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CRIME 
 ITS CAUSE AND TREATMENT 
 
CRIME 
 
 ITS CAUSE AND TREATMENT 
 
 BY 
 
 CLARENCE DARROW 
 
 NEW YORK 
 THOMAS Y. CROWELL COMPANY 
 
 PUBLISHERS 
 
Ulb 
 
 COPTBIOHT, 1922 
 
 Bt THOMAS Y. CROWELL COMPANY 
 (Second Printing) 
 
 
 PRINTED IN THE UNITED STATES OF AMERICA 
 
PREFACE 
 
 This book comes from the reflections and ex- 
 perience 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 endeav- 
 ored to present the latest scientific thought and 
 investigation bearing upon the question of human 
 conduct. I do not pretend to be an original inves- 
 tigator, 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 re- 
 examine, 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 
 
vi PREFACE 
 
 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 bram. Whether the brain is 
 like a telephone exchange and is only concerned 
 with automatically receiving and sending out mes- 
 sages 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. 
 
PREFACE vii 
 
 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 foimd 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 conflict- 
 ing and imperfect, and the results after all must 
 rest on a broad scientific imderstanding 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 vol- 
 untary actions. The whole field is a part of human 
 
viii PREFACE 
 
 behavior and should not be separated from the 
 other manifestations of Hfe. I have retained the 
 words because they have a popular significance 
 which is easy to follow. 
 
 Clarence Darrow. 
 Chicago, August 1, 1922. 
 
CONTENTS 
 
 Chapter Page 
 
 ! I. What is Crime ? 1 "^ 
 
 II. Purpose op Punishment 12 
 
 III. Responsibility for Crime 28 
 
 IV. Environment 37 l< 
 
 V. Adjusting Heredity and Environ- 
 ment 41 
 
 VI. Psychology of Criminal Conduct . . 44 
 
 VII. The Criminal 56 
 
 VIII. The Female Criminal 71 
 
 IX. The Juvenile Criminal 75 
 
 X. Homicide 81 
 
 XI. Sex Crimes 88 
 
 XII. Robbery and Burglary 92 
 
 XIII. Man as a Predatory Animal ... 94 
 
 XIV. Crimes against Property 101 
 
 XV. Attitude of the Criminal 109 
 
 XVI. The Law and the Criminal .... 116 
 
 XVII. Repealing Laws 130 
 
 XVIII. Is Crime Increasing? 134 
 
 XIX. Medical Experts 143 
 
 ix 
 
X CONTENTS 
 
 Chapter Page 
 
 XX. Punishment 150 
 
 XXI. Effect op Punishment on Others . 158 
 
 XXII. Evolution op Punishment .... 161 
 
 XXIII. Capital Punishment 166 
 
 XXIV. Stigmata op the Criminal .... 172 
 XXV. The Good in Criminals 178 
 
 XXVI. The Defective and Insane . . . 183 
 
 XXVII. Social Control 193 
 
 XXVIII. Industrialism and Crime .... 203 
 
 XXIX. War and Crime 213 
 
 XXX. Civilization and Crime '"■"221 
 
 XXXI. The Convict N,^ 230 
 
 XXXII. Isolation and Sterilization . . . 233 % 
 
 XXXIII. Crime, Disease and Accident . . 250 
 
 XXXIV. Luck and Chance 255 
 
 XXXV. Pardons and Paroles 263 
 
 XXXVI. Remedies 273 
 
 Index 287 
 
CRIME 
 ITS CAUSE AND TREATMENT 
 
 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 neces- 
 sarily 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 
 
 1 
 
2 WHAT IS CRIME ? 
 
 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 respon- 
 sible for the law. 
 
 It is apparent that a thing is not necessarily 
 bad because it is forbidden by the law. Legisla- 
 tors are forever repealing and abolishing criminal 
 statutes, and organized society is constantly ignor- 
 ing 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 irmocent acts which legislatures and 
 courts have once made criminal. Not only are 
 criminal statutes always dying by repeal or re- 
 peated violation, but every time a legislature 
 meets, it changes penalties for existing crimes and 
 makes criminal certain acts that were not for- 
 bidden 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 politi- 
 cians 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. 
 
WHAT IS CRIME ? 3 
 
 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 ques- 
 tion 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 reli- 
 gious precepts rest on interpretation, and even the 
 things that seem the plainest have ever been sub- 
 ject to manifold and sometimes conflicting con- 
 struction. Few if any religious commands can 
 be, or ever were, implicitly relied on without in- 
 terpretation. 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 con- 
 victed 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 kill- 
 
I 
 
 4 WHAT IS CRIME ? 
 
 ings, 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 there- 
 fore 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 mani- 
 festly 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, how- 
 ever, with the individual. What reason has the 
 
WHAT IS CRIME? 5 
 
 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 
 commxmity 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 tempera- 
 ment, and is no more infallible than any habit or 
 belief. Whether one should always follow his own 
 conscience is another question, and cannot be con- 
 founded 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 organiza- 
 tion in which his life is cast. 
 
6 WHAT IS CRIME ? 
 
 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 com- 
 munities 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 uidustry who ma- 
 nipulate 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 al- 
 ways 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 com- 
 munity where he lives. These customs and folk- 
 
WHAT IS CRIME? 7 
 
 jWays 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 be- 
 lieves 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 auto- 
 matically; 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 primi- 
 tive 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 
 
8 WHAT IS CRIME? 
 
 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 legis- 
 lator 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 thev left the herd. In thp siVht nf thp 
 
WHAT IS CRIME? 9 
 
 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 be- 
 hind 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 
 
10 WHAT IS CRIME? 
 
 the most shocking crimes punished by the severest 
 penalties have been taken from the calendar and 
 no longer even bear the suspicion of wrong. Re- 
 ligious 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 prop- 
 erty; yet nearly all of this is of comparatively 
 modern growth. A new emotion may take pos- 
 session 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 stan- 
 dard. 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, J 
 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 
 
WHAT IS CRIME? 11 
 
 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. 
 
n 
 
 PURPOSE OF PUNISHMENT 
 
 Neither the purpose nor the effect of punish- 
 ment has ever been definitely agreed upon, even 
 by its most strenuous advocates. So long as pun- 
 ishment 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 imtil 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 
 
 12 
 
PURPOSE OF PUNISHMENT 13 
 
 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 pun- 
 ishment 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 Sth 
 Matthew, 38-30 is often quoted in proof of this 
 
14 PURPOSE OF PUNISHMENT 
 
 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 whoso- 
 ever 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." 
 
PURPOSE OF PUNISHMENT 15 
 
 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 docu- 
 ment was discovered at Akhmim in Egj^t, 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 hght, 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 imto 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 
 
16 PURPOSE OF PUNISHMENT 
 
 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 torment- 
 ing 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, 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. 
 
PURPOSE OF PUNISHMENT 17 
 
 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 lan- 
 guage the religious and legal view of punishment 
 as vengeance: 
 
 They [siimers] deserve to be cast into hell; so that 
 divine justice never stands in the way, it makes no objec- 
 tion 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 torment- 
 ing 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 
 
18 PURPOSE OF PUNISHMENT 
 
 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 
 
PURPOSE OF PUNISHMENT 19 
 
 in an unregenerate state. That God will execute the fierce- 
 ness 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 ptmish 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-sensi- 
 tive 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 
 
20 PURPOSE OF PUNISHMENT 
 
 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 refor- 
 mation. 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 pur- 
 pose of reforming the prisoner are not familiar 
 with human psychology. The prison almost in- 
 variably tends to brutalize men and breeds bitter- 
 ness 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 in- 
 telligence 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 
 
PURPOSE OF PUNISHMENT 21 
 
 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 dif- 
 ferent from those professed by the jailer and so- 
 ciety 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 under- 
 stands 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 foimdation for this idea, each pris- 
 oner 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 re- 
 formed. 
 
 A much larger class of people offers the excuse 
 that ptmishment deters from crime. In fact, this 
 idea is so well rooted that few think of question- 
 ing it. The idea that punishment deters from 
 crime does not mean that the individual prisoner 
 is prevented from another criminal act. A con- 
 
22 PURPOSE OF PUNISHMENT 
 
 victed 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 cer- 
 tainly 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 pun- 
 ishment of one does not deter others. Over and 
 over again crimes are committed, by the young 
 especially, that resemble in every detail a pre- 
 vious crime which has received large publicity 
 
PURPOSE OF PUNISHMENT 23 
 
 through the newspapers, often througlL.th£,hang- 
 ing of some culprit. Even the unthinking pubHc, 
 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 real- 
 izes that instead of punishments preventing crime, 
 punishments suggest crime. In the olden days 
 when men admitted that vengeance and punish- 
 ment went together, they were at least more logi- 
 cal, 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 hiunane individuals advocate 
 suppressing the stories in the newspapers, beyond 
 an obituary notice for the deceased, and forbid- 
 ding 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 
 
24 PURPOSE OF PUNISHMENT 
 
 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 vio- 
 lence 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 under- 
 stood. 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 sugges- 
 tions of adventure, love or war. 
 
 Does it then follow that no one shall be re- 
 strained from freedom on account of either his 
 
PURPOSE OF PUNISHMENT 25 
 
 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, 
 canfiot be justified by any reasoning. Punishment 
 really means the infliction of pain because the 
 individual has wilfully transgressed. Its supposed 
 
26 PURPOSE OF PUNISHMENT 
 
 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 suffer- 
 ing. 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 dif- 
 ference. In this lies the whole difference between 
 scientific and humane treatment of the imfortu- 
 nate, and the vengeful punishments that have 
 always been visited by the strong upon the help- 
 less and the weak. Society restrains the imbecile, 
 the dangerously insane, the victims of deadly, 
 contagious diseases. All these are restrained with- 
 out any feeling of hatred, but with pity and under- 
 standing. Society does not keep one of these 
 persons under restraint after he has sufficiently 
 recovered to make it safe to return him to the com- 
 munity; 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 
 
PURPOSE OF PUNISHMENT 27 
 
 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 adminis- 
 tration 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 under- 
 standing of crime and criminals. 
 
Ill 
 
 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 be- 
 tween the powers of light and the powers of dark- 
 ness 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 de- 
 liberately chose to do so out of an abandoned and 
 malignant heart; and that all men alike were en- 
 dowed with this power and all alike were respon- 
 sible for their acts. 
 
 The old indictments charged that: " John Smith, 
 being a wicked, malicious and evil disposed person,, 
 
 28 
 
RESPONSIBILITY FOR CRIME 29 
 
 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 judg- 
 ment 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 crim- 
 inal 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 indi- 
 vidual 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 con- 
 stantly 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 
 
30 RESPONSIBILITY FOR CRIME 
 
 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 divid- 
 ing and building and taking on the form and sem- 
 blance 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 sensi- 
 tiveness of the nervous system; the innate instincts 
 upon which conduct mainly rests; the emotions 
 which control action and which flow from the struc- 
 ture — in short, the degree of perfection and im- 
 perfection of the machine is all hidden in the 
 original cell. No well-informed person now thinks 
 of questioning the fact that the main character- 
 istics 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 gov- 
 ern 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, sensi- 
 tive 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 
 
RESPONSIBILITY FOR CRIME 31 
 
 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 pos- 
 sible 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 orig- 
 inal 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 symmetri- 
 cal, stronger or weaker, but always true to the 
 general pattern of the oak. Variations will be 
 
32 RESPONSIBILITY FOR CRIME 
 
 certain, due in part to heredity and in part to 
 environment. 
 
 That the baby had nothing to do with its equip- 
 ment 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 direc- 
 tions 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 sen- 
 sitiveness and accuracy in receiving and trans- 
 mitting 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 poten- 
 tial strength or weakness. His nervous system and 
 his brain may be good or bad — most likely neither 
 
RESPONSIBILITY FOR CRIME 33 
 
 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 registra- 
 tion is made. Its correctness depends largely upon 
 the perfection of the nervous system and the fine- 
 ness 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, cer- 
 tain 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 
 
34 RESPONSIBILITY FOR CRIME 
 
 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 stimula- 
 tions 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 envi- 
 ronment 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 uni- 
 verse where acts result from chance. Law is every- 
 where 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- 
 
RESPONSIBILITY FOR CRIME 35 
 
 time and harvest, the common phenomena of Na- 
 ture, 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 pro- 
 duced an opposite result, but to his particular 
 structure it was all-controlling. How any special 
 
36 RESPONSIBILITY FOR CRIME 
 
 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 intelli- 
 gent 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 pos- 
 sible effect to deter the criminal after release, or 
 to influence others by the example of the punish- 
 ment. 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 pf 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 caus- 
 ing 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 re- 
 sponsible, 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 symmet- 
 rical, than if it is planted in poor soU or in an 
 exposed spot. 
 
 In one sense heredity is the seed, and environ- 
 ment 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 mean- 
 ing 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 
 
 37 
 
38 ENVIRONMENT 
 
 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 reli- 
 gious 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 struc- 
 tures 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 
 
ENVIRONMENT 39 
 
 outcome of a life. It is obvious that some struc- 
 tures are so perfect that almost no environment 
 will overcome them. Instances of strong men de- 
 veloping 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 with- 
 stand 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 environnient 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 environ- 
 ment, and then up to the capacity of their machines 
 the outcome depends entirely on the environment. 
 Given an environment easy enough they will suc- 
 ceed, or at least " get by." Given a hard envi- 
 ronment they will fail, or " go down." Tens of 
 thousands of men live in a comparatively easy 
 environment and pass their lives as useful citi- 
 zens with no taint of criminality to their names, 
 
40 ENVIRONMENT 
 
 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 re- 
 lentless 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 
 
 41 
 
42 HEREDITY AND ENVIRONMENT 
 
 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 limita- 
 tions around heredity; a persistent growth of en- 
 vironmental 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 
 
HEREDITY AND ENVIRONMENT 43 
 
 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 restric- 
 tions 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 doWh of its own weight, it is at least de- 
 stroying 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, gen- 
 erally by the inferior and the poor, but indirectly 
 in their strain on the nervous system; by the irrita- 
 tion 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 know- 
 ing something of the psychology of human action. 
 First of all, it must be understood that reason, 
 which so many have idealized and placed^n con- 
 trol 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. How- 
 ever 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 Hfe. 
 
 Man has fancied himself in a position in the 
 animal world that facts of life and nature do not 
 
 44 
 
CRIMINAL CONDUCT 45 
 
 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 be- 
 yond 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 
 
46 CRIMINAL CONDUCT 
 
 the care of the young be trusted to anything but 
 the deep-seated instinct that causes the mother 
 to forget her own hfe 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 diges- 
 tive 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. 
 
 Tluinan 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 appre- 
 
CRIMINAL CONDUCT 47 
 
 hended 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 dis- 
 like and, combined with the instinct of pugnac- 
 ity, may lead to crimes of violence. When these 
 instincts are strong enough, the weak and super- 
 ficial barriers cannot stand against them. An elec- 
 trical flash showing the scaffold with the noose 
 above it would have no force to stop an instinct 
 and emotion fully aroused. Through seeing, feel- 
 ing, hearing, tasting or smelling, some instinct is 
 called into action. Many times several conflict- 
 ing 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 con- 
 sciousness of the tree, but has to do only with the 
 direction of the prevailing and controlling force. 
 
 The instinct of gregariousness draws animals 
 and men together into communities and close rela- 
 tions. This is one of the strongest instincts and 
 not only preserves life but is fundamental to those 
 human associations that are the basis of civiliza- 
 tion. Except for this, animals would live a lonely 
 
I 
 
 48 CRIMINAL CONDUCT 
 
 life and probably perish from the earth. Through 
 this instinct, man builds his villages and cities and 
 organizes his states and nations. With the gre- 
 garious 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 arid 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 organ- 
 ized 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. 
 
CRIMINAL CONDUCT 49 
 
 It is the basis of tenderness and sympathy, and is 
 Hkewise 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 emo- 
 tions. 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 re- 
 sults regardless of the rules laid down and thus 
 urging their violation. With weak machines and 
 imperfect systems, where not only are the restric- 
 tions imperfect, the habits not well defined, but 
 where it is impossible to satisfy the instinct under 
 
so CRIMINAL CONDUCT 
 
 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 feel- 
 ing 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 distinc- 
 tively social ; the gregarious instinct is pronounced 
 in many people. These are always seen in com- 
 pany 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- 
 
CRIMINAL CONDUCT 51 
 
 strong; they like children; they are generally sym- 
 pathetic 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 hoard- 
 ing 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 child- 
 hood the instinct for getting the better of every 
 trade; for hoarding what they get, and accumu- 
 lating property all their lives. In this, as in all 
 other respects, no two individuals are alike. His- 
 tory 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 criti- 
 cise 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 
 
52 CRIMINAL CONDUCT 
 
 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 ten- 
 dencies. 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 be- 
 cause 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 im- 
 possible. 
 
 Still the instinct for getting is always present, 
 
CRIMINAL CONDUCT S3 
 
 leading and urging to acquire and to keep. End- 
 less 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 dif- 
 ference. 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 hes 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 
 
54 CRIMINAL CONDUCT 
 
 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. AlF 
 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 forcesThaTmDVe ttf 
 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 emo- 
 tional 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 
 
CRIMINAL CONDUCT 55 
 
 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 ele- 
 ment 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 in- 
 fluences 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 " crim- 
 inal 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 rela- 
 tions; 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 un- 
 bounded 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 
 
 56 
 
THE CRIMINAL 57 
 
 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 w|[o7 from inherited defects or from great 
 misfortune or especially hard circumstances, is not 
 able lo make the necessary adjustments to fit him 
 to his environment. Seldojn is hea man of average, 
 intelligence, unless he belongs to a certain class 
 that will be discussed later. Almost always he is 
 below the normal of intelligerice and in perhaps I 
 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 inherite(f,or^ even that there is 
 ! alcriminal type. It means that with certain physi- 
 |cal and mental imperfections and with certain 
 'Tenvironmeiit the criminal will be the result. 
 
58 THE CRIMINAL 
 
 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 at- 
 tended 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 some- 
 times 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 
 
THE CRIMINAL 59 
 
 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 jusjtice 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 resis- 
 tance. 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 proba- 
 tion. 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 diffi- 
 
60 THE CRIMINAL 
 
 cult 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, neu- 
 rotic ideas, which only add to his natural wonder- 
 ment. 
 
 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 in- 
 clinations in certain directions, as, for instance, 
 to paint or to write or to investigate or to philoso- 
 phize, 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 ambi- 
 tion, 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 
 
THE CRIMINAL 61 
 
 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 coax- 
 ing 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 Ufe of crime. From this start 
 comes the professional criminal so-called. He may 
 
62 THE CRIMINAL 
 
 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 fre- 
 quently 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 rela- 
 tions 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 
 
THE CRIMINAL 63 
 
 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 expla- 
 nations 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 gener- 
 ally 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 
 
64 THE CRIMINAL 
 
 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 de- 
 scribed, 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. 
 
THE CRIMINAL 65 
 
 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 en- 
 tangled 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 regis- 
 tration of the experiences that produce safe habits, 
 or makes them unable to withstand temptation or 
 'ijUgg'estion. 
 
 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 weak- 
 ness of human character that schools of sales- 
 manship are regularly organized and promoted to 
 teach the art of getting victims to part with money 
 for things they do not want or need. 
 
66 THE CRIMINAL 
 
 Every right- feeling person does everything in 
 his power to educate the child. He is ever watch- 
 ful 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 care- 
 fully 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 temp- 
 tations 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 chil- 
 dren is defective or has an unstable nervous system, 
 such a child should never be left without protec- 
 tion 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 sig- 
 natures. Sometimes he is a clerk in a bank and 
 has the opportunity to study signatures ;jhe begins 
 to imitate them, often with no thought of forging 
 
. «S4> 
 
 THE CRIMINAL 67 
 
 paper. He does it because it is an art and prob- 
 ably 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 sur- 
 roundings 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 
 
68 THE CRIMINAL 
 
 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 geogra- 
 phy, or not even learn to read and write, it does not 
 follow that he cannot learn at all. He may possibly 
 
THE CRIMINAL 69 
 
 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 be- 
 cause he is uneducated. Often his lack of educa- 
 tion 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 in- 
 sufficient 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 dis- 
 agreeable 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 com- 
 plex 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, 
 
70 THE CRIMINAL 
 
 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 Ufe 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 unhappi- 
 ness 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 imagi- 
 nation 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. 
 
 71 
 
72 THE FEMALE CRIMINAL 
 
 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 syrapathy 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 gen- 
 erally 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 
 surroimded 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 prose- 
 cuting 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 com- 
 plaint on the part of the public; still a man may 
 
THE FEMALE CRIMINAL 73 
 
 condemn such acquittals and when placed on a 
 jury will himself vote for acquittal. 
 
