There were others also brought before me possessed with the same infatuation, but being Roman citizens, I directed them to be sent to Rome. But this crime spreading (as is usually the case) while it was actually under prosecution, several instances of the same nature occurred. An anonymous information was laid before me, containing a charge against several persons, who upon examination denied they were Christians, or had ever been so. They repeated after me an invocation to the gods, and offered religious rites with wine and incense before your statue (which for that purpose I had ordered to be brought, together with those of the gods), and even reviled the name of Christ: whereas there is no forcing, it is said, those who are really Christians into any of these compliances: I thought it proper, therefore, to discharge them. Some among those who were accused by a witness in person at first confessed themselves Christians, but immediately after denied it: the rest owned indeed that they had been of that number formerly, but had now (some above three, others more, and a few above twenty years ago) renounced that error. They all worshipped your statue and the images of the gods, uttering imprecations at the same time against the name of Christ. They affirmed the whole of their guilt, or their error, was, that they met on a stated day before it was light, and addressed a form of prayer to Christ, as to a divinity, binding themselves by a solemn oath, not for the purposes of any wicked design, but never to commit any fraud, theft, or adultery, never to falsify their word, nor deny a trust when they should be called upon to deliver it up; after which it was their custom to separate, and then re-assemble, to eat in common a harmless meal. From this custom, however, they desisted after the publication of my edict, by which, according to your commands, I forbade the meeting of any assemblies.

After receiving this account, I judged it so much the more necessary to endeavor to extort the real truth, by putting two female slaves to the torture, who were said to officiate in their religious rites: but all I could discover was evidence of an absurd and extravagant superstition. I deemed it expedient, therefore, to adjourn all further proceedings, in order to consult you. For it appears to be a matter highly deserving your consideration, more especially as great numbers must be involved in the danger of these prosecutions, which have already extended, and are still likely to extend, to persons of all ranks and ages, and even of both sexes. In fact, this contagious superstition is not confined to the cities only, but has spread its infection among the neighboring villages and country. Nevertheless, it still seems possible to restrain its progress. The temples, at least, which were once almost deserted, begin now to be frequented; and the sacred rites, after a long intermission, are again revived; while there is a general demand for the victims, which till lately found very few purchasers. From all this it is easy to conjecture what numbers might be reclaimed if a general pardon were granted to those who shall repent of their error.

TRAJAN TO PLINY

You have adopted a right course, my dearest Secundus, in investigating the charges against the Christians who were brought before you. It is not possible to lay down any general rule for all such cases. Do not go out of your way to look for them. If indeed they should be brought before you, and the crime is proved, they must be punished; with the restriction, however, that where the party denies he is a Christian, and shall make it evident that he is not, by invoking our gods, let him (notwithstanding any former suspicion) be pardoned upon his repentance. Anonymous information ought not to be received in any sort of prosecution. It is introducing a very dangerous precedent, and is quite foreign to the spirit of our age.

Civilization is largely a question of new machinery and methods. It is not the humanizing of men. It is plain that no matter what the time or age, the characteristics of man remain the same. His structure does not change; his emotional life cannot change. New objects and desires may control his feeling, but whatever the aim of the age and place, the same inherent emotions control.

Intolerance has been one of the great sources of evil all down the ages. It is practically certain that neither time nor education has made man more kindly in his judgment of his fellows or more tolerant in his opinions and life. All that education can do is to remove some of the inducing causes that have always brought the sharp conflicts and awakened the cruelty of man.

Every civilization brings new evils and new complexities which man meets with the same machine and the same emotions. It is fairly certain that no nobler idealism or no finer feelings have been planted or cultivated in man since the dawn of history, and when it is thoroughly realized that man's structure is fixed and cannot be changed it seems as if none could be developed.



XXXI

THE CONVICT

Human nature is so weak and imperfect that, at its best, it needs all the encouragement it can get. The comradeship of friends, and the attitude of the public and acquaintances are of the greatest importance in effecting the development of most lives. Sooner or later the convicted man is turned out either on probation or parole, or at the expiration of his sentence. He was probably none too strong a man before his conviction. His heredity was poor in most cases, and his environment completed his downfall. He faces the world again with a serious handicap that he did not have at first. If he had just recovered from a severe illness, everyone he met would do all he could to help him; his environment would be made easier than before his confinement in the hospital; and especially from the conditions that placed him there, both society and his neighbors would try to see that he should, as far as possible, be saved. If he had been one of those who could live only by means of his own work, and if on account of himself or his family he had been obliged to over-strain, an easier place would probably be found for him. The chances of going to the hospital the second time would be very much less than they were the first time. Even his experience in confinement would be of use, and through that experience he would be taught to live and preserve his health.

The discharged prisoner is met in an entirely different way. The ex-convict is under doubt and suspicion from the start. On the slightest provocation he is reminded of his past. He is always under suspicion unless, perhaps, he professes a change of heart. Such a change implies a physical process which is impossible. Some sudden exaltation may furnish him a new emotion for a time, but this can last only while the stimulus has power to act. It will soon pass away and the man will be himself again. It may be possible that here and there is a nature of such an emotional temperament, that religion or socialism or single tax or some other strong conviction may possess him until such time as his feelings begin to cool and change, when he will be safe. But most men are inherently the same when they come out of prison as when they go in. Under right treatment they may gain a little more wisdom as to life that will help them make adjustments; or they may be relieved from some burdens, or placed in an environment of less stress and strain where it will be easier to live. In those cases, the attitude and help of the community are all-important.

Society is not entirely to blame for looking on him with suspicion. It knows he once failed. It has been taught that this failure was due to a moral delinquency outside the law of cause and effect, and society is naturally suspicious that he will offend again or molest the community in some other way. Had he been confined because he had not the strength to meet his environment; had the law put him in custody under expert control until he gained the strength for his battle with life; or had a new environment been provided under scientific direction as in the case of a hospital patient, society would then take another view and do all it could to help him. New comrades and associates would surround him to show him the way, and they would make his burden lighter. Instead of this, he comes out with his ability to adjust himself to life lessened. If a crime is committed in his community he is blamed or at least suspected. He is known to the police and often "rounded-up." This directly interferes with his employment, places him at a disadvantage with his associates, and drives him into the company of others who feel that the world is against them and that a life of crime is all there is left to follow. It is not hard to see how men come to be "repeaters." It is hard to understand when they do not.



XXXII

ISOLATION AND STERILIZATION

The growing belief that crime comes largely from the subnormal has created a more or less definite demand for the isolation of the moron before the commission of crime and for the sterilization of certain misfits, especially after conviction. Both of these methods are very drastic, and while society must and will adopt any way that seems to be necessary to protect itself, still before accepting such drastic remedies it should be very clear that the danger is sufficiently great to justify the means, that the desired result will follow and that no other means will bring about the end.

In this discussion it should be remembered that the mental classification of children and grown-ups is only in its infancy, that much that is freely stated is still in the realm of theory, and that time and patience in making investigations and classifying facts are most important in arriving at correct results.

The really intelligent are as abnormal as the defective. The great masses of men are rather mediocre, and those above and below are exceptions. This depends on how broad is the class included in the normal. There are no sharp divisions anywhere; above, the normal shades imperceptibly into those of unusual intelligence, and below it fades just as gradually into the sub-normal. While defectives are more apt to commit crimes, in the main this is because their environment is too hard for their machine.

The sub-normal are probably more tractable and less disposed to the emotions that lead to criminal acts than are the more intelligent. Their crimes are especially noticed because they seem to be without any serious motive and often shockingly brutal. City life most readily uncovers the sub-normal. This is true because the strain is far greater in the city than the country. There are exceptions to this rule, particularly those portions of the country that are barren and unproductive territory into which the venturesome and obvious unfits are drawn.

The prisons are not the only places which are inhabited by the sub-normal and the misfit. The hardest and most disagreeable and most poorly paid labor is largely done by this class of people. Very few people of superior intelligence and education do manual labor and the more disagreeable the manual labor, the more certain it is that the job is done by the sub-normal and the misfit. A large part of the farm labor, the odd jobs and common labor in small towns, the cheaper labor on railroads, in factories and all industrial plants is given to this sort of men. In the country and small village, where life is easy, this class seldom makes trouble and is hardly known. These men and women easily and naturally fall into a place in the industry and society of the village and are often among the most useful members.

