind can do is to place some restraint on such instincts and emotions through experience, education and settled habits. If the actions are never inhibited, the machine will tear itself to pieces. If too easily inhibited, it will do no work. It is manifest that the perfect machine does not exist.

Man is moved by his instinct of flight and his emotion of fear, which are set in motion by apprehended dangers and by unaccustomed sights or sounds. Terror sometimes becomes so intense that it prevents flight and brings convulsions and death. It is idle to reason with one in terror. It is idle to reason with a mob in terror or a nation in terror. One might as well expect to calm a tempestuous sea with soft words.

The instinct of repulsion brings hatred and dislike and, combined with the instinct of pugnacity, may lead to crimes of violence. When these instincts are strong enough, the weak and superficial barriers cannot stand against them. An electrical flash showing the scaffold with the noose above it would have no force to stop an instinct and emotion fully aroused. Through seeing, feeling, hearing, tasting or smelling, some instinct is called into action. Many times several conflicting instincts are aroused. The man is like a tree bent back and forth by the storm. If the storm is hard enough, sooner or later it will break. Which way the tree falls has nothing to do with the consciousness of the tree, but has to do only with the direction of the prevailing and controlling force.

The instinct of gregariousness draws animals or men together into communities and close relations. This is one of the strongest instincts and not only preserves life but is fundamental to those human associations that are the basis of civilization. Except for this, animals would live a lonely life and probably perish from the earth. Through this instinct, man builds his villages and cities and organizes his states and nations. With the gregarious instinct and the parental instinct drawing men together, and the instincts and emotions of flight, fear and pugnacity, repelling and pushing them apart, conflict is inevitable. All that can be done is to create and cultivate as strong habits, customs and laws as possible to stand against the power of instinct and emotion in time of need, and to remove the main inciting causes so far as man has the intelligence and power to remove them. It is evident that this can never be complete. There are too many weak machines, too many defective nervous systems, too many badly organized brains. Accidents are inevitable, and some accidents are called "crimes." When the accident is international or world-wide, it means war. Those who believe that there is any power to stop all the harmful manifestations of man's instincts, either individually or en masse, do not understand the fundamental nature of man.

Many and probably all instincts work both for good and ill. Flight, pugnacity, repulsion, sex—all are life-preserving or life-destroying, as the case may be. A certain degree of excitation brings life and pleasure. A stronger or weaker may bring calamity and death. The parental instinct, with the instinct of reproduction, is fundamental to life. It is the basis of tenderness and sympathy, and is likewise the foundation of jealousy and often of hatred and pugnacity. At one time it may mean the deepest and most abiding pleasures of life, and at another it may bring death. Life cannot exist without it, and yet, that it may persist, Nature seriously overloads many machines with disastrous results. History is replete with the helplessness of reason and judgment in dealing with these emotions. Neither when they act for good nor for ill can reason and judgment have the slightest weight when these instincts and emotions are stirred to the depths.

The emotion to acquire and keep property is very strong and perhaps at the base of the deep desire for wealth. This emotion is probably of a comparatively late growth, but today it seems to have taken its place as one of the strongest that move men. This emotion, like all others, prompts man to get what he wants. It of course does not suggest the way, but is simply an urge to acquire and possess. It is modified and hedged about by customs and habits but, like all instincts, its strength is always seeking ways to accomplish results regardless of the rules laid down and thus urging their violation. With weak machines and imperfect systems, where not only are the restrictions imperfect, the habits not well defined, but where it is impossible to satisfy the instinct under the rules laid down, there can be but one result; a large number will take property wherever and however they can get it.

The instinct for acquisition is so strong that men are constantly contriving new and improved methods for getting property. Often the new methods come under restraint of the law. The enactment of the law does not give man the feeling that a thing is wrong which before was right and many continue their ways of getting property, regardless of the law. The instinct is too strong, the needs too great, and the barriers too weak.

Instincts are primal to man. He has inherited them from the animal world. Their strength and weakness depend on the make-up of the machine. Some are very strong and some abnormally weak, and there are no two machines that emphasize or repress the same instincts to the same degree. One need but look at his family and neighbors to see the various manifestations of these instincts. Some are quarrelsome and combative and will fight on the slightest provocation. Others are distinctively social; the gregarious instinct is pronounced in many people. These are always seen in company and cannot be alone. They readily adapt themselves to any sort of associations. Others are solitary. They choose to be alone. They shrink from and avoid the society of others. In some the instinct at the basis of sex association is over-strong; they like children; they are generally sympathetic and emotional, and the strength of the instinct often leads them to excesses. Others are entirely lacking in this instinct; they neither care for children nor want them; they habitually avoid association with the other sex. The difference is constituent in the elements that make up the machine.

Everyone is familiar with the varying strength and weakness of the instincts of getting and hoarding as shown by his neighbors and acquaintances. Some seem to have no ambition or thought for getting or keeping money. Some can get it but cannot keep it. Some have in them from childhood the instinct for getting the better of every trade; for hoarding what they get, and accumulating property all their lives. In this, as in all other respects, no two individuals are alike. History is filled with examples of men who had the instinctive power of getting money combined with the instinct for keeping it. Their names are familiar, all the way from Midas and Croesus down to the prominent captains of industry today. It is common for them and their adherents who criticise new schemes of social organization to remark with the greatest assurance that before wealth can be equal, brains must be equal. The truth is that brains have little to do with either the making or accumulating of money. This depends mainly, like all other activities, on the strength or weakness of the instincts involved. One's brain capacity cannot be measured by his bank account, any more than by the strength of his body or the color of his hair. His bank account simply shows his innate tendencies. There is no doubt that brain capacity as well as physical perfection adds to power, but it is the instinct that determines the tendency and strength of the activity.

To say that the one who gets money the most easily and keeps it the most safely has the best brain is no more reasonable than to say that the foxhound is more intelligent than the bull-dog because it can run faster. Nature formed one for running and the other for holding on. The brain power is not involved.

There are manifold ways of gratifying all these instincts. The desire for property calls simply for getting it and keeping it. It does not involve the method to be used. The way is determined by other faculties, by education, by opportunities, by the strength and weakness of inhibitions. It does not follow that all legal ways are morally right and all illegal ones morally wrong. Society in its development has established certain ways in which it may be done. These ways are easy for some, they are hard for others, and for many quite impossible.

Still the instinct for getting is always present, leading and urging to acquire and to keep. Endless are the ways that men have contrived to gratify this instinct. If, perchance, a law stands in the way, means are always sought to get around the law. Every desire is always seeking its own gratification or satisfaction. This means life. Most men believe that the way they adopt for getting money or gratifying other instincts is really no worse than some other person's way. The man who uses the confidence game contends with great assurance that his methods are like other business methods; that all men are using every means to get the largest return for the least effort, and one way is no better than another. A considerable portion of society has always supported him in these ideas. The law is full of shadowy lines which divide legal acquisition from the illegal, some of which are so fine that no one can see more than a technical difference. For instance, under an indictment for obtaining money by false pretenses, one may make all sorts of statements as to the quality, value, style and desirability of the article sold, if he does not make a specific statement of a fact regarding the material contained in them or the amount, number, quality or the like. He may lie, but to be safe he must know the kind of lie the law permits. Many lies pass as "puffing goods" and are within the pale. A trader is not expected to tell the truth. What he can and cannot say may be determined only by a careful examination of the law, and not always then.

Infinite are the reasons men give for doing the things that their instincts bid them do. All depends upon the strength of the instinct and the character of the machine; the restrictions and habits formed; and many other factors of which the man knows nothing. In fact, all depends upon his endowment and the outside forces that move to action, and for none of these is he in any way to be praised or blamed.

Society seems to be almost oblivious to the emotional life of man. The great masses of men have no capacity or chance to prepare a proper environment in the intense commercialism and mad rush of today. The laws of trade and commerce give most men food, clothing and shelter but nothing more. There is no beauty in their homes or surroundings; no music or art; no adventure or speculation. Existence is a dead thing, a dreary round. To many such people crime furnishes the only chance for adventure. Take away emotions and life is hopelessly dull and commonplace. The emotions of men must be fed just as the body must be fed. To many religion has furnished this emotional life. Churches have provided some art and some music. But aside from the Catholic Church almost none of this is for the poor. To many if not most people religion cannot take the place of joy. Dogma and creed deaden and cannot appeal to the reason of man. Still they have furnished a large part of the emotional life to great masses of men, without which existence would hold no hope or joy. But this is not enough to fill most lives. The element of joy is largely lacking. To many it makes no appeal, although music and art and beauty do. In no country has society so utterly neglected and ignored the emotional side of man as in America. This has led many men to a life of adventure that for them has been possible only in crime. Many others found this life in the saloon, mixed with influences not conducive to a normal life. The closing of the saloons has added to the already serious need of providing for the innate feelings of men. This is all the more important for America, as a large part of our population has come from lands where beauty and art and music have for generations been made a part of the common life of all.

VII

THE CRIMINAL

Those who have had no experience in the courts and no knowledge of what is known as the "criminal class" have a general idea that a criminal is not like other men. The people they know are law-abiding, conventional believers in the State and the Church and all social customs and relations; they have strict ideas of property rights, and regard the law as sacred. True they have no more acquaintance with law-makers and politicians in general than with the criminal class, which, of course, is one reason why they have such unbounded confidence in the law. Such persons are surprised and shocked when some member of the family or some friend is entangled in the courts, and generally regard it as a catastrophe that has come upon him by accident or a terrible mistake. As a rule, they do all in their power to help him whether he is acquitted or convicted. They never think that he and everyone else they know is not materially different from the ordinary criminal. As a matter of fact, the potential criminal is in every man, and no one was ever so abandoned that some friend would not plead for him, or that some one who knew him would not testify to his good deeds.