 After all, the juries are right. ^ Most o f the cases 
 of murder against women involve sexTeiations. 
 TTature Eai"made the bearing^ and rearing^oTSiii- 
 dren first of all the woman's part, and this fact 
 so dominates her life that nothing else seems im- 
 portant 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 judg- 
 ments 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 com- 
 mit 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 
 
74 THE FEMALE CRIMINAL 
 
 think that it is a mistake to beUeve that men and 
 women should be"]udged alike. The structure and 
 nervous systerti of women cause physical and men- 
 t!a! 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 re- 
 gard 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 phe- 
 nomena 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 
 
 75 
 
76 JUVENILE CRIMINALS 
 
 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 culti- 
 vated 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 " fiat." 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 
 
JUVENILE CRIMINALS 77 
 
 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 chil- 
 dren, 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, Zoology, 
 Geology and even Chemistry can be taught to chil- 
 dren 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 educa- 
 tion. The early life is the time that character is 
 
78 JUVENILE CRIMINALS 
 
 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 phys- 
 ical 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 crim- 
 inal. 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 out- 
 door 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 com- 
 munity 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 unfortimates 
 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. 
 
JUVENILE CRIMINALS 79 
 
 Many times he may have fair intelligence, but this 
 is usually attached to an unstable, defective nerv- 
 ous 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 par- 
 ents in youth and has lived in the crowded districts 
 where the home was congested. He has no ade- 
 quate 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 
 
80 JUVENILE CRIMINALS 
 
 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 chil- 
 dren 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 e^sy 
 to classify and understand as crimes against prop- 
 erty. 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 be- 
 tween 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 
 Js jipt reasqn^but instinct. If men~lived by feasbh" 
 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 
 
 81 
 
82 HOMICIDE 
 
 wrong in the sense in which man uses these words. 
 All_^f__our^mgral_CQnceptions are purely of social 
 origin and hence not instinctive in human life, and 
 are forever-givmg 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 
 
HOMICIDE 83 
 
 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 inhi- 
 bitions. 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 over- 
 --whelmed 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 ordi- 
 narily dangerous to the community. The act itself 
 would generally assure that it could never happen 
 again. Some killings, however, are more deliberate. 
 
84 HOMICIDE 
 
 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. ^ considerable number, perhaps 
 more than any other,"come through the commis- 
 sion 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 ,s.ex association. Many 
 socialists have argued that under an equal distri- 
 bution 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 
 
HOMICIDE 85 
 
 real feelings that may exist. Certain claims are 
 made by husbands and by wives, which are prob- 
 ably 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 funda- 
 mental 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 under- 
 stand 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 di- 
 vorces on a greater number of grounds and make 
 them easily obtainable would prevent large num- 
 bers of such killings, but the cause can not be 
 altogether removed. 
 
 The law has long singled out kiUing as the 
 
86 HOMICIDE 
 
 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, ill' detefrhihing 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 physi- 
 cal stability. Homicide practically never becomes 
 an occupation. Most killings are accidental in the 
 sense that they are casual and dependent on cir- 
 cumstances, and there is as a rule much less danger 
 of repetition than there is of the original com- 
 mission of a homicide by one of a defective nervous 
 system who has never before committed an un- 
 lawful act. A large number of men convicted of 
 murder are used as " trusties " in our penal insti- 
 tutions, 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^ 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 pro- 
 tect 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, hunt- 
 
HOMICIDE 87 
 
 ing 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, com- 
 munities 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 mur- 
 derers or not may depend upon a definition of 
 murder. But, beyond doubt, all persons are po-^ 
 tential murderer^ needing only time and circum- 
 stances, and a sufficiently overwhelming emotion 
 that will triumph over the weak restramts 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 pre- 
 serve 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 conven- 
 tions and the laws that hedge him about. 
 
 Rape is almost always the crime of the poor, 
 the hardworking, the uneducated and the abnor- 
 mal. In the man of this type sex hunger is strong; 
 he has'^TitTlFlnoney^'generalfy-- ne -family ;-he-4s- 
 poorly fed and clothed and possesses few if any 
 attractions. He may be a sailoriway f fbm 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 oppor- 
 tunity for him except the one he adopts. It is a 
 
 88 
 
SEX CRIMES 89 
 
 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 over- 
 balances he is lost. 
 
 Incest, which is peculiarly the crime of the 
 weak, the wretched and the poor, has^ somewhat 
 different origin. Westermarck in his " History oj 
 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 rela- 
 tions. The traditions and folk- ways against the 
 marriage of close relations grew from the famil- 
 iarity 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 pre- 
 venting offspring or by producing imperfect off- 
 spring is a doubtful question. Certain communities 
 in Europe have lived together so long that all are 
 related and still they seem to thrive. Considering 
 
90 SEX CRIMES 
 
 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 tradi- 
 tions and customs of the normal and on that judg- 
 ment 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 di- 
 rectly 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 prose- 
 cution 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 
 
SEX CRIMES 91 
 
 fixed by a calendar. It depends really upon devel- 
 opment, 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 consenjLand 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 illegaTlv^ys applies 
 tof 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 unlaw- 
 
 92 
 
ROBBERY AND BURGLARY 93 
 
 fully. Added to this are almost invariably a defec- 
 tive heredity, vicious environment, little education, 
 and a tQtaJ_wantj}i..directioiLm the building up of 
 habits and inhibitions. 
 
 The robber or burglar who kills in the commis- 
 sion 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 adven- 
 ture 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 see- 
 saw trend of the race from " Naturalism to Arti- 
 ficialism," 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 his- 
 tory into the three periods termed Savagery, Bar- 
 barism 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 jour- 
 ney from amoeba to man, any circumstance causing 
 a complete halt for even a brief period meant 
 extinction, while even a persistent interference pro- 
 
 24 
 
MAN AS A PREDATORY ANIMAL 95 
 
 duced a weakened organism, if not an arrest of 
 development. 
 
 This then is the origin of the "Master Instinct," 
 himger. When we consider the various emotions 
 growing from the force of this vital urge, as de- 
 veloped by adaptation to an ever-changing envi- 
 ronment, 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 wher- 
 ever 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 be- 
 tween 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 de- 
 veloped his big brain (cerebrum) involving the 
 central nervous system. Furthermore, it was devel- 
 
96 MAN AS A PREDATORY ANIMAL 
 
 oped 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-in- 
 vented 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 hu- 
 man animal inevitably and surely reacts the same 
 as does inorganic matter. If we understand "intel- 
 ligence " to be the " capacity to respond to new 
 conditions," we can measurably see and at least 
 partly understand the constant inter-play of hered- 
 ity 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 
 
MAN AS A PREDATORY ANIMAL 97 
 
 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. 
 
 Wh erever c ivilization exists on the private prop- 
 erty 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 rneah 
 that he is a vicious anfmal. It simply means that 
 man, in common with the eagle and the wolf, acts 
 in accordance with the all-impelling urge and fun- 
 damental 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 usu- 
 ally win. This is conclusively shown by the his- 
 tory 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 megalo- 
 mania gripping the entire white race, where highly- 
 
98 MAN AS A PREDATORY ANIMAL 
 
 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 condi- 
 tions, 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 
 
MAN AS A PREDATORY ANIMAL 99 
 
 property. With the weaker intellectually and 
 physically jtheseTnstincts arejiU-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 neurasthen- 
 ics 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 pro- 
 
100 MAN AS A PREDATORY ANIMAL 
 
 cess, that of trial and error. If this be true, it 
 clearly follows that in order to conserve any ves- 
 tige 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 scru- 
 tinized 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 pre- 
 sented. To the "irony of facts" must be ascribed 
 the shadows as well as the high lights. No distor- 
 tions or speculations can influence the findings of 
 science. They are accessible and can be checked 
 up by any one sufficiently interested. The student 
 knows thatjnan 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 un- 
 equal 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 be- 
 tween poverty and crime. All lawyers know that 
 the practice of criminal law is a poor business. 
 Most lawyers of ability refuse such practice be- 
 cause it offers no financial rewards. Nearly all the 
 
 101 
 
102 CRIMES AGAINST PROPERTY 
 
 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 uncer- 
 tain line between lawful and unlawful conduct and 
 they land in jail. There^^.axe -mDre-crinaes-XDUl- 
 mitted in hard limes, than in good ^timg^. 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 prac- 
 tice has noticed the large numbers of prosecutions 
 and convictions for all sorts of offences thaCfiJillow 
 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 
 
CRIMES AGAINST PROPERTY 103 
 
 Civilization," collected statictics 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 embezzle- 
 ment and larceny turn up so regularly that they 
 hardly attract attention. Neither does punishment 
 seem to deter others from following the same path 
 
104 CRIMES AGAINST PROPERTY 
 
 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 manipu- 
 late 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 rehgion, 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 de- 
 
CRIMES AGAINST PROPERTY 105 
 
 sire 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 specu- 
 lated with trust funds are ever prosecuted. Gen- 
 erally 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, prohi- 
 
106 CRIMES AGAINST PROPERTY 
 
 bition 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 cre- 
 ating 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 hab- 
 its. 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 busi- 
 ness man, who at every opportunity leaves civili- 
 zation 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 con- 
 ventions, 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 contin- 
 
CRIMES AGAINST PROPERTY 107 
 
 ually 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 prop- 
 erty 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 get- 
 ting property are inside or outside the law. No 
 doubt many of the methods that intelligent and re- 
 
108 CRIMES AGAINST PROPERTY 
 
 spected men adopt for getting property have more 
 inherent criminality than others that are directly 
 forbidden by the law. It must always be remem- 
 bered 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 instruc- 
 tion 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 auto- 
 matically, 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 con- 
 science 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 
 
 109 
 
110 ATTITUDE OF THE CRIMINAL 
 
 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 fol- 
 low 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 en- 
 forcement 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 ex- 
 eniptedlroin taxation — in o^ther words, to^defraud 
 the State. This is done on the excuse that every- 
 one 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 alljuen violate the law when the justifica- 
 tion seems sufficient to tlaem. The laws against 
 
ATTITUDE OF THE CRIMINAL 111 
 
 blasphemy, against Sunday work and Sunday 
 play, agairisTBuying 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 cre- 
 ation 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 
 
112 ATTITUDE OF THE CRIMINAL 
 
 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 cor- 
 poration for which he works really has no right 
 to the gold down in the mine. As he is dig- 
 ging 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 strip- 
 ping 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. 
 
ATTITUDE OF THE CRIMINAL 113 
 
 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 Legisla- 
 ture 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 Hfe. 
 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""vlDiat5d-WiIEbut a sense ofguilt, but~they cafT" 
 "not see how a law they 15elIeve"Tn"can be vio1aEea~~ 
 without serious obliquity. ~— -™.™„,^-' 
 
 Apart from this, there have always been crimes 
 that were not of the class that implied moral wrong. 
 
114 ATTITUDE OF THE CRIMINAL 
 
 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 begin- 
 ning 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 unsuc- 
 cessful revolutionist meets with the severest penal- 
 ties. To him failure generally means death. Men 
 who are fired with zeal for all new causes are for- 
 ever 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 organi- 
 zation that preserves itself while it can; he only 
 recognizes what is true. 
 
 Men have always been obliged to fight to pre- 
 serve liberty. Constitutions and laws do not safe- 
 guard 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 
 
ATTITUDE OF THE CRIMINAL 115 
 
 serious encroachments on liberty during the Civil 
 War. During the last war, these encroachments 
 were greater than any American could have pos- 
 sibly dreamed ; and so far there seems little imme- 
 diate 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, un- 
 reasoning 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. Chang- 
 ing social systems, new political ideas, the labor 
 cause, all movements for religious, social or politi- 
 cal 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 differ- 
 ent, 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 psy- 
 chology 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 re- 
 covery. 
 
 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 mis- 
 
 116 
 
THE LAW AND THE CRIMINAL 117 
 
 demeanors, 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 nor- 
 mal 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 environ- 
 ment 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 im- 
 portant positions. I say this in spite of the fact 
 that my experience has taught me that policemen, 
 
118 THE LAW AND THE CRIMINAL 
 
 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 imper- 
 fect heredities acted upon by impossible environ- 
 ments. However short the time he stays, and how- 
 ever 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 over- 
 shadows 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 
 
THE LAW AND THE CRIMINAL 119 
 
 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 behef 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 be- 
 lieved 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 
 
120 THE LAW AND THE CRIMINAL 
 
 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 pre- 
 sumption of guilt, which extends to everyone con- 
 nected with the case, even to the lawyer appointed 
 to defend him. It is almost a miracle if the de- 
 fendant 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 
 
 c» 
 
THE LAW AND THE CRIMINAL 121 
 
 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 psy- 
 chology 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 intelli- 
 gence 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 
 
122 THE LAW AND THE CRIMINAL 
 
 made to 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 environ- 
 ment 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' 
 ^e same" heredi^ bajck 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 w hich 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 identi- 
 fication. Before this, the witness may have been 
 shown his photograph in convict clothes. Perhaps 
 they identify him, perhaps they do not; if identi- 
 
THE LAW AND THE CRIMINAL 123 
 
 fied, he may be the man or he may not be. Any- 
 how, 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-Mehds suspect him. They suspect hfm 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 acci- 
 dents; everything is the result of law. All phe- 
 nomena 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 humihated, made to suffer unduly, 
 despised or harried. He must be helped if he can 
 
124 THE LAW AND THE CRIMINAL 
 
 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 arejnpre trying 
 and difficult than the criminal. Courts and juries 
 and the^"plibKc, 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 pre- 
 pare 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 re- 
 lease of one against whom the public bore no ill- 
 
THE LAW AND THE CRIMINAL 125 
 
 mil. 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 investi- 
 gate the case and present the facts. The whole 
 matter should be a purely scientific aliS^t 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 sav- 
 ored of treason, and involved criticism of the 
 goverimient, 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 
 
126 THE LAW AND THE CRIMINAL 
 
 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 indict- 
 ments. Why they did them, their states of 
 mind, the conditions and circumstances surround- 
 ing 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 
 ■art-iand" an Tnt&ntv-So-t4^afe- 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 com- 
 mission 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 punish- 
 ment 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 
 
THE LAW AND THE CRIMINAL 127 
 
 ancestors, reaching back to primitive man and 
 even to the animals from whom he came. The 
 remote ancestry is, of course, usually not so im- 
 portant as that immediately behind him. Still, 
 plainly, his form and structure and the details of 
 his whole machine, including the marvelously deli- 
 cate 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 
 
128 THE LAW AND THE CRIMINAL 
 
 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 investi- 
 gation, and it can be well done in no other way. 
 When public opinion accepts the belief that pun- 
 ishment 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 mrslakes 
 will be very few and easily corrected when dis- 
 
THE LAW AND THE CRIMINAL 129 
 
 covered. There will be no cruelty and suffering. 
 The community will be protected and the indi- 
 vidual saved. 
 
 Neither will this task be so great as it might 
 seem at first glance. Trials would probably be 
 much shorter than the endless, senseless bickering 
 in courts, the long time wasted in selecting juries 
 and the many irrelevant issues on which guilt or 
 innocence are often determined, make necessary 
 now. Most of the criminal cases would likewise be 
 prevented if the state would undertake to improve 
 Ihe general social and economic condition of those 
 who get the least. Only a fraction of the money 
 spent in human destruction, in war and out, would 
 give an education adapted to the individual, even 
 to the most defective. It would make life easy by 
 making the environment easy. Only a few of 
 the defective, physically and mentally, would be 
 left for courts to place in an environment where 
 both they and society could live. Perhaps some 
 time this work will be seriously taken up. Until 
 then, we shall muddle along, fixing and changing 
 and punishing and destroying; we will follow the 
 old course of the ages, which has no purpose, 
 method or end, and leaves only infinite suffering 
 in its path. 
 
XVII 
 REPEALING LAWS 
 
 It is comparatively easy to get a penal statute 
 on the books. It is very hard to get it repealed. 
 Men are lazy and cowardly; politicians look for 
 votes; members of legislatures and Congress are 
 not so much interested in finding out what should 
 be done, as they are in finding out what the public 
 think should be done. Often a law lingers on the 
 books long after the people, no longer believing 
 the forbidden thing to be wrong, have repealed it. 
 The statute stays, to be used by mischievous people 
 and by those who believe in the particular law. 
 
 Often the unthinking lay hold of a catch-word 
 or a pet phrase and repeat and write it, as if it 
 were the last word in social science and philosophy. 
 General Grant, when president, stumbled on such 
 a silly combination of words, and surface-thinkers 
 have been repeating it ever since, simply because 
 it sounds wise and pat. Grant once said that, 
 " The way to repeal a bad law is to enforce it." 
 Grant was not a statesman or a philosopher. He 
 was a soldier. He probably heard some one use 
 this phrase, and it sounded good to him. Out of 
 
 130 
 
REPEALING LAWS 131 
 
 that has grown the further statement which courts 
 and prosecutors have used to excuse themselves 
 for the cruelty of enforcing a law that does violence 
 to the feeUngs of the people. This statement is to 
 the effect that so long as the law is on the books, 
 it is the duty of officers to enforce it. The smallest 
 investigation of the philosophy of law shows how 
 silly and reactionary such statements are. 
 
 One thing should be remembered. Laws really 
 qonieJrom_the habits, customs and fe'elings of the 
 people, as interpreted or understood by legislative 
 _bodiesy When these iiabits and customs are old 
 enough they become the folk- ways of the people. 
 Legislatures and courts only write them dowii. 
 When the folk- ways change the laws change, even 
 though^no legislature or judge has recorded their 
 repeal. 
 
 Since Professor Sumner of Yale University wrote 
 his important book, " Folkways," there is no ex- 
 cuse for any student not knowing that this state- 
 ment is true. As a matter of fact, no court ever 
 enforced all the written laws, or ever would, or 
 ever could. Only a part of the discarded criminal 
 law is ever ''r^ealed~6y' other laws. The rest dies 
 from neglect and lack of use. It is like the fudf- 
 mentary parts of the human anatomy. Man's 
 body is filled with rudimentary muscles and nerves 
 that, in the past, served a purpose. These were 
 never removed by operations, but died from dis- 
 
132 REPEALING LAWS 
 
 use. Every criminal code is filled with obsolete 
 laws, some of them entirely dead, others in the 
 course of dissolution. They cannot be repealed by 
 statute so long as an active minority insists that 
 they remain on the books. When the great mass 
 no longer wants them, it is useless to take the 
 trouble to repeal them. The fugitive slave law 
 was never believed in and never obeyed, and it 
 was openly violated and defied by the great mass 
 of the people of the North. The Fourteenth and 
 Fifteenth Amendments to the Federal Constitu- 
 tion, and the statutes passed to enforce them, pro- 
 viding political and civil equality for the black man, 
 and forbidding discrimination on railroads, in 
 hotels, restaurants, theatres and all public places, 
 have never really been the law in any state in the 
 Union. Their provisions have always been openly 
 violated and no court would think of enforcing 
 them, for the simple reason that public sentiment is 
 against it. Laws condemning witchcraft and sorcery 
 both in Europe and America did their deadly work 
 and died, for the most part, without repeal. Sab- 
 bath laws of all sorts forbidding work and play and 
 amusements are dead letters on the statute books 
 of most states, in spite of many attempts to gal- 
 vanize them into life. All kinds of revenue laws 
 are openly violated. Most tax-payers of intelli- 
 gence who own property violate the revenue law 
 openly and notoriously, and all courts and officers 
 
REPEALING LAWS 133 
 
 as well as the public know it. Many laws which 
 interfere with the habits, customs and beliefs of 
 a large number of people, like the prohibition laws, 
 never receive the assent of so large a percentage 
 as to make people conscious of any wrong in violat- 
 ing them, and therefore people break them when 
 they can. Often this class of laws is enforced upon 
 offenders who believe the law is an unwarrantable 
 interference with their rights, and thus causes con- 
 victions where no moral turpitude is felt. 
 
 Every new crusade against crime not only 
 sweeps away a large amount of work that has 
 been slowly and patiently done toward a right 
 understanding of crime, but likewise puts new 
 statutes on the books which would not be placed 
 there if the public were sane. When it does not 
 do this, it increases penalties which work evil in 
 other directions and awe courts, juries, governors 
 and pardon boards, not only preventing them from 
 listening to the voice of humanity and justice, but 
 causing them to deny substantial rights and wreak 
 vengeance and cruelty upon the weak and helpless. 
 
XVIII 
 
 IS CRIME INCREASING? 
 
 The question is often asked, is crime increasing? 
 Statistics of all kinds can be gathered on this sub- 
 ject. In the main they seem to show that crime is 
 on the increase in most civilized countries. It is 
 very unsafe to use statistics without at the same 
 time considering all the questions on which con- 
 duct rests. An increase of crime, as shown by 
 statistics, may mean that the records are kept 
 more completely than in former times. It may 
 mean temporary causes like bad times are adding 
 to the number of arrests and convictions. It may 
 mean new classifications. It may mean that figures 
 are based on arrests instead of convictions. It 
 may include misdemeanors with graver offenses. 
 It may or may not include repeaters. Statistics 
 in any field are useful, but usually for broad gen- 
 eralizations, and they must always be interpreted 
 by men of experience who are not interested in 
 the results. Still, on the whole, it is probable that 
 statistics show that crime is on the increase. What 
 have reason and human experience to say on the 
 subject? 
 
 134 
 
IS CRIME INCREASING ? 135 
 
 We should always bear in mind that qrime,.can 
 never mean anything except the-violatio^n- of law, 
 when the violator Js convicted; that it has no 
 ftecessary reference to the general moral condition 
 of man. Is the number of criminal convictions 
 growing, and if so why? In the first place, the 
 criminal code is lengthening every year. When 
 civilized man began making criminal codes, there 
 were comparatively few things forbidden. The 
 codes were largely made up of those acts which, 
 in some form, have for ages been generally thought 
 to be criminal. Religious beliefs, customs and 
 habits were included in the penal statutes. So 
 were such things as sorcery and witchcraft. Prop- 
 erty was then not an important subject in man's 
 activities. When the instinct to create and accu- 
 mulate property- HDegan to rule life, the criminal 
 code grew very rapidly. Complex business inter- 
 ests, combined with the constantly increasing value 
 placed on property, were always calling for new 
 statutes. 
 