A general examination of all men to discover the defective and the sub-normal, coupled with a demand that all such be sent to some place of confinement, would meet with such a protest from all classes seriously affected as to end not only the demand but the further agitation of the subject. Any such law, if carried out, would not only seriously increase the cost of all industry, but in many instances would make it impossible to carry it on. It is hardly conceivable that above the idiot, society shall make examinations and tests and confine or sterilize large classes of people who have not yet developed anti-social tendencies, but who on account of feeble intellects might sometime commit crime.

The world has ample data at hand to show more humane and at the same time much cheaper ways, even methods that will yield a profit. These ways have been abundantly illustrated by history and can be witnessed in operation every day.

England was repeatedly conquered and settled by brigands and misfits. When her people grew more homogeneous and orderly she sent her anti-social to New Zealand and to Virginia. In New Zealand with its opportunities these outcasts and their descendants prospered and were as orderly and conventional as the English society that banished them for England's good. The colonies in Virginia with access to land and a chance to make homes for themselves established a social order and formed communities more prosperous than the ones that sent them out. Many of their descendants are now successful and important members of every western state.

In fact, most of the European immigrants who have settled in the United States were the poor and the outcast, the misfits of European countries. With better opportunities and a chance to build up homes in a new land, their descendants are at least the equals of those who stayed behind. The growth and development of the United States westward from the Atlantic seaboard has been effected by the poorer and less intelligent, but often the more venturesome, who constantly turned West to get cheaper land and a better chance. The residents of these western states compare very favorably with those who still reside in the sections of the country which these pioneers left behind. It cannot be shown that the less intelligent have criminal natures. All that can be shown is that they have a poorer equipment to meet the stress and strain of life. To make most of this class safe, all that is needed is fairer conditions and an easier environment. If society could only recover from the obsession that what is necessary to regulate man is plenty of prisons and harder punishments, it would be fairly easy and infinitely cheaper to improve the environment from which crime springs than to visit vengeance on the victim.

The effect of education is very great. Many a subnormal and backward person has been educated so he could take a place in life that those with a much greater natural ability could not fill.

Beyond the segregation of the imbecile, the insane and those who have committed crime, it is dangerous to go. The course of preventing crime lies in the other direction, better opportunity and an easier life.

It has grown to be a commonplace in the discussion of crime to speak of isolation and sterilization as the proper treatment of the criminal and defective. This is generally done without any clear understanding of the laws of heredity.

The laws of the transmission from parent to child of traits and tendencies are not yet well enough known to justify any attempt to interfere with the function of life, except in the case of the idiotic. It is plain that crime cannot be inherited. Certain defects in the brain and nervous system can be and are inherited. No brain or nervous system is perfect, so the problem is one of the incapacity which causes the maladjustment. Crime results from defective heredity when applied to the environment. It comes from the inability of the machine to make the necessary adjustments of life. The making of the criminal is largely a question of his fortune or misfortune in the environment where he is placed. It is absurd to say that one inherits the tendency to rob or rape or burglarize or kill. He may inherit an unstable organization that in certain hostile environments will lead him to any of these crimes. For that matter all men inherit the organization that will bring these results if the environment is sufficiently hard. Society may in many ways place too high a value on human life. Still we punish men who place too low a value on the lives of others, and the state should be very slow to destroy life or the capacity for life.

There is much to learn, much to explain about the mysterious workings of heredity, before man can undertake to say that he has the wisdom or justice to choose the ones who should be the bearers of life to the future.

It is most common to find in the same family various degrees of intelligence. Now and then a man of such high powers and faculties is born that he is regarded by scientists as a "sport" who defies all known laws in his origin. Often one person in a family is of commanding strength, while the rest are commonplace.

The insanity and disease that afflict many men of genius is well known. Grasset in his book The Semi-Insane and the Semi-Responsible has given a long list of eminent names. Many great authors have depicted insanity in their most gifted characters. Genius is frequently an indication of insanity. It is a wide departure from the normal.

The obscure and lowly origin of many of the world's greatest men seems to point to the fact that Nature has methods that man cannot comprehend and with which it is not wise for him to interfere. The fact is that genius, or even great strength or ability in the parent, is by no means sure to be handed down. In fact, it is very rare indeed that such unusual traits persist. That sterilization should follow as a punishment for sex crimes is without any sort of logic except that sterilization relates to sex. The whole idea is born of the hatred or loathing of certain crimes.

Generalizations have been made from a few poorly authenticated cases, and these generalizations have gone far beyond anything that the evidence can justify. It does not follow that because the father and son have black hair, or the mother and daughter have blue eyes, or that their mannerisms are similar, that inheritance is responsible for character, much less for crime. Certain things are clearly traceable to heredity. Other things may be the result of association or what to us must still be accident.

Often the fact is pointed out that great progress has been made in the culture of plants and the breeding of animals. This is true. No intelligent farmer to-day would think of raising any but the best stock. He takes pains with the breeding of his cattle. If he wants rich milk and butter, he breeds Jerseys or Guernseys. If he wants a larger quantity of milk and a fair beef animal, he breeds Holsteins. If he wants beef only, perhaps he raises Durhams. At any rate he knows what he wants and breeds that kind. Similarly the horse-raiser will breed for race horses or dray horses as the case may be, and the system works with almost mechanical certainty. He gets what he wants and would never think of raising scrubs and taking a chance on results. The effect of selective breeding and culture is beyond dispute, and to many it seems obvious that all that is needed to perfect the human race and wipe out misery and crime is to supervise human breeding in the same way, so that the species may be controlled.

At first glance this seems to be the logical thing to do, especially as the effects of heredity can no more be doubted in man than in animals. Still there are important questions to be asked and grave dangers to be encountered. When we say that the well-bred Berkshire hog is better than the "razor-back," we mean that it will produce more meat for food. In other words the hog is better for man. If we were to ask which would be the better, if the hog were to be considered, the answer would probably be the "razor-back." The fact that the food consumed by the Berkshire produces a large quantity of fat, makes him unfitted to live if he were living for his own sake. Turn both hogs out to run wild, and the "razor-back" will live and the Berkshire die. Nature will make her selection and adapt the hog to his environment. The Berkshire will produce more lard, but it will not run so fast; it has no more brains and cannot adapt what it has so well to the preservation of life. The same thing is doubtless true of other animals and likewise of plant life. The Jersey cow would not survive in a natural state. She gives too much milk and for too long a time. Man has made of her a milk-machine. Turn all thoroughbred horses out on the plains to shift for themselves, and they would either die or gradually be modified until they were adapted to the free and wild life of the plains. This would not be so good for man, but would be better for the horses. In plants and animals, man can by selection breed or cultivate any characteristics that he may choose, but he cannot produce a horse which is both a draft horse and a running horse; he cannot produce cattle that are the best both for milk and beef. He is urged to try scientific breeding on the human race. How would he have man changed? Would he experiment for more intellect, or a bigger and stronger physique? Would he breed for art and civilization or would he breed for strength and physical endurance? What qualities are desirable for the human race? This would be a very hard question even to entrust to a popular vote. While the capacity of cattle to produce milk can be increased, cattle cannot increase their own capacity or improve their own quality. This can be done only by the slow and patient processes of Nature in the line of adapting the animal to its environment. The rapid change that is to come about by breeding must be directed and controlled by man. The cattle have nothing to say about the process. No doubt a higher order of beings who could control man might, and perhaps would change him by selective mating. How they would change him would depend on the use they wished to make of him, not on what the man himself would like to do. The contemplation of a higher order of beings experimenting with the human race is not a pleasant one for intelligent men.

Can we imagine men, through government, forcibly experimenting with each other? Who would settle the kind of man that was to be evolved or the specific changes that would be required? Or, what was to be done and how? Who could prophesy what man would be like when he should be made over in the likeness of something else? Who are the people with the breadth and tolerance and infinite wisdom, in whose hands it would be safe to place the remodeling of man? It is hard to conceive that it can be seriously considered.

Nature in her own way is a eugenist. By her slow processes she is continually wiping out the unfit and adapting man to the environment where he must live. Perhaps by saving too many of the unfit man is more or less interfering with the processes of Nature, and it may be that the interference with her method of work is bad. But Nature is mindful of this tendency and if it is not in accordance with the profoundest laws of being, Nature will have her way in spite of man's meddling. Any change that can be brought about by selective mating must come by natural processes aided by the education of each individual through a closer study of the origin and evolution of life. This must leave everyone free to do his own selecting, rather than to trust it to the state. Society can do much toward giving man an environment which will more or less be adjusted to his heredity. To give him a heredity that will conform to his environment is quite another thing and probably must be kept practically free from the theories, vagaries and experiments of man. It would seem so absurd and dangerous as not to be worth discussing except for the fact that the movement, both for sterilizing and some degree of control of mating has already gone far in some of the states. There is no limit that fanaticism or hatred will respect.