The criminal is not hard to understand. He is one who, from inherited defects or from great misfortune or especially hard circumstances, is not able to make the necessary adjustments to fit him to his environment. Seldom is he a man of average intelligence, unless he belongs to a certain class that will be discussed later. Almost always he is below the normal of intelligence and in perhaps half of the cases very much below. Nearly always he is a person of practically no education and no property. One who has given attention to the subject of crime knows exactly where the criminal comes from and how he will develop. The crimes of violence and murder, and the lesser crimes against property, practically all come from those who have been reared in the poor and congested districts of cities and large villages. The robbers, burglars, pickpockets and thieves are from these surroundings. In a broad sense, some criminals are born and some are made. Nearly all of them are both born and made. This does not mean that criminality can be inherited, or even that there is a criminal type. It means that with certain physical and mental imperfections and with certain environment the criminal will be the result.

Seldom does one begin a criminal life as a full-grown man. The origin of the typical criminal is an imperfect child, suffering from some defect. Usually he was born with a weak intellect, or an unstable nervous system. He comes from poor parents. Often one or both of these died or met misfortune while he was young. He comes from the crowded part of a poor district. He has had little chance to go to school and could not have been a scholar, no matter how regularly he attended school. Some useful things he could have learned had society furnished the right teachers, surroundings and opportunities to make the most of an imperfect child. Early in life he does some desultory work in casual occupations. This of course is not steady, but he picks up what he can and keeps the job for a short time, sometimes quitting work because he is discharged and sometimes because, like most boys and men, he does not like to work. His playground is the street, the railroad yards or vacant lots too small for real play, and fit only for a loafing place for boys like himself. These gather nightly and talk of the incidents that interest most people, mainly the abnormal things of life and generally the crimes that the newspapers make so prominent to satisfy the public demand. He learns to go into vacant buildings, steals the plumbing, and he early learns where to sell it. From this it is only a short step to visiting occupied buildings at night. In this way he learns to be a burglar as other boys learn to play baseball or golf.

Naturally he has no strong sense of property rights. He has always had a hard time to get enough to eat and wear, and he has grown up unconsciously to see the inequality of distribution and to believe that it is not fair and that there is little or no justice in the world. As a child he learned to get things the best way he could, and to think nothing about it. In short, his life, like all other lives, moves along the lines of least resistance. He soon comes to feel that the police are his natural enemies and his chief business is to keep from getting caught. Inevitably he is brought into the Juvenile Court. He may be reprimanded at first. He comes again and is placed on probation. The next time he goes to a Juvenile Prison where he can learn all the things he has not found out before. He is known to the police, known to the Court, known to the neighbors. His status is fixed. When released from prison, he takes his old heredity back into his old environment. It is the easiest to him, for he has learned to make his adjustments to this environment. From fifteen to twenty-five years of age, he has the added burden of adolescence, the trying time in a boy's life when sex feelings are developing, when he is passing from childhood to manhood. This is a very difficult time at best to the type of boy from which a criminal grows; he meets it without preparation or instruction. What he knows he learns from others like himself. He gets weird, fantastic, neurotic ideas, which only add to his natural wonderment.

Every person who has not inherited property must live by some trade or calling. Very few people in jail or out choose their profession. Even if one selects his profession it does not follow that he has chosen the calling for which he is best adapted. So far as a person can and does follow his desires, he generally means to choose the calling which will bring him the greatest amount of return for the least exertion. He may have strong inclinations in certain directions, as, for instance, to paint or to write or to investigate or to philosophize, but, as a rule, he does not make his living from following these ambitions. If he does, it is generally a poor living. But usually his aim is to make money at something else so that he can give free rein to his real ambitions.

Most men start to make a living as boys from the ages of fifteen to eighteen. They have no idea of what they ought to do or even of what they want to do. Usually, so far as they have an ambition, it is to do something more or less spectacular that seems to have an element of adventure and not too disagreeable or hard; something like the work of a policeman, a chauffeur, or an employee in a garage. Still, first and last, most boys and most men have no opportunity for choosing an occupation. In fact, the boy is told that he is a man and must get a job long before he knows that he is a man or begins to feel responsibilities, while he still has all the emotions and dreams of a boy.

When he is told he must go to work he looks for a job. He does not wait until he can find the one that fits him. He cannot afford to wait and if he could, he does not know what job would fit. He takes automatically the first place he can get, hoping to find a better one, which generally means an easier one, before very long. It is hard for a boy to stick to work; too many things are calling him away. Every instinct and emotion is urging him to play. New feelings and desires are coaxing him from work. His companions and the boy life in which he has a place urge him to leave his task. Usually he keeps his job no longer than he can help and later looks for something else. The chances are great that he will never find what he wants; that he has not had the preparation or training for a successful workingman's career, whatever that might be. He is a doer of odd jobs and of poorly paid work all his life.

He must have some calling and takes the easiest one, which is often a life of crime. From this start comes the professional criminal so-called. He may make a business of picking pockets. If this comes to be his trade it is very hard for him to give it up. There is so strong an element of chance—he never knows what a pocket will contain—it gratifies a spirit of adventure. Then it is easy. The wages are much greater than he could get in any other calling; the hours are short and it never interferes with his amusements. It is not so dangerous as being a burglar or a switchman, for he can find an excuse for jostling one in the street-cars or in a crowd and thus reaching into a pocket.

The burglar is not so apt to be a professional; his is a bolder and more hazardous trade; if he is caught he is taken from his occupation for a longer time. The great hazard involved in this trade and also the physical strength and fitness of those who follow it lead to its abandonment more frequently than is the case with a pickpocket or a petty thief. Robbery is seldom a profession. It is usually the crime of the young and venturesome and almost surely leads to early disaster. Murder, of course, is never a profession. In a broad way it is the result of accident or passion, or of relations which are too hard to endure.

In prison and out, I have talked with scores of these men and boys. I am sure they rarely tried to deceive me. I have very seldom seen one who felt that he had done wrong, or had any thought of what the world calls reformation. A very few have used the current language of those who talk of reform, but generally they were the weakest and most hopeless of the lot and usually adopted this attitude to deceive. In almost every instance where you meet any sign of intelligence, excuses and explanations are freely made, and these explanations fully justify their points of view. Often too they tell you in sincerity that they believe their way of life is too hard and does not pay; that while they cannot see how they could have done any differently in the past, they believe their experience has taught them to stick by the rules of the game.

The boy delinquent grows naturally and almost inevitably into the man criminal. He has generally never learned a trade. No habits have been formed in his youth to keep him from crime. A life of crime is the only one open to him, and for this life he has had ample experience, inclination and opportunity. Then too for this kind of young man the life of a criminal has a strong appeal. Life without opportunity and without a gambler's chance to win a considerable prize is not attractive to anyone. The conventional man who devotes his life to business or to a profession always has before him the prizes of success—to some honor and glory, and to most of them wealth. Imagine the number of lawyers, doctors and business men who could stick to a narrow path if they knew that life offered no opportunity but drudgery and poverty! Nearly all of these look forward to the prizes of success. Most of them expect success and many get it. For the man that I have described, a life of toil offers no chance of success. His capacity, education and environment deny him the gambler's chance of a prize. As an honest man, he may raise a family, always be in debt, live a life of poverty and hardship and see nothing ahead but drudgery and defeat. This is why so many mediocre men are found in the mountains and oil fields prospecting for hidden wealth. With the chance of a fortune just before them, and no other opportunity to win, they spend their lives without a family or home, urged on by the hope of luck.

The man grown from boyhood into ways of vice and crime sees this hope and this hope only to make a strike. He has no strong convictions and no well-settled habits to hold him back. The fear of the law only means greater caution, and after all he has nothing to lose. In his world arrest and conviction do not mean loss of caste; they mean only bad luck. With large numbers of men crime becomes a trade. It grows to be a business as naturally as any other calling comes to be a trade.

There are other criminals who do not come from the class I have described, but the habitual visitor to criminal courts knows that they are very few. Of the others, some are born of parents who could care for them and have done their best and yet, in spite of this, they have repeatedly been entangled in the law; these are often the only ones of a large family who have not lived according to the rules of the game. They are different from the other members of the family. For the most part they have some specific congenital defect, or an unstable system that prevents the correct registration of the experiences that produce safe habits, or makes them unable to withstand temptation or suggestion.

Everyone knows how easy it is, especially for children, to react to suggestion. The whole life of a child is a response to suggestion. This is about all there is to education. Even older men constantly and readily yield to suggestion. The results gained by quack doctors, lightning-rod agents, promoters and dealers in oil stocks, mining stocks and an endless number of other stocks, show that the right kind of suggestion is bound to produce results. The dressing of the windows of department stores and the writing of catchy advertisements are a constant recognition of the power of suggestion. So well known is this weakness of human character that schools of salesmanship are regularly organized and promoted to teach the art of getting victims to part with money for things they do not want or need.

Every right-feeling person does everything in his power to educate the child. He is ever watchful through the child's youth and early manhood to equip him with the capacity to make a living. He seeks to build up around him and within him the strongest kind of habits and beliefs. He carefully teaches the child that the only way to live is to observe all the rules laid down by experience and custom, so that he may not react to the temptations that life holds out at every step. Every wise person feels almost certain that if his children are reared without education, without discipline, without training or opportunities, they will almost inevitably swell the ranks of the criminal classes. And it is especially certain that if one of his children is defective or has an unstable nervous system, such a child should never be left without protection and care.