 The same tendency, indirectly, demanded still 
 other statutes until at the present time this class 
 of crimes makes up a large part of the criminal 
 code and is growing steadily each year. Then too, 
 the necessity of property has called for the viola- 
 tion of this part of the criminal code more than any 
 other, and it has naturally caused a considerable 
 increase of crime. Man in his social and political 
 
136 IS CRIME INCREASING ? 
 
 activities is ever weaving and bending and twisting 
 back and forth. For a number of years the uni- 
 versal tendency, especially in America, has been 
 toward what is called "Social Control", the idea 
 being that more and more people should be con- 
 trolled in an increasing number of ways. Of course, 
 if people are to be controlled they must be con- 
 trolled by other people. This policy has been 
 extended until we are ever pushing further into 
 the regulation of the habits, customs and lives of 
 all the individual members of the community. The 
 majority, when it has the power, has never hesi- 
 tated to force its ways of living, its ideas, customs 
 and habits on the minority. The majority, when 
 strong enough, has always assumed that it was 
 right, and provided that others must live its way 
 or not at all. The pendulum is now swinging far 
 this way as is evidenced by prohibition, the persis- 
 tent campaign for Sunday laws, and the growing 
 belief in social control as a means of changing and 
 directing humanity. 
 
 This has added to the criminal code and has 
 increased the number of men in prisons. Two stat- 
 utes of recent date in most of the states are re- 
 sponsible for a very large increase in the number of 
 convicts. The conspiracy statute which is used to- 
 day is a deliberate scheme on the part of prosecu- 
 tors to get men into the penitentiary by charging an 
 agreement or confederation of two or more persons 
 
IS CRIME INCREASING ? 137 
 
 to do something, which, if really committed, would 
 be a misdemeanor, or no crime whatever. Under 
 this charge, whether made specifically or in connec- 
 tion with another crime, the rules of evidence have 
 been opened and relaxed until the wildest and most 
 remote hearsay is freely admitted for the plain 
 purpose of convicting men who have really been 
 guilty of no specific act. It is in effect punishing 
 one of his thoughts; the business of the court or 
 jury being to find out whether in some particular 
 he has an evil mind. 
 
 The statute forbidding the use of the " confidence 
 game" in obtaining property sends to prison a con- 
 stant stream of persons who, until a few years ago, 
 would have been guilty of no crime. This law, as 
 interpreted by the courts, really means the procur- 
 ing of money by dishonest means. Under this statute 
 the court and jury hear the evidence and say 
 whether the means charged are dishonest or not. 
 This, of course, leaves the law so that the tempo- 
 rarily prevailing power, perhaps only the prosecut- 
 ing attorney, may send men to prison who take 
 means of getting money that are not practiced 
 or at least advocated by the ones who procure the 
 passage and enforcement of the law. 
 
 Numberless ways used by the strong to get 
 money are considered dishonest by a large class 
 of men and women: exaggerated and lying adver-. 
 tisements, forestalling the markets, the acts and 
 
138 IS CRIME INCREASING ? 
 
 wiles of the professional salesman, misrepresenting 
 goods and other methods that could never be cata- 
 logued because new ways are constantly coming 
 to light. The logical end of all these indefinite 
 and uncertain laws is to pass one statute providing 
 that whoever does wrong shall be imprisoned, et 
 cetera, et cetera. The law never can specify all 
 the ways of doing wrong and many of the meanest 
 and most annoying things have never been, and 
 from the nature of things never can be, prohibited 
 by the statutes. No man is a good citizen, a good 
 neighbor, a good friend, or a good man just because 
 he obeys the law. The intrinsic worth is determined 
 mainly by the intrinsic make-up. 
 
 Civilization is all the while making it harder for 
 men to keep out of prison. Especially do the weak 
 and ignorant and poor find that environment is 
 constantly creating more inhibitions as time goes 
 on. While rules and customs are prohibiting more 
 and more ways of getting property, the needs 
 growing out of civilization are always increasing. 
 The simple inexpensive life of the past has given 
 place to a more complex way of living, which calls 
 for greater expense and harder work. It has cre- 
 ated rivalry and jealousy to get the things that 
 others have, and has placed men in a mad race 
 with each other which often leads to jail or death. 
 
 Students of biology are constantly noting the 
 difficulty that hereditary human traits, which 
 
IS CRIME INCREASING ? 139 
 
 have been evolved for simple reactions and plain 
 nvmg^findin making the necessary adjustments 
 to the extravagant demands arid complicated 
 environment of the present day. This departure 
 from the old normal and simple environment, due 
 largely to machinery and commerce, is not only 
 destroying individual lives by the thousands, but 
 is seriously threatening the whole social fabric. 
 
 The creation of new courts, like "Boys' Courts," 
 " Juvenile Courts," " Courts of Domestic Rela- 
 tions," " Moral Courts," with their array of " So- 
 cial Workers," " Parole Agents," " Watchers," et 
 cetera, shows the growth of crime and likewise 
 the hopelessness of present methods to deal effec- 
 tively with a great social question. Numbers of 
 people in our big cities are making their living 
 from the abnormal lives of children. Whether 
 they are doing good or not, or whether their service 
 is unselfish, as much of it doubtless is, are both 
 quite aside from the question. The important fact 
 is that the present system brings no results and 
 that the disease is growing. 
 
 Instead of any considerable number of people 
 taking hold of the question of crime, as physi- 
 cians have taken hold of disease, and seeking 
 to find its cause and to remove that cause, we 
 content ourselves with prosecuting and punishing 
 and visiting with misery and shame, not only the 
 boys and girls, the men and women, who are the 
 
140 IS CRIME INCREASING ? 
 
 victims of life, but the large number of fathers, 
 mothers, brothers, sisters, sons and daughters, 
 whose lives are ruined by a catastrophe with which 
 at least they had nothing to do. If a doctor were 
 called in to treat a case of t3^hoid fever, he would 
 probably find out where the patient got his milk 
 supply and his drinking water and would have 
 the well cleaned out to stop the spread of t3^hoid 
 fever through infection. A lawyer called to treat 
 the same kind of a case, legally speaking, would 
 give the patient thirty days in jail, thinking that 
 this treatment would effect a cure. If at the end 
 of ten days the patient were cured, he would never- 
 theless be kept in prison until his time was out. 
 If at the end of thirty days the disease was more 
 infectious than ever, the patient would be dis- 
 charged and sent upon his way to spread contagion 
 in his path. 
 
 The transgression of organized society in the 
 treatment of crime would not be so great if stu- 
 dents and scientists had not long since found the 
 cause of crime. It would be hard to name a single 
 man among all the men of Europe and America 
 who have given their time and thought to the 
 solution of this problem, who has not come to the 
 conclusion that criijie has a natural origin, and 
 that the criminal for the most part is the victim 
 of heredity and environment. These students have 
 pointed the way for the treatment of the disease, 
 
IS CRIME INCREASING ? 141 
 
 and yet organized government that spends its mil- 
 lions on prosecutions, reformatories, jails, peni- 
 tentiaries and the like, has scarcely raised its hand 
 or spent a dollar to remove the cause of a disease 
 that brings misery and despair to millions and 
 threatens the destruction of all social organization! 
 To the teaching of the student and the recom- 
 mendations of the humane the mob answers back: 
 " Give us more victims, bigger jails, stronger pris- 
 ons, more scaffolds! " 
 
 Not only has the constant multiplication of penaF 
 laws helped without avail to fill jails, but the fail- 
 ure to repeal laws that are outgrown does its part. 
 As already stated, there are many anti-social and 
 annoying things that can be done without violating 
 the law. This, no doubt, is responsible for some 
 of the general statutes like that aimed at the confi- 
 dence game that catches a victim when the crime is 
 not clearly defined as in " robbery," " burglary," 
 "larceny" and the like. Still it has been the general 
 opinion of those who have studied crime and influ- 
 enced the passage of penal laws, that criminal stat- 
 utes should be clear and explicit so that all would 
 know what they must not do. It is obvious that if 
 one is to be punished simply for doing wrong, there 
 could be no judges or juries or jailors condemning 
 and punishing and no crowds shouting for ven- 
 geance. All do wrong and do it over and over again, 
 and day by day. It is not only those specific 
 
142 IS CRIME INCREASING ? 
 
 things that the great majority think are wrong, 
 but the graver offenses that are meant to be the 
 subject of criminal codes. Of course, codes do 
 not work out this way in practice. In effect, they 
 forbid the things that the strongest forces of the 
 community wish forbidden, things which may 
 or may not be the gravest and most anti-social 
 acts, but which at least seem to the strong to be 
 most hostile to their interests and ruling emotions. 
 
XIX 
 
 MEDICAL EXPERTS 
 
 So long as the ordinary ideal of punishment 
 prevails, a crime must consist of an act coupled 
 with an intent to do the thing, which probably 
 means an intent to do evil. This is no doubt the 
 right interpretation of intent, although cases can 
 be found, generally of a minor grade, which hold 
 that evil intent is not necessary to the crime. 
 Under the law as generally laid down, insanity is 
 a defense to crime when the insanity is so far 
 advanced as to blot out and obliterate the sense 
 of right and wrong or render the accused unable 
 to choose the right and avoid the wrong. Of 
 course, legal definitions of scientific terms, pro- 
 cesses, or things, do not ordinarily show the highest 
 wisdom. It is safe to say that few judges or 
 lawyers have ever been students of insanity, of the 
 relation of " will " to " conduct," or of other ques- 
 tions of science or philosophy. Each man confines 
 himself to his field of operation, and the love of 
 living does not induce him to go far from the 
 matter in hand, which to him means the base of 
 
 supplies. 
 
 143 
 
144 MEDICAL EXPERTS 
 
 The insane are exempted from punishment for 
 crime on the ground that they are not able to 
 prepare and attend to their cases when placed on 
 trial and on the further ground that their " free 
 will" is destroyed by disease or "something else/' 
 and therefore they could form no intent. In an- 
 other place I have tried to point out the fact that 
 the acts of the sane and the insane are moved by 
 like causes, but this is not the theory of the law. 
 
 Insanity is often very insidious. Many cases 
 are easily classified, but there is always the border 
 line, the twilight zone, which is sure to exist in 
 moral questions and in all questions of human 
 conduct, and this is hard to settle. It is generally 
 determined by the feelings of a jury, moved or 
 not by the prejudice of the public, depending on 
 whether the community has been lashed or per- 
 suaded to take a hand in the conduct of the case. 
 
 Lawyers and judges are not psychologists or 
 pschiatrists, neither are juries. Therefore the doc- 
 tor must be called in. As a rule, the lawyer has little 
 respect for expert opinion. He has so often seen 
 and heard all sorts of experts testify for the side 
 that employs them and give very excellent reasons 
 for their positive and contradictory opinions, that 
 he is bound to regard them with doubt. In fact, 
 while lawyers respect and admire many men who 
 are expert witnesses, and while many such men 
 are men of worth, still they know that the expert 
 
MEDICAL EXPERTS 145 
 
 is like the lawyer: he takes the case of the side 
 that employs him, and does the best he can. 
 The expert is an every-day frequenter of the 
 courts ; he makes his living by testifying for con- 
 testing litigants. Of course scientific men do not 
 need to be told that the receipt of or expectation 
 of a fee is not conducive to arriving at scientific 
 results. Every psychologist knows that, as a rule, 
 men believe what they wish to believe and that the 
 hope of reward is an excellent reason for wanting to 
 believe. It is not my intention to belittle scientific 
 knowledge or to criticise experts beyond such gen- 
 eral statements as will apply to all men. I have 
 often received the services of medical experts when 
 valuable time was given without any financial re- 
 ward, purely from a sense of justice. But all men 
 are bound to be interested in arriving at the con- 
 clusion they wish to reach. Furthermore, the 
 contending lawyers are willing to assist them in 
 arriving at the conclusions that the lawyer wants. 
 It is almost inevitable that both sides will 
 employ experts when they have the means. The 
 poor defendant is hopelessly handicapped. He is, 
 as a rule, unable to get a skillful lawyer or skillful 
 experts. A doctor's opinion on insanity is none 
 too good, especially in a case where he is called 
 only for a casual examination and has not had the 
 chance for long study. The doctor for the prose- 
 cution may find that the subject can play cards 
 
146 MEDICAL EXPERTS 
 
 and talk connectedly on most things, and as he 
 is casually visiting him for a purpose, he can see no 
 difference between him and other men. This may 
 well be the case and still have little to do with 
 insanity. Experts called for the defense cannot 
 always be sure that the patient truthfully answers 
 the questions. A doctor must make up his mind 
 from examining the patient, except so far as hypo- 
 thetical questions may be used. In all larger cities, 
 certain doctors are regularly employed by the 
 prosecution. While it would be too much to say 
 that they always find the patient sane, it is safe 
 to say that they nearly always do. Especially is 
 this true in times of public clamor, which affects 
 all human conduct. A court trial with an insanity 
 defense often comes down largely to the relative 
 impression of the testimony of the experts who 
 flatly contradict each other, leaving with intelli- 
 gent men a doubt as to whether either one really 
 meant to tell the truth. The jury knows that they 
 are paid for their opinions and regards them more 
 or less as it regards the lawyers in the case. It 
 listens to them but does not rely upon their opin- 
 ions. Expert testimony is always unsatisfactory 
 in a contested case. Under present methods, it 
 can never be any different. 
 
 There is another danger: juries do not know 
 the difference in the standing, character and at- 
 tainments of doctors, so the tendency is always 
 
MEDICAL EXPERTS 147 
 
 to find the man who will make the best appearance 
 and testify the most positively for his side. This 
 is unfair to the expert, unfair to science, and 
 unfair to the case. 
 
 The method for overcoming this difficulty that 
 has received most sanction from students is that 
 experts shall be chosen by the state and appear 
 for neither side. This, like most other things, 
 has advantages and disadvaritages. State officials, 
 or those chosen by the state, usually come to 
 regard themselves as a part of the machinery of 
 justice and to stand with the prosecuting attor- 
 ney for conviction. It will most likely be the same 
 with state defenders. No one who really would 
 defend could be elected or could be appointed, 
 and it would work out in really having two prose- 
 cutors, one nominally representing the defense. 
 A defendant should be left to get any lawyer or 
 any expert he wishes. No one can be sure that 
 the state expert will be better than the others. 
 All one can say is that state experts may not be 
 partisans, but, in effect, this would mean that they 
 wouM not be partisans for the defendant. The 
 constant association with the prosecutor, the offi- 
 cers of the jail, the public officials, and those 
 charged with enforcing the law, would almost 
 surely place them on the side of the state. Such 
 men must be elected or appointed by some tribunal. 
 This brings them to the attention of the public 
 
148 MEDICAL EXPERTS 
 
 and makes them dependent on the public. The 
 expert's interest will then be the same as the 
 interest of the prosecutor and the judge. 
 
 The prosecuting attorney is not a partisan. His 
 office is judicial. He is not interested in convicting 
 or paid for convicting, and yet, no sane person 
 familiar with courts would think that the defend- 
 ant could be safely left in his hands. Assuming 
 he is honest, it makes little difference. Almost no 
 prosecutor dares do anything the public does not 
 demand. Neither, as a rule, has he training nor 
 interest to study any subject but the law. The 
 profounder and more important matters affecting 
 life and conduct are a sealed book which he could 
 not open if he would. Very soon under our political 
 system the expert business would gravitate into 
 the hands of politicians, the last group that should 
 handle any scientific problem. I am free to confess 
 the difficulties of the present system, but some 
 other way may be even worse. It must always be 
 remembered that this country is governed by pub- 
 lic opinion, that public opinion is always crude, 
 uninformed and heartless. In criminal cases there 
 is no time to set it right. The position of the 
 accused is hard enough at best. He is really 
 presumed guilty before he starts. Every lawyer 
 employed to any extent in criminal practice knows 
 that in an important case his greatest danger is 
 public opinion. He would not take the officers and 
 
MEDICAL EXPERTS 149 
 
 attaches of the court as jurors, although they 
 might be good men, for their interest and psy- 
 chology would be always for conviction. 
 
 If defendants were not regarded as moral de- 
 linquents, iFThe exa;riiination implied no moral 
 condemnation:, if it was only a scientific investiga- 
 tion as to where ta place him if he is anti-social, 
 i^ public opinion supported this view, then experts 
 should be appointed by the court. On this phase 
 of the case there would be little need of experts. 
 I would be willing to go further and say that then, 
 too, the partisan lawyer, the hired advocate, should 
 disappear. The machinery of justice would be all- 
 sufficient to take care of the liberties of every 
 man, to give him proper treatment in disease, to 
 restore him to freedom when safe, and, when 
 that time does come, the unseemly contest 
 in courts will disappear, and justice, tempered with 
 mercy, will have a chance. 
 
XX 
 
 PUNISHMENT 
 
 Assuming that man is justified in fixing the 
 moral worth of his fellow; that he is justified in 
 punishment for the purpose of making the offender 
 suffer; and that these punishments according to the 
 degree of severity will in some way pay for or 
 make good the criminal act or protect or help 
 society or prevent crime or even help the offender 
 or someone else, what finally is the correct basis 
 of fixing penalties? 
 
 No science, experience, or philosophy and very 
 little humanity has ever been considered in fixing 
 punishments. The ordinary penalties are first: fines, 
 which generally penalize someone else more than 
 the victim; these with the poor mean depriving 
 families and friends of sorely needed money, and 
 the direct and indirect consequences are sometimes 
 small and sometimes very great. These can be 
 readily imagined. If instead of fines a prison sen- 
 tence is given, a sort of decimal system has been 
 worked out by chance or laziness or symmetry of 
 figures; certainly it has been done wholly regard- 
 less of science, for there is no chance to apply 
 
 ISO 
 
PUNISHMENT ISl 
 
 science when it comes to degrading men and taking 
 away a portion of their lives. Generally ten days is 
 the shortest. From this the court goes to twenty, 
 then thirty, then sixty, then three months, then 
 six months, then one year. 
 
 Why not eleven days? Why not twenty-four 
 days? Why not forty days? Why not seventy 
 days? Why not four months or five, or eight or 
 nine or ten months? Is there no place between six 
 months in jail and a year in jail? The bids at an 
 auction or the flipping of pennies are exact sciences 
 compared with the relation between crime and 
 punishment and the process of arriving at the right 
 penalty. If in the wisdom of the members of the 
 legislature the crime calls for imprisonment in the 
 penitentiary, then the ordinary sentences run one, 
 two, five, ten, fifteen, twenty, thirty years, and life, 
 according to the hazard of the legislature, the 
 whim of the court, the gamble of the jury, or the 
 feeling and means of expression of the unthinking 
 and pitiless crowd who awe courts and juries with 
 their cries for vengeance. 
 
 Neither does punishment affect any two alike; 
 the sensitive and proud may suffer more from a 
 day in jail or even from conviction than another 
 would suffer from a year. The variqus_cauris-and— 
 juries of the different states fix different penalties. 
 Even in the same state" there is fio soft of resem- 
 blance to the punishments generally given for 
 
152 PUNISHMENT 
 
 similar crimes. Some jurisdictions, some juries and 
 some" courts will mal^e * tHese three of TouTtimTes- 
 as severe as others for the same things.- Some days 
 the same judge will give a longer sentenceTKanon 
 other days. In this judges aire like all of us. We 
 have our days when we feel kindly and sympathetic 
 toward all mankind. We have our days when we 
 mistrust and dislike the world in general and many 
 people in particular. Largely the weather influ- 
 ences those feelings. Therefore, the amount of 
 time a person spends in prison may depend to a 
 great extent on the condition of the weather at 
 the time of conviction or when sentence is 
 passed. The physical condition of judge or jury, 
 and above all, their types of mind, are all-control- 
 ling. No two men have the same imagination: 
 some are harsh and cruel; others kind and sympa- 
 thetic; one can weigh wheat and corn and butter 
 and sugar; one can measure water and molasses 
 and gasoline. When one measures or weighs, one 
 can speak with exactness regarding the thing in- 
 volved. Justice and mercy and punishment cannot 
 be measured or weighed; in fact there is even no 
 starting point. The impossibility of it all makes 
 many of the humane and wise doubt their right to 
 pass judgment upon their fellow man. Society no 
 doubt is bound by self-protection to resist certain 
 acts and to restrain certain men, but it is in no 
 way bound to pass moral judgments. 
 
PUNISHMENT 153 
 
 Under any system based on a scientific treat- 
 ment of crime, men would be taken care of as long 
 as it was necessary to restrain them. It would be 
 done in the best possible way for their own welfare. 
 If they ever were adjudged competent to enter 
 society again, they would be released when that 
 time came. Neither under a right understanding, 
 and a humane, scientific and honest administration, 
 would it be necessary that places of confinement 
 should be places of either degradation or misery. 
 In fact the inmate might well be put where he could 
 enjoy life more than he did before he was confined. 
 It might and should be the case also that he could 
 produce enough to amply take care of himself and 
 provide for those who would naturally look to him 
 for support, and perhaps make compensation for 
 the injury he had caused to someone else. 
 