No doubt the popular opinion that in some way crime and pauperism are inherited has been strengthened by the literature concerning the family that has been given the name of "The Jukes." The first extensive study of this family was made by Richard L. Dugdale, who was connected with the New York Prison Association. It was first published in 1877 and may almost be regarded as the "Uncle Tom's Cabin" of the scientific study of crime in America.

Mr. Dugdale was evidently a careful student, an honest investigator and a humane man. Strange to say, deductions have been freely and carelessly made from his book, which the investigations do not warrant, and against which he carefully cautioned the reader. No one can examine Mr. Dugdale's book without being impressed with the quiet unassuming modesty and worth of the author, and yet in the hands of those who have so often carelessly and unscientifically generalized from his studies, it has possibly brought more harm than good.

The book covers investigations made by Dugdale between 1850 and 1870, a period in which little was known about the laws that govern inheritance, and necessarily, much evidence was pure hearsay without the data of careful investigation at hand. The case, however, does show a surprising number of criminals, paupers, harlots and misfits, descending from their original ancestor. From time to time further investigation has brought the history of the family down to 1918.

The ancestor with whom the investigation begins was born some time between 1720 and 1740. In the report the original is called "Max." He has been described as a "hunter and fisher," "a hard drinker," "not fond of work," fairly intelligent and leaving no record of crime. He probably left behind a large family, some of whom were legitimate and some illegitimate. The family came from a barren, rocky, lake region in New York and several generations grew up in the vicinity. The only industry was rough work like quarrying stone, logging and the like. Later a manufacturing plant was located in the region. The Jukes early got a bad name in the small community. Even when they wanted to find employment it was hard to get a job. They were socially ostracized and individually boycotted. The region was poor, and for the most part the family grew up in poverty. Often several members of a family lived in one room and slept on the floor indiscriminately, regardless of sex. For several generations few of them wandered far from the ancestral home. The locality was one that naturally came to be the resort of the poor and the outcast; these are always driven to the cheapest and most barren land. Whether the community was related by blood or not, the residents would almost inevitably be of the same class. Rich people cluster closely together for association and fellowship. The poor and wretched do the same. Common observation in city and country shows that this is inevitable. It comes from deeper and more fundamental laws than human statutes. It is born of the gregarious instinct and fostered and developed by economic law.

In the main, lax habits grow from surroundings and association. The tendency of all human beings is to revert to the primal. It is only association that keeps the individual units up to the tension that civilization expects and demands. Every community shows many examples of this inevitable tendency. Nature is constant; civilization spasmodic. Especially with sex relations, conditions are the chief factor. Nature knows little or nothing of the regulations fixed by society and custom. Poverty and wretchedness reach outward through a community and by association between the old and the young pass down the generations. Nothing but a complete change of environment can counteract the inevitable tendency. When social classes arise and the cleavage is clear and established, no great effort is made by the superior members to aid the inferior. In fact they are almost invariably left to themselves. Poverty and wretchedness are not transmitted in the blood, but in the environment.

It is not many years since physicians and communities believed that tuberculosis was inherited. In all communities there were instances of this dread disease spreading out through families and down the generations. It required the sacrifice of many lives and the careful investigation of scientists to discover that tuberculosis was the result of germs, generally accompanied by an impoverished system. These germs were transferred by close association and lack of sanitary conditions. It is as easy to transmit shiftlessness, idleness and lax habits as disease.

Dugdale's figures of delinquency in the Jukes family are doubtless much too high. A large percentage of facts was gained from gossip and hearsay about those long since dead. The details show that many crimes charged were not even proved, others were evidently not crimes, and in any small community suspicion would rest upon a member of this family who was accused. Then too, the poor in court and out have a hard time defending themselves. They are frequently convicted when accused. The evidence in regard to the subnormal and defective is still less satisfactory. Without close examination and thorough tests, illiteracy generally passes as subnormality. Very few of the subjects were submitted to a careful test. It is at least probable that this family was not much different from the other families who lived in like circumstances in the community.

Dugdale's original examination covered 709 cases out of about 1200 that were supposed to be living at the time. Of this number, 180 are put down as having received institutional and outdoor relief. The criminals and offenders are put down at 140. Habitual thieves convicted and unconvicted are listed at 60. Common prostitutes are put down at 50.

After Dugdale's investigation the family, from industrial and other conditions, became scattered and spread out over many states. A record has lately been made of the descendants of this family, the later record showing much improvement in the stock. This must be due to environment. It seems fairly certain that with time and opportunity, it will not much longer be a marked family.

Quite aside from the history, it seems certain that no results such as shown by Dugdale could have followed from inheritance. Defectiveness is a recessive factor; normality a dominant one. If such were not true, this would be a world of feeble-minded. If the Mendelian law held good in this regard, from a union of a defective and a normal person, three out of four would be normal, but as a matter of fact, the percentage of normal is no doubt much greater. It is only when both father and mother are feeble-minded that feeble-mindedness is sure to show in the offspring. With the modern care of this sort of defectives, the chance of breeding is growing rapidly less.

The Kallikak family is cited as another illustration showing the possible inheritance of criminality and poverty through a defective strain. This family, so far as shown, makes it still clearer that what some authors have charged to heredity is simply due to environment. These investigations do not show the need of controlling birth but do prove the necessity of improving environment. It is not possible to speak with certainty as to heredity and environment. The thorough investigation of these two factors which make up life is still in its infancy, but scientists are working out the problem, and we may be confident that with the right attitude toward crime, a remedy will be found for such cases as result from environment.



XXXIII

CRIME, DISEASE AND ACCIDENT

The criminologist has always looked for the cause of crime in some other direction than in the inherent wickedness of the criminal. Only those who make and enforce the law believe that men commit crimes because they choose the wrong.

Different writers have made their catalogues of causes that are responsible for crime, and most of these lists are more or less correct. There can be no doubt that more crimes against property are committed in cold weather than in warm weather; more in hard times than in good times; more by the unemployed than the employed; more during strikes and lockouts than in times of industrial peace; more when food is expensive and scarce than when it is cheap and plenty; more, in short, when it is harder to live. There is no doubt that there are more crimes of violence in extreme hot weather than in cold weather. That is, heat affects crimes as it affects disease and insanity and death; in short, as it affects all life. More crimes of violence are committed after wars or during heated political campaigns than at other times; more of such crimes when, either by climatic or other conditions, feelings are intensified or aroused and less subject to control. Likewise there are more crimes committed by young men between seventeen and twenty four or five years of age than at any other age. Neither the very young nor the old commit crimes, except in rare cases. All the old people could be safely dismissed from prisons. Some few of the senile would need attention, and many need support and care, but none is dangerous to the community. There can be no question that practically all criminals are poor. Even when bankers get into prison they almost never have much money when they start that way, and none when they arrive. They are sent for something that would not have happened except for financial disaster. There is no longer any question that a large number, say probably from ten to twenty per cent of the convicted are, in fact, insane at the time the act was committed, and that the demented, the imbecile, and the clearly subnormal constitute many more than half of the inmates of prisons. Most of the rest can be accounted for by defective nervous systems, excessively strong instincts in some directions, weak ones in another, or a very hard environment. Add to this the facts that only a few have ever had any education worthy of the name, that most of them have never been trained to make a fair living by any trade or occupation, that almost all have had a poor early environment with no chance from the first, and most of them have had a very imperfect heredity. In short, sufficient statistics have been gathered and enough is known to warrant the belief that every case of crime could be accounted for on purely scientific grounds if all the facts bearing on the case were known.

Is there anything unreasonable in all of this? Is it outside of the other manifestations of life? Let us take disease. Clearly this is affected by heat and cold; beyond question it is largely the result of inherited susceptibilities. Poverty or wealth has much to do with disease. Many poor people die of tuberculosis, for instance, where the well-to-do would live. The span of life of the rich is greater than that of the poor. The long list of diseases from under-nourishment is mainly from the poor. Age affects disease, increasing the hazard of death. The food supply seriously affects health. Ignorance is a prolific cause of disease. Or, to speak more correctly, the lack of education and knowledge prevents men from living so that sickness will not overtake them, or so that they can recover when they are attacked by disease. The strength or weakness of the nervous system is a material factor.