There are professional criminals of a different grade, like the forger and the confidence man. Both of these have generally had some education and a fair degree of intelligence, and have had some advantages in life. The forger, as a rule, is a bookkeeper or an accountant who grows expert with the pen. He works for a small salary and sees nothing better. He grows familiar with signatures. Sometimes he is a clerk in a bank and has the opportunity to study signatures; he begins to imitate them, often with no thought of forging paper. He does it because it is an art and probably the only thing he can do well. Perhaps some hard luck or an unfortunate venture on the Board of Trade, or in a faro bank, makes him write a check or note. He easily convinces himself that he is not getting the salary he earns and that less worthy men prosper while he is poor. Then too his business calls for better clothes and better surroundings than those of the workingman, and gives him many glimpses of easy lives. For a time he may escape. If the amount is not too large it is often passed by without an effort to detect. Sometimes it escapes notice altogether. Some business men write so many checks that they take no pains at the end of the month to figure up their account and examine every check, and never notice it unless the balance given by the bank is so far out of the way that it attracts attention. After a forger grows to be an expert, he can move from town to town. If he is taken and put in prison and finally released, he is hard to cure. Forgery is too easy and he knows of no other trade so good. A large percentage of these men never would have forged, had their wages been higher. Many others are the victims of the get-rich-quick disease; they haunt the gambling houses, brokers' offices and the like. Often when they begin they expect to make the check good; generally, they would have made good if the right card had only turned up in the faro bank, or the right quotation on the stock exchange.

There is another class of forgers, generally bankers, who speculate with trust funds. To cover up the shortage they sign notes expecting that they will never be presented and will deceive no one but the bank examiner. If luck goes against them too long, the bank fails and the forgery is discovered. These are really not forgers, as they never intend to get money on the note. It is only a part of a means to cover up the use of trust funds. Of course, these men are never professional forgers, and are much more apt to die from suicide or a broken heart than to repeat.

But with few exceptions, the criminal comes from the walks of the poor and has no education or next to none. For this society is much to blame. Sometimes he is obliged to go to work too soon, but often he cannot learn at school. This is not entirely the fault of the boy's heredity; it is largely the fault of the school. A certain course of study has been laid out. With only slight changes this course has come down from the past and is fixed and formal. Much of it might be of value to a professional man, but most of it is of no value to the man in other walks of life. Because a boy cannot learn arithmetic, grammar or geography, or not even learn to read and write, it does not follow that he cannot learn at all. He may possibly have marked mechanical ability; he may have more than the ordinary powers of adaptation to many kinds of work. These he could be taught to do and often to do well. Under proper instruction he might become greatly interested in some kind of work, and in the study to prepare him for the work. Then too it is more or less misleading to say that an uneducated man commits crime because he is uneducated. Often his lack of education as well as his crime comes from poverty. Crime and poverty may come from something else. All come because he had a poor make-up or an insufficient chance.

After all, the great majority of men must do some kind of manual labor. Until the time shall come when this kind of work is as easy and as well paid as other employment, no one will do manual labor if he can do any other kind. Perhaps the time may come when the hardest and most disagreeable work will be the best paid. There are too many unskilled workers in proportion to the population to make this seem very near. In the meantime—and that is doubtless a long time—some one must do this work. Much of it is done under supervision and requires no great skill and need not be very disagreeable or hard. In a complex civilization there is room for everyone to contribute to the whole. If our schools are some day what they should be, a large part of their time, in some cases all of it, will be devoted to manual training and will be given to producing skilled workmen. This sort of school work can be made attractive to thousands of boys who can do nothing else. And if easier conditions of life under fairer social surroundings could be added to this kind of education, most boys who now drift into crime would doubtless find the conventional life more profitable and attractive.

VIII

THE FEMALE CRIMINAL

Women furnish only one-fifth to one-tenth of the population of penal institutions. Probably the percentage would be still lower if among these were not a number of rather common convictions for acts which are peculiar to women, like abortion, infanticide, child abandonment and the like. As to the other crimes, few women are burglars or robbers, or guilty of other crimes of violence, except murder. Women steal and poison and blackmail and extort money and lie and slander and gossip, and probably cause as much unhappiness as men; but their crimes, like their lives, are not on so large or adventurous a scale. They do not so readily take a chance; they lack the imagination that makes big criminals or lays broad schemes. In many of their crimes they are often the accomplices of men and take rather a minor part, although sometimes a quite important one. For this reason they are often not detected and frequently not prosecuted, a fact which leaves the percentage smaller than it otherwise would be. Then too, juries are apt to acquit women of crime even when they are indicted and tried. It must be a positive case and one which calls for no possible feeling of sympathy or where there is no personal appeal that will work the conviction of a woman. Men have so long adopted an attitude of chivalry toward women that very few juries will convict them. This too has much to do with the small number of female convicts.

Some writers claim that the small number of women in penal institutions shows that women are better than men; but this is a hasty conclusion arrived at from insufficient facts. There are fewer female prisoners because women have lived a more protected life; they have not been engaged so generally in business; they have not been so constantly obliged to fight their way in the world; their lives have been more quiet and smooth; they have been surrounded by strong conventions and closely watched. Especially is this true with regard to the girl as compared with the boy. Such protection naturally keeps them from the commission of crime. The great consideration shown to them by prosecuting witnesses, prosecuting officers, judges and juries, supplements the protected life and is an added reason for the showing made by statistics. It is notorious that a woman is seldom convicted of murder. This has been the subject of much complaint on the part of the public; still a man may condemn such acquittals and when placed on a jury will himself vote for acquittal.

After all, the juries are right. Most of the cases of murder against women involve sex relations. Nature has made the bearing and rearing of children first of all the woman's part, and this fact so dominates her life that nothing else seems important to her in comparison. She is not able to judge in a broad and scientific way matters so clearly affecting life. It may even be possible that in the evolution and preservation of life, her judgments are right. At least they are the natural judgments for a large number of women, or these tragedies would not occur. No doubt as woman enters the field of industry formerly monopolized by man, and as she takes her part in politics and sits on juries, the percentage of female criminals will rapidly increase. In fact, the percentage of women prisoners has been climbing for many years. As she takes her place with men she will be more and more judged as men are judged, and will commit the crimes that men commit, and perhaps furnish her fair quota to the penitentiaries and jails.

Whether this will be better or worse for the race is no part of the discussion, and can only be told by long experience. Women must accept the facts and make their choice of activities in view of these facts. Quite apart from any sentiment, I think that it is a mistake to believe that men and women should be judged alike. The structure and nervous system of women cause physical and mental disturbances which affect their judgment and life. If there were any justice in human judgment and civilization, then each human being would be judged according to his make-up, his tendencies, his inclinations and his capacities, and no two would be judged alike.

Any sudden change in the treatment of women in the courts will work a great injustice that will leave its effect on both women and men, and still more on the life of the race.

IX

JUVENILE CRIMINALS

This subject would scarcely have been noted a few years ago. True, there was in the past a small mixture of children in the grist ground out in the criminal courts. Usually they received some leniency, and were viewed with more curiosity than alarm. The juvenile criminal was regarded as a prodigy with a capacity for crimes far beyond his years. Something of the attitude obtained in regard to him which attaches to the child chess player or the child mathematician. The child criminal is now common, and for the most part is a product of the city.

All crime is doubtless much more common in the city than the country, and the young criminal especially is a product of the crowded community. To those who look for natural causes for all phenomena the reason is not far to seek. The city itself is an abnormal thing. Primitive man and his ancestors were never huddled together in great multitudes, as are the dwellers in cities today. To a degree almost all animals are gregarious, but the units of organization are much smaller with them than with man, excepting possibly in the case of the ant and the bee, insects which seem specially adapted to live a highly automatic and cooperative life, such as human beings cannot possibly reach. But primitive men and their direct ancestors lived in small groups. They could not have preserved their life in any other way. They lived by fishing and hunting and by gathering roots, berries and herbs. Later they tended their flocks and cultivated the fields in a simple way.

With the introduction of the modern machine, the factory system and the railroads, in the last century, our great modern cities were evolved. As they grew more complicated, new problems arose. The life of the crowded city is most difficult even for normal men and women. The adjustments are too numerous and too complex for an animal made with simple tastes and for a pastoral life. But, if it is hard for men, it is almost hopeless for children, especially the children of the poor who fill our prisons, asylums and almshouses.

Every child needs the open air and the open life of the country. He needs, first of all, exercise which should be in the form of outdoor play. No healthy boy wants to live indoors, even though his home may be a convenient city "flat." The woods, the fields, the streams, the lakes, the wide common with plenty of room, have always made their natural appeal to the young. And as sunlight kills most of the deadly germs, so outdoor life with exercise and play takes care of most of the unhealthy thoughts, habits and ideas of child-life. In the past, our schools both in the city and country have done little to help the young. For the most part healthy children have always looked on them more or less as prisons. Here they have been confined and kept from exercise and play, to study useless and unrelated facts and to commit to memory dry rules which are forgotten as soon as their minds are ready to retain anything worth while.

Schools should be made to fit the needs of children, and not children to fit schools. The school that does not provide work and play for the child which he is glad to do, has learned little of the psychology and needs of youth. Botany, Zoölogy, Geology and even Chemistry can be taught to children before they learn to read, and taught so that it will seem like play, and through this the pupil will acquire a natural taste for books. It is only within the last few years that the modern school has really begun to educate the child. It has been a hard fight that scientific teachers have waged with conventional education for the right of the child. What has been done is too recent and scattering to show material results.