 It is obvious that this cannot be done until men 
 have a different point of view toward crime. In 
 the last hundred years much has been done to 
 make prisons better and to make more tolerable 
 the life of the inmates. This has been accom- 
 plished by men who looked on criminals as being 
 at least to a certain extent like other men. 
 
 Above all, as things are now, the prison inmate 
 has no chance to learn to conform unless hope is 
 constantly kept before him. He should be like the 
 convalescing invalid, able from time to time to note 
 his gradual progress in the ability to make the ad- 
 
154 PUNISHMENT 
 
 justments that are necessary to social beings. No 
 patient in a hospital could be cured if he were 
 constantly told that he could not get well and 
 should not get well. His imagination should be 
 enlarged by every means that science can bring to 
 the teaching of man. 
 
 First of all there must be individual treatment. 
 No one would think of putting irundreds" or thou- 
 sands of the ill or insane into a pen, giving them 
 numbers, leaving them so that no capable person 
 knows their names, their histories, their families, 
 their possibilities, their strength or their weaknes- 
 ses. Every intelligent person must know that this 
 would inevitably lead to misery and death. The 
 treatment of men in prison is a much more difficult 
 problem than the care of the physically diseased. 
 It requires a knowledge of biology, of psychology, 
 of hygiene, of teaching and of life; it needs infinite 
 patience and sympathy ; it needs thorough acquaint- 
 ance and constant attention. It is a harder task 
 than the one that confronts the physician in the 
 hospital, because the material is poorer, the make 
 is more defective, and the process of cure or devel- 
 opment much slower and not so easily seen. 
 
 No person is entirely without the sympathetic, 
 idealistic and altruistic impulses, which after all 
 are the mainsprings of social adaptation. Probably 
 these innate feelings can be found in prisoners as 
 generally as in other men. It is the lack of these 
 
PUNISHMENT ISS 
 
 qualities that often keeps men outside the jail. 
 They " get by " where kindly and impulsive men 
 fail. A large part of the crime, especially of the 
 young, comes from the desire to do something for 
 someone else and from the ease with which persons 
 are led or yield to solicitation. 
 
 The criminal has always been met by coldness 
 and hatred that have made him lose his finer feel- 
 ings, have blunted his sensibilities, and have taught 
 him to regard all others as his enemies and not his 
 friends. The ideal society is one where the indi- 
 viduals move harmoniously in their various orbits 
 without outside control. The governing power of 
 a perfect order in 'its last analysis must be within 
 the individual. A perfect system probably will 
 never come. Men are too imperfect, too weak, too 
 ignorant and too selfish to accompHsh it. Still, if 
 we wish to go toward perfection, there is no other 
 road. 
 
 One of the favorite occupations of legislatures 
 is changing punishments in obedience to the clamor 
 of the public. In times of ordinary tranquility a 
 penalty may even be modified or reduced, but let 
 the newspapers awaken public opinion to crime by 
 the judicious use of headlines and a hot campaign, 
 let the members feel that there is a popular clamor 
 and that votes may be won or lost, and the legisla- 
 ture responds. This is generally done without 
 reference to the experience of the world, without 
 
156 PUNISHMENT 
 
 regard to the nature of man, with no thought of 
 the victim, and with no clear conception of how 
 the legislation will really affect the public. 
 
 The demand is constantly made that such crimes 
 as kidnapping, train robbing, rape and robbery 
 should be pimished with death, or at least with im- 
 prisonment for life. Irrespective of its effect on the 
 criminal, what is the effect on the victim of the 
 criminal? A man is held up on a lonely highway; 
 the robber does not intend to kill. His face is 
 exposed. If the penalty for robbery is life impris- 
 onment, he kills to avoid detection. If it is death, 
 he kills even before he robs. The same thing 
 operates in rape, in burglary, and in other crimes. 
 In all property crimes not only is no killing in- 
 tended or wanted, but precautions are taken to 
 guard against killing. All laws to make dragtia„,, 
 penalties should really be entitled: "An Act to 
 Promote Murder.^'" * " 
 
 M,aking penalties too drastic destroys the effect 
 meant to be produced. Public clamor does not last 
 forever. Men grow tired of keeping their tongues 
 wagging on the same subject all the time. A state 
 of frenzy is abnormal and when it subsides the 
 temperature not only goes back to normal, but as 
 far below as it has been above. When the fury 
 has spent itself jurors regain some of their human 
 feeling and refuse to convict. History has proved 
 this over and over again, and still politicians always 
 
PUNISHMENT 157 
 
 seek to ride into power on the crest of the wave; 
 when the wave moves back, they can easily go 
 back with it. Even if the severe punishments 
 should be continued without abatement, these soon 
 lose their power to terrify. Communities grow 
 accustomed to hangings; they get used to life sen- 
 tences and long imprisonments and the severity no 
 longer serves to awe. The cruelty serves only as a 
 mark of the civilization of the day. Some day, 
 perhaps, a wiser and more humane world will 
 marvel at our cruelty and ignoraxice, as we now 
 marvel at the barbarity of the past. 
 
XXI 
 
 THE EFFECT OF PUNISHMENT 
 ON OTHERS 
 
 The ordinary man who hears of a crime hates the 
 criminal and wants him to suffer. He does not pic- 
 ture the malefactor as a man who, for some all-suf- 
 ficient reason, has committed a dreadful act. Still 
 less does he ask: "Has he a father or mother, a v/if e 
 or children, brothers or sisters, and how are these 
 affected by his deed? " No one can intelligently 
 deal with the criminal without considering these. 
 Practically no inmate of a prison stands alone. He 
 is a member of a family or small social group, and 
 inevitably the interests of these others are more or 
 less closely bound up with his. If punishment is 
 justified for its influence on society, these must be 
 taken into account with the other members of the 
 social organization. 
 
 The criminal, it must be remembered, is almost 
 always poor. He has a mother, brothers and 
 sisters, wife or children, dependent for support 
 to a large extent, upon his casual earnings. , 
 He is placed in jail or the penitentiary and the 
 family must make new adjustments to life. 
 Tlje mother or wife may go to work at hard labor 
 
 158 
 
EFFECT OF PUNISHMENT 159 
 
 (or^ small return; the children may be taken 
 out of school and sent to stores or factories, be 
 condemned to Jives of drudgery that will often 
 lead to crime. The family may be broken up and 
 scattered through institutions and the poorest shel- 
 ters. A complete transformation for the worse al- 
 most always comes over the home. It is safe to say 
 that at least three or four are closely touched by 
 the misfortune of every one. These lives must be 
 readjusted, and the chances are that the new ad- 
 justments will not be equal to the old, if for nothing 
 else than because the conviction is a serious handi- 
 cap in their struggles. Let anyone go to a city jail 
 on a visiting day and see the old mothers, the 
 stunned and weeping wives, the little children, 
 down to babes in arms, who crowd around the 
 corridors to get a look at the man behind the bars. 
 To them at least he is a human being with feelings 
 and affections, with wants and needs. All of these 
 can recount his many good qualities which the 
 world cannot see or know. Their first step is to 
 borrow or to sell what they can to provide means 
 for his defense. Everything else is cast aside. Day 
 after day they visit the jail and the lawyer, con- 
 triving means to save liberty or life. When the trial 
 comes, they watch through its maze in a dazed, 
 bewildered way. They know that the man they love 
 is not the one who is painted in the court room, and 
 at least to them he is not. If he is convicted and 
 
160 EFFECT OF PUNISHMENT 
 
 goes to prison for a term of years, then month by 
 month the faithful family goes to see him for an 
 hour in the prison, visiting across the table in 
 open view of guards and others as unfortunate as 
 they. The family follows all sorts of advice and 
 directions and seeks out many hopeless clews for 
 men of influence and position who can unlock 
 prison doors. The weeks run into months and the 
 months into years, and still many of them keep up 
 their hopeless vigil; some are driven to drudgery, 
 some to crime, some to destruction for the man 
 whom the state has punished that society may be 
 improved. It is safe to say that the state ruins at 
 least one other life for every victim of the pirisonV 
 
 No provision is made for the dependent families 
 of the wretched man. Ruthlessly society sends the 
 man to prison and sees the daughter leave school, 
 a mere child, and go to work. What becomes of 
 her it does not know or care. It seems not to know 
 that she exists. The state sees the convict's boy 
 working at casual tasks and growing up on the 
 streets, while his father is paying the penalty of 
 his act. He may on this account follow his father 
 to jail; it is not society's concern. 
 
 Assuming that an offender must be confined for 
 the protection of society, as some no doubt must 
 be, still the effect on the family and how to prevent 
 its destruction should be among the first concerns 
 in the disposition of the case. 
 
XXII 
 EVOLUTION OF PUNISHMENT 
 
 Among primitive peoples the penal code was 
 always short. Desire for property had not taken 
 possession of their emotions. Their lives were 
 simple, their adjustments few, and there was no 
 call for an elaborate code of prohibited acts. Their 
 punishments were generally simple, direct and 
 severe: usually death or banishment which often 
 meant death, sometimes maiming and branding, 
 so that the offender might serve as a constant 
 warning to others. 
 
 Primitive peoples early asked questions about 
 their origin and destiny. The unknown filled most 
 of the experiences of their lives. The realm of the 
 known was very small. They had no idea of law 
 and system, of cause and effect. They early began 
 evolving religious ideas. The manifestations of 
 nature, the mystery of birth, the fear of death, the 
 phenomena of dreams, the growth and harvesting 
 of crops — all of these were beyond their under- 
 standing. They peopled the earth with gods to be 
 propitiated and appeased. Everything was the act 
 of a special providence. From early times religion 
 
 161 
 
162 EVOLUTION OF PUNISHMENT 
 
 and witchcraft furnished the chief subjects for the 
 criminal code. 
 
 The penalties for the violation of the code were 
 always severe, generally death, and by the most 
 terrorizing ways. No other crime could be so great 
 as to arouse the anger of the gods, and naturally 
 no other conduct should demand so severe a pen- 
 alty as calling down the wrath of the gods. This 
 would fall not only upon the offending man, but 
 upon the community of which he was a part. Even 
 as man developed in knowledge and civilization, 
 this sort of crime continued to furnish the greater 
 proportion of victims and the most cruel punish- 
 ments. Torture of the most fiendish sort was evoked 
 to catch offenders and extort confessions. Differ- 
 ence of religious opinions was the worst crime. 
 The inquisition became an established thing. Some- 
 times a nation was almost wiped out that heretics 
 should be killed and heresies destroyed. The 
 heretic was the one who did not accept the pre- 
 vailing faith. The list of victims of punishment 
 on account of religion, witchcraft, sorcery and 
 kindred laws has in the past no doubt been larger 
 than for any other charges. 
 
 This kind of laws always called out the greatest 
 zeal in their enforcement. To the religious enthus- 
 iast nothing else was of equal importance. It in- 
 volved not only the life of man on earth but his 
 life through all eternity. Our statutes today are 
 
EVOLUTION OF PUNISHMENT 163 
 
 replete with such crimes, but the punishments have 
 been lessened and, as a rule, communities will not 
 enforce them. But laws against blasphemy, work- 
 ing on Sunday, and Sunday amusements of all 
 sorts, are still on the books and enforced in some 
 places. A large organization and an influential and 
 aggressive part of the Christian Church are insist- 
 ing that these laws shall be enforced to the limit 
 and that still others shall be placed among the 
 statutes of the several states. 
 
 The methods of inflicting the death penalty have 
 been various, the favorite ways being burning, 
 boiling in oil, boiling in water, breaking on the 
 rack, smothering, beheading, crucifying, stoning, 
 strangling and electrocuting. Until the middle of 
 the last century they were carried out in the pres- 
 ence of the multitude so that all might be warned 
 by the example. 
 
 The number of crimes for which death and 
 bodily torture have been the punishment can 
 scarcely be recorded, and if they could it would 
 be of no value. They would run into the hundreds 
 and probably the thousands. A large part of these 
 crimes are now obsolete. Doubtless more men have 
 been executed for crimes they did not commit and 
 could not commit than for any real wrong of which 
 they were guilty. 
 
 Prisons came into fashion later than the death 
 penalty, and as a form of cunishment have grad- 
 
164 EVOLUTION OF PUNISHMENT 
 
 ually come to take the place of most death pen- 
 alties. Prisons in the past have been loathsome 
 places and not much better than death. Prisoners 
 have been packed together so closely that life was 
 almost impossible. To incarcerate victims in pris- 
 ons has brought terrible punishment not only on 
 the prisoners and their families, but indirectly on 
 the state. No doubt through the years prisons 
 have been gradually improved. Many of their 
 terrors have been banished. People have come to 
 believe that even a prisoner should have some con- 
 sideration from the state. Penalties have likewise 
 grown less severe and terms have been shortened, 
 but this course has not been regular or constant; 
 the public readily relaxes into h atred a nd_ven- 
 geance, and it is easy" to arouse these feelings in 
 men, since they lie very close to the surface. A 
 constant struggle has always been waged by the 
 humane to make man more kindly, and yet prob- 
 ably his nature does not really change. A few 
 months of frenzy may easily undo the work of 
 years. 
 
 So long as men punish for the sake of punish- 
 ment, there will be a disagreement between the 
 advocates of long punishment and short punish- 
 ment, hard punishment and light punishment. 
 From the nature of things, there is no basis on 
 which this can be determined. The only thing that 
 throws any light on the question is experience, and 
 
EVOLUTION OF PUNISHMENT 165 
 
 men can always differ as to the lessons of experi- 
 ence. Neither do they remember experience when 
 feelings are concerned. 
 
 ^_£imishment.carLd£ler only gn_ the..gr-aufl4 of the 
 fear that flows from it. Fear comes from things 
 that are more or less unusual. Man has little 
 abstract fear of a natural death; it is so unavoid- 
 able that it does not even figure in the ordinary 
 affairs of life. Extreme punishments may grow so 
 common that few give them any concern. They 
 probably are so common now that the impression 
 they make is not very great. Lighter and easier 
 punishments would have the same psychological 
 effect. In many cases a lenient punishment would 
 also eliminate much of the hatred and bitterness 
 against the world that are common to all inmates 
 of prisons. 
 
XXIII 
 
 CAPITAL PUNISHMENT 
 
 The question of capital punishment has been 
 the subject of endless discussion and will probably 
 never be settled so long as men believe in punish- 
 ment. Some states have abolished and then rein- v 
 stated it; some have enjoyed capital punishment\| ^/ 
 for long periods of time and finally prohibited the^*i Wi| 
 use of it. The reasons why it cannot be settled are ^ 
 plan. There is first of all no agreement as to thea,f 
 objects of punishment. Next there is no way to^ 
 determine the results of punishment. If the object(0^ 
 is assumed it is a matter of conjecture as to what 
 will be most likely to bring the result. If it could 
 be shown that any form of punishment would bring 
 the immediate result, it would be impossible to 
 show its indirect result although indirect results 
 are as certain as direct ones. Even if all of this 
 could be clearly proven, the world would be no 
 nearer the solution. Questions of this sort, or per- 
 haps of any sort, are not settled by reason; they 
 are settled by prejudices and sentiments or by 
 emotion. When they are settled they do not stay 
 settled, for the emotions change as new stimuli are 
 applied to the machine. 
 
 166 
 
CAPITAL PUNISHMENT 167 
 
 A state may provide for life imprisonment in 
 place of death. Some especially atrocious murder 
 may occur and be fully exploited in the press. 
 Public feeling will be farmed to a flame. Bitter 
 hatred will be aroused against the murderer. It is 
 perfectly obvious to the multitude that if other 
 men had been hanged for murder, this victim would 
 not have been killed. A legislature meets before 
 the hatred has had time to cool and the law is 
 changed. Again, a community may have capital 
 punishment and nothing notable happens. Now 
 and then hangings occur. Juries acquit because of 
 the severity of the penalty. A feeling of shame or 
 some bungling execution may arouse a community 
 against it. A deep-seated doubt may arise as to the 
 guilt of a man who has been put to death. The 
 sentimental people triumph. The law is changed. 
 Nothing has been found out ; no question has been 
 settled; science has made no contribution; the 
 public has changed its mind, or, speaking more 
 correctly, has had another emotion and passed 
 another law. 
 
 In the main, the controversy over capital punish- 
 ment has been one between emotional and unemo- 
 tional people. Now and then the ettiotionalist is 
 reinforced by some who have a religious conviction 
 against capital punishment, based perhaps on the 
 rather trite expression that " God gave life and 
 only God should take it away."" Such a statemerit 
 
168 CAPITAL PUNISHMENT 
 
 is plausible but not capable of proof. In the main 
 religious people believe in capital punishment. The 
 advocates of capital punishment dispose of the 
 question by saying that it is the " sentimentalist " 
 or, rather, the " maudlin sentimentalist " who is 
 against it. Sentimentalist really implies "maudlin." 
 But emotion too has its biological origin and is 
 a subject of scientific definition. A really " senti- 
 mental" person, in the sense used, is one who has 
 sympathy. This, in turn, comes from imagination 
 which is probably the result of a sensitive nervous 
 system, one that quickly and easily responds to 
 stimuli. Those who have weak emotions do not 
 respond so readily to impressions. Their assump- 
 tion of superior wisdom has its basis only in a 
 nervous system which is sluggish and phlegmatic 
 to stimuli. Such impressions as each system makes 
 are registered on the brain and become the material 
 for recollection and comparison, which go to form 
 opinion. The correctness of the mental processes 
 depends upon the correctness of the senses that 
 receive the impression, the nerves that transmit 
 the correctness of the registration, and the char- 
 acter of the brain. It does not follow that the 
 stoic has a better brain than the despised "senti- 
 mentalist." Either one of them may have a good 
 one, and either one of them a poor one. Still, 
 charity and kindliness probably come from the 
 sensitive system which imagines itself in tlie place 
 
CAPITAL PUNISHMENT 169 
 
 of the object that it pities. All pity is really pain 
 engendered by the feelings that translate one into 
 the place of another. Both hate and love are bio- 
 logically necessary to life and its processes. 
 
 Many people urge that the penalty of imprison- 
 ment for life would be all right if the culprit could 
 be kept in prison during life, but in the course of 
 time he is pardoned. This to me is an excellent 
 reason why his life should be saved. It is proof 
 that the feeling of hatred that inspired judge and 
 jury has spent itself and that they can look at the j 
 murderer as a man. Which decision is the more »\ 
 righteous, the one where hatred and fear affect the 
 judgment and sentence, or the one where these 
 emotions have spent their force? 
 
 Everyone who advocates capital punishment is 
 really ashamed of the practice for which he is re- 
 sponsible. Instead of urging pubHc executions, the 
 most advanced and sensitive who believe in killing 
 by the state are now advocating that even the 
 newspapers should not publish the details and that 
 the killing should be done in darkness and silence. 
 In that event no one would be deterred by the 
 cruelty of the state. That capital punishment is _ 
 horrible and cruel is the rC^on for its existence. 
 That men should be taught not to take life is the 
 purpose~of"JTidTcrai killings; "But the spectacle of\^ 
 the state taking life must tend to cheapen it. This 
 must be evident to all who believe in suggestion. 
 
170 CAPITAL PUNISHMENT 
 
 Constant association and familiarity- tend to lessen 
 the shock of any act however revolting. If men 
 regarded the murderer as one who acted from some 
 all-sufficient cause and who was simply an instru- 
 ment in an endless sequence of cause and effect, 
 would anyone say he should be put to death? 
 
 It is not easy to estimate values correctly. It 
 may be that life is not important. Nature seems 
 extravagantly profligate in her giving and pitiless 
 in her taking away. Yet death has something of 
 the same shock today that was felt when men first 
 gazed upon the dead with awe and wonder and 
 terror. Constantly meeting it and seeing it and 
 procuring it will doubtless make it more common- 
 place. To the seasoned soldier in the army it 
 means less than it did before he became a soldier. 
 Probably the undertaker thinks less of death than 
 almost any other man. He is so accustomed to it 
 that his mind must involuntarily turn from its 
 horror to a contemplation of how much he makes 
 out of the burial. If the civilized savages have 
 their way and make hangings common, we shall 
 probably recover from some of our instinctive fear 
 of death and the extravagant value that we place 
 on life. The social organism is like the individual 
 organism: it can be so often shocked that it grows 
 accustomed and weary and no longer manifests 
 resistance or surprise. 
 
 So far as we can reason on questions of life and 
 
CAPITAL PUNISHMENT 171 
 
 death and the effect of stimuli upon human organ- 
 isms, the circle is like this: .Frequent executions 
 dull the sensibilities toward the taking of life. This 
 makes it easier for men to kill and increases mur- 
 "ders, which in turn increase hangings, which in turn 
 increase murders, and so on, around the vicious 
 circle. 
 