The times of life, too, when the ravages of disease are greatest are as distinct as those of crime. And barring the fact that the few who are left at seventy rapidly drop away, the time of the greatest disasters would rather closely correspond with that of crime. Tuberculosis and insanity, for instance, take their greatest toll in the period of adolescence between fifteen and twenty-five years, just as crime does, and the percentage of both begins falling off rapidly after thirty.

Accidents can be as surely classified, and many of them in the same way. The poor naturally have more accidents than the rich; the ignorant more than the educated; the poorly-fed more than the well-nourished. Accidents are directly affected by climatic conditions; they are affected by human temperaments, by the strength and weakness of the nervous system, by the environment, by heredity, and by all the manifold stimuli that act on the human machine.

Legislatures have long since recognized that crime does not really stand as a separate and isolated phenomenon in human life. They have long since passed laws to safeguard the community against loss by accident and disease. A lengthening list of statutes can be found in our code regulating dangerous machinery, the operation of railroads, the running of automobiles, the construction of buildings, the isolation of the tubercular and those suffering from other contagious diseases, the amount of air-space for each person in tenement and work-shop, the use of fire-escapes and all of man's conduct and activity for the prevention of accidents and disease.

Quite apart from the question of the wisdom or the foolishness of all this line of legislative activity, over which there will always be serious discussion, it is evident that criminal conduct even now occupies no unique or isolated place in law or human conduct. All unconsciously the world is coming to look on all sorts of conduct either as social or anti-social, and this regardless of what has already been classified as criminal. A few years since science was absorbed in the study of man's racial origin and development. Today, biology and allied sciences are devoted to unraveling the complex causes responsible for individual development. It is fair to presume that this new effort of science may be able in time to solve the problem of crime, and that it may do for the conduct and mental aberrations of man what it has already done for his physical diseases.



XXXIV

LUCK AND CHANCE

Accident and luck may seem to have no place in a world of law, and yet the fate of lives rests almost entirely on what can be better classified under this head than any other.

This is a pluralistic universe. The world is made up of an infinite number of independent machines, each having its own existence and controlled by the laws of its own being. In going its several ways and living its own life, inevitably it often clashes with others and is seriously affected by them. The fox and the rabbit both roam the woods, apparently at will, at least independently of each other. By an infinite number of circumstances, at a particular time and place, their paths cross and the fox devours the rabbit. Had they not met at the time and place, the fate of the rabbit would not have been the same. The fox would have traveled farther and eaten another rabbit or some other animal in its stead.

An engine is running on a railroad track. It makes the trip day after day without accident or disaster. An automobile is one of a million built in a far off city. Its mechanism is marvelous, and each part is dependent on the rest for its normal functioning. Some vital piece of the machine contains a flaw. How it chanced to be imperfect is another story involving endless speculation. An inherent natural defect in the ore, or a tired workman anywhere from the original smelting place to the last hand that touched it, may have been the cause; or, the reason may be still more impossible to discover. The machine is purchased and does its work perfectly for months. It is driven thousands of miles without any mishap. It is propelled along the highway and reaches the railroad track over which the engine runs. It is filled with happy people enjoying a vacation. The automobile and the engine reach the crossing at almost the same time. The automobile driver sees the engine and applies the brakes. For the first time since it left the shop, the machinery does not work. The car forges ahead and reaches the tracks just in time to be struck by the engine. The merry party meets disaster. No power could foresee the catastrophe, nor provide against the death that must result. Inevitably comes the clash of independent machines. Each human being is a separate machine. Along the road of life he meets countless others like himself. Some chance meetings are fortunate and help the journey. Some other chance meeting with a human machine, a mechanical device, an infinitesimal microbe that happened to be at the same place at the same time brings disaster or death. This is luck or chance or fate, and this really hovers over every life, controlling its course and destiny and deciding when the puppet shall be laid away!

Luck and chance are the chief of all factors that really affect man. From birth to death the human machine is called on to make endless adjustments. A child is born and starts down the road of life. He starts blindly and, for the most part, travels the whole way in the mists and clouds. On his pathway he meets an infinite number of other pilgrims going blindly like himself. From the beginning to the end, all about him and in front of him are snares and pitfalls. His brain and nervous system are filled with emotions and desires which lure him here and there. Temptations are beckoning and passions urging him. He has no guide to show the way and no compass to direct his course. He knows that the journey will bring him to disaster in the end. He does not know the time or the nature of the last catastrophe he shall meet. Every step is taken in doubt and pain and fear. His friends and companions, through accident or disease, drop around him day by day. He cannot go back or halt or wait. He must go forward to the bitter end.

The whole journey of life is largely a question of luck. Let anyone ask himself the question how often he has escaped disaster or how often death has just passed him by. How often has he done some act that would have led to degradation had it been known? How many hair-breadth escapes has he met? How many accidents has he had which luckily were slight but which easily might have caused his destruction?

Chance is the great element in life. Two men invest money; one gains a fortune, the other loses all. Two men are riding in a machine and it goes over a cliff; one is killed, the other escapes. The deadly germ is taken by one, it passes the other by; or, it is taken by one when his health will make him immune, by another at the time that it will destroy his life. How many temptations to violate the law has one just missed by a lucky accident? How many times has a previous experience, education, or a friend at the right time saved him from destruction?

The imperfect man travels this road; he is poor and friendless; his life is a long series of accidents great and small. The first accident that weakens his structure makes the second more certain and so on in increasing ratio until the end. Good luck crowds around one life, while ill luck and disaster follow another's footsteps wherever he goes with the persistency of his shadow.

In all the infinite number of chances one false step may be enough to bring final disaster. All depends on the nature of the step. Every pilgrim makes innumerable false steps; often luck alone saves the situation; often luck alone compasses the destruction.

Insurance companies know just when accidents will befall the insured. If a man lives long enough he will die from a mischance. In a thousand men, a certain number will meet accident in a given time. It is just the same whether the insurance is written to be payable when a leg is cut off by a train or when money is embezzled from an employer. In either event the time can be figured out, and inevitably it will come if the time is long enough.

Neither is it necessary that the bad luck shall be great at the first misfortune. It may be but the loss of a few dollars which another could easily stand. It may be only a few days of sickness which would be of no consequence to someone else. It may be the death of a father or an uncle, while the same sort of tragedy might be the source of another's wealth. It may be some other person's hard luck which takes him from school and leaves him to follow a life of hard and constant toil. It may be that he had the bad luck not to marry the person of his choice, or it may be that he had the bad luck to marry her. It may be because he had no children; it may be because he had too many. It may well be that he has been saved from prison by dying early of tuberculosis. He may have been saved from a railroad wreck by going to jail. Infinite are the tricks of chance. Infinite are the combinations and consequences that may come from turning the cards in a single deck.

Who is the perfect one that should be willing to punish vengefully his fellow-man? Let one look honestly into his own life and pick out the important things that lead to fortune or disaster from birth onward, and say how many are the results of circumstances over which he had no control.

Where is the human being, in the presence of a dead child or a dead parent or a dead friend or in the presence of a terrible trouble, that has not sat down in sorrow and despair and again and again lived over every circumstance that led to the disaster, asking why he did not turn this way instead of that way? Why did he not stop here, or go there; why did he do this or why did he not do that? Why did he not take this short step? Why did he not think of this or think of that? If only any one of almost an infinite number of things had been done or left undone, the dead would be alive or the disaster would not have befallen. Every man who is honest with himself knows that he has been a creature of conditions and chance, or at least what is chance as far as a man can see, and what was clearly chance to him. He knows that if he has met success, he has only been more in luck than the rest. If he has intelligence and human sympathy, he feels only pity for the suffering. He would never punish in vengeance or hatred. He knows that all do the best they can, with what they have.

Enumerating some of the many causes of crime ought to be an unnecessary task. To give the number of ways men die or are killed by accident, means only that sooner or later they die, and if they had not died one way, they would have died another. It means only that a machine will inevitably give way in some part, and man may go on finding the weak spots and strengthening them forever and still the end will come. Fate does not look for a weak spot; it looks for the weakest and finds it.