Nothing is so important to the child as education. The early life is the time that character is formed, habits are made, rules of conduct taught, and it is almost impossible to up-root old habits and inhibitions and implant new ones in later years.

It is true that "the child is father to the man," and he is the father of the criminal as well as the useful citizen. Outside of the hopelessly defective, or those who have very imperfect nervous or physical systems, there is no reason why a child who has had proper mental and physical training and any fair opportunity in life should ever be a criminal. Even most of the mentally defective and those suffering from imperfect nervous systems could be useful to society in a sheltered environment. Poor as the country schools have always been, the outdoor life of the country child is still so great an influence that he generally escapes disaster. He is not sent to a factory, but lives in a small community where he has fresh air and exercise.

Of course here as everywhere we must allow for the defective, the imperfect, the subnormals and the children of the very poor. These unfortunates furnish a large percentage of the inmates of prison, and most of the victims for the scaffold which civilization so fondly preserves.

The growth of the big cities has produced the child criminal. He is clearly marked and well defined. He is often subnormal even down to idiocy. In most cases he is the result of heredity. Many times he may have fair intelligence, but this is usually attached to an unstable, defective nervous system that cannot do its proper work, and he has had no expert treatment and attention. He is always poor. Generally he has lost one or both parents in youth and has lived in the crowded districts where the home was congested. He has no adequate playground and he runs the streets or vacant, waste places. He associates and combines with others of his kind. He cannot or does not go to school. If he goes to school, he dreads to go and cannot learn the lessons in the books. He likes to loaf, just as all children like to play. He is often set to work. He has no trade and little capacity for skilled work that brings good wages and steady employment. He works no more than he needs to work. Every night and all the days that he can get are spent in idleness on the street with his "gang." He seldom reads books. He lacks the taste for books, and such teachers as he knew had not the wit to cultivate a taste for good reading. Such books as he gets only add to his unhealthy thoughts.

Many writers have classified the crimes that the boy commits. It is scarcely worth the while. He learns to steal or becomes a burglar largely for the love of adventure; he robs because it is exciting and may bring large returns. In his excursions to pilfer property he may kill, and then for the first time the State discovers that there is such a boy and sets in action the machinery to take his life. The city quite probably has given him a casual notice by arresting him a number of times and sending him to a juvenile prison, but it has rarely extended a hand to help him. Any man or woman who has fairly normal faculties, and can reason from cause to effect, knows that the crimes of children are really the crimes of the State and society which by neglect and active participation have made him what he is. When it is remembered that the man is the child grown up, it is equally easy to understand the adult prisoner.

X

HOMICIDE

Crimes against persons are not always as easy to classify and understand as crimes against property. These acts are so numerous and come from so many different emotions and motives, that often the cause is obscure and the explanation not easy to find. Still here, as everywhere in Nature, nothing can happen without a cause, and even where limited knowledge does its best and cannot find causes, our recognition of the connection between cause and effect and the all-inclusiveness of law can leave no doubt that complete knowledge would bring complete understanding.

It is always to be borne in mind in considering this class of crimes that the motive power of life is not reason but instinct. If men lived by reason the race would not survive. The primal things that preserve the race, the hunger for food, drink, sex, are instinctive and not only are not awakened or satisfied by reason, but oftentimes in violation of it. Nature, first of all, sees to the preservation of the species, and acts in a broad way that life may not perish. Nature knows nothing about right and wrong in the sense in which man uses these words. All of our moral conceptions are purely of social origin and hence not instinctive in human life, and are forever giving way to the instincts on which Nature depends. The preservation of life has called for the emotions of hate, fear and love, among the other emotions that move men. The animal fears danger and runs away, and thus life is preserved. The weaker animal is almost entirely dependent for life upon his fear. He is sometimes afraid when there is no danger, but without fear he would be destroyed. Sometimes the animal hates and kills and thus preserves himself. The love of offspring is the cause of the care bestowed upon it which preserves its life. The herd instinct in animal species develops packs and clans and tribes and states. Man is the heir to all the past, and the instincts and emotions of the primitive animal are strong in his being. These may have been strengthened or diluted as the ages have come and gone, but the same instincts furnish the motive power for all his acts. Man fears and hates, and runs or kills and saves his life. He loves, and preserves his offspring.

Man sees an object. Instinctively he may fear it or he may hate it. He may run from it or destroy it. He gathers impressions through his senses. The nerves carry them to the brain. He comes to fear certain persons and things, to hate certain other persons or things, and to love still others. If the hatred is strong enough or the danger great enough or the desire sufficient, he may kill. Whether he plans the method or deliberates upon the act can make no difference. He is prompted by the instinct, and the reflection simply means the consideration of reasons for and against, or the reaching of inhibitions. If he acts, it is one of the primal emotions that causes the act. He is the "machine" through which certain emotions find their path and do their work. Infinite are the causes and circumstances that give rise to an emotion strong enough to take human life.

Killings which result from a sudden passion are easily understood. Everyone has been overwhelmed by rage, where reason and judgment and all acquired restraints are entirely submerged. The primitive man with his primitive emotion reasserts himself. It is mainly accident or the lack of some particular circumstance that prevents a murder. Of course some people are overwhelmed more easily than others. Some natures are less stable, some nervous systems less perfect, and the built up barriers are weaker. The whole result of stimuli is determined by the strength of the feeling acting upon the machine. Such a person is not ordinarily dangerous to the community. The act itself would generally assure that it could never happen again. Some killings, however, are more deliberate. They are preceded by a settled hatred which preys upon the mind and fights against the preventive influences that training and habit have formed. Under a certain combination of circumstances these restrictions are swept aside and the emotions have their way.

There are, of course, certain broad classifications of homicides. A considerable number, perhaps more than any other, come through the commission of robbery, burglary and larceny. In the midst of the act the offender is caught, and kills in an effort to escape. These murders fall under the heading of property crimes; the cause is the same, and the rules governing them are the same. The second group, with respect to numbers, grows from the relations of men and women. Wives kill husbands and husbands kill wives; sweethearts kill each other. Jealousy and revenge are commonly mixed with sex life and sex association. Many socialists have argued that under an equal distribution of property, where women were freed from fear of want, these crimes would disappear. But this argument does not take human nature into account. Jealousy is inevitably associated with sex relations. The close contact of men and women over long periods of time inevitably causes friction and misunderstanding. These conditions often grow chronic, and in marriage are aggravated by the necessity of close association regardless of the real feelings that may exist. Certain claims are made by husbands and by wives, which are probably inherent in the relationship; sometimes they flow from habit and custom, but, from whatever cause, such claims are so exacting that either the husband or wife finds them hard to meet.

Because of the fact that the feelings of men and women for each other are deeper and more fundamental than those of any other relation, they are more subject to misfortune and tragedy. The hatreds born from the deepest affection are most beyond control. Then the desire of possession is overwhelming. It would be strange if more killings did not result from the relations of men and women than from any other cause. It is easy to understand why this is true. It is likewise easy to understand how laws, reason and judgment are powerless to prevent. Juries seem to understand this when women kill husbands and lovers, but a long-established code of chivalry and a cultivated attitude toward women, which is partly right and partly wrong, make it impossible to see that men are just as helpless under strong feelings as women. No doubt a public opinion that would favor divorces on a greater number of grounds and make them easily obtainable would prevent large numbers of such killings, but the cause can not be altogether removed.

The law has long singled out killing as the greatest crime, doubtless because man prizes life first of all. Of course every effort should be made to protect life. Still, in measuring the character of the offender, in determining his possibilities as a useful citizen, homicide is probably one of the lesser crimes. Many times it implies no moral turpitude, even with those who believe in moral turpitude. It may imply very little lack of physical stability. Homicide practically never becomes an occupation. Most killings are accidental in the sense that they are casual and dependent on circumstances, and there is as a rule much less danger of repetition than there is of the original commission of a homicide by one of a defective nervous system who has never before committed an unlawful act. A large number of men convicted of murder are used as "trusties" in our penal institutions, even when their imprisonment is for a long term, or for life. This shows from the experience of prison officials that this class of offenders is, as a rule, of a better fibre than almost any other class.

Doubtless no sort of treatment will ever entirely get rid of homicide. Brains and nervous systems are so made, that inhibitions are unable to protect in all cases. Nations and men readily engage in killing, either from sport or because of a real or fancied wrong. Mob psychology shows how whole communities are turned into ravenous beasts, hunting for their prey. The world war, and all wars, show cases of mob psychology that have led large masses of men to take an active part in killing. The pursuit of those charged with crime shows that all people like the chase when the emotions are thoroughly aroused. Under certain impulses, communities gloat over hangings and commend judges and juries because they have the courage to hang, when, in fact, they were too cowardly not to hang and when their reason did not approve the verdict and judgment. Men who do not kill often wish others might die and are pleased and happy when they do die. We approve of death when it is the right one who dies. Whether all persons are murderers or not may depend upon a definition of murder. But, beyond doubt, all persons are potential murderers, needing only time and circumstances, and a sufficiently overwhelming emotion that will triumph over the weak restraints that education and habit have built up, to control the powerful surging instincts and feelings that Nature has laid at the foundation of life.