 In the absence of any solid starting point on 
 which an argument can be based; in the absence 
 of any reliable figures; in the absence of any way 
 to interpret the figures; in the absence of any way 
 to ascertain the indirect results of judicial killings, 
 even if the direct ones could be shown; in the 
 impossibility through life, experience or philosophy 
 of fixing relative values, the question must remain 
 where it has always been, a conflict between the 
 emotional and unemotional; the "sentimental" 
 and the stolid ; the imaginative and the unimagina- 
 tive; the sympathetic and the unsympathetic. 
 Personally, being inclined to a purely mechanistic 
 view of life and to the belief that all conduct is 
 the result of certain stimuli upon a human machine, 
 I can only say that the stimuli of seeing and read- 
 ing of capital punishment, applied to my machine, 
 is revolting and horrible. Perhaps as the world 
 improves, the sympathetic and imaginative nature 
 will survive the stolid and selfish. At least one 
 can well believe that this is the line of progress if 
 there shall be progress, a matter still open to ques- 
 tion and doubt. 
 
XXIV 
 
 STIGMATA OF THE CRIMINAL 
 
 Lombroso and others have emphasized the the- 
 ory that the criminal is a distinct physical type. 
 This doctrine has been so positively asserted and 
 with such a show of statistics and authority, that 
 it has many advocates. More recent investigations 
 seem to show conclusively that there is little or 
 no foundation for the idea that the criminal is a 
 separate type. Men accustomed to criminal courts 
 and prisons cannot avoid being impressed with the 
 marks of inferiority that are apparent in prisoners. 
 Most prisoners are wretched and poorly nourished, 
 wear poor clothes and are uncared-for and unkempt. 
 Their stunted appearance is doubtless due largely 
 to poor food, the irregularity of nourishment, and 
 the sordidness of their lives in general. One also 
 imagines that a prisoner looks the part, and in his 
 clothes and surroundings he generally does. It is 
 hard for a prisoner to look well-groomed; he has 
 neither the opportunity nor the ambition to give 
 much attention to his personal appearance. The 
 looks of the prisoners are of little value. Nothing 
 but actual measurements could give real informa- 
 
 172 
 
STIGMATA OF THE CRIMINAL 173 
 
 tion, and these do not sustain the theory of their 
 being different from other men. 
 
 It is not possible^ to see how the criminal can 
 be of a distinct physical type. Criminality exists 
 only in reference to an environment. One cannot 
 be born a criminal. One may be, and often is, 
 born with such an imperfect equipment that he 
 \cannot make his adjustments to life, and soon falls 
 a victim to crime and disease. All that a physi- 
 cal examination could do would be to show the 
 s\trength or weakness of the body and its various 
 organs. What may befall him will depend partly 
 on the kind and quality of his mind and nervous 
 system, and partly on the physical structure and 
 the kind of experiences that life holds in store for 
 him. 
 
 No doubt thorough psychological examinations 
 would reveal something of the brain, just as phys- 
 ical examinations certainly would determine the 
 strength and capacity of the body. This would 
 be of material aid in determining the kind of envi- 
 ronment that should be found for the individual, 
 and if such environment could be easily found it 
 would avert most of the calamities which beset 
 the path of the youth. 
 
 Something can be told of a person's character 
 from his eyes, the expression of the face and the 
 contour of the head, but this information is very 
 misleading as our everyday experience shows, It is 
 
174 STIGMATA OF THE CRIMINAL 
 
 not necessary to find stigmata in the prisoner to 
 know that he was born the way he is. One's char- 
 acter must be fixed before birth whether Nature 
 marks it on one's head or not. Likewise every par- 
 ticle of matter moves from stimuli and obedience to 
 law, regardless of whether it shows in the face or 
 not. The strong are no more exempt from the law 
 than the weak. All the difference is that they can 
 longer and more easily avoid disaster. 
 
 Everyone is in the habit of forming a hasty 
 opinion of another by reading his face and noting 
 his expression. But the indication given by facial 
 expression is mainly the product of the life that 
 has been lived, and tells something of the part that 
 the hidden emotions have played on the body. 
 
 It has been generally believed that mind has its 
 seat in the brain and the nervous system. Later 
 investigations, however, seem to show that it is the 
 product of the whole physical organism. There is 
 no chance to measure or weigh or still less assay 
 the qualities of the machine. It is certain that the 
 quality of the mind depends very little upon either 
 the contour or size of the skull. 
 
 About all that can be learned of the mind and 
 the character of the man must be gathered from 
 the manifestation of the machine. It is shown by 
 his behavior in action and reaction. This behavior 
 is caused by the capture, storage and release of 
 energy through the ductless glands. 
 
STIGMATA OF THE CRIMINAL 175 
 
 A defective mechanism either inherited or ac- 
 quired through imperfectly balanced glands will 
 inevitably produce an imperfect mind and defec- 
 tive conduct. This it will be bound to do because 
 the body is the mind. 
 
 As a matter of fact, no man is branded phys- 
 ically with the " mark of Cain." If criminology 
 were so simple it would not be difficult to handle. 
 The manifestations of the human machine are 
 infinite and only patience and careful study can 
 find the points of weakness and of strength. 
 That all brains and bodies have both is beyond 
 dispute. No physical human structure was ever 
 put together where the organs were equally strong 
 to do the work assigned to them. Some part of 
 the body always needs watchfulness and repair 
 and can never be depended upon in emergencies. 
 In times of overstress and strain, the defective 
 organ or organs will manifest their weakness. The 
 intricate nervous system and the brain, the unseen 
 instincts and emotions likewise do not work per- 
 fectly; but as a rule the ones that underwork or 
 overwork cannot be seen by a physical examina- 
 tion. It generally requires great subtlety to find 
 them, and careful treatment and environment to 
 make the machine work fairly well in spite of these 
 imperfections. This could be provided; in most 
 cases the machine could be placed in an environ- 
 ment where it would work fairly well ; but instead 
 
176 STIGMATA OF THE CRIMINAL 
 
 of this all the effort that is made to keep the 
 machine in shape is a threat of the jail if it goes 
 wrong; it is then left to run itself without help or 
 assistance of any kind. 
 
 While examinations of the head do not show 
 marked differences between prisoners and others, 
 a great distinction is seen between the general pro- 
 portion and the degrees of nourishment of prisoners 
 and those not accused of crime. Nothing is more 
 common than the weak and underfed condition of 
 the delinquent and the criminal. This needs no 
 expert examination. It is obvious to all. The poor, 
 , scanty clothes and personal belongings corrobo- 
 rate the fact that the accused is poor and has 
 not enough to eat or wear, nor anything but 
 the most scanty shelter. In addition to these facts, 
 he is almost always ill. A report recently pub- 
 lished, based on investigations by a special com- 
 mittee of the New York State Commission of 
 Prisons, shows that in the New York Reformatory 
 only eight per cent passed the required physical 
 examination. In the penitentiary, where the aver- 
 age age was higher, only five per cent passed the 
 test. In the work house — the home of the "down 
 and outs" — only one per cent passed. The health 
 tests employed were those for admission to the 
 army. It was likewise found by the same commis- 
 sion that of those in good health or fair physical 
 condition, eighty-five per cent were self-supporting, 
 
STIGMATA OF THE CRIMINAL 177 
 
 while only eighteen per cent of those in poor phys- 
 ical condition took care of themselves. 
 
 Disease and ill health, when found so generally, 
 are in themselves indications of a defective system, 
 and such machines are constantly exposed to temp- 
 tation. Their needs are ever present and their pov- 
 erty great. Sickness and disease weaken or destroy 
 such inhibitions as the unfortunate are able to 
 build up, and they readily yield to crime. 
 
XXV 
 
 THE GOOD IN CRIMINALS 
 
 The criminal is confronted in court with an 
 indictment charging him with a violation of the 
 law. He is a human being, like all others, neither 
 perfect nor entirely worthless. He has some tend- 
 encies and inclinations which the world calls good 
 for lack of a better term, and some that it calls 
 bad for the same reason. In this he is like the 
 jury and the judge. The strength of the different 
 tendencies is not the same in any two machines. 
 The judge and jury are interested in determining 
 whether he is good or bad ; that is, better or worse 
 than they themselves. In theory he is tried on the 
 charges contained in the indictment. 
 
 In most cases by a constant stretching of the 
 rules of evidence his whole life may be involved. 
 That is, proof may be offered of any act of delin- 
 quency that constituted a violation of the law, if 
 in any way similar, or in any way connected with 
 the one charged in the indictment. He cannot meet 
 these charges by proving the acts of kindness and 
 charity and real worth that are rarely absent in 
 any life. The proceedings show how bad he is, not 
 
 178 
 
THE GOOD IN CRIMINALS 179 
 
 how good. He may be able to call witnesses to 
 show that up to the time of the bringing of the 
 indictment his reputation for honesty was good; 
 but he cannot show that he supported his grand- 
 mother, or helped his aunt, or educated his younger 
 brother, or gave his money to the poor. All the 
 good is irrelevant to the issue. This does not prove 
 that he did not commit the act. It might clearly 
 prove whether on the whole he should go to jail. 
 Through this process he feels that the law and 
 proceedings are unfair and that he is condemned, 
 when, in fact, he is as good as those who judge 
 him. Neither can he show the circumstances that 
 hedged in his way nor the equipment with which 
 he entered life. Under the legal theory that he is 
 " the captain of his soul," these are not material 
 to the issue. Neither can he show the direct motive 
 that caused the conduct. It may have been a 
 motive that was ideal, but the question involved 
 is, did he violate the law? 
 
 He is convicted and sent to prison. As a rule, 
 he will some time be turned back into the world. 
 He needs careful treatment, involving instruction 
 and an appeal to that part of his nature which 
 may awaken sympathies and produce emotions 
 that will make him more of a social being on his 
 return to the world. In the loose language of the 
 world, it is necessary for him not only to learn 
 how to curb the evil but how to increase the 
 
180 THE GOOD IN CRIMINALS 
 
 good. His imagination should be cultivated and 
 enlarged. The responses to better sentiment should 
 be strengthened. This can be furthered only by 
 skilled teachers who are moved by the desire to 
 help him. The process should be similar to a hos- 
 pital treatment. Instead of this, he is usually sur- 
 rounded by men of little intelligence or education, 
 men who have no fitness for the task; he is gov- 
 erned by strict rules, all of them subjecting him 
 to severe penalties when violated. Every action 
 in the prison reminds him of his status. With the 
 exception of a few strong men who need suffering 
 for their development it can have but one result. 
 He must come out from prison poorer material 
 than when he went in. There are only two reflections 
 that can keep him out of trouble in the future : the 
 remembrance of the past and the fear that a similar 
 experience might come to him again. 
 
 When it is remembered that the greatest enemy 
 to happiness and life is fear ; when we realize that 
 the constant battle of the primitive man was with 
 the fear that peoples the unknown with enemies 
 and dangers; when we remember that in some 
 way, fear of poverty, of disease, of disaster, of 
 loss of friends and life is the ever-present enemy 
 of us all, it is evident that nothing but harm can 
 come from the lessons of fear that are drilled into 
 the victim in prison. Life furnishes countless ways 
 to be kind and helpful and social. It furnishes 
 
THE GOOD IN CRIMINALS 181 
 
 infinite ways to be cruel, hard and anti-social. 
 Most of these anti-social ways are not condemned 
 by the law. Whether the life is helpful and kindly 
 or hard and selfish can never depend upon the 
 response of an organism to fear, but upon the 
 response of an organism to the kindlier and more 
 humane and sympathetic sentiments that to some 
 extent at least inhere in the constitution of man. 
 It is a common thing for prisoners, even during 
 the longest term, to be more solicitous about 
 mother, child, wife, brother or friend than about 
 themselves. It is common for them to deny them- 
 selves privileges, presents or favors to help other 
 inmates. The consideration and kindness shown 
 by unfortunates to each other are surprising to 
 those who have no experience with this class of 
 men. Often to find real sympathy you must go to 
 those who know what misery means. Pride and 
 coldness are usually due to lack of understanding, 
 and life alone can bring understanding. Every 
 intelligent man engaged in efforts to improve and 
 help either criminals or children or any others, 
 knows the need of an appeal to what passes as the 
 better nature. Help does not come so much from 
 directly inhibiting the bad as by extending the 
 area of the higher emotions. To pull up weeds in 
 a garden without planting something in their place 
 is a foolish task. The human being is like the 
 garden. Something must grow in the soil. If weeds 
 
182 THE GOOD IN CRIMINALS 
 
 are pulled up and nothing planted Nature will grow 
 more weeds. Some feelings and emotions always 
 possess every person. The best that is incident to 
 the machine should be found and this be cultivated 
 and extended until it dominates the man. Courts 
 and prisons have no machinery to cultivate the 
 best in their victims; they are always looking for 
 the worst, aiding and promoting it until the pris- 
 oner is driven to hopelessness and despair. 
 
XXVI 
 
 THE DEFECTIVE AND INSANE 
 
 It is almost hopeless to bring any system or 
 order out of the chaos that prevails in the dis- 
 cussion of the insane, the defective, the moron, and 
 the feeble-minded. The world has so long believed 
 that man is a specially created animal and that 
 he does wrong from free choice, that much more 
 time and investigation are necessary before sane 
 and scientific theories can be formulated on this 
 subject. 
 
 It has been a great many years since any semi- 
 intelligent man believed that all sorts of physical 
 abnormalities were due to one cause and could 
 be cured by one method, and yet the prevailing 
 opinion now, even among the fairly educated, is 
 that all sorts of abnormal conduct are due to one 
 cause, perversity and wickedness, and should be 
 treated with only one prescription, punishment. 
 Scientific men indeed have long known that there 
 were causes for the abnormality of conduct and that 
 there were various more or less satisfactory remedies 
 for many cases. Still the time that scientists have 
 
 183 
 
184 THE DEFECTIVE AND INSANE 
 
 worked on the problem is short and the data im- 
 perfect, and many years of patient study will be 
 needed before there can be worked out the broad 
 theories of responsibility for and treatment of 
 crime which will replace the long accepted doc- 
 trines of original sin, and the expulsion of devils 
 from the wicked by cruelty and punishment. 
 
 By ^r the largest partoi. the, population of_ 
 prisons is made up of the insane, feeble-minded, 
 morons, defectives or victims of diseases that seri- 
 ously influence conduct. This is especially shown 
 by the increased percentage of the clearly defec- 
 tive that are repeaters, over those in prison for their 
 first offense. There is no lack of statistics as to the 
 various groups of defectives, but these figures can- 
 not be reconciled. No two authorities agree as to 
 percentages; the classifications are more or less 
 uncertain; the dividing lines between the different 
 groups are vague, one class easily fading into 
 another. The investigations have largely been 
 made by those not trained for the work, and above 
 all the conclusions as to treatment are at variance, 
 doubtful and necessarily not yet satisfactory. That 
 the clearly insane and the plainly feeble-minded 
 should not be punished would doubtless be admit- 
 ted by all who speak in public or write for others 
 to read. Many persons speaking in private, acting 
 on juries and connected with the machinery of 
 " justice " say that these should be punished like 
 
THE DEFECTIVE AND INSANE 185 
 
 the rest. Still for a starting point, it may be 
 assumed that most men would agree that these 
 classes should be restrained rather than punished. 
 
 The chief difficulty is that between the most 
 violently insane and the least emotional man are 
 infinite numbers of gradations blending so closely 
 that no one can mathematically or scientifically 
 classify all the various individual units. While 
 there are cases of insanity that can be clearly 
 traced to injury or disease, the degree of sanity 
 in most cases is still impossible to determine. 
 Most insane people are sane on some things, gen- 
 erally on most things and are sane a part or most 
 of the time. The periods of sanity and insanity can 
 be distinguished only by conduct. How far any 
 specific insanity may impair the brain and affect 
 the inhibitions, is impossible to foretell. 
 
 When_iL.CQinfi5 to the defective, the problem is 
 . still more difficult. No two persons have the same 
 degree of intelligence. Some are clearly lacking in 
 mentality. Others are manifestly intelligent. The 
 great mass range all along betweea these extremes. 
 Various arbitrary rules have been laid down to aid 
 in classifying different grades of defectives. Gener- 
 ally the feeble-minded can be sorted out. The de- 
 fectives are supposed, if yoimg, to be two years or 
 more below the normal scholar in development; if 
 older, three or more below. Their standing is fixed 
 by asking certain test questions. Furthermore, a list 
 
; 
 
 186 THE DEFECTIVE AND INSANE 
 
 of questions has been commonly used for an " in- 
 telligence test." These queries have nothing to do 
 with the school work of the child, but are supposed 
 to reveal only his native intelligence. 
 
 No doubt in a broad way such tests throw 
 considerable light on the mentality of those who 
 submit to the examination. Ordinary experience, 
 however, shows that they cannot be fully relied 
 on. Some children develop very slowly, others very 
 rapidly. Some are much quicker, others slower in 
 their perceptions and responses. No two children 
 or grown-ups have the same turn of mind. One 
 may be very bright in business affairs and very dull 
 in books. One may be clever in arithmetic and 
 hopeless in grammar. One may have marked 
 mechanical ability and no taste for school. These 
 tests are only valuable if given by well qualified 
 examiners, and the method is so new that few 
 have had the chance to thoroughly prepare for the 
 work. For the most part the tests are given by 
 people who are wholly unfit for so important a 
 task. 
 
 Quite aside from all this it is not certain that 
 intelligent people are necessarily safer to the com- 
 munity than stupid ones. There is always a tend- 
 ency for the stupid to stick to the beaten path. 
 Intelligence generally means individuality and di- 
 vergence. On the other hand, the stupid and sub- 
 normal are moved much more directly by instincts 
 
THE DEFECTIVE AND INSANE 187 
 
 and emotions. Their lack of imagination, poor 
 perceptions and want of reasoning or comparing' 
 power, make their self-control weak. In sudden 
 stress or an unusual situation, they are easily swept 
 away and respond directly to instinct and feeling. 
 In short the urge of the primitive through the long 
 history of the race cannot be modified sufficiently 
 by the new structure that civilization has built 
 around more intelligent people. 
 
 The various distinctions between the feeble- 
 minded and the normal must not be taken with too 
 much confidence. As the motives that govern man 
 are understood, it is easy to see that intelligence 
 is a strong factor in regulating behavior. When it is 
 seen also that at least the larger part of the inmates 
 of prisons are subnormal and at the same time 
 without property or education, it is evident that 
 all these handicaps are dominating causes of con- 
 duct. This position is made still more certain by 
 the further evidence that nearly all of the repeaters 
 in prison are of this tj^e. 
 
 Most states already make some allowances in 
 their criminal codes for the defective and the in- 
 sane. This is really an acknowledgment that the 
 activity of the human machine is governed by its 
 make and environment. The history of the treat- 
 ment of the insane serves to show the uncertainty 
 of all man's theories as to punishment and responsi- 
 bility. Doubtless at a very early age in the history 
 
188 THE DEFECTIVE AND INSANE 
 
 of man it was discovered that there were people 
 who acted so abnormally that they could not be 
 classified with the great mass. Such persons were 
 supposed to be possessed of devils or demons, and 
 various incantations and practices were used to 
 drive the devils out. Failing in this they were put 
 in prison, loaded with chains or put to death be- 
 cause of their danger to the community. 
 
 In other communities, however, insane persons 
 were thought to be possessed of special gifts. God 
 had come nearer to them than to common mortals, 
 and they were seers or prophets endowed with a 
 portion of the divine power. 
 
 Either view of the problem is explainable by 
 the lack of scientific or exact knowledge that marks 
 early societies. Still these societies relied on pun- 
 ishments just as much as our present law-makers 
 and enforcers^ possibly more, because presumably 
 less enlightened. Further investigation and experi- 
 ences with the insane have convinced even the most 
 casual observer that they function somewhat dif- 
 ferently from other people; there is not the same 
 certainty between stimulus and response. What 
 they will do and how they will act under given 
 conditions cannot be foretold with anything ap- 
 proaching the exactness that is possible with the 
 normal. 
 
 The origin of the insanity in many cases is 
 clearly traceable: sometimes to lesions; sometimes 
 
THE DEFECTIVE AND INSANE 189 
 
 to illness; sometimes to the mode of life; perhaps 
 more is due to heredity than to any other cause. 
 At any rate in theory the civilized world has long 
 since ceased to hold the insane criminally respon- 
 siBle for their acts. This applies only to the clearly 
 Jnsa,ne, The border-line is impossible to. find, 
 and many cases are so difficult to classify that 
 there is often a doubt as to where the given patient 
 belongs. In times when the crowd is mad with the 
 mob psychology of hatred, people are impatient of 
 insanity and do not care whether the accused was 
 sane or not at the time of the commission of the 
 act. Many insane are put to death or sentenced 
 to long terms of punishments. Jails and other 
 penal institutions are constantly sorting their 
 inmates and finding many who were clearly insane 
 at the time their sentences began. 
 
 Society is beginning to find out that even where 
 there is no marked insanity, many are so near 
 idiocy that they cannot fairly be held responsibte 
 for their acts. The line here is just as vague and 
 uncertain as with the insane. Thus far, society ha,s 
 not provided adequate protection for the public 
 against this class; neither has it properly cared 
 for these imfortunates. It has simply excused* their 
 conduct, except in cases where some act is so 
 shocking that it arouses special hatred, and then it 
 freely declares that it makes no difference whether 
 the accused is a defective or not; he is of no value 
 
190 THE DEFECTIVE AND INSANE 
 
 to the world and should die. Many of this class 
 are put to death. I am inclined to think that most 
 of those executed are either insane or serious de- 
 fectives; and those who say that such people are of 
 no value are probably right. It is perhaps equally 
 true that few if any are of value, for when value is 
 considered we are met with the question: " Value 
 to whom, or for what? " All you can say of any 
 one is that he wishes to live, and has the same 
 inherent instincts and emotions toward life as are 
 common to all other men. 
 