Manifold causes produce crime; some men commit it from one cause: some from another. Statistics only show the number of men who commit crime from the various separate causes. In logic and philosophy it really shows that, a certain heredity placed in a certain environment, will meet obstructions and obstacles. Some heredities will carry men further, and some environments will overcome them more quickly; but as surely as effects follow from causes, every heredity will meet disaster in some way under any environment, and the time and kind of disaster it meets depend not upon perverseness or freedom of will, but upon the fortune of the meeting of heredity with the manifold environment that surrounds every life. It must be plain that life lasts only as long as it makes adjustments. That it consists only of adjustments. That, ordinarily, strong heredity and a good environment will serve the longest. That, generally, a weak heredity and a poor environment will meet disaster soonest. Life may be lengthened either by improving the heredity or the environment or both. Whatever catastrophe overtakes it and the time it falls depend not upon the will of the machine, but upon the character of the machine that starts on the journey and the road it travels. The disasters cannot in reason or justice be divided into criminal or non-criminal. They are all natural; they are each and all inevitable. Each is the inevitable destruction of a machine which could stand so much, but which could stand no more. And in each, in spite of both heredity and the general environment, the constant meeting with other machines due to pure luck and chance is a great factor, if not the chief factor, that determines the individual life.



XXXV

PARDONS AND PAROLES

It has always been the province of the Chief Executive of a state or nation to grant pardons or clemency to those who are confined in prison. This is largely to correct the mistakes of courts and juries and is often indulged in by presidents and governors at Christmas time. Experience shows that during the trial of a case, especially one that causes public notice and general discussion, injustice is frequently done. Often the defendant is convicted when he should have been acquitted, and still more frequently punishments are excessive and cruel. Almost never is any serious inquiry made as to the heredity and environment of the accused. Probably trial by jury has served to save many defendants where the judge would have convicted, and has still more often tempered and modified penalties. Still, juries are by no means free from the mob psychology that surrounds and affects most important and well-known cases. Jurors are generally none too intelligent and not very ready to stand against public opinion. Most men agree with the crowd. The prevailing religious opinion and the dominant political and social ideas are accepted and believed by the ordinary citizen. Social and business considerations cause most men to go with the crowd, and in any case of importance it is easy for a jury to tell the feeling of the populace. If the case has attracted much attention, the juror knows the prevailing ideas as to the guilt or innocence of the defendant. When he takes his seat in the box he almost always shares that feeling. If the case is not one he has heard of or discussed, he can easily tell by the actions and surroundings of the court room how public feeling lies. All lawyers know how readily men feel the sentiment of a court room and how much easier is the task when the sentiment is their way. Juries are also apt to have an undue regard for the opinion of the judge. In spite of the fact that it is their province to pass upon the facts, they are very watchful of all the judge says and does and are prone to decide a case as they believe the judge wishes it to be decided. Even when the judge is not permitted to express any opinions on the facts involved, it is difficult for him to hide his real feelings, and when his desire is strong for either side it is easy to make his opinions known.

A jury is more apt to be unbiased and independent than a court, but they very seldom stand up against strong public clamor. Judges naturally believe the defendant is guilty. They feel that the fact that an indictment has been found is a strong presumption against the accused. The judge regards himself as a part of the administration of justice and feels that it is a part of his duty to see that no guilty man escapes. Generally, in the administration of the court he is very closely connected with the state's attorney and naturally believes that the attorney would not have procured an indictment, much less pushed a trial, unless the defendant was guilty.

The whole atmosphere of the court at the time of the trial calls for a harsher and more drastic dealing with a defendant than would naturally prevail after the feeling has passed away. For this reason, the pardoning power is given to the chief executive to correct errors or undue harshness after the legal proceedings have been finished. Often after months or years, the persons or family who have suffered at the hands of the defendant feel like reversing their judgment or extending charity, and it is not unusual that the prosecutor and judge who conducted the case ask for leniency and a mitigation of the sentence is imposed. So often is an appeal made and so frequently is it felt just to grant clemency, that this part of the duty of the chief executive has grown to be very burdensome and really impossible for him thoroughly to perform. The policy of the law is further to give a prisoner some consideration and in cases of good behavior and mitigating circumstances to release him before the expiration of his time. In most states this has called for the creating of a board of pardons and parole. The statutes fixing penalties for certain offenses provide for a reduction of a certain number of weeks or months each year, but as a rule courts take this provision into consideration and figure out the net time they wish to give the defendant so that there is no clemency except through pardon or parole.

In most states the duties of the board are very grave and its business large. With this has generally gone a law providing for the release of prisoners on parole before their sentences are finished. In these cases the prisoner is paroled to someone who promises the board to employ him, and a monthly report is to be made of his conduct for a stated length of time. He is then given conditional freedom, subject to the revocation of the parole by the board on the violation of its terms.

The administration of this power has made the parole board one of the most important, if not the most important, of any branch of the state government. The lives and well-being of thousands of prisoners are absolutely dependent on this board. Even more important are the happiness and well-being of the families of the inmates of the prison. The power and responsibilities of this board are so great that only men of the best judgment and of humane and just tendencies should be trusted with the task. It also calls for great courage such as few men on boards possess. The public generally clamors for vengeance and unfairly and unjustly criticises the board, especially when a released man violates his parole or commits another crime. This frequently happens. Perhaps on an average ten per cent of those paroled are sent back to prison before their term expires. All this makes it hard for the board to perform its duties, and makes the members of the board timid and doubtful of the result, often causing them to deny paroles in many cases where they should be given.

A great deal of criticism has been made of the parole system. Public officials and that part of the crowd that is clamorous for vengeance are always ready to assail its activities unfairly and unduly. Most professional criminals are against the parole board. Speaking of the State of Illinois, I am sure that the parole law, instead of shortening the time of imprisonment, has lengthened the terms. All lawyers in any way competent to handle the defense of a criminal case would, in the event of conviction, almost always get a shorter term for their clients from a jury or from the court, or even from the prosecutor, than from the parole board. I feel strongly that the board is too timid and unwilling to grant paroles. Still in spite of this there can be no doubt that the parole law is a step in the right direction, and it should be upheld by all who believe offenders should have a better chance. If human nature in the administration of law could be relied on; if there were some method of getting men of courage and capacity with plenty of competent aid and assistance to take charge of paroles and prisons, then the ideal sentence should be one that fixed no time whatever. It should simply leave a prisoner for study and observation until it was thought wise and safe to release him from restraint. This like all the rest could not be done with the present public attitude toward criminals. So long as men subscribe to the prevailing idea of crime and punishment, no officials could stand up against public opinion in the carrying out of a new and radical theory, and even if such a board should be established, the law under which it acted would soon be repealed or the members of the board forced to resign and a new one would take its place.

In spite of the fact that the effect of parole boards has been to lengthen sentences, and in spite of my personal belief that they should be materially shortened, I am confident that the parole system should be maintained with the hope of improvement and the chance of gradually educating the public until sentences can be naturally shortened, and the care and control of prisoners be placed on a scientific and humane basis.

A board of pardons and paroles should be made up of men who are really interested in their work. They should carefully keep up with the literature on crime and punishment; they should be scientists in all matters touching their work, and they should be men of humane feelings. It is too much to expect that all of this can be found in a board for a long time to come, but with good sense and the right attitude of mind the board could employ the skill that it does not now have. Every prisoner should be the subject of attention, not of spying, but of friendly interest that would inspire confidence and trust,—such an interest as a wise doctor has in a patient. This attention would in most cases gain the confidence of the prisoner and make it possible to find out how far he could be trusted, at the same time showing the treatment and environment he needed for future development. Where this confidence could not be had, safety would probably require a longer term. Most men respond to kind treatment. The criminal has so long looked on the world as his enemy, especially the official world, that he hesitates to trust anyone. Still the really sympathetic and kindly man who is honestly trying to help him will sooner or later get his confidence and cooeperation. Every prisoner should understand that all of those around him are anxious to educate him so as to fit him for society and to put him in an environment where he can live. Even then there would be mistakes, and a portion of the prisoners would be so defective or imperfect that they never could be released; but under proper treatment many would be restored to association with their fellow-men.

It will be a long time before it will be safe to make sentences entirely indeterminate. Boards cannot be trusted to give such time and work and judgment to their task as will prevent cases of great injustice. Until such time shall come either the statutes must fix an unbending and arbitrary time which takes no account of individual cases, or it must be left with the court or jury. Clearly the jury should fix the maximum, leaving the members of the board to reduce the penalty if they deem it wise.