XI

SEX CRIMES

Most of the inmates of prisons convicted of sex crimes are the poor and wretched and the plainly defective. Nature, in her determination to preserve the species, has planted sex hunger very deep in the constitution of man. The fact that it is necessary for the preservation of life, and that Nature is always eliminating those whose sex hunger is not strong enough to preserve the race, has overweighted man and perhaps all animal life with this hunger. At least it has endowed many men with instincts too powerful for the conventions and the laws that hedge him about.

Rape is almost always the crime of the poor, the hardworking, the uneducated and the abnormal. In the man of this type sex hunger is strong; he has little money, generally no family; he is poorly fed and clothed and possesses few if any attractions. He may be a sailor away from women and their society for months, or in some other remote occupation making his means of gratifying this hunger just as impossible. There is no opportunity for him except the one he adopts. It is a question of gratifying this deep and primal instinct as against the weakness of his mentality and the few barriers that a meagre education and picked-up habits can furnish; and when the instinct overbalances he is lost.

Incest, which is peculiarly the crime of the weak, the wretched and the poor, has a somewhat different origin. Westermarck in his "History of Human Marriage" shows that in the early tribe there was no inhibition against the marriage of blood relations; that the restriction then was against the members of the tribe that used one tent; these might or might not be blood relations. The traditions and folk-ways against the marriage of close relations grew from the familiarity that came from the living together of brother and sister, for instance, in one home. This feeling gradually worked itself into custom and habit and from that into folk-ways and laws. Sometimes we read accounts of the marriage of a man and woman who found, after years had gone by, that they were brother and sister who had been separated in infancy and grew up without knowledge of their relation to each other. Whether Nature forbids the marriage of relatives by preventing offspring or by producing imperfect offspring is a doubtful question. Certain communities in Europe have lived together so long that all are related and still they seem to thrive. Considering the general custom and feeling on the subject, however, the man and woman who know that they are closely related and who marry are different and weaker than the others; and this may show in their offspring. Although the subnormal may have no such feeling, they are judged by the traditions and customs of the normal and on that judgment are sent to prison.

Many sex crimes are charged to children in the adolescent age; children who have no knowledge of sex and its development and are helpless in the strength of their newly-discovered feelings. This class of offenders is almost always the inferior and the poor who are moved by strong instincts which they have not the natural feeling, the strength, the education, nor the desire to withstand.

While most crimes against persons are not directly due to economic causes, still the indirect effect of property is generally present in these crimes as well as others. The fact that the poor and defective are generally the subjects of prosecution and conviction in these offences shows how closely economic conditions are related to all crimes.

Other criminal statutes are of more modern date, and as a rule involve not much more than adultery, except in regard to the age of the girl offender, which is generally placed below eighteen. Still the sex age of neither boys nor girls can be fixed by a calendar. It depends really upon development, which is not the same with all people or in all environments. Many girls of sixteen are more mature and have more experience of life than others of twenty. Most laws provide that below sixteen one cannot give consent and that a sexual act is then rape. It is doubtful if there should be any intermediate age between sixteen and eighteen, where an act is not rape but still a minor offence.

XII

ROBBERY AND BURGLARY

Robbery and burglary are generally counted as crimes of violence, but they should be properly classed under property crimes. Every motive that leads to getting property in illegal ways applies to these crimes. There is added to the regular causes of property crimes the element of danger and adventure which makes a strong appeal to boys and men. I am inclined to think that few mature men have committed one of these crimes, unless they began criminal careers as boys. Such crimes especially appeal to the activity and love of adventure which inhere in every boy. They are committed for the most part by youths who have had almost no chance to get the needed sport and physical experience incident to boyhood. The foot-ball, base-ball, polo or golf player very seldom becomes a robber or a burglar. Almost no rich man or rich man's son becomes a robber or a burglar. Those who fall under this lure are mainly the denizens of the streets, the railroad yards, the vacant lots, the casual workers who are stimulated by a variety of conditions to get property unlawfully. Added to this are almost invariably a defective heredity, vicious environment, little education, and a total want of direction in the building up of habits and inhibitions.

The robber or burglar who kills in the commission of crime is more dangerous and harder to cure than the one who kills from passion or malice. There is always the element of an occupation, for getting property, and generally a love of adventure that is difficult to overcome, except by a substantial change of social relations which makes acquiring property easier for the class from which all these criminals develop. The murder that comes from passion and feeling implies situations and circumstances that are rarely strong enough to overcome the restrictions against killing.

XIII

MAN AS A PREDATORY ANIMAL

Not less than eighty per cent of all crimes are property crimes, and it seems probable that, of the rest, most arise from the same motives. If we look at civilization as the result of that seesaw trend of the race from "Naturalism to Artificialism," we may get a flexible view of life that will be in accordance with the facts, and will help us to get rid of the arbitrary division of man's history into the three periods termed Savagery, Barbarism and Civilization. However desirable this division may be for historic purposes in general, it is only confusing in an effort to study the nature of man.

In the life and origin of the race, the fact is always evidenced that the Ego through its growth and persistence is always drawing to itself from the current of environment all things which it feels desirable to its life and growth. This must be a necessary condition of survival. In the long journey from amoeba to man, any circumstance causing a complete halt for even a brief period meant extinction, while even a persistent interference produced a weakened organism, if not an arrest of development.

This then is the origin of the "Master Instinct," hunger. When we consider the various emotions growing from the force of this vital urge, as developed by adaptation to an ever-changing environment, we are able to realize fully why it bulks so large in moulding and shaping the destiny of the race.

All psychologists are agreed in classing under the nutritive instinct such activities as acquisition, storing and hoarding. During a period variously estimated as a quarter of a million to two million years, man and his animal antecedents responded to the hunger instinct, in the manner and by the same methods as did the various jungle animals. He secured his prey by capture, or killed it wherever found, the one condition being his power to get and to hold. Later tribal organization arose, and food and shelter were held in common. But since the folk-ways commended raiding and looting between alien tribes, here was presented an alluring chance to secure both booty and glory to men trained in the "get and hold" process of acquiring. For thousands of years life itself depended upon this unerring exercise.

It was during the period outlined that man developed his big brain (cerebrum) involving the central nervous system. Furthermore, it was developed by, and trained to, these particular reactions. The far-reaching control of the mind must be remembered, as upon this through his racial heritage must be based his conflicting impulses. These must be reckoned with in our conclusions with regard to present-day behavior, economic or otherwise.

During the last thirty years, psychological laboratories, aided by physiology, through oft-repeated experiments conducted with newly-invented weighing and measuring instruments of marvelous accuracy, have put us in possession of an array of facts unknown to students of earlier periods, who sought the "why and the how" of man's erratic actions as a social animal. It is constantly being demonstrated that under given conditions, moved by appropriate stimuli, the human animal inevitably and surely reacts the same as does inorganic matter. If we understand "intelligence" to be the "capacity to respond to new conditions," we can measurably see and at least partly understand the constant inter-play of heredity and environment. Between these there is no antagonism. The sum of life experiences consists solely in the adjustments required to enable the sentient organism—man or beast—to live.

How readily a "throw-back" to earlier and cruder life may be brought about under favorable conditions, is shown by the methods and virulence of combat during the vicious massacre in the war just ended. Can the conclusion be evaded that individually and collectively we constantly teeter on the brink of a precipice? If we fall it spells crime or misfortune, or both.

Wherever civilization exists on the private property basis as its main bulwark, we find crime as an inseparable result. Man, by virtue of his organic nature, is a predatory animal. This does not mean that he is a vicious animal. It simply means that man, in common with the eagle and the wolf, acts in accordance with the all-impelling urge and fundamental instincts of his organic structure. In any conflict between newer and nobler sentiments and the emotions which function through the primeval instincts, he is shackled to the bed-rock master instincts in such manner that they usually win. This is conclusively shown by the history of the race.

If this is true, we should expect to find the master hunger specially active through the many chances presented for exploitation after the fall of feudalism—beginning, let us assume, with the invention of power machinery—the "Age of Steam". It is apparent that from that time to our own day, man's acquisitive tendency has so expanded, that if we were capable of an unbiased opinion it might be said to be a form of megalomania gripping the entire white race, where highly-developed commerce and industry are found in their most vigorous forms.

If our theory is correct, we should expect to find the most energetic and enterprising nations showing a greater ratio of property crimes than the invalid and feeble nations. This would more certainly be true where political constitutions by letter and spirit encourage and promote individual development, mental and industrial. When this condition exists with abundant natural resources, such as often may be found in what we term a new country, it furnishes the chance for the most vigorous functioning of whatsoever may be the dominant qualities inherent in the tendencies and aspirations of a people. The United States of America, among the nations, meets these conditions, and we find here the highest ratio of property crimes per capita. This holds as to all such crimes, both minor and major, which are far in excess of those of any other nation, as shown by statistics.

It seems clear that this explanation shows the main reason for the seemingly abnormal number of property crimes in the United States.

Man's infinitely long past developed the hunger instinct, which made him take directly and simply where he could and as he could. This is always urging him to supply his wants in the simplest way, regardless of the later restrictions that modern civilization has placed around the getting of property. With the weaker intellectually and physically, these instincts are all-controlling. The superficial and absurd theories that his excesses are due to the lack of the certainty of punishment take no account of the life experience, and the inherent structure of man.

Especially in our large cities with their great opportunities for the creation and accumulation of wealth, the "lust of power" is shown by the nerve-racking efforts to obtain wealth by the most reckless methods. The emotion drives us to spend extravagantly and conspicuously, that we may inspire the envy of our neighbors by our money and power.

