HV 8686 G.6| t t c a3 GUI The date shows^wheifc this, volume was taken To renew this book copVjUie.call No. and give to the librarian. 3 9 m'"^ 14 AF' 'V,* HOME USE RULES All Books subject to Recall. Books not used for instruction or research are returnable within 4 Volumes of periodi- cals and of pamphlets are held in the library as much as possible. For special purposes they are given out for a liniiled time. / Borrowers should not use their library ■ privileges for the bene- fit of other persons. Books not needed , during recess periods should be returned to, the library, or arrange- ments made for their return during borrow- er's absence, if wanted. Books needed by more than one person are held on. the reserve list. I.O k s of special gift books, when the giver wishes it, are not allowed to circulate. Readers are asked ^o> , report all eases of books marked or mutilated 13& not y Luke Owen Pike, London, 1 873 (p. 53). . J 29 the lad would not have gone, would have not gotten mixed up, and would not have done anything wrong. "But no such man, who would have pitied him, was found, not a single one, when he, like a little animal, passed his apprenticeship in the city, and, closely cropped in order not to breed vermin, ran his master's errands; on the contrary, everything he heard from his master and companions, during his sojourn in the city, was that clever is he who cheats, who drinks, who curses, who strikes, and who is dissolute. "And when he, sick and deteriorated by his unhealthy work, by drunkenness and debauch, in a stupor and beside himself, as though in a dream, walked aimlessly through the city, and in his foolishness made his way into a barn and took perfectly worthless mats away from there, we did not try to destroy the causes which had led the boy to his present condition, but except to improve matters by punishing this boy! — Terrible!" Such are Nekhlyudov's thoughts on the subject. Maslova's crime itself, taken in connection with her life's history, shows clearly by what imperceptible steps man approaches a criminal career under the modern social conditions. Maslova, the daughter of a dairy maid and a gypsy, was first befriended by her mistresses, then dishonored by Nekhlyudov; later she went from house to house as a servant. Her transformation into a prostitute is quite natural. Prostitution and crime are the twin evils of society; they have a common origin and are closely associated and intertwined with intemperance. The murder of Smyelkov, the wealthy merchant, is a fatal result of his seeking pleasure in a brothel — which is protected by the law — and in the hotel where the attendant and the maid, both accessories of Maslova's alleged crime, are eager to satisfy their generous guest's immoral propensities. By nature, Mas- lova is a good and a kind being. On the witness stand Kitaeva, the German proprietress of the resort, says about Maslova: "An educated girl and chic. Educated in good family, and could read French. At times drank a little too much, but never lost her senses. A very good girl." The sincerity of the witness in this respect is confirmed by the fact that after the verdict she sent through the balifF three roubles to Maslova ("selecting from a fairly large heap of coupons, which had been cut from bank bills earned by her, one of the denomination of two roubles and fifty kopecks; she added to that two twenty kopeck pieces and one ten kopeck piece"). The chief turning point in Maslova's career was, of course, the outrage committed by Nekhlyudov. He realized that at once, as soon as he recognized Katyusha Maslova on 30 I the defendant's bench; after that during the trial "he felt like the pup which had misbehaved in the room and whose master grabbed it by the neck and stuck its nose into the mess it had made." Maslova realized his guilt even more clearly and at first objected strenuously to his help. When he first called on her in prison she was slightly under the influence of liquor and exclaimed: "You have enjoyed me in this world, and you mean to get your salvation through me in the world to come. Go away, go away!" Her old feeling for Nekhlyudov and the kindness of her soul began to reassert themselves gradually under the influence of the surroundings into which chance had thrown her on the road to Siberia. Her regeneration began when she gave up drink. When trying to analyze the prison population into diff'erent classes, Nehklyudov generalizes in the following manner: Finally, the fifth category was composed of people before whom society was much more guilty than they were before society. Those were the outcasts who were dulled by constant oppressions and temptations like the boy with the foot-mats and hundreds of other people, whom Nekhlyudov had seen in the prison and outside of the prison, whom the conditions of life systematically lead to the unavoidable act which is called a crime. To such people belonged, according to Nekhlyudov's observations, very many thieves and murderers, with some of whom he had during this time come in contact. In this category he, having closely examined the matter, counted also all those corrupt and debauched men whom the new schools call a criminal type, and the presence of which in society is regarded as the chief proof of the necessity for criminal law and punishment. These so-called corrupt, criminal, abnormal types were, in Nekhlyudov's opinion, nothing else than