Most men are forgotten when they go to prison, especially if they have no active friends on the outside. No board can fully keep in mind all the inmates of a large prison. It may be that by some system their attention is automatically called to the man at certain times, but this matters very little. Someone should know he is there and why, and who he is. He should not be an abstract, but a concrete man. For these reasons, a limit should always be set on a punishment and the limit should not be too long. The idea of a tribunal, perhaps including the judge who passed sentence, having the power and the duty imposed upon him to review sentences and reduce them if it seemed best from time to time, might have a good effect. The feelings of most men in reference to the degree of punishment change as time goes by. Always with the punishment is a strong feeling of both hate and fear. It is not possible really to punish, that is, to inflict suffering without hate or fear. The most necessary thing in preparing soldiers to fight, is to teach them to hate and fear the enemy. In the trial of a case, these feelings are fresh in the minds of the prosecutor and the judge when the case is finished, and they necessarily act more or less under the dominance of their passions. In time these feelings fade, and a saner and kindlier judgment takes the place of the first feelings that possessed the mind.

With the parole system is going on a movement for probation. This provides that the convicted man need not be sent to prison but may be released on certain terms, sometimes requiring that money taken shall be refunded. After that he shall be placed under the supervision of some friend or agent who will report from time to time to probation officers or to the court. Probation is generally granted to young prisoners and first offenders but usually not permitted in cases that the law classifies as the most serious.

Parole and probation are much the same in theory. In both these cases the clemency should depend much more upon the man than on the crime. It does not follow that a very serious crime shows a poorer moral fibre than a lesser one. It may well be that the seemingly slight transgressions, like stealing small amounts, picking pockets and the like, show a really weaker nature than goes with a more heroic crime. There is no such liability to repeat in homicide as there is in forgery, pocket-picking or swindling. The seriousness of a homicide is likely to make it impossible that the same man shall ever kill again. Many such men would be perfectly safe on probation or parole. But the smaller things that are easily concealed and come from an effort of the condemned to live, either without work or in a better way than his ability or training permits him to do in the hard and unfair conditions that society imposes, are often much harder to overcome. At any rate, the main question should be in regard to the man and not the crime. In cases of parole or probation, society should do what it can to help the man make good. Generally employment is necessary and a different and easier environment often indispensable. If organized society would only take the pains to make an easier environment for all the less favored, the problem would be fairly simple and most of the misery that comes from crime and prison would gradually disappear.



XXXVI

REMEDIES

Students of crime and punishment have never differed seriously in their conclusions. All investigations have arrived at the result that crime is due to causes; that man is either not morally responsible, or responsible only to a slight degree. All have doubted the efficacy of punishment and practically no one has accepted the common ideas that prevail as to crime, its nature, its treatment and the proper and efficient way of protecting society from the criminal.

The real question of importance is: What shall be done? Can crime be cured? If not, can it be wiped out and how? What rights have the public? What rights has the criminal? What obligations does the public owe the criminal? What duties does each citizen owe society?

It must be confessed that all these questions are more easily asked than answered. Perhaps none of them can be satisfactorily answered. It is a common obsession that every evil must have a remedy; that if it cannot be cured today, it can be tomorrow; that man is a creature of infinite possibilities and all that is needed is time and patience. Given these a perfect world will eventuate.

I am convinced that man is not a creature of infinite possibilities. I am by no means sure that he has not run his race and reached, if not passed, the zenith of his power. I have no idea that every evil can be cured; that all trouble can be banished; that every maladjustment can be corrected or that the millennium can be reached now and here or any time or anywhere. I am not even convinced that the race can substantially improve. Perhaps here and there society can be made to run a little more smoothly; perhaps some of the chief frictions incident to life may be avoided; perhaps we can develop a little higher social order; perhaps we may get rid of some of the cruelty incident to social organization. But how?

To start with: it seems to me to be clear that there is really no such thing as crime, as the word is generally understood. Every activity of man should come under the head of "behavior." In studying crime we are merely investigating a certain kind of human behavior. Man acts in response to outside stimuli. How he acts depends on the nature, strength, and inherent character of the machine and the habits, customs, inhibitions and experiences that environment gives him. Man is in no sense the maker of himself and has no more power than any other machine to escape the law of cause and effect. He does as he must. Therefore, there is no such thing as moral responsibility in the sense in which this expression is ordinarily used. Punishment as something inflicted for the purpose of giving pain is cruelty and vengeance and nothing else. Whatever should be done to the criminal, if we have humanity and imagination, we must feel sympathy for him and consider his best good along with that of all the rest of the members of the society whose welfare is our concern.

While punishment cannot be defended, still self-defense is inherent in both individuals and society and, without arguing its justification, no one can imagine a society that will not assert it and act for its defense. This will be true regardless of whether the given society is worth preserving or not. Inherent in all life and organization is the impulse of self-preservation. Those members of society who are sufficiently "anti-social" from the standpoint of the time and place will not be tolerated unduly to disturb the rest. These, in certain instances, will be destroyed or deprived of their power to harm. If society has a right attitude toward the subject, if it has imagination and sympathy and understanding, it will isolate these victims, not in anger but in pity, solely for the protection of the whole. Some there are who ask what difference it makes whether it is called punishment or not. I think that the attitude of society toward the criminal makes the whole difference, and any improvement is out of the question until this attitude influences and controls the whole treatment of the question of crime and punishment.

If doctors and scientists had been no wiser than lawyers, judges, legislatures and the public, the world would still be punishing imbeciles, the insane, the inferior and the sick; and treating human ailments with incantations, witchcraft, force and magic. We should still be driving devils out of the sick and into the swine.

Assuming then that man is governed by external conditions; that he inevitably reacts to certain stimuli; that he is affected by all the things that surround him; that his every act and manifestation is a result of law; what then must we and can we do with and for the criminal?

First of all we must abandon the idea of working his moral reformation, as the term "moral reformation" is popularly understood. As well might we cure the physically ill in that way! Man works according to his structure. He never does reform and cannot reform. As he grows older his structure changes and from increase of vitality or from decrease of vitality his habits, too, may change. He may likewise learn by experience, and through the comparing and recalling of experiences and their consequences may build up rules of conduct which will restrain him from doing certain things that he otherwise would do. Anything that increases his knowledge and adds to his experience will naturally affect his habits and will either build up or tear down inhibitions or do both, as the case may be. If he has intelligence he knows he is always the same man; that he has not reformed nor repented. He may regret that he did certain things but he knows why and how he did them and why he will not repeat them if he can avoid it. The intrinsic character of the man cannot change, for the machine is the same and will always be the same, except that it may run faster or slower with the passing years, or it may be influenced by the habits gained from experience and life.

We must learn to appraise rightly the equipment of every child and, as far as possible, of every adult to the end that they may find an environment where they can live. It must never be forgotten that man is nothing but heredity and environment and that the heredity cannot be changed but the environment may be. In the past and present, the world has sought to adjust heredity to environment. The problem of the future in dealing with crime will be to adjust environment to heredity. To a large extent this can be done in a wholesale way. Any improved social arrangement that will make it easier for the common man to live will necessarily save a large number from crime. Perhaps if the social improvement should be great enough it would prevent the vast majority of criminal acts. Life should be made easier for the great mass from which the criminal is ever coming. As far as experience and logic can prove anything, it is certain that every improvement in environment will lessen crime.

Codes of law should be shortened and rendered simpler. It should not be expected that criminal codes will cover all human and social life. The old method of appealing to brute force and fear should gradually give place to teaching and persuading and fitting men for life. All prisons should be in the hands of experts, physicians, criminologists, biologists, and, above all, the humane. Every prisoner should be made to feel that the state is interested in his good as well as the good of the society from which he came. Sentences should be indeterminate, but the indeterminate sentence of today is often a menace to freedom and a means of great cruelty and wrong. The indeterminate sentence can only be of value in a well-equipped prison where each man is under competent observation as if he were ill in a hospital. And this should be supplemented with an honest, intelligent parole commission, fully equipped for thorough work. Until that time comes, the maximum penalty should be fixed by the jury, the parole board retaining the power to reduce the punishment or parole. No two crimes are alike. No two offenders are alike. Those who have no friends on the outside are forgotten and neglected after the prison doors have been closed upon them. Some men now are confined much too long; others not long enough. No doubt, owing to the imperfections of man, this will always be the case.

At present no penal institutions have the equipment or management to provide against such shortcomings. They never can have it while men believe punishment is vengeance. When the public is ready to provide for the protection of society and still to recognize and heed the impulses of humanity and mercy, it will abolish all fixed terms. As well might it send a patient to a hospital for a fixed time and then discharge him, regardless of whether he is cured or not, as to confine a convict for a definite predetermined time. If the offense is one of a serious nature that endangers the public, the prisoner should not be released until by understanding or education, or age, or the proper form of treatment, it is fairly evident that he will not offend again. When the time comes, if it is the day of his incarceration, he should be released. The smallest reflection ought to teach that for many crimes, especially for many property crimes, it is hopeless to release a prisoner in an environment where he cannot survive. An environment adjusted to his heredity must be found by the state.