This is an old emotion securing a new outlet, and tenfold magnified in force, through modern conditions in commercial and industrial life. Is it not plain that in America it has assumed the form of an obsession, biting us high and low, until we reek of it? It is likewise clear that it is a menace to any abiding peace and welfare; that it is still growing and leaving a bitter harvest of neurasthenics in its wake.

The criminologist must face the fact that, in spite of contrary pretenses by most of our social doctors, we are still in our work-a-day life guided almost exclusively by the mores—the folk-ways of old—founded on expediency as revealed by experiences, and acquired by the only known process, that of trial and error. If this be true, it clearly follows that in order to conserve any vestige of a civilization, we must realize the fact that property crimes are the normal results of the complex activities making up the treadmill called civilization. We must likewise realize that to modify these crimes we must modify the trend of the race.

When the seamy side of man's behavior is scrutinized by science, it cannot be other than grim and distressing to the reader. It is this to the writer. But all the really significant facts of life are grim and often repulsive in the material presented. To the "irony of facts" must be ascribed the shadows as well as the high lights. No distortions or speculations can influence the findings of science. They are accessible and can be checked up by any one sufficiently interested. The student knows that man is what he is, because of his origin and long and painful past.

XIV

CRIMES AGAINST PROPERTY

By far the largest class of crimes may be called crimes against property. Strictly speaking, these are crimes in relation to the ownership of property; criminal ways of depriving the lawful owner of its possession.

Many writers claim that nearly all crime is caused by economic conditions, or in other words that poverty is practically the whole cause of crime. Endless statistics have been gathered on this subject which seem to show conclusively that property crimes are largely the result of the unequal distribution of wealth. But crime of any class cannot safely be ascribed to a single cause. Life is too complex, heredity is too variant and imperfect, too many separate things contribute to human behavior, to make it possible to trace all actions to a single cause. No one familiar with courts and prisons can fail to observe the close relation between poverty and crime. All lawyers know that the practice of criminal law is a poor business. Most lawyers of ability refuse such practice because it offers no financial rewards. Nearly all the inmates of penal institutions are without money. This is true of almost all men who are placed on trial. Broad generalizations have been made from statistics gathered for at least seventy-five years. It has been noted in every civilized country that the number of property crimes materially increases in the cold months and diminishes in the spring, summer and early autumn. The obvious cause is that employment is less regular in the winter time, expenses of living are higher, idle workers are more numerous, wages are lower, and, in short, it is harder for the poor to live. Most men and women spend their whole lives close to the line of want; they have little or nothing laid by. Sickness, hard luck, or lack of work makes them penniless and desperate. This drives many over the uncertain line between lawful and unlawful conduct and they land in jail. There are more crimes committed in hard times than in good times. When wages are comparatively high and work is steady fewer men enter the extra-hazardous occupation of crime. Strikes, lockouts, panics and the like always leave their list of unfortunates in the prisons. Every lawyer engaged in criminal practice has noticed the large numbers of prosecutions and convictions for all sorts of offences that follow in the wake of strikes and lockouts.

The cost of living has also had a direct effect on crime. Long ago, Buckle, in his "History of Civilization," collected statistics showing that crime rose and fell in direct ratio to the price of food. The life, health and conduct of animals are directly dependent upon the food supply. When the pasture is poor cattle jump the fences. When food is scarce in the mountains and woods the deer come down to the farms and villages. And the same general laws that affect all other animal life affect men. When men are in want, or even when their standard of living is falling, they will take means to get food or its equivalent that they would not think of adopting except from need. This is doubly true when a family is dependent for its daily bread upon its own efforts.

Always bearing in mind that most criminals are men whose equipment and surroundings have made it difficult for them to make the adjustments to environment necessary for success in life, we may easily see how any increase of difficulties will lead to crime. Most men are not well prepared for life. Even in the daily matter of the way to spend their money, they lack the judgment necessary to get the most from what they have. As families increase, debts increase, until many a man finds himself in a net of difficulties with no way out but crime. Men whose necessities have led them to embezzlement and larceny turn up so regularly that they hardly attract attention. Neither does punishment seem to deter others from following the same path although the danger of detection, disgrace and prison is perfectly clear.

Sometimes, of course, men of education and apparent lack of physical defect commit property crimes. Bankers often take money on deposit after the bank is insolvent. Not infrequently they forge notes to cover losses and in various ways manipulate funds to prevent the discovery of insolvency. As a rule the condition of the bank is brought about by the use of funds for speculation, with the intention of repaying from what seems to be a safe venture. Sometimes it comes through bad loans and unforeseen conditions. Business men and bankers frequently shock their friends and the community by suicide, on disclosures showing they have embezzled money to use on some financial venture that came to a disastrous end.

These cases are not difficult to understand. The love of money is the controlling emotion of the age. Just as religion, war, learning, invention and discovery have been the moving passions of former ages, so now the accumulation of large fortunes is the main object that moves man. It does not follow that this phase will not pass away and give place to something more worth while, but while it lasts it will claim its victims, just as other strong emotions in turn have done. The fear of poverty, especially by those who have known something of the value of money, the desire for the power that money brings, the envy of others, the opportunities that seem easy, all these feelings are too strong for many fairly good "machines," and bring disaster when plans go wrong.

Only a small portion of those who have speculated with trust funds are ever prosecuted. Generally the speculation is successful or at least covered up. Many men prefer to take a chance of disgrace or punishment or death rather than remain poor. These are not necessarily dishonest or bad. They may be more venturesome, or more unfortunate; at any rate, it is obvious that the passion for money, the chance to get it, the dread of poverty, the love of wealth and power were too strong for their equipment, otherwise the pressure would have been resisted. The same pressure on some other man would not have brought disaster.

The restrictions placed around the accumulation of property are multiplying faster than any other portions of the criminal code. It takes a long time for new customs or habits or restraints to become a part of the life and consciousness of man so that the mere suggestion of the act causes the reaction that doing it is wrong. No matter how long some statutes are on the books, and how severe the penalties, many men never believe that doing the forbidden act is really a crime. For instance, the violations of many revenue laws, game laws, prohibition laws, and many laws against various means of getting property are often considered as not really criminal. In fact, a large and probably growing class of men disputes the justice of creating many legal rules in reference to private property.

Primitive peoples, as a rule, held property in common. Their inhibitions were few and simple. They took what they needed and wanted in the easiest way. There is a strong call in all life to hark back to primitive feelings, customs and habits. Many new laws are especially painful and difficult to a large class of weak men who form the bulk of our criminal class.

To understand the constant urge to throw off the shackles of civilization, one need but think of the number of men who use liquor or drugs. One need only look at the professional and business man, who at every opportunity leaves civilization and goes to the woods to kill wild animals or to the lakes and streams to fish.

The call to live a simple life, free from the conventions, customs and rules, to kill for the sake of killing, to get to the woods and streams and away from brick buildings and stone walls, is strong in the constitution of almost every man. Probably the underlying cause of the world war was the need of man to relax from the hard and growing strain of the civilization that is continually weaving new fetters to bind him. There must always come a breaking point, for, after all, man is an animal and can live only from and by the primitive things.

Children have no idea of the rights of property. It takes long and patient teaching, even to the most intelligent, to make them feel that there is a point at which the taking of property is wrong. Nowhere in Nature can we see an analogy to our property rights. Plants and animals alike get their sustenance where and how they can. It is not meant here to discuss the question of how many of the restrictions that control the getting of property are wise and how many are foolish; it is only meant to give the facts as they affect life and conduct.

It is certainly true that the child learns very slowly and very imperfectly to distinguish the ways by which he may and may not get property. His nature always protests against it as he goes along. Only a few can ever learn it in anything like completeness. Many men cannot learn it, and if they learned the forbidden things they would have no feeling that to disobey was wrong. Even the most intelligent ones never know or feel the whole code, and in fact, lawyers are forever debating and judges doubting as to whether many ways of getting property are inside or outside the law. No doubt many of the methods that intelligent and respected men adopt for getting property have more inherent criminality than others that are directly forbidden by the law. It must always be remembered that all laws are naturally and inevitably evolved by the strongest force in a community, and in the last analysis made for the protection of the dominant class.

XV

ATTITUDE OF THE CRIMINAL

Probably the chief barrier to the commission of crime is the feeling of right and wrong connected with the doing or not doing of particular acts. All men have a more or less binding conscience. This is the result of long teaching and habit in matters of conduct. Most people are taught at home and in school that certain things are right and that others are wrong. This constant instruction builds up habits and rules of conduct, and it is mainly upon these that society depends for the behavior of its citizens. To most men conscience is the monitor, rather than law. It acts more automatically, and a shock to the conscience is far more effective than the knowledge that a law is broken. For the most part the promptings of conscience follow pretty closely the inhibitions of the criminal code, although they may or may not follow the spirit of the law. Each person has his own idea of the relative values attached to human actions. That is, no two machines respond exactly alike as to the relative importance of different things. No two ethical commands have the same importance to all people or to any two people. Often men do not hesitate to circumvent or violate one statute, when they could never be even tempted to violate another.