 Even the legal tests as to insanity and feeble- 
 mindedness are neither logical nor humane. Often 
 the definition is given by courts that if one is able 
 to distinguish between right and wrong, he is sane 
 within the meaning of the law. This definition of 
 insanity is utterly unscientific. If the insane or 
 the defective above an idiot is questioned speci- 
 fically whether certain distinct things are right or 
 wrong, he can generally give the conventional 
 classification. Often he can tell much better than 
 the intelligent man, for he has been arbitrarily 
 taught the things that are right and wrong and 
 has not the originality or ability to inquire whether 
 the classification is right or how far circumstances 
 and conditions determine right and wrong. 
 
 Conduct is ruled by emotion, and actions 
 depend not upon whether one has learned to 
 classify certain conduct as right or wrong, but 
 
THE DEFECTIVE AND INSANE 191 
 
 whether from education, life or otherwise, the 
 thought of a certain act produces a quick and 
 involuntary reaction against doing it. No one 
 believes or feels that it is always really wrong to 
 violate some statutes, and most men indulge in 
 many practices that are wrong and repulsive but 
 not forbidden by the criminal code. 
 
 Furthermore, the insane and subnormal are influ- 
 enced by punishment and fear. Even the animal 
 responds to both. It is possible that in many 
 instances those who are insane and subnormal are 
 influenced by fear more than the intelligent and 
 normal. The most that can be said is that they 
 have not the same power of resistance that is 
 given stronger men. This means only that they 
 have not stored up the experiences of life so well ; 
 that their nervous system has not so well conveyed 
 impressions, or that their power of comparison is 
 less; this, in turn, means that it will take greater 
 stress or harder environment to overcome the inhi- 
 bitions of the sane than the insane. The treatment 
 of the insane and the defective is an acknowledg- 
 ment that all conduct comes from a direct response 
 of the machine to certain stimuli and the machine 
 can act only in a way consistent with its mechanism. 
 
 In other cases, the courts often recognize the 
 strength of hereditary defects in nullifying envi- 
 ronment with its strict ideas of right and wrong. 
 The kleptomaniac is generally recognized as being 
 a well-defined class of the insane. Most of the 
 
192 THE DEFECTIVE AND INSANE 
 
 shop-lifters are women. This is especially a female 
 crime. It is useless to explain why. It is not a 
 daring crime; it is secretive in its nature; it 
 requires more stealth than courage; it especially 
 appeals to women on accoxmt of their taste for 
 the finery exhibited at stores. The kleptomaniac, 
 however, is generally a rich or influential woman. 
 She steals something she does not need, and she is 
 therefore held to be a kleptomaniac and not re- 
 sponsible. 
 
 The poor woman who steals something she 
 actually needs is not a kleptomaniac. I have no 
 doubt that the rich woman who could not resist 
 shop-lifting is a kleptomaniac. I have just as little 
 doubt that the poor woman, with an imperfect 
 make, found her environment such that she was 
 forced to act as she did. If a rich woman is irre- 
 sponsible and cannot resist when she steals some- 
 thing she does not need, I can see no reason why 
 a poor woman is not likewise irresponsible when . 
 she takes something that she needs or must have. 
 The kleptomaniac finds herself in a position where 
 her emotions and her feelings are too strong for 
 her judgment and inhibitions. Everyone who acts 
 must act from similar causes or inducements. 
 There is no special providence in the realm of 
 mind. There is no room for chance in any natural 
 phenomenon. Possibly the public will understand 
 sometime, and law-makers and law-enforcers will 
 place crime and punishment on a scientific basis. 
 
XXVII 
 
 SOCIAL CONTROL 
 
 Organizations and cults are forever coining 
 new expressions that sound " pat " and for this 
 reason seem true. As a rule, these terms and 
 phrases are put in the shape of general statements 
 ''Jl^.xt may or may not mean something; but their 
 " pat " sound is used to justify all sorts of excesses 
 and violations of individual rights. The term 
 " social control " is met everywhere now. It may 
 imply much or little, according to the construction 
 of the users. It is meant at least to imply that 
 somewhere is lodged a power to bring under con- 
 trol or supervision the refractory or evil elements 
 of society for the well being of the whole. As a 
 rule, under this phrase anything is justified which 
 seems in some way fit for the community as a 
 whole. The fact that the restraint interferes with 
 personal liberty seems to have no bearing on the 
 matter. Social control necessarily means that the 
 majority of the members of a ^social unit shall 
 limit the freedom of action of the individual to 
 conform to its view. Of course, the majority has 
 the right because it has the power. In the discus- 
 sion of political or philosophical questions, "right" 
 
 193 
 
194 SOCIAL CONTROL 
 
 means little more or less than "power." A right 
 must be based upon some custom or habit with 
 some power to enforce it, or it cannot be claimed. 
 It can never be enjoyed without the power to ob- 
 tain it. 
 
 The relation of society to the individual has 
 been one long conflict. This is necessarily true 
 because every human organism has instincts, feel- 
 ings and desires and is naturally impatient at any 
 limitations placed upon it unless self-imposed. On 
 the other hand, organized society functions to 
 preserve itself, and if the activities of the individual 
 are hostile to this preservation the individual must 
 give way. Theorists of various schools are forever 
 propounding social ideas, with the positive assur- 
 ance that, if followed, they would work automat- 
 ically and heal all social ills. But it must be evident 
 that neither from history nor philosophy can any 
 such theory be proved. Between the extreme an- 
 archistic view that each person should be free of 
 control by law, and the extreme socialistic view of 
 an extension of state organization until all property 
 and all industrial activity shall be administered 
 by the state and collectively owned, social life in 
 its relation to the individual is always shifting. 
 No one can find the proper line, and if there were 
 a line it would forever change. On the one hand, 
 the power of the strongest element in social organi- 
 zation is always seeking to enlarge the province 
 
SOCIAL CONTROL 195 
 
 of the state. On the other hand, the individual 
 unit following the natural instincts for its devel- 
 opment is reaching out for more freedom and life. 
 When the theorists in each camp manage to push 
 so hard that both can no longer be maintained, the 
 old organization of society breaks up into new 
 units, immediately to re-form in some new way. 
 
 This struggle of contending forces is a prolific 
 and unavoidable source of crime. When organized 
 society goes too far, the individual units rebel and 
 clash with law; when the units swing too far away 
 from the social organization and defy the power 
 of the state, almost automatically some sort of a 
 new organization becomes the state. Whether this 
 new one discards all old forms and laws and acts 
 without the written law, is of no concern. It at 
 least acts and sets limits to the individual life. If 
 it were possible for all legislative bodies to meet 
 and repeal all laws, the state would still remain; 
 the people would live and automatically form 
 themselves into a certain order and protect that 
 order either by written law or vigilance committees. 
 At least the people would act together. 
 
 The majority generally has some religious creed, 
 and to it this is all important. This creed is made 
 up of observances, such as holy days, the support 
 of the prevailing religion, the condemnation of 
 witchcraft and magic, and the like. These and other 
 doctrines often have been enforced upon those who 
 
196 SOCIAL CONTROL 
 
 have no faith in the regulations. The enforcement 
 of such laws in the past has been by the most 
 drastic penalties and has brought extreme suffering 
 upon the world. No religious organization has 
 ever seemed willing to confine its activities to 
 propaganda, teaching and moral suasion; those 
 methods are too slow, and the evils and conse- 
 quences of disbelief are too great. Laws of this 
 drastic character are still part of the penal codes 
 of various states and nations, and well-organized 
 bodies are always strenuously seeking to extend 
 the application of such laws and re-enact at least 
 a portion of the religious code that has been out- 
 grown. 
 
 Individuals have likewise found, or at least 
 believed, that certain personal habits were best for 
 them, for instance, abstaining from alcohol and 
 tobacco in all forms. Not content with propa- 
 ganda, they have sought to force their views upon 
 others, many of whom deeply resent their inter- 
 ference. 
 
 It is not enough that certain things shall be best 
 for the health and physical welfare of a community. 
 This does not justify the wise law-giver in making 
 them a part of the penal code. If so, the code 
 would be very long. No doubt coffee and tea, 
 and perhaps meat, are injurious to health. Most 
 likely the strength of the community would be 
 conserved if regular sleeping hours were kept and 
 
SOCIAL CONTROL 197 
 
 if great modifications or changes were made in 
 dress. But this does not justify criminal statutes. 
 The code must take notice of something more than 
 the general welfare. Unless the end sought to be 
 attained is very direct and plain and the evil great 
 so that a large majority believes in the law, it 
 should be left to education and to other voluntary 
 social forces. 
 
 A large part of the community has always 
 attributed many criminal acts to intoxicating 
 drinks. I am convinced that with such crimes as 
 murder, burglary, robbery, forgery and the like, 
 alcohol has had little to do. Petty things, like dis- 
 orderly conduct, are often caused by intoxicating 
 liquor, and these land a great many temporarily 
 in jail, but these acts are really not criminal. Men 
 have been temporarily locked up for over-drinking. 
 If over-eating had been treated the same as over- 
 drinking, the jails would often be filled with glut- 
 tons. As to health, probably the glutton takes the 
 greater chance. A very large percentage of deaths 
 would have been materially delayed except for 
 excessive eating. The statements ascribing crime 
 to intoxicating drinks have generally been made 
 by those who are obsessed with a hatred of alcohol. 
 As a rule if one lands in prison and has not been a 
 total abstainer, his downfall is charged to rum. 
 Statistics have been gathered in prison often by 
 chaplains who, in the main, are prohibitionists and 
 
198 SOCIAL CONTROL 
 
 interested in sustaining an opinion. The facts are 
 mainly furnished by inmates of prisons, a poor 
 source from which to gather facts and draw de- 
 ductions, especially as to the cause of crime. Pris- 
 oners are interested in only one thing, and that 
 is getting out. They understand perfectly well 
 what kind of statistics the chaplain wants and 
 these are given. It is the nature and part of the 
 protective instinct of everyone to find some excuse 
 for his acts. Alcohol has always furnished this 
 excuse. It is a good alibi; it is readily believed, 
 always awakens sympathy and at once turns the 
 wrath of a provincial community from the inmate 
 of the prison to the saloon-keeper. 
 
 Even if prisoners were unlike others and wished 
 to tell the truth about themselves, they have not 
 the art and understanding to give the causes of 
 their plight. No man, however intelligent, can do 
 this, least of all one of inferior brain power, little 
 education and not trained in dealing with facts. 
 The prison inmate, like everyone else, knows only 
 that he followed what seemed to him the line of 
 least resistance, and that every step in his course 
 was preceded by another and that there was a 
 reason for what he did. Most likely he does not 
 know the reason. In the hours of his despair he 
 goes over his life in every detail, at every cross- 
 road, and at all the forks where paths branch, 
 always wishing he had gone the other way. 
 
SOCIAL CONTROL 199 
 
 While this is true, he could know neither the 
 dangers that lurked along other roads, nor the fact 
 that he had no choice about the way he went. All 
 he knows is that he stumbled along a certain path 
 which led to disaster. All the paths of life lead to 
 tragedy; it is only a question as to how and when. 
 With some, the evil day is longer delayed and the 
 disaster seems not so hard to bear. 
 
 In a sense, all the classifications as to the cause 
 of crime are misleading and worthless. Your exist- 
 ence is the result of infinite chances and causes 
 appalling in their number. Out of a thousand 
 eggs, one is fertilized by perhaps one of a billion 
 sperms, and from this you have been given life. 
 Each of your parents and grandparents and so on, 
 back for two hundred thousand years of human 
 ancestors, and back to infinity before man was 
 born, was the result of the same seemingly blind 
 and almost impossible hazard. The infinitely mi- 
 croscopic chance that each of us had for life cannot 
 be approximated. All the drops of water in the 
 ocean, or all the grains of sand upon the shore, 
 or all the leaves on all the trees, if converted into 
 numbers and used as a denominator, with one for 
 a numerator, could hardly tell the fraction of a 
 chance that gave us life. 
 
 The causes of human action are infinite, and no 
 cause stands isolated from the rest. In the first 
 place we cannot tell the meaning of the word 
 
200 SOCIAL CONTROL 
 
 " cause " when applied to a problem of this sort. 
 In law the ordinary rule for a " proximate cause " 
 is "an event or happening in the direct line of 
 causation, not too remote, that has led to the 
 result, and without which the result could not 
 have happened." But this means nothing. Infinite 
 are the causes which have led to every act, and 
 without each one of the infinite causes the act 
 could not have resulted. If it be something that 
 affected a life, and had it not happened then the 
 life would have drifted somewhere else. In the 
 end it would have reached the same harbor of 
 Nirvana. But the life would not have been the 
 same. A drop of water falls on the Rocky Moun- 
 tains, it trickles along, going around through 
 pebbles and grains of sand; it joins with others, 
 meets trees and roots, winds and twists perhaps 
 for hundreds, even thousands of miles before one 
 can tell by what channel it will reach the sea. 
 Infinite accidents determine even which sea it shall 
 finally reach. The most radical advocates of social 
 control are never at a loss to lay their fingers on 
 causes or to know what would have happened if 
 something else had not happened; they never hesi- 
 tate to forbid seemingly innocent acts because 
 they are certain that evil will follow. They are 
 contemptuous of one who wants to preserve the 
 semblance and spirit of freedom. 
 Life has none too much to offer where men are 
 
SOCIAL CONTROL 201 
 
 left to control themselves, and to be forbidden to 
 follow your inclinations and desires because some- 
 times they may result disastrously, is to give up 
 what seems to be a substance for what is most 
 likely a shadow. 
 
 All we can tell about the man whom we are 
 pleased to call a criminal, is that he had a poor 
 equipment and met certain influences, motives and 
 conditions, called environment, on his journey. We 
 know that at a given time the journey has reached 
 a certain point; it has met disaster or success, or 
 most likely indifference. At a certain point he has 
 reached a prison or is waiting for the hangman to 
 tie a noose around his neck. Is heredity respon- 
 sible? We know of many who apparently started 
 out with an equipment no better. These may be 
 business men and congressmen and deacons in the 
 church. While we do not know and cannot know 
 the trend and relative strength of the instincts in 
 the various machines or the emotions that these 
 and the whole equipment produced, apparently an 
 equipment as poor as that of the criminal has met 
 success, or at least kept its possessor out of jail. 
 Was it then his environment? We have known 
 men placed in the same environment, perhaps a 
 brother, conquering difficulties and bringing success 
 from what seemed to promise certain defeat. Why 
 did one fail where the other conquered? Was it 
 the " will " that caused one to be the " captain 
 
202 SOCIAL CONTROL 
 
 of his soul" ? What then is the "will" and who 
 gave the weak will to one and the strong will to 
 another? And, if each was born with a certain 
 " wiU " or the capacity to make a certain " will," 
 who then is responsible for the result? Or, does 
 the word "will" mean anything, as usually applied? 
 
 All we can tell is that a certain equipment 
 met a certain environment, and the result was early 
 disaster. A change of even the slightest factor of 
 environment might have saved the victim from 
 hanging, so that he could die a respectable and 
 peaceful death from tuberculosis or cancer. 
 
 After all, the inevitable tragedy that in some 
 form marks the end is not so important as the 
 sensations and experiences that one meets on the 
 road. Life is hopeless and colorless indeed if these 
 experiences are chosen for the wayfarer and the 
 sensations are enforced or denied, as the case may 
 be. Nothing recompenses the individual for the 
 denial of his chance to follow his own path. 
 
XXVIII 
 INDUSTRIALISM AND CRIME 
 
 It was not until about the middle of the 
 eighteenth century that the desire for the creation 
 and accumulation of property began to rule the 
 world. Up to that time such small amounts of 
 property as man needed or coveted had either been 
 produced in a simple manner by himself or taken 
 in the easiest way. 
 
 This new passion has made a large part of the 
 modern criminal code. A world of warriors, reli- 
 gious zealots and pastoral people could not readily 
 adapt themselves to the change. Criminal codes 
 were lengthened; methods of getting property and 
 keeping it were provided for, and other ways con- 
 demned. It must be obvious that it was not easy 
 for man with his age-old machine, his inherited 
 institutions and his ancient folk-ways, to adjust 
 himself rapidly to the change. New conditions 
 and laws created new criminals. 
 
 With the growth of the factory system and 
 accelerated industrial development, an overween- 
 ing desire for material things was awakened. As 
 neither individuals nor societies can be possessed 
 
 203 
 
204 INDUSTRIALISM AND CRIME 
 
 of more than one overpowering emotion at a time, 
 the devotion to property naturally weakened reli- 
 gious fervor. Religion became more an abstract 
 belief and a social organization than a vital thing 
 affecting life and conduct. Even before this time 
 there was growing up in the world a protest against 
 the religious superstition that had led to the 
 cruelties of the past. The scientist and the modern 
 philosopher were making their contributions to the 
 world of thought, and these contributions were 
 slowly affecting life and conduct. 
 
 A doubt of old creeds and doctrines and faiths 
 was coming over the minds of men. Social con- 
 ventions were loosening, new customs and habits 
 were becoming folk-ways. In short, society and 
 life were growing more fluid and adaptable. The 
 growth of property holdings created new desires 
 and new temptations. The accumulation of large 
 fortunes brought envy and hatred and ambition. 
 The rise of industries built the large cities, mth 
 palaces on one hand and hovels on the other. 
 The vast inequality of wealth and the growth 
 of workers' organizations, together with the spirit 
 of skepticism which activity always brings, caused 
 large numbers to doubt the justice of property 
 rights, the utility of many institutions and the 
 possibility of radical change by social organization. 
 It is perfectly evident that all of this movement 
 brought more conflict between social units, a con- 
 
INDUSTRIALISM AND CRIME 205 
 
 stant lengthening of the criminal code to protect 
 the interests of the controlling powers, an increase 
 of prisons, and an apparent if not a real increase 
 of crime. 
 
 Nothing but a strong government can long 
 endure great inequality of wealth or social condi- 
 tion. The slaves of the past civilization were kept 
 in subjection by main strength and fear. This en- 
 slavement was aided by the deep ignorance of the 
 masses who had no means of information and 
 nothing but vague feelings of the injustice of their 
 lot. Even then the poor sometimes revolted, but 
 such outbreaks were generally easily put down by 
 the sword. The growth of political power and in- 
 dustrial independence has been accompanied by the 
 constant conflict of social forces. This means con- 
 flict with the law, and the law has always taken 
 its toll of victims. 
 
 New inventions and methods that bring power 
 of any sort carry with them social clashes, protests, 
 bitterness, conflicts and violations of law. The 
 invention of gun-powder was the source of great 
 conflict and still continues to add to the inmates 
 of prisons. From the first, the far-reaching effects 
 of high explosives were seen by the wise, and fire- 
 arms were permitted only in the hands of those 
 who could be depended upon to support the state. 
 Gradually through the needs of the rulers in war 
 they were given to the poor. When the American 
 
206 INDUSTRIALISM AND CRIME 
 
 Revolution separated us from Great Britain, the 
 spirit of democracy and revolt was strong in the 
 world. A body of peasants had gained independ- 
 ence over the strongest nation on earth. This body, 
 through its delegates, provided in the Constitution 
 of the United States that the people should never 
 be forbidden to bear arms. The cheap production 
 of firearms placed them in the hands of all who 
 wished to buy. This aided feuds and brawls. It 
 also gave strength to the burglar and robber. 
 
 America was fast becoming a manufacturing 
 and commercial nation. The accumulation of 
 property was greater, and the inequalities perhaps 
 more marked than in any other land; likewise the 
 poor were more independent. Gradually we came 
 to rely more and more upon the power of law and 
 the force that goes with it to preserve the old order. 
 Legislatures and city councils all over the United 
 States began to limit and forbid carrying firearms. 
 The Constitution of the United States was held 
 no impediment to this legislation. Gradually laws 
 have forbidden the carrying of guns by the com- 
 mon man, and these laws are growing stronger 
 every year. In many states robbery with a gun 
 may mean life imprisonment, while the mere carry- 
 ing of a revolver is a serious offense. The passage 
 of these drastic laws and the number of prison 
 inmates confined for these offenses show that the 
 invention and use of firearms has affected crime, 
 
INDUSTRIALISM AND CRIME 207 
 
 and likewise that the government is constantly- 
 growing more doubtful of the common man. 
 
 Civilization largely has to do with the creation 
 and protection of property. Although it is related 
 to literature, architecture, politics, art and the like; 
 even these things if not actually rooted in prop- 
 erty are stimulated or affected by property. Civili- 
 zation has created new crimes and new ways to com- 
 mit crime. It has likewise created many wants and 
 desires that furnish the motive power of property 
 crimes. Each new invention of civilization adds to 
 these needs and these desires, increases the power 
 of committing crime, and necessitates stricter 
 measures to prevent it. Civilization has likewise 
 created many new outlets for the emotions, strength- 
 ened old ones, weakened others and added to the 
 complexity of life. It has imposed added strain 
 and stress upon man's nervous system and through 
 this has caused the abnormalities and excesses that 
 are either crimes or lead to crimes. 
 