All indignities should be taken away from prison life. Instead the prisoner should be taught that his act was the necessary result of cause and effect and that, given his heredity and environment, he could have done no other way. He should by teaching and experience be shown where he made his mistakes, and he should be given an environment where he can live consistently with the good of those around him.

Various reforms have been urged in the treatment of criminals and in criminal procedure in the courts. Most of these impress me as possessing no fundamental value. It is often said that the accused should be given an immediate trial; that this and subsequent proceedings should not be hindered by delay; that the uncertainties of punishment furnish the criminal with the hope of escape and therefore do not give the community the benefit of the terror that comes with the certainty of punishment that could prevent crime. I can see no basis in logic or experience for this suggestion. It is based on the theory that punishment is not only a deterrent to crime, but the main deterrent. It comes from the idea that the criminal is distinct from the rest of mankind, that vengeance should be sure and speedy and that then crime would be prevented. If this were true and the only consideration to prevent crime, then the old torture chamber and the ancient prison with all its hopelessness and horror should be restored. Logic, humanity and experience would protest against this. If there is to be any permanent improvement in man and any better social order, it must come mainly from the education and humanizing of man. I am quite certain that the more the question of crime and its treatment is studied the less faith men have in punishment.

England and Continental Europe are often pointed to as examples of sure and speedy justice. The fact that there are more convictions and fewer acquittals in England in proportion to the number of trials does not prove that the English system is better than ours. It may and probably does mean that ours is better. Here the accused has more chance. There the expense, the formality, the power of the court all conspire to destroy every opportunity of escape, regardless of innocence or guilt. Even the fact that there are fewer crimes committed in England does not prove that the system is best or that it prevents crime. An old country with its life of caste lacks the freedom and equality that naturally produce defiance of rules and customs and lead to breaches of the law. Other things being equal, a greater degree of freedom leads to more violations of rules and greater resisting power among the poor than a lesser degree of freedom. It does not necessarily follow that the country is best where the people are the most obedient. Complete obedience leads to submission, to aggression and to despotism. Doubtless China has fewer crimes than England. The power of resistance is so crushed that no one thinks of defying a master, resenting an injury, violating a rule, claiming any personal rights or protesting against caste, age, or privilege.

Always there are certain men who believe that all reform in criminal procedure must come by abolishing juries and submitting every question to a court. Those who are rich and strong and the lawyers who advocate their interests are mainly arrayed on this side. The poor and rebellious, with those who naturally or otherwise advocate their cause, stand for the juries as against the courts. Those who strive to be fair are often misled from a lack of experience and little judgment of human nature. The public is always against the accused. The press is against him. The machinery of the law is against him. The dice are loaded for his conviction. Some people have childish faith in the courts. But judges are neither infinitely wise nor infinitely good; they come from the ranks of lawyers and for the most part from those who have been long engaged in defending property rights; they are generally conservative; they are not independent of public opinion; almost invariably they reflect public opinion, which means the public opinion of the community in which they live. Few of them have much knowledge of biology, of psychology, of sociology, or even of history.

One curse of our political life comes from the fact that as soon as a man has secured an office, he has his eye on another and his whole effort is to please the people, that is, the people who express themselves the most easily. Very few judges rise to a great degree of independence or defy popular clamor. A jury is less bound by public opinion; their responsibility is divided; they are not as a rule seeking office; while swayed by the crowd they are still more independent than judges and with them the common man, the accused, has a better chance.

No doubt judges are abler, better educated, more accustomed to weighing evidence and able to arrive at a more logical conclusion than most juries. Still none of these qualities necessarily leads to just findings. Questions of right and wrong are not determined by strict rules of logic. If public opinion could come to regard the criminal as it does the insane, the imbecile, or the ill, then a judicial determination would be the best. But as long as crime is regarded as moral delinquency and punishment savors of vengeance, every possible safeguard and protection must be thrown around the accused. In the settling of opinions and the passing of judgments, mob psychology is all-powerful and really, in the last analysis, every human question comes down to the power of public opinion.

The first thing necessary to lessen crime and to relieve victims from the cruelty of moral judgments is a change of public opinion as to human responsibility. When scientific ideas on this important subject shall be generally accepted, all things that are possible will follow from it. Some headway has already been made in the direction of considering heredity and environment. Theoretically we no longer hold the insane responsible, and some allowance is made for children and the obviously defective. The discouraging thing is that the public is fickle and changeable, and any temporary feeling overwhelms the patient efforts of years. In the present mad crusade against crime consequent upon the Great War, penalties have been increased, new crimes created, and paroles and pardons have been made almost impossible. The public and press virtually declare that even insanity should not save the life of one who slays his fellow. Repeatedly the insane are hanged without a chance, and sentences of death are pronounced, where before, a term of years, or life imprisonment would have been the penalty for the offense. Individual men and collections of men are ruled not by judgment but by impulse; the voice of conscience and mercy is always very weak and drowned by the hoarse cry for vengeance.

As long as men collectively impose their will upon the individual units, they should consider that this imposition calls for intelligence, kindliness, tolerance and a large degree of sympathy and understanding. In considering the welfare of the public: the accused, his family and his friends should be included as a part. It need not be expected that all maladjustments can ever be wiped out. Organization with its close relation of individual units implies conflict. Nevertheless, the effort should be to remove all possible inducement for the violent clashing of individuals and to minimize the severity of such conflicts as are inevitable.

THE END



INDEX

Accidents, inevitability of, 48; conditions affecting chances of, 253; law of averages in, 259. Acquisition, instinct for, 49-50, 51; power of, not a measure of brain capacity, 51-54. Adultery, crime of, 90-91. Adventure, chance for, an incentive to crime, 54, 55, 79, 93. Age, relation of, to crime, 251; and disease, 252, 253. Alcohol, relation of crime to use of, 197-198. America, emotional side of man neglected in, 55; high ratio of property crimes per capita in, 98; system of justice in, superior to that of European countries, 281. Ancestry, effects of, 126-128. See Heredity. Anger, as one underlying motive in punishment, 12; the cause of killings, 83. Animal, man a predatory, 94-100. Animal life, man's origin and development the same as that of other, 29-34. "Anti-social," significance of term, 5-6. Art, satisfaction of emotions by, 55. Automobile, effect of the, on crime, 208-211.

Beauty, appeal of, to man's emotional side, 55. Bible, vengeance as purpose of punishment shown by, 13-14. Boys, development of criminals from, 58-64, 75-80; sex crimes among, 90-91; and the automobile lure, 210-211. Buckle, H. T., "History of Civilization," cited, 102-103. Burglar, development of a, 58-60, 62, 92-93. Burglary, crime of, 92-93.

Capital punishment, question of, 166-171. Chance, man as subject to element of, 255-262. Children, as criminals, 75-80; sex crimes among, 90; rights of property unknown to, 107. Christianity, Pliny's correspondence with Trajan regarding, 225-228. Christians, belief of early, in punishment as vengeance, 14-19. Cities, relative prevalence of crime in, 75-79, 207-208; crimes against property in, 99. Civilization, limitations built up around heredity by, 42-43; growth of crime coincident with growth of, 203-211; the road to decay, 211-212; does not mean the humanizing of men, 228-229; new evils and new complexities with each new, 229. Confidence game in obtaining property, law against, 137. Conscience, as a guide to conduct, 4-5, 109. Conspiracy, statute concerning, 136-137. Convicts, in prison and after 120-123, 230-232; good found in, 181. Courts, growth in number and kind of, 139. Crime, defined, 1-11; purpose of punishment of, 12-27; failure of punishment as a deterrent from, 21-24; need for better understanding of, by the public, 27; responsibility for, 28-36; part played by heredity and environment in, 36; among women, 71-74; of homicide, 81-87; due to sex relations, 88-91; of robbery and burglary, 92-93; performed against property, 101-108; question of increase in, 134-142; industrialism and, 203-208; increase of, due to the automobile, 208-211; war and, 213-220; disease, accident, and, 250-254; elements of luck and chance as related to, 255-262; remedies for, 273-285. Criminal, scope of word, 1-6; one who violates "folk-ways" of his community, 6-9; purpose of punishment of the, 12-27; need for better understanding of, 27; reasons for existence of, 56-70; the female, 71-74; the juvenile, 75-80; attitude of the, 109-115; the law and the, 116-129; effect on others of punishment of, 158-160; stigmata of, 172-177; the good in the, 178-182; pardon, parole, and placing on probation of, 263-272. Criminal conduct, psychology of, 44-55.