Ordinarily unless the response of conscience is quick and plain, men are not bothered by the infraction of the law except, perchance, by the fear of discovery. This is quite apart from the teaching that it is the duty of all men to obey all laws, a proposition so general that it has no effect. Even those who make the statement do not follow the precept, and the long list of penal laws that die from lack of enforcement instead of by repeal is too well known to warrant the belief that anyone pays serious attention to such a purely academic statement. No one believes in the enforcement of all laws or the duty to obey all laws, and no one, in fact, does obey them all. Those who proclaim the loudest the duty of obedience to all laws never obey, for example, the revenue laws. These are clear and explicit, and yet men take every means possible to have their property exempted from taxation—in other words, to defraud the State. This is done on the excuse that everyone else does it, and the man who makes a strict return according to law would pay the taxes of the shirkers. While this is true, it simply shows that all men violate the law when the justification seems sufficient to them. The laws against blasphemy, against Sunday work and Sunday play, against buying and transporting intoxicating liquors and smuggling goods are freely violated. Many laws are so recent that they have not grown to be folk-ways or fixed new habits, and their violation brings no moral shock. In spite of the professions often made, most men have a poor opinion of congressmen and legislators, and feel that their own conscience is a much higher guide for them than the law.

Religions have always taught obedience to God or to what takes His place. Religious commands and feelings, are higher and more binding on man than human law. The captains of industry are forever belittling and criticising all those laws made by legislatures and courts which interfere with the unrestricted use of property. None of this sort of legislation has their approval and the courts are regarded as meddlesome when they enforce it. The anti-trust laws, the anti-pooling laws, factory legislation of all kinds, anything in short that interferes with the unrestricted use of property by its owner are roundly condemned and violated by evasion. On the other hand, so much has been written and said in reference to the creation of the fundamental rights to own property, and these rights depend so absolutely upon social arrangements and work out such manifest injustice and inequality, that there is always a deep-seated feeling of protest against many of our so-called property laws. From those who advocate a new distribution of wealth and condemn the injustice of present property rights, the step is quite short to those who feel the injustice and put their ideas in force by taking property when and where they are able to get it.

For instance, a miner may believe that the corporation for which he works really has no right to the gold down in the mine. As he is digging he strikes a particularly rich pocket of high-grade ore. He feels that he does no wrong if he appropriates the ore. Elaborate means are taken to prevent this, even compelling the absolute stripping of the workman, and a complete change of clothes on going in and coming out of the mine.

Many laws are put on the books which are of a purely sumptuary nature; these attempt to control what one shall do in his own personal affairs. Such laws are brought about by organizations with a "purpose". The members are anxious to make everyone else conform to their ideas and habits. Such laws as Sunday laws, liquor laws and the like are examples. Then, too, every state or nation carries a large list of laws that men have so long violated and ignored, that they virtually are dead. To violate these brings no feeling of wrong, but only serves to make men doubt the evil of violating any law.

It is never easy to get a Legislature to repeal a law. Generally some organization or committee of people is interested in keeping it alive, and the members of the Legislature fear losing their votes. Social ideas are always changing. No laws or customs are eternal. The ordinary man, and especially the man under the normal, cannot keep up with all the shifting of a changing world. There is always a fraction of a community agitating for something new and gradually forcing the Legislature to put it into law, even against the will of the majority and against the sentiment of a large class of the community. The organization that wants something done is always aggressive. The man who wants to prevent it from being done is seldom unduly active or even alarmed. Many organizations are eager to get statutes on the books. One seldom hears of a society or club that is active in getting laws repealed. The constant change of law, the constant fixing of new values in place of old ones, is necessary to social life. This means putting new wine into old bottles, and wine that is much too strong for the bottles. Everybody can see why some particular law might be violated without a sense of guilt, but they cannot see how a law they believe in can be violated without serious obliquity.

Apart from this, there have always been crimes that were not of the class that implied moral wrong. The acts of the revolutionist who saw, or thought he saw, visions of something better; the man who is inspired by the love of his fellow-man and who has no personal ends to gain; the man who in his devotion to an idea or a person risks his life or liberty or property or reputation, has never been classed with those who violate the law for selfish ends. The line of revolutionists, from the beginning of organized government down to the birth of the United States and even to the present time, furnishes ample proof of this. And still the unsuccessful revolutionist meets with the severest penalties. To him failure generally means death. Men who are fired with zeal for all new causes are forever running foul of the law. Social organization, like biological organization, is conservative. All things that live are imbued with the will to live and they take all means in their power to go on living. The philosopher can neither quarrel with the idealist who makes the sacrifice nor the organization that preserves itself while it can; he only recognizes what is true.

Men have always been obliged to fight to preserve liberty. Constitutions and laws do not safeguard liberty. It can be preserved only by a tolerant people, and this means eternal conflict. Emerson said that the good citizen must not be over-obedient to law. Freedom is always trampled on in times of stress. The United States suffered serious encroachments on liberty during the Civil War. During the last war, these encroachments were greater than any American could have possibly dreamed; and so far there seems little immediate chance for change. Still the philosopher does not complain. He sees human passion for what it is, a great emotion that holds men in its grasp, a feeling that nothing can stand against. Opposition is destroyed by force, and often blind, cruel, unreasoning force. Sometimes even worse, this force is created for selfish ends. There are always those who will use the strongest and highest emotions of men to serve their private, sordid ends. Changing social systems, new political ideas, the labor cause, all movements for religious, social or political change have their zealots; they are met by the force of convention and conservatism ready to defend itself, and the clash is inevitable. It is easy to distinguish this sort of action from the things done by those who are known as criminals. Their acts are done to serve personal ends. Society may always punish both, but all men of right ideas will understand that the motive is different, the equipment and capacity of the men are different, and they are only in the same class because they each violate the law and are each responsive to emotions and to feelings that are of sufficient strength to compel action.

XVI

THE LAW AND THE CRIMINAL

If one were ill with a specific disease and he were sent to a hospital, every person who touched him, from the time his disease was known until he was discharged, would use all possible effort to bring him back to health. Physiology and psychology alike would be used to effect a cure. Not only would he be given surroundings for regaining health and ample physical treatment, but he would be helped by appeals in the way of praise and encouragement, even to the extent of downright falsehood about his condition, to aid in his recovery.

If such is done of "disease," why not of "crime"? Not only is it clear that crime is a disease whose root is in heredity and environment, but it is clear that with most men, at least when young, by improving environment or adding to knowledge and experience, it is curable. Still with the unfortunate accused of crimes or misdemeanors, from the moment the attention of the officers is drawn to him until his final destruction, everything is done to prevent his recovery and to aggravate and make fatal his disease.

The young boy of the congested districts, who tries to indulge his normal impulses for play, is driven from every vacant lot; he is forbidden normal activity by the police; he has no place of his own; he grows to regard all officers as his enemies instead of his friends; he is taken into court, where the most well-meaning judge lectures him about his duties to his parents and threatens him with the dire evils that the future holds in store for him, unless he reforms. If he is released, nothing is done by society to give him a better environment where he can succeed. He is turned out with his old comrades and into his old life, and is then supposed by strength of will to overcome these surroundings, a thing which can be done by no person, however strong he may be.

For the graver things, the boy or man is taken to the police station. There he is photographed and his name and family record taken down even before he has had a hearing or a trial. He is handled by officers who may do the best they can, but who by training and experience and for lack of time and facilities are not fitted for their important positions. I say this in spite of the fact that my experience has taught me that policemen, as a rule, are kindly and human. From the police station the offender is lodged in jail. Here is huddled together a great mass of human wreckage, a large part of it being the product of imperfect heredities acted upon by impossible environments. However short the time he stays, and however wide his experience, the first offender learns things he never knew before, and takes another degree in the life that an evil destiny has prepared for him. In the jail he is fed much like the animals in the zoo. In many prisons the jailer is making what money he can by the amount he can save on each prisoner he feeds above the rate the law allows of twenty-five or fifty cents a day. In a short time the prisoner's misery and grief turn to bitterness and hate; hatred of jailer, of officers, of society, of existing things, of the fate that overshadows his life. There is only one thing that offers him opportunity and that is a life of crime. He is indicted and prosecuted. The prosecuting attorney is equipped with money and provided with ample detectives and assistants to make it impossible for the prisoner to escape. Everyone believes him guilty from the time of his arrest. The black marks of his life have been recorded at schools, in police stations and examining courts. The good marks are not there and would not be competent evidence if they were. Theoretically the State's Attorney is as much bound to protect him as to prosecute him, but the State's Attorney has the psychology that leads to a belief of guilt, and when he forms that belief his duty follows, which is to land the victim in prison. It is not only his duty to land him in jail, but the office of the State's Attorney is usually a stepping-stone to something else, and he must make a record and be talked about. The public is interested only in sending bad folks to jail.

No doubt there are very few State's Attorneys who would knowingly prosecute unless they believed a man guilty of the offense, but it is easy for a State's Attorney to believe in guilt. Every man's daily life is largely made up of acts from which a presumption of either guilt or innocence can be inferred, depending upon the attitude of the one who draws the inference.

To a State's Attorney or his assistants the case is one that he should win. All cases should be won. Even though he means to be fair, his psychology is to win. No lawyer interested in a result can be fair. The lawyer is an advocate trying to show that his side is right and trying to win the case. The fact that he represents the State makes no difference in his psychology. In fact, he always tells the jury that he represents the State and is as much interested in protecting the defendant as in protecting society. He does this so that the jury will give his statements more weight than the statements of the lawyer for the defense, and this very remark gives him an advantage that is neither fair nor right.

The man on trial is almost always poor. It is only rarely that a poor man can get a competent lawyer to take his case. He is often handed over to the court for the appointment of a lawyer. The lawyer has no time or money to prepare a defense. As a rule he is a beginner not fitted for his job. If he wishes to take the case, he wants it only for the experience and advertising that it will bring. He is handed a case to experiment on, just as a medical student is handed a cadaver to dissect. If the defendant is in jail, he has little chance to prepare his case. If the defendant had any money he would not know what to do with it. He is often a mentally defective person. His friends are of the same class and can do little to help him. The jury are told that they must presume him innocent, but the accusation alone carries with it the presumption of guilt, which extends to everyone connected with the case, even to the lawyer appointed to defend him. It is almost a miracle if the defendant is not convicted.