 Civilization has created the big cities; in other 
 words, the powers and forces that made civiliza- 
 tion have made the big cities. The invention and 
 development of the railroad has taken men from 
 the air and sunlight and comparative freedom of 
 motion of the country and the small village, and 
 placed them in an atmosphere not really fitted for 
 normal animal life, especially the life of the young. 
 It has likewise stimulated crime by offering the 
 
208 INDUSTRIALISM AND CRIME 
 
 opportunities and making the suggestions that are 
 potent factors in crime. In country and village life 
 everyone was known, the smallest detail of every 
 life was an open book. This fact furnished a moral 
 restraint to the individual and likewise made it 
 hard for him to violate the rules of the game. The 
 opportunities for collecting large numbers of people 
 who might encourage each other with their con- 
 versation and association were very few in rural 
 life. The man who would violate the law must do 
 it alone. Not only this, but he must take his first 
 steps almost without suggestion or aid. This con- 
 fined criminal conduct largely to the feeble-minded 
 and the seriously defective, and even these could 
 generally live in a country atmosphere where life 
 is simple and easy, Avithout serious danger to them- 
 selves or others. 
 
 The great city with its swarms of people, its 
 wealth and poverty, its unhealthy atmosphere, its 
 opportunities for everyone to have many associ- 
 ates and still be lost to the commtmity at large, 
 makes irregular lives not only easy, but almost 
 necessary to large numbers of men. Civilization 
 has no doubt created crime as it has created luxury, 
 wealth, refinement and ease. Much luxury has 
 always led to deterioration and decay and is doubt- 
 less leading that way now. 
 
 One of the latest products of civilization that 
 has had a marked effect on crime is the automobile. 
 
INDUSTRIALISM AND CRIME 209 
 
 Stringent laws are on the statute books of all states 
 against stealing automobiles, yet stealing and sell- 
 ing automobiles is a flourishing and growing busi- 
 ness. A large percentage of the boys in the juvenile 
 courts of our cities are there for stealing auto- 
 mobiles. Yet this is the work of a very short 
 period. I do not mean to say that many of the 
 boys brought into court for stealing automobiles 
 would not have committed some other crime, if 
 automobiles had not been invented and come into 
 general use, but I feel quite sure that many of 
 them are victims of the automobile madness alone. 
 The automobile is one of the latest manias and 
 fashions that civilization has provided. Almost no 
 one is free from the disease. Conservative business 
 men must have motor cars; clerks and salaried 
 people who cannot afford them must get them; 
 mechanics and professional men who have no need 
 for them, except that others use them, must con- 
 trive to buy them. Automobiles are much more 
 important today than houses. Men go into debt 
 and struggle for money to buy gasoline so that they 
 may drive somewhere for the sake of coming back. 
 It has created a psychology all its own, a psychol- 
 ogy of movement, of impatience, of waste, of futil- 
 ity. Men in Chicago start to drive to Milwaukee 
 without the slightest reason for going there; they 
 travel the road so fast that they could get no idea 
 of the scenery even if there were something to see. 
 
210 INDUSTRIALISM AND CRIME 
 
 They hurry as if going for a doctor. They reach 
 their destination and then start back home. The 
 specific desire that is satisfied by this expense and 
 waste is a new one, an emotion of no value in the 
 life processes and probably of great injury in life 
 development. It is a craze for movement, for 
 haste, for what seems like change. 
 
 The automobile has made its list of criminals, 
 and it is making them every day. Probably it 
 will continue to make them until the flying 
 machine is perfected, and then to some extent at 
 least the airplane will take its place. 
 
 The truth is that man is not adapted to the 
 automobile. His reactions are too simple; his in- 
 herent needs are not adjusted to the new life; he 
 has not been built up with barriers to protect him 
 from this insidious temptation which is claiming 
 its victims by the hundreds every day. 
 
 The boy is perfectly helpless in the presence of 
 this lure. He wants to do what others do. He is 
 by nature active and venturesome and needs to 
 keep on the move. The mechanism itself appeals 
 to him. He wants to work in a garage. He is 
 anxious to be a chauffeur. He cannot resist an 
 automobile. No such temptation should be placed 
 before a boy. It has added a great deal to the 
 responsibility of parents and teachers, and so far 
 they seem not to have been able to meet that 
 responsibility in any way. Aside from the boys' 
 
INDUSTRIALISM AND CRIME 211 
 
 thefts it has played a great part in crime. The 
 doctor, the real estate agent, the business man 
 caimot afford to be without automobiles. No more 
 can the burglar, the hold-up man, the bank robber, 
 if he would keep up to date. The automobile has 
 raised the robbery of country banks from a vagrant 
 crime, infrequent and dangerous, to a steady occu- 
 pation coupled with a great deal of excitement and 
 some chance for profit. So far no one has ever 
 suggested anything to counteract or lessen the evil 
 effects except to increase penalties. The crimes 
 committed with and for automobiles are a result 
 of the conditions of life. Out of a thousand men 
 and boys, a certain percentage must commit these 
 crimes just as a certain percentage must die of 
 tuberculosis. The temptation is very great. The 
 human equipment is not strong enough in many 
 people to withstand the temptation. They either 
 buy them when they cannot afford to own them, 
 or they steal them, and either way leads to disaster. 
 No doubt men will some time become adjusted to 
 the automobile as they have become adjusted to 
 the horse, but until that time comes, it will demand 
 its heavy toll of unfortunates. 
 
 Not only, it seems to me, does the growth of 
 civilization mean the growth of crime, but that 
 civilization likewise leads to decay. The world has 
 seen the result over and over again, but it cannot 
 learn. Man is an animal; the law of his being 
 
212 INDUSTRIALISM AND CRIME 
 
 demands that he shall live close to nature; he 
 needs the outdoors, the country, the air; he needs 
 to walk and run; otherwise his digestive apparatus 
 will fail, his brain power will decay, and the 
 strength of his legs vnll be impaired. Civilization 
 runs too much to stomach and nerves, and Nature 
 will have revenge. To be sure, the professional 
 American rhapsodist points out that we are im- 
 mune from natural law because we have a chance 
 to vote for presidents once in every four years. 
 But there are ample signs that Nature knows little 
 about political institutions or other man-made 
 devices and that she will have her way. 
 
 How much the natural limitations of man will 
 permit him to learn and understand; how far his 
 instincts and emotional nature would allow him to 
 be controlled by knowledge, if he had it; what 
 would be the results to life if reason could control 
 him, are pertinent questions that affect all dis- 
 cussion and which may never be satisfactorily 
 answered. It is entirely possible that the student 
 who tries to point out better ways and teach better 
 methods does it only to satisfy his own emotions 
 and is often conscious that it does nothing else. 
 But, whatever the inducing cause or result, given 
 a brain and nervous system and the material that 
 civilization furnishes for reflection, these and other 
 important subjects will be interesting topics of 
 study and furnish material for the reflective powers 
 of man. 
 
XXIX 
 
 WAR AND CRIME 
 
 All natural phenomena affect the activities of 
 man. It has been repeatedly observed that the 
 number of crimes of assault and murder increases 
 in the summer months and fluctuates with extreme 
 heat or a cooler temperature. The nervous system 
 of man is responsive to all sorts of physical and 
 psychological influences, and criminologists take 
 these into account in considering crime, as doctors 
 take them into account in treating disease. Man 
 is influenced by substantially all the things that 
 affect other structures and by many things that do 
 not. His nervous system is more delicate, his emo- 
 tional nature more complex, and his brain permits 
 the handling of impressions in a way not possible 
 to lower organisms. 
 
 The effect of war has always been manifest in 
 human conduct. Man acts largely from habit and 
 custom; he does as others do, without reflection 
 as to why he should do it or why others do it. 
 War is a sudden, violent and spectacular destroyer 
 of all established habits. In its conduct and prep- 
 aration it has rules of its own which have no 
 
 213 
 
214 WAR AND CRIME 
 
 analogy in civil life. The battlefield is a rever- 
 sion to the primitive; a reversion which man finds 
 it easy to make, for it appeals to fundamental 
 instincts which civilization holds in leash with great 
 difficulty and never with entire success. War 
 especially appeals to the young. Their desire for 
 activity, their impatience with restraint, their love 
 of the spectacular, their untrained emotions, all 
 find a ready outlet in war. Even those who are 
 too young to fight still read of it, talk of it, play 
 at it to the exclusion of other games. War is a 
 profound and rapid maker of mental attitudes and 
 of complexes that are quick to develop and slow to 
 pass away. Both the quick development and slow 
 decay are probably due to the fact that war meets 
 a decided response in the primitive nature of man. 
 
 Nearly all the newspapers of America are now 
 calling attention to the increase of crime since the 
 close of the Great War. It is a topic of pulpit and 
 platform discussion. Wild appeals are made for 
 convictions and extreme penalties. Governors and 
 boards of pardon and parole are urged to refuse 
 clemency to prisoners and are roundly condemned 
 when they do their plain duty, even though they 
 do it very reluctantly and tardily. 
 
 It is probably true that the close of the war has 
 shown a large increase in criminality, especially in 
 crimes of violence. This is true not only of America 
 but of all European coimtries. In some of the 
 
WAR AND CRIME 215 
 
 most afflicted ones civil government for a time has 
 virtually broken down. Both the great need for 
 food and clothing and the overthrowing of conven- 
 tions, customs and habits are responsible for the 
 change. Here we perceive a notable example of 
 the almost instantaneous disruption of established 
 folk- ways. 
 
 For more than four years most of the western 
 world did nothing but kill. The whole world talked 
 of slaughter and devoted its energy to killing. 
 Every sentiment of humanity was forgotten. Even 
 religious ties and religious commands were ignored. 
 The prayers to the Almighty contained requests 
 that He help the various fighting nations to kill 
 their enemies. Everyone was taught to hate. The 
 leaders in the war knew that boys could not do 
 efficient killing unless they learned to fear and 
 hate. The most outrageous falsehoods were freely 
 circulated by every nation about its enemies and 
 their conduct of the war. The highest rewards 
 were offered for new and more efficient ways to 
 kill. Every school was turned over to hate and 
 preparation for war, and, of course, all the churches 
 joined in the universal craze. God would not only 
 forgive killing but reward those who were the most 
 expert at the game. 
 
 The newspapers carried stories of battles every 
 day, the dead and wounded often rimning into the 
 tens of thousands. None of the reports was exact. 
 
216 WAR AND CRIME 
 
 Nothing was true. Everything was wild and exag- 
 gerated. Facts were not strong enough to make an 
 impression. Lies were deliberately circulated to 
 help the cause. 
 
 Every tradition and habit of life was broken 
 and broken all the time. The commandment, 
 " Thou shalt not kill," was repealed. Property 
 was not only ruthlessly destroyed but openly con- 
 fiscated. Lying was a fine art. When this bears a 
 harvest after the war, the public loudly clamors 
 for hanging boys whose psychology is a direct 
 result of long and intensive training by the leaders 
 of the world. 
 
 One life is not worth considering in the face of 
 the holocaust that has taken its hundreds of thous- 
 ands and has been defended in the schools and 
 churches. It is not strange that the after-war 
 harvest of crimes should come largely from boys, 
 often those boys who did their part on the field of 
 battle. Whether they got the psychology from 
 killing or reading or hearing or playing soldier or 
 training makes no difference. Everyone who has 
 any reasoning power knows that they got it, that 
 it was deliberately given to them if not forced upon 
 them, and that just as deliberately the state is 
 killing them because they took it. 
 
 It is not alone the young who show this psy- 
 chology of killing that has grown out of the war. 
 Organized society, the public, juries, judges, par- 
 
WAR AND CRIME 217 
 
 don boards and governors, show that war has made 
 them cruel and wanton of human life. The great 
 number of hangings since the war is patent to all 
 observers. In normal times juries were very loath 
 to pronounce the death penalty. With any possible 
 excuse they always saved life. Now they pride 
 themselves on taking life. Even insanity does not 
 always prevent an execution. 
 
 Numerous are the evidences of the derangements 
 the war has created and left behind. A few years 
 ago a prize fight would not have been permitted 
 in more than one or two states in the Union. Now 
 state after state is passing laws to permit prize 
 fights to take place, and even the best society has 
 given its sanction to this sort of sport. Whether 
 the state should permit prize fights is not the ques- 
 tion. The fact is, as everyone knows, that it is 
 permitted on account of a psychology growing out 
 of the war. We content ourselves with saying it 
 will never do to raise our boys as molly-coddles; 
 they must learn to fight. 
 
 It is not alone murder that can be traced directly 
 to the war psychology. Robbery and burglary have 
 rapidly increased, and much of this is due to the 
 emotions of boys. The robbing of country banks 
 has grown to be almost a pastime, and often one 
 or more participants in these raids is a returned 
 soldier. 
 
 What should be done to meet these new con- 
 
218 WAR AND CRIME 
 
 ditions? Common honesty, common sense and 
 common humanity alike plainly show that a large 
 part of the crimes of violence are due to the war. 
 Will hangings and life sentences stop them? And, 
 if so, is it right for organized society to ignore its 
 responsibility and place it on the young men that 
 they innoculated with the universal madness? It 
 is expecting too much to think that there is any 
 process by which society can be made to think and 
 feel. Some day, however, when the war fever 
 passes away crime will again take its normal place. 
 
 This phenomenon is not new in the world. 
 Everyone interested has noted it before. It has 
 followed all great wars. War means the breaking 
 up of old habits, the destruction of many inhibi- 
 tions, which in the strongest civilization are only 
 skin deep at the best. It means the return to the 
 primitive feelings that once ruled man. 
 
 The Napoleonic Wars left a long heritage of 
 crime. Every nation in Europe was affected by 
 them. Many years passed before the world grew 
 tranquil. Our Civil War brought its harvest of 
 crime. It was felt both North and South. It was 
 not confined to homicide but was shown in all 
 sorts of criminal statistics, especially crimes of 
 violence. 
 
 I do not write as a pacifist. There is nothing 
 in the constitution of man that makes pacifism 
 anything but a dream. Man is largely ruled by 
 
WAR AND CRIME 219 
 
 fear and hate, and it is not possible to imagine an 
 individual or a race that under sufficient provoca- 
 tion will not fight. Neither is it possible that nations 
 will not always, from time to time, find the provo- 
 cation sufficiently great. Individuals and nations 
 can philosophize and reason and make compro- 
 mises when they are calm; but let them be moved 
 by fear and hatred, and these emotions will sweep 
 away every other feeling. The conditions for war 
 were ripe in 1914, and it was inevitable that 
 America should be in it too. This should not make 
 one wish for war nor believe in war nor close one's 
 eyes to its horrors and results. Much less should 
 it prevent him from trying to do his part to restore 
 sanity to the world. 
 
 Another consequence of war which America is 
 passing through is the spirit of super-patriotism. 
 This is always aroused and must be aroused to 
 carry on the war. It is potent in creating the 
 psychology that makes men fight. Every people 
 teaches that its own country is the best; that its 
 laws and institutions excel those of all other lands. 
 This spirit is taken advantage of and used by 
 designing men. It is used to send to jail those who 
 criticise existing things. It is used to hamper and 
 destroy any effort to change laws and institutions. 
 The one who criticises conditions is a disturber 
 and a traitor. Those who profit by existing things 
 are always intense patriots and by means of cheap 
 
220 WAR AND CRIME 
 
 appeals and trite expressions seek to stifle discus- 
 sion and criticism. This war has borne a deadly 
 harvest of restrictive legislation in America. We 
 are no longer an asylum for political offenders. We 
 no longer stand for freedom of speech. Old tradi- 
 tions and constitutional and legal guarantees have 
 been swept aside under the hysteria which has 
 prevailed during and since the war. These results 
 were inevitable and will follow war as long as man 
 is man. 
 
 All the after-effects of the World War show how 
 completely man is ruled by forces over which he 
 has no control. If considerable numbers of the 
 people have been moved by war hysteria, and if a 
 large part of crime is directly traceable to war, it 
 seems plain that all human action could be traced 
 to some controlling cause, if only man could be wise 
 enough and industrious and humane enough to 
 find the cause. It is plain that the law of cause 
 and effect influences mental phenomena as it does 
 physical acts, and sometime, perhaps, men will seek 
 to avoid the effect by removing the cause. 
 
XXX 
 
 CIVILIZATION AND CRIME 
 
 As children we have all amused ourselves by- 
 looking into a kaleidoscope , turning it around and 
 around and watching the changing patterns formed 
 from the mixmg bits of different colored glass in 
 the other end. Each turn makes a different pattern 
 and each bit of glass seems to seek a spot in the 
 general medley where it can be settled until another 
 turn drives it to find a resting place somewhere 
 else. The organization of individual units into a 
 group is more or less such a formation, each seek- 
 ing to adjust itself to a pattern and finding that 
 the pattern is ever-changing and the individual 
 units obliged to seek new positions and make new 
 adjustments. 
 
 It is vain for social theorists to talk of a perfect 
 order, a system of social organization that will 
 find the proper place for each unit and bring social 
 symmetry out of the whole. Such a society is not 
 consistent with the varied capacities and wants of 
 men. Neither is a perfect order possible with ever- 
 
 221 
 
222 CIVILIZATION AND CRIME 
 
 changing and moving physical forces, with new 
 mental conceptions, with new needs and wants, 
 with constant births and deaths, and with the 
 innate instincts of man. 
 
 Some system may be the best for a time but 
 must in turn give place to new formations. In this 
 process the old is ever mixed with the new. The 
 past hangs on to plague the present, and the vision 
 of the future disturbs the quiet and stability that 
 the present inherited from the past. Organizations 
 of society are necessary and automatic. The frost 
 on the window pane takes its pattern, the crystals 
 in the glass and stone have their formations, the 
 grain of sand, the plant — all forms of animal life 
 — the solar system and, doubtless, an infinite num- 
 ber of other systems which the eye cannot see or 
 the mind comprehend take on form and order. The 
 symmetry and shape of any of these organiza- 
 tions may be shattered by growth or catastrophe, 
 and new forms may take their place. All life is 
 constant friction and constant adjustment, each 
 particle in a blind way trying to find a more har- 
 monious relation, but never reaching complete rest. 
 
 The social and political patterns that men have 
 taken have been of many forms. All through the 
 past these have changed, and the laws and habits 
 that were meant to hold men together, have been 
 made and discarded as fast as new emotions or 
 ideas have gained the power to make the change. 
 
CIVILIZATION AND CRIME 223 
 
 Men are of all degrees of adaptability. Some can 
 readily conform to the new. Some adjust them- 
 selves very slowly. Man's structure is fixed; his 
 inherent instincts are of ancient origin, always 
 urging him to primitive reactions; his habits are 
 slowly formed and slowly changed. Slowly he set- 
 tles himself to the conditions that surround him. 
 He learns their demands; he manages to conform, 
 but the folk-ways that he knew and the way of life 
 he learned must be changed to something else. 
 Every new adjustment, every change of organiza- 
 tion, every modification made by civilization, bears 
 its toll of victims who have not been able to adjust 
 themselves to the new order. 
 
 The first criminal regulations, doubtless, had to 
 do with the personal relations of men. The number 
 of offenses was small for life was simple, wants 
 were few, and ambition rare. The growth of reli- 
 gion created a ferocious criminal code, regulating 
 every thoiightandactionjiat God's agents thought 
 ImgEToffend the Deity or threaten their power on 
 earth" Anyone interested in the story of punish- 
 ment for heresy, sorcery or other crimes growing 
 out of religious fanaticism, can read the story in 
 Lecky^s History of Rationalism in Europe, in 
 White's A History of the Warfare of Science with 
 Theology in Christendom, in Draper's Intellec- 
 tual Development of Europe, and in many other 
 books. The Spanish Inquisition alone furnished 
 
224 CIVILIZATION AND CRIME 
 
 about 350,000 victims in the two centuries of its 
 power. Many of them were burned alive, many- 
 others were killed by the most cruel torture that 
 could be devised by man. Up to recent times more 
 victims have been put to death for heresy and 
 kindred crimes against religion than for any other 
 cause. Next to this no doubt stand political crimes. 
 Even America hanged old women for witchcraft, 
 a crime they could not commit. Practically all the 
 victims of religious and political persecution have 
 been guiltless of any real crimes, and among them 
 were always many of the noblest of their age. 
 
 Every general change of religious or political 
 ideas bears its quota of crimes. For whatever the 
 religious or political organization, it always uses 
 every means in its power to perpetuate itself. This 
 is as true of republics as of monarchies, although 
 the severity of punishment and the amount of 
 heresy permitted change from time to time. Each 
 age is sure that it has the true religion and the 
 God-given political organization. In every age the 
 accepted religion is true, and the king and the state 
 can do no wrong. 
 
 One thing only seems to be sure. Human nature 
 does not change. Whether it was the theological 
 systems of the ancient world fighting to keep Chris- 
 tianity out, or Christianity fighting to preserve 
 itself, the same cruel, bigoted, fanatical majority 
 has been found to do its will, and the same reasons 
 
CIVILIZATION AND CRIME 22 S 
 
 and excuses have served the law from the earliest 
 times down to today. 
 