Dante, the hell of, 15. Death penalty, methods of inflicting, 163. Defectives, discussion of the, 183 ff.; in prisons, 184-185; proposed isolation or sterilization of, 233-249. Disease, treatment of crime contrasted with that of, 139-140, 154, 230-232; crime, accidents, and, 250-253. Doctors, employment of, in trials, as experts, 143-149. Dugdale, R.L., study of "The Jukes" by, 244-248.

Education, a response to suggestion, 65; importance of, to the child, 77-78; of the subnormal and the backward, 237. Edwards, Jonathan, view held by, of punishment as vengeance, 17-19. Emerson, R. W., on non-obedience to law, 114. Emotions, factor of, in human action, 46-55; lack of satisfaction of, in American scheme of things, 55. England, system of justice in, 281. Environment, man the product of heredity and, 34-36; relation of heredity and, 37-40; adjustment of, to heredity, 41-43, 277-278; relation of, to development of criminal, 57-69; effects of, 201-202; necessity of improving, shown by studies of the Jukes and the Kallikaks, 244-249. Experts, medical, in courts, 143-149.

Factory system, growth of cities due to, 76; and crime, 203-212; Fear, emotion of, in man, 46-47; instilling of, an object of punishment, 165. Feeble-minded, distinguishing between the normal and, 185-188. See Defectives. Feuds, family, 12. Flight, instinct of, in man, 46-47. Folk-ways, crime defined as violation of, 6-7; enforcement of, by primitive man, 8; present-day laws descended from, 28; are still a guide to man, 99-100. Forgers, development of, 66-68. Freedom of speech, loss of, as result of World War, 220.

Gang, the boy's, 79. Genius, a frequent indication of insanity, 239. Girls, protected life of, as compared with boys, 72; sex crimes among, 90-91. Glands, the ductless, and their use, 33-34, 38, 174. Grant, General, on repealing of bad law, 130. Grasset, Joseph, "The Semi-Insane and the Semi-Responsible," cited, 239. Gregariousness, instinct of, in man, 47-48, 50.

Hatred, punishment actuated by, 12-19; killings traceable to, 83. Heredity, view of man as the product of environment and, 34-36; relation of environment and, 37-40; problem of future, to adjust environment to, 41-43, 277-278; responsibility of, for the criminal, 57-65; child criminal as result of, 78-79; accounting for accused men's actions by, 126-129; effects of, 201-202; laws of, not sufficiently known to justify sterilization, 237-238. Homicide, the crime of, 81-87.

Ignorance, disease due to, 252. Illinois, operation of parole law in, 267 Incest, crime of, 89-90. Indeterminate sentence, the, 268-271, 278. Industrialism and crime, 76, 203-212. Insane, restraint of, a measure of self-protection, 26; treatment of, 144; in prisons, 184-185; allowances for, in criminal codes, 187-190; legal tests of, not logical or humane, 190-192. Instinct, human action largely governed by, 44-54; stress placed on, as motive power of life, 81-83. Intelligence tests, use of, 185-186. Intolerance, a persisting source of evil, 228-229. Isolation of the subnormal, 233-249.

Jealousy, crime traceable to, 84-85. Jesus, doctrine of vengeance repudiated by, 13-14. Judges, attitude of, 282-283. Jukes family, study of the, 244-248; wrong deductions from, 248-249. Juries, attitude of, toward women criminals, 72, 73, 85; decision as to sanity of defendants left to, 144; abolition of, proposed by some, 282; better chances for the common man with, 283. Juvenile Courts, 59, 139. Juvenile Prison, the, 59.

Kallikak family, results of environment rather than heredity shown by, 249. Kidnapping, death penalty sometimes advocated for, 156. Killings. See Homicide. Kleptomania, a form of insanity, 191-192.

Labor, manual, and its poor pay, 69; training for manual, in schools, 69-70. Law, a codification of a custom, 8; and its infraction, 110-114; the criminal and the, 116-129; repealing of, 130-133; shortening and simplification of codes of, 278. Laws, feeling against so-called property, 112. Legislation, restrictive, resulting from World War, 220. Legislatures, fixing of punishments by, 155-156. Lockouts, crimes resulting from, 102. Lombroso, C, discarded theory of, 172. Luck, element of, as affecting man, 255-262.

Man, origin and development of, like that of other animal life, 29-34; the product of heredity and environment, 34-36; as a predatory animal, 94-100; the outlook for, 274. Milton, the hell of, 15. Mind, operations of the, clouded in mystery, 24; seat of, in whole physical organism, 174. Money-getting, brain power not involved in, 51-54; crimes due to passion for, 104-105. Murder, not a profession like burglary or other crimes, 62; by robbers and burglars, 93. Music, satisfaction of emotions by, 55.

Negroes, disregard of laws pertaining to, 132.

Pacifism, a dream, 218-219. Panics, strikes following on, 102. Pardons, granting of, to criminals, 263-272. Parole, release of prisoners on, 265-272. Parole boards, 22; responsibilities of, 266-272; need of, for honesty, intelligence, and thorough equipment for work, 278-279. Parole laws, 218-219. Pick-pocket, development of the, 60-62. Pliny, letter of, quoted, 225-228. Poverty, relation between crime and, 101-102, 172, 176-177; of men charged with crime, 120. Prisoners, situation of, 120-123; proposed remedial measures affecting, 273-282. Prisons, reformation not accomplished in, 20-21. gradual improvement in, 163-164. Probation, system of, 271-272. Prohibition laws, 138; effect of, on crime, 197-198; Property, crimes against, 97-99; normal results of civilization, 100; discussion and analysis of, 101-108. Pugnacity, instinct of, in man, 47, 48. Punishment, purpose of, 12 ff.; hatred and vengeance as moving purposes of, 12-19; reformation viewed as aim of, 19-21; as a deterrent from crime, 21-24; impossibility of justifying, by any reasoning, 25-27; determining correct basis of fixing, 150-157; effects of too drastic, 156-157; results of, to others than the subject, 158-160; evolution of, 161-165; capital, 166-171; viewed as cruelty, not as a remedial measure, 275.

Rape, crime of, 88-89, 91. Reason, slight effect of, on actions of men, 44-55. Reformation, viewed as purpose of punishment 19-21; impossibility of moral, of man, 276-277. Religion, emotional life supplied by 54-55; in early times, subjects for criminal code furnished by, 161-163; criminal code created with growth of, 223-224. Repulsion, instinct of, in man, 47. "Revelations of St. Peter," quotation from, 14-17. Revenge. See Vengeance. Revenue laws, common violation of, 132. Revolutionists, position of, 114. Robbery, crime of, 92-93.

Sabbath observance, disregard of laws concerning, 132. Self-protection, a justification of imprisonment, 25. Sentences of prisoners, basis of fixing, 156-157; indeterminate, 268-271, 278. Sentimentalism, defense of, 168-169. Sex instinct in man, 45, 48-49; jealousy and revenge caused by, 84-85; crimes resulting from, 88-91. Shoplifting, kleptomania and, 191-192. Social control, theory of, 136; discussion of, 193-202. Spanish Inquisition, ravages of the, 224. Sterilization of the defective, 233-249. Stigmata of the criminal, 172-177. Strikes, crimes following on, 102. Suggestion, power of, on human mind, 24, 65. Sumner, W.G., "Folkways" by, 131.

Taboos, adoption of, by primitive man, 7-8. Tests, physical, of prisoners, 176-177; intelligence, for grading mentality of the backward, 185-186. Trajan, correspondence between Pliny and, 225-228.

Vengeance, origin in, of idea of punishment, 12-19; punishment inflicted solely for, not as remedial measure, 275.

War, encroachments on liberty during, 114-115; effect of, on crime, 213-220. Weather, relation between crime and, 250. Westermarck, E.A., "History of Human Marriage," cited, 89. Witchcraft, hangings for, 224. Women, as criminals, 71-74; shoplifting by, 191-192. World War, underlying cause of, 106; encroachments on liberty during, 115; increase in crime since close of, 214-217; spirit of super-patriotism a result of, 219-220; restrictive legislation due to, 220.

Young, care of the, resulting from mother-instinct, 45-46.

THE END