Perhaps he is taken out to be hanged—the last act that society can do for him, or the convicted man is sent to prison for a long or shorter term. His head is shaved and he is placed in prison garb; he is carefully measured and photographed in his prison clothes, so that if he should ever get back to the world he will forever be under suspicion. Even a change of name cannot help him. While in prison he works and lives under lock and key, like a wild animal, eager to escape. On certain days he is allowed to sit at a long table with other unfortunates like himself, and visit for an hour with mother or father or wife or son or daughter or friend on the other side. Other prisoners, so far as he can associate with them, are as helpless and hopeless and rebellious as he. How they will get out, and when, are their chief concerns. Many of their guards are very humane. Probably no one seeks to torture him, but the system and the psychology are fatal. He sees almost no one who approaches him with friendship and trust and a desire to help, except his family, his closest friends and his companions in misery. He knows that the length of his term is entirely dependent upon officials whom he cannot see or make understand his case. He snatches at the slightest ray of hope. He is in despair from the beginning to the end. No prison has the trained men who, with intelligence and sympathy, should know and watch and help him in his plight. No state would spend the money necessary to employ enough attendants and aids with the learning and skill necessary to build him up. Money is freely spent on the prosecution from the beginning to the end, but no effort is made to [!-- Note Anchor is --]help or save. The motto of the state is: "Millions for offense, but not one cent for reclamation."

As all things end, prison sentences are generally finished. The prisoner is given a new suit of clothes that betrays its origin and will be useless after the first rain, ten dollars in cash, and he goes out. His heredity and his hard environment have put him in. Now the state is done with him; he is free. But there is only one place to go. Like any other released animal, he takes the same heredity back to the old environment. What else can he do? His old companions are the only ones who will give him social intercourse, which he needs first of all, and the only ones who understand him. They are the only ones who will be glad to see him and help him get a job. There is only one profession for which he is better fitted after he comes out than he was before he went in, and that is a life of crime. Of course, he is a marked man and a watched man with the police. When a crime is committed and the offender is not found, the ex-convict is rounded up with others of his class to see, perchance, if he is not the offender that is wanted. He is taken to the lock-up and shown with others to the witnesses for identification. Before this, the witness may have been shown his photograph in convict clothes. Perhaps they identify him, perhaps they do not; if identified, he may be the man or he may not be. Anyhow, he has been in prison and this is against him. Whenever he comes out and wherever he goes, his record follows him as closely as his shadow. Even his friends suspect him. They suspect him even when they help him.

Such is the daily life of these unfortunates. What can be done? I can see nothing that the officers of the law can do. Officers represent the people. They reflect mob psychology. Even though an officer here and there rises above the crowd, as he sometimes does, it is of no avail. His place soon is filled by someone else. If only the public would understand! If only the public were more intelligent, which in this case at least would mean more human! If only the statement I repeat so often could be understood! There are no accidents; everything is the result of law. All phenomena are a succession of causes and effects. The criminal is the result of all that went before him and all that surrounds him. Like every other mortal, he is a subject for pity and not for hatred. If society is not safe while he is at large, he must be confined and kept under guard and observation. He must be kept until he is safe and a favorable environment found for him. If he will never be safe for society, he should never be released. He must not be humiliated, made to suffer unduly, despised or harried. He must be helped if he can be helped. This should be the second, if not the first object of his confinement.

Assuming that the scientific attitude toward crime should be accepted by those who make public opinion, and that this should become crystallized into written law, the problem would be easy.

The officers of the state can, as a rule, be depended upon to deal properly and considerately with the known insane. The insane are more trying and difficult than the criminal. Courts and juries and the public, however, recognize their mental condition and do not visit them with vengeance. It is appreciated and understood that they cannot with safety be left at large; but they are given the care and consideration that their condition demands. If the criminal should be looked upon as are the creatures insane from natural causes, the State's Attorney could then be trusted to prepare the case and do the best he could for all concerned. The defendant would no longer be a defendant. His case would be under investigation; his past life would be shown, his credits as well as his debits; he would need no lawyer, not even a public defender; no jury would be required, and the uncertainties and doubts that hang around judgments would be removed. There would be little chance for a miscarriage of justice. Even should there be, it would result in the speedy release of one against whom the public bore no ill-will. One who was sick or insane would ordinarily not need a lawyer, as the state would bear him no malice and make no effort to do more than investigate the case and present the facts. The whole matter should be a purely scientific attempt to find out the best thing to be done both for the interest of the public and the interest of the man.

No doubt, in many cases, men are convicted who are perfectly innocent of the crime of which they are accused. This is especially true with the poor who can provide for no adequate defense and who perhaps have been convicted before of some misdemeanor or crime. This is also often true in cases where there is great prejudice against the defendant, either on account of the nature of the case or of the defendant on trial. For instance, during the recent war a wave of hysteria swept over the world, and courts and juries trampled on individual rights and freely violated the spirit of laws and constitutions. The close of the war left the same intense feelings of bitterness which made justice impossible in cases where the charge savored of treason, and involved criticism of the government, or advocacy of a change of political systems.

Questions of race, religion, politics, labor and the like have always awakened violent feelings on all sides, have made bitter partisans and strict lines of cleavage, and have made verdicts of juries and judgments of courts the result of fear and hatred. In spite of this, most of the inmates of prisons have done the acts charged in the indictments. Why they did them, their states of mind, the conditions and circumstances surrounding them, what can be done to make them stronger and better able to meet life are never ascertained, and few courts or juries have ever deemed these things proper subjects for consideration or in any way involved in the case.

In law every crime consists of two things: an act and an intent. Both are necessary to constitute legal guilt, and on the prevalent theory of moral guilt and punishment both are necessary to make up criminal conduct. There can be no legal or moral guilt unless one intends wickedness; unless he deliberately does the act because he wishes to do wrong and knows he does wrong. The question then of moral guilt, which is necessary to the commission of a criminal act, touches all the questions suggested and many more. Even if freedom of action is to some degree assumed, the question still remains as to the degree of guilt in fixing punishment and responsibility. The question involves the make-up of the man, his full heredity, so far as it can be known.

Most of every man's heredity is hidden in the mist and darkness of the past. He inherits more or less directly through an infinite number of ancestors, reaching back to primitive man and even to the animals from which he came. The remote ancestry is, of course, usually not so important as that immediately behind him. Still, plainly, his form and structure and the details of his whole machine, including the marvelously delicate mechanism of the brain and nervous system, are heritages of the very ancient past. Neither are the processes of inheritance well understood nor subject to much control. Often in the making of the man Nature resorts to some "throw-back" which reproduces the ancient heritage. This can be seen only in general resemblances and behavior, for the genealogical tree of any family is very short and very imperfectly known, and the poor have no past. In three or four generations at the most the backward trail is lost and his family merged with the species of which he forms but a humble part.

Enough, however, is known of ancestry and the infinite marks of inheritance on every structure as well as enough of the reaction of the human machine to the varied environment that surrounds it, to make it clear that if one were all-seeing and all-wise he could account in advance for every action of every man. More than this, he could see in the original, fertilized cell, all its powers, defects and potentialities and could, in the same manner, look down through the short years during which the human organism, grown from the cell, shall have life and movement, and could see its varied environment. If one could see this with infinite wisdom, he could infallibly tell in advance each step that the machine would take and infallibly predict the time and method of its dissolution. To be all-knowing is to be all-understanding, and this is infinitely better than to be all-forgiving.

To get this knowledge of the past of each machine is the duty and work of the tribunal that passes on the fate of a man. It can be done only imperfectly at best. The law furnishes no means of making these judgments. All it furnishes is a tribunal where the contending lawyers can fight, not for justice, but to win. It is little better than the old wager of battle where the parties hired fighters and the issue was settled with swords. Oftentimes the only question settled in court is the relative strength and cunning of the lawyers. The tribunal whose duty it is to fix the future place and status of its fellowmen should be wise, learned, scientific, patient and humane. It should take the time and make its own investigation, and it can be well done in no other way. When public opinion accepts the belief that punishment is only cruelty, that conduct is a result of causes, and that there is no such thing as moral guilt, investigations and sorting and placing of the unfortunate can be done fairly well. The mistakes will be very few and easily corrected when discovered. There will be no cruelty and suffering. The community will be protected and the individual saved.

CRIME

ITS CAUSE AND TREATMENT

BY CLARENCE DARROW

1922

CONTENTS

PREFACE

CRIME

ITS CAUSE AND TREATMENT

I

WHAT IS CRIME?

II

PURPOSE OF PUNISHMENT

III

RESPONSIBILITY FOR CRIME

IV

ENVIRONMENT

V

ADJUSTING HEREDITY AND ENVIRONMENT

VI

PSYCHOLOGY OF CRIMINAL CONDUCT

VII

THE CRIMINAL

VIII

THE FEMALE CRIMINAL

IX

JUVENILE CRIMINALS

X

HOMICIDE

XI

SEX CRIMES

XII

ROBBERY AND BURGLARY

XIII

MAN AS A PREDATORY ANIMAL

XIV

CRIMES AGAINST PROPERTY

XV

ATTITUDE OF THE CRIMINAL

XVI

THE LAW AND THE CRIMINAL