 A letter of the younger Pliny, who was then 
 governor of Bythinia-Pontus, a province of Rome, 
 asking the Emperor Trajan for instructions in deal- 
 ing with the early Christians shows how persistent 
 are intolerance and bigotry. This might have been 
 written yesterday to seek advice in the suppression 
 of opinion and punishment for sedition in any of 
 the most advanced governments of the modern 
 world, as it was in the most advanced of the 
 ancient world. The letter is here reproduced as an 
 interesting exhibit of human nature and it fixity. 
 
 Pliny, the younger, was born in 61 A.D. and 
 became governor of the province of Bythinia- 
 Pontus about the year 112 A.D. under the Emperor 
 Trajan. In the discharge of his duties as governor, 
 Pliny discovered that the conversion of many of 
 his subjects to Christianity had resulted in a falling 
 off of trade in the victims usually purchased for 
 sacrifices at the temples and in other commodities 
 used in connection with pagan worship. As a good 
 governor, Pliny sought to remedy this economic 
 situation, and his plan was to restore his subjects 
 to their old forms of worship. Thus he was brought 
 into contact with Christianity. The following 
 letters, one from Pliny to Trajan, and the other, 
 Trajan's reply, show the situation. These docu- 
 
226 CIVILIZATION AND CRIME 
 
 merits are from the Tenth Book of Pliny's Corres- 
 pondence, Letters 97 and 98. 
 
 PLINY ASKING INSTRUCTIONS OF TRAJAN 
 ON TRIALS OF CHRISTIANS 
 
 It is my invariable rule, Sir, to refer to you in all matters 
 where I feel doubtful; for who is more capable of removing 
 my scruples, or informing my ignorance? Having never 
 been present at any trials concerning those who profess 
 Christianity, I am unacquainted not only with the nature 
 of their crimes, or the measure of their punishment, but 
 how far it is proper to enter into an examination concerning 
 them. Whether, therefore, any difference is usually made 
 with respect to ages, or no distinction is to be observed 
 between the young and the adult; whether repentance 
 entitles them to a pardon; or if a man has been once a 
 Christian, it avails nothing to desist from his error; whether 
 the very profession of Christianity, unattended with any 
 criminal act, or only the crimes themselves inherent in the 
 profession are punishable; on all these points I am in great 
 doubt. In the meanwhile, the method I have observed 
 towards those who have been brought before me as Chris- 
 tians is this: I asked them whether they were Christians; if 
 they admitted it, I repeated the question twice, and threat- 
 ened them with punishment; if they persisted, I ordered 
 them to be at once punished: for I was persuaded, whatever 
 the nature of their opinions might be, a contumacious and 
 inflexible obstinacy certainly deserved correction. 
 
 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 anony- 
 mous 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 pur- 
 pose I had ordered to be brought, together with those of the 
 
CIVILIZATION AND CRIME 227 
 
 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 publica- 
 tion 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 es- 
 pecially 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 supersti- 
 tion 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 gen- 
 
228 CIVILIZATION AND CRIME 
 
 eral 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 (notwith- 
 standing any former suspicion) be pardoned upon his re- 
 pentance. Anonymous information ought not to be re- 
 ceived 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 ma- 
 chinery 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 con- 
 trol 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 educa- 
 
CIVILIZATION AND CRIME 229 
 
 tion can do is to remove some of the inducing 
 causes that have always brought the sharp con- 
 flicts and awakened the cruelty of man. 
 
 Every civilization brings new evils and new com- 
 plexities 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 his- 
 tory, 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 expira- 
 tion of his sentence. He was probably none too 
 strong a man before his conviction. His heredity 
 was poor in most cases, and his environment com- 
 pleted 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 ill- 
 ness, 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- 
 
 230 
 
THE CONVICT 231 
 
 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 througji that ex- 
 perience 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 provo- 
 cation he is reminded of his past. He is always 
 under suspicion unless, perhaps, he professes a 
 change of heart. Such a change implies a physi- 
 cal process which is impossible. Some sudden ex- 
 altation may furnish him a new emotion for a time, 
 but this can last only while the stimulus has power 
 to act. It wiU 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 temper- 
 ament, 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 re- 
 lieved from some burdens, or placed in an environ- 
 ment of less stress and strain where it will be 
 
232 THE CONVICT 
 
 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 de- 
 linquency 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 direc- 
 tion 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 less- 
 ened. 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 in- 
 terferes with his employment, places him at a dis- 
 advantage 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 defi- 
 nite 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 so- 
 ciety must and will adopt any way that seems to 
 be necessary to protect itself, still before accept- 
 ing 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 classify- 
 ing facts are most important in arriving at cor- 
 rect results. 
 
 The really intelligent are as abnormal as the 
 defective. The great masses of men are rather 
 mediocre, and those above and below are excep- 
 tions. This depends on how broad is the class in- 
 
 233 
 
234 ISOLATION AND STERILIZATION 
 
 eluded 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 shock- 
 ingly 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 educa- 
 tion 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 fac- 
 
ISOLATION AND STERILIZATION 235 
 
 tories and all ilidustrial 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 de- 
 mand that all such be sent to some place of con- 
 finement, 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 seri- 
 ously 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, so- 
 ciety shall make examinations and tests and con- 
 fine 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 
 
236 ISOLATION AND STERILIZATION 
 
 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 ban- 
 ished 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 descend- 
 ants 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 com- 
 pare 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 in- 
 telligent have criminal natures. All that can be 
 shown is that they have a poorer equipment to 
 
ISOLATION AND STERILIZATION 237 
 
 meet the stress and strain of life. To make most 
 of this class safe, all that is needed is fairer con- 
 ditions and an easier environment. If society could 
 only recover from the obsession that what is nec- 
 essary 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 edu- 
 cated 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 in- 
 sane 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 dis- 
 cussion of crime to speak of isolation and steriliza- 
 tion 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 
 
238 ISOLATION AND STERILIZATION 
 
 can be and are inherited. No brain or nervous 
 system is perfect, so the problem is one of the in- 
 capacity 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 ques- 
 tion of his fortune or misfortune in the environ- 
 ment where he is placed. It is absurd to say that 
 one inherits the tendency to rob or rape or burglar- 
 ize or kill. He may inherit an unstable organiza- 
 tion 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. So- 
 ciety 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 bear- 
 ers of life to the future. 
 
 It is most common to find in the same family 
 various degrees o: intelligence. Now and then a 
 man of such high powers and faculties is born that 
 he is regarded by scientists as a "sport" who de- 
 
ISOLATION AND STERILIZATION 239 
 
 fies 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 charac- 
 ters. Genius is frequently an indication of insanity, j 
 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 com- 
 prehend 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 in- 
 deed that such unusual traits persist. That steril- 
 ization should follow as a punishment for sex 
 crimes is without any sort of logic except that ster- 
 ilization 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 generaliza- 
 tions have gone far beyond anything that the evi- 
 dence 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 manner- 
 isms are similar, that inheritance is responsible for 
 
240 ISOLATION AND STERILIZATION 
 
 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 prog- 
 ress 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 me- 
 chanical certainty. He gets what he wants and 
 would never think of raising scrubs and taking a 
 chance on results. The effect of selective breed- 
 ing 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 
 
ISOLATION AND STERILIZATION 241 
 
 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 an- 
 swer would probably be the " razor-back." The 
 fact that the food consumed by the Berkshire 
 produces a large quantity of fat, makes him un- 
 fitted 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 doubt- 
 less 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 gradu- 
 ally 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 
 
242 ISOLATION AND STERILIZATION 
 
 a draft horse and a running horse ; he cannot pro- 
 duce 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 in- 
 creased, 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 environ- 
 ment. 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 con- 
 trol 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 pleas- 
 ant one for intelligent men. 
 
 Can we imagine men, through government, for- 
 cibly experimenting with each other? Who would 
 settle the kind of man that was to be evolved or 
 
ISOLATION AND STERILIZATION 243 
 
 the specific changes that would be required? Or, 
 what was to be done and how? Who could proph- 
 esy 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 con- 
 ceive 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 proc- 
 esses of Nature, and it may be that the interfer- 
 ence with her method of work is bad. But Nature 
 is mindful of this tendency and if it is not in ac- 
 cordance with the profoundest laws of being, Na- 
 ture will have her way in spite of man^s meddling. 
 Any change that can be brought about by selec- 
 tive mating must come by natural processes aided 
 by the education of each individual through 
 a closer study oi the origin and evolution of life. 
 This must leave everyone free to do his own select- 
 ing, 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 en- 
 vironment is quite another thing and probably 
 must be kept practically free from the theories, 
 
244 ISOLATION AND STERILIZATION 
 
 vagaries and experiments of man. It would seem 
 so absurd and dangerous as not to be worth dis- 
 cussing 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 re- 
 spect. 
 
 No doubt the popular opinion that in some way 
 crime and pauperism are inherited has been 
 strengthened by the literature concerning the fam- 
 ily that has been given the name of "The Jukes." 
 The first extensive study of this family was made 
 by Richard L. DugdaJe, 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 cau- 
 tioned the reader. No one can examine Mr. Dug- 
 dale'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. 
 
ISOLATION AND STERILIZATION 245 
 
 The book covers investigations made by Dug- 
 dale between 1850 and 1870, a period in which 
 little was known about the laws that govern inher- 
 itance, and necessarily, much evidence was pure 
 hearsay without the data of careful investigation 
 at hand. The case, however, does show a surpris- 
 ing number of criminals, paupers, harlots and mis- 
 fits, 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 be- 
 gins 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 legit- 
 imate 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 manufactur- 
 ing 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 ostra- 
 cized 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 
 
246 ISOLATION AND STERILIZATION 
 
 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 be- 
 ings is to revert to the primal. It is only associa- 
 tion that keeps the individual units up to the ten- 
 sion that civilization expects and demands. Every 
 community shows many examples of this inevita- 
 ble tendency. Nature is constant; civilization 
 spasmodic. Especially with sex relations, condi- 
 tions are the chief factor. Nature knows little or 
 nothing of the regulations fixed by society and 
 custom. Poverty and wretchedness reach out- 
 ward through a community and by association 
 between the old and the young pass down the gen- 
 
ISOLATION AND STERILIZATION 247 
 
 erations. Nothing but a complete change of en- 
 vironment can counteract the inevitable tendency. 
 When social classes arise and the cleavage is clear 
 and established, no great effort is made by the su- 
 perior 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 com- 
 munities 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 scien- 
 tists to discover that tuberculosis was the result 
 of germs, generally accompanied by an impover- 
 ished 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 per- 
 centage of facts was gained from gossip and hear- 
 say 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 
 
248 ISOLATION AND STERILIZATION 
 
 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 SO. 
 
 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 opportun- 
 ity, 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 
 
ISOLATION AND STERILIZATION 249 
 
 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-minded- 
 ness is sure to show in the offspring. With the mod- 
 ern care of this sort of defectives, the chance of 
 breeding is growing rapidly less. 
 
 The Kallikak family is cited as another illus- 
 tration showing the possible inheritance of crimi- 
 nality 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 her- 
 edity and environment. The thorough investiga- 
 tion 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 indus- 
 trial 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 vio- 
 lence are committed after wars or during heated po- 
 litical campaigns than at other times; more of such 
 
 250 
 
CRIME, DISEASE AND ACCIDENT 251 
 
 crimes when, either by climatic or other conditions, 
 feelings are intensified or aroused and less subject 
 to control. Likewise there are more crimes com- 
 mitted by young men between seventeen and twen- 
 ty-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 sup- 
 port and care, but none are dangerous to the com- 
 mmiity. 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 prob- 
 ably from ten to twenty per cent of the convicted 
 are, in fact, insane at the time the act was commit- 
 ted, 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, ex- 
 cessively 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 
 
252 CRIME, DISEASE AND ACCIDENT 
 
 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 cor- 
 rectly, the lack of education and knowledge pre- 
 vents 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 fac- 
 tor. 
 
 The times of life, too, when the ravages of dis- 
 ease are greatest are as distinct as those of crime. 
 And barring the fact that the few who are left at 
 
CRIME, DISEASE AND ACCIDENT 253 
 
 seventy rapidly drop away, the time of the great- 
 est disasters would rather closely correspond with 
 that of crime. Tuberculosis and insanity, for in- 
 stance, take their greatest toll in the period of 
 adolescence between fifteen and twenty-five years, 
 just as crime does, and the percentage of both be- 
 gins 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 hered- 
 ity, 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 iso- 
 lated 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 
 
254 CRIME, DISEASE AND ACCIDENT 
 
 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 occu- 
 pies 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 sci- 
 ence 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 al- 
 most 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, appar- 
 ently at will, at least independently of each other. 
 By an infinite number of circumstances, at a par- 
 ticular 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 an- 
 imal 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 
 
 255 
 
256 LUCK AND CHANCE 
 
 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 con- 
 tains a, flaw. How it chanced to be imperfect is 
 another story involving endless speculation. An 
 inherent natural defect in the ore, or a tired work- 
 man 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 thous- 
 ands 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. In- 
 evitably 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 
 
LUCK AND CHANCE 257 
 
 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 pil- 
 grims going blindly like himself. From the begin- 
 ning to the end, all about him and in front of him 
 are snares and pitfalls. His brain and nervous sys- 
 tem 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 dis- 
 ease, 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 
 
258 LUCK AND CHANCE 
 
 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 experi- 
 ence, 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 
 
LUCK AND CHANCE 259 
 
 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 em- 
 ployer. 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. 
 
260 LUCK AND CHANCE 
 
 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 venge fully 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 dis- 
 aster, 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 
 
LUCK AND CHANCE 261 
 
 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 sym- 
 pathy, 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 inevit- 
 ably 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. 
 
 IManifold causes produce crime ; some men com- 
 mit it from one cause: some from another. Statis- 
 tics only show the number of men who conmiit 
 crime from the various separate causes. In logic 
 and philosophy it really shows that, a certain he- 
 redity placed in a certain environment, will meet ob- 
 structions 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 imder any environment, and the time 
 
262 LUCK AND CHANCE 
 
 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 mani- 
 fold 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 envi- 
 ronment 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 di- 
 vided 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 deter- 
 mines 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, injus- 
 tice 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 
 
 263 
 
264 PARDONS AND PAROLES 
 
 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 popu- 
 lace. 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 feel- 
 ing. 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 opin- 
 ion 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 feel- 
 ings, 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 inde- 
 pendent 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 
 
PARDONS AND PAROLES 265 
 
 presumption against the accused. The judge re- 
 gards 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 con- 
 nected 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 burden- 
 some 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 
 
266 PARDONS AND PAROLES 
 
 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 penal- 
 ties 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 con- 
 sideration 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 gen- 
 erally gone a law providing for the release of pris- 
 oners 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 gov- 
 ernment. 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 
 
PARDONS AND PAROLES 267 
 
 with the task. It also calls for great courage such 
 as few men on boards possess. The public gen- 
 erally 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 doubt- 
 ful 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 de- 
 fense of a criminal Ccise 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 
 
268 PARDONS AND PAROLES 
 
 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 sen- 
 tence 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 offi- 
 cials 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 materi- 
 ally shortened, I am confident that the parole 
 system should be maintained with the hope of 
 improvement and the chance of gradually educat- 
 ing 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 
 
PARDONS AND PAROLES 269 
 
 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 confi- 
 dence 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 pos- 
 sible 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 con- 
 fidence 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 cooperation. Every prisoner should under- 
 stand 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 
 
270 PARDONS AND PAROLES 
 
 prisoners would be so defective or imperfect that 
 they never cotdd 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 mem- 
 bers 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 
 
PARDONS AND PAROLES 271 
 
 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 pimishment 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 re- 
 leased 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 proba- 
 tion officers or to the court. Probation is generally 
 granted to young prisoners and first offenders but 
 usually not permitted in cases that the law classi- 
 fies 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 
 
272 PARDONS AND PAROLES 
 
 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 transgres- 
 sions, 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, so- 
 ciety should do what it can to help the man make 
 good. Generally employment is necessary and a 
 different and easier environment often indispens- 
 able. 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 investi- 
 gations 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 possi- 
 
 273 
 
274 REMEDIES 
 
 bilities and all that is needed is time and patience. 
 Given these a perfect world will eventuate. 
 j 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 inci- 
 dent 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 m an 
 should come under the head of " behayior." In 
 studying crime we are merely investigating a cer- 
 i tain kind of human behavior. Man acts in response 
 \to outside stimuli. How he acts depends on the 
 mature, strength, and inherent character of the 
 Machine and the habits, customs, inhibitions and 
 bxperiences that environment gives him. Man is 
 m no sense the maker of himself and has no more 
 power than any other machine to escape the law 
 
REMEDIES 275 
 
 of cause and effect. He does as he must. There- 
 fore, there is no such thing as moral responsibihty 
 in TheTsaise Jn 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. In- 
 herent 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 crigi- 
 
276 REMEDIES 
 
 inal makes the whole difference, and any improve- 
 ment 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 ail- 
 ments 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 reforma- 
 tion" 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 Ukewise 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 
 
REMEDIES 277 
 
 that he otherwise would do. Anything that in- 
 creases 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 environ- 
 ment. The problem of the future in dealing with 
 crime will be to adjust environment to heredjty. 
 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. Per- 
 haps if the social improvement should be great 
 
278 REMEDIES 
 
 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 environ- 
 ment 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 pris- 
 oner should be made to feel that the state is inter- 
 ested in his good as well as the good of the society 
 from which he came. Sentences should be inde- 
 terminate, 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. Un- 
 til 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 
 
REMEDIES 279 
 
 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 equip- 
 ment or management to provide against such short- 
 comings. 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 human- 
 ity 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 con- 
 vict 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 
 enviroimient where he cannot survive. An environ- 
 ment adjusted to his heredity must be found by 
 the state. 
 
280 REMEDIES 
 
 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 mis- 
 takes, 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 treat- 
 ment 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 pun- 
 ishment furnish the criminal with the hope of 
 escape and therefore do not give the community 
 the benefit of the terror that comes with the cer- 
 tainty 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 punish- 
 ment 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 tor- 
 ture chamber and the ancient prison with all its 
 
REMEDIES 281 
 
 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 op- 
 portunity of escape, regardless of innocence or guilt. 
 Even the fact that there are fewer crimes commit- 
 ted 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. Com- 
 
282 REMEDIES 
 
 plete 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 independ- 
 ent of public opinion ; almost invariably they reflect 
 public opinion, which means the public opinion of 
 the community in which they live. Few of them 
 
REMEDIES 283 
 
 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 opin- 
 ion 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 pun- 
 ishment savors of vengeance, every possible safe- 
 guard and protection must be thrown around the 
 accused. In the settling of opinions and the passing 
 of judgments, mob psychology is all-powerfid and 
 really, in the last analysis, every human ques- 
 
284 REMEDIES 
 
 tion comes down to the power of public opinion. 
 
 The first thing necessary to lessen crime and to 
 relieve victims from the cruelty of moral judg- 
 ments is a change of public opinion as to human 
 responsibility. When scientific ideas on this im- 
 portant 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. Theo- 
 retically 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 in- 
 sanity should not save the life of one who slays 
 his fellow. Repeatedly the insane are hanged with- 
 out a chance, and sentences of death are pro- 
 nounced, where before, a term of years, or life im- 
 prisonment would have been the penalty for the 
 offense. Individual men and collections of men axe 
 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 
 
REMEDIES 285 
 
 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 ex- 
 pected that all maladjustments can ever be wiped 
 out. Organization with its close relation of individ- 
 ual 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. 
 Acqmsition, 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 pimishment, 12; the cause of 
 
 kiUings, 83. 
 Animal, man a predatory, 94r-100. 
 Animal Hfe, 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. 
 AutomobUe, 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 ptmishment, 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 regardmg, 225-228. 
 
 Christians, belief of early, in punishment as vengeance, 14-19. _ 
 
 Cities, relative prevalence of crime in, 75-79, 207-208; cnmes 
 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. 
 287 
 
288 INDEX 
 
 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 under- 
 standing 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, 134r-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 KalUkaks, 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 punish- 
 ment, 165. 
 
INDEX 289 
 
 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 hfe, 81-83. 
 
 Intelligence tests, use of, 185-186. 
 
 Intolerance, a persisting source of evil, 228-229. 
 
 Isolation of the subnormal, 233-249. 
 
 Jealousv, 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. 
 
290 INDEX 
 
 Juvenile Coiu-ts, 59, 139. 
 Juvenile Prison, the, 59. 
 
 KaUikak 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, 34r-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, 65. 
 
 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, 21. 
 
 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 accompHshed in, 20-21; gradual improve- 
 ment in, 163-164. 
 
 Probation, system of, 271-272. 
 
INDEX 291 
 
 Prohibition laws, 133; efEect 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. 
 
 Ptinishment, purpose of, 12 S. ; 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, lSO-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, 276. 
 
 Rape, crime of, 88-89, 91. 
 
 Reason, slight effect of, on actions of men, 44r-65. 
 
 Reformation, viewed as purpose of punishment, 19-21; impossibility 
 
 of moral, of man, 276-277. 
 Religion, emotional life supplied by, 54r-65; 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, 150-157; 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. 
 ShopUfting, 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, 66. 
 Sumner, W. G., " Folkways " by, 131. 
 
 Taboos, adoption of, by primitive man, 7-8. 
 
 Tests, physical, of prisoners, 176-177; intelligence, for gradmg 
 
 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. 
 
292 INDEX 
 
 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. 
 
 Yoxmg, care of the, resulting from mother-instinct, 45-46. 
 
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