those other people, against whom society had sinned more than they had sinned against society, but toward whom society was not guilty directly, but against whose parents and ancestors society had sinned long ago. It is clear, therefore, that crime needs to be studied as a social phenomenon only to the extent that it is a reflection of the social evil which generates it. Tolstoi proclaims that crime is a punishment to society for the prevailing venality, the indifference of neighbors to each other, and the general moral rottenness; society is punished through the person of the crim- inal against whom it is obliged to protect itself and whom it must take care of. Every new crime is a new indication of a social evil the existence of which is proved by the crime; every crime is an outgrowth of the sins of society just like every one of madam's coupons is a reward of her base occupation. The criminal is like a shell which gathers into its various twists and folds the sounds that are around it, far and near, and reflects 31 them all blended into one peculiar noise. Tolstoi, with his great soul aching for the miseries of his fellow beings, perceived that the modern criminal trial is built on principles diamet- rically opposed to those explained above and one can hardly fail to see that the method of handling a case in court was bound to touch in a rough manner a sore spot in Tolstoi s soul. A dramatic illustration of the inefficiency of a criminal trial is found in the irrelevant nature of all that is ascertained about Maslova during her trial; her real past which is well known to one of the jurors, Nekhlyudov, remains sealed. The dis- crepancy between real life and its appearance from the evidence is so great that Nekhlyudov's intimate knowledge of the truth has the sole effect of hindering him in the performance of his duty. The theory of criminal procedure is quite as bad as the practice. Take, for example, this paragraph from a text book by Professor Sluchevski, attorney-general of the court of appeals at St. Petersburg: "A trial is concerned with practical results," says he. "The law considers it essential in the interests of order to protect society from crime through the punishment of culprits, it is the duty of a criminal court to ascertain whether the defendant has committed the crime with conscious intent. The imposition of the penalty depends on the presence of the evil will in the defendant. Thus, neither the causes of the act, nor the conditions which had brought it about, are within the scope of the court's inquiry." (Page 306.) Another professor, Togantsev, the presiding officer of the same court of appeals, in speaking about the scope of criminal inquiry refers to the intentions of the compilers of the code "to have the absolute truth revealed in each case," and says, further: "The opinion of the counsel for defense, and of some of the trial judges, that a detailed investigation and consideration at court of all the circumstances having an approximate, or a remote, a direct, or an indirect relation to the case and to the criminal, cannot endanger a correct judgment as to the guilt of the defendant, that, on the contrary, any limitation of the right to submit all the evidence would prevent a fair consideration of the case, this opinion is essen- tially incorrect and is at variance with the fundamental principles of the code of criminal procedure. The starting point of a criminal inquiry is the fact of the crime with all its surroundings, which determine the character, the 'corpus delicti,' the conditions and the legal significance of the deed; the evil will of the doer may be revealed by these circumstances, but it is not the business of the court to consider anything, which may have an interest as throwing light on the social and economic significance of the deed, or on the peculiarities of a certain 'milieu' or class to which the defendant belongs, but has no value in 32 determining the just penalty for a deed. A court is not called upon to reveal and explain social evils and maladjustments, but justly to apply the law." A mere comparison of the ideas expressed by the authors just quoted and of Tolstoi's views, as put forth in his novel, shows the contrast between the modern court and that which Tolstoi expects of a social institution. His attitude toward what he sees in a courtroom is, of necessity, a result of that contrast. The phrasing of the questions submitted to the jury especially surprises him. The unfortunate verdict in Maslova's case is, in the last instance, a result of the jurors' lack of comprehension of the meaning of the questions and the significance of a few words which they should have included in their verdict. By neglecting to say, "Yes, but without intent to kill," the jury unwittingly convicted Maslova of intentional homicide. The questions relative to the guilt or innocence of the defend- ant are submitted to the jury after all the preliminary stages of the trial are over and after all the evidence is in. And what are the questions ? They are a conundrum to a layman; the fateful questions on which the life of the defendant depends are not couched in live human words, but in words resembling conjuring and incantations. The formulation of the questions, which is the crucial point of the criminal trial, appears to Tol- stoi to be the head of an ulcer, which is drawn over a criminal deed by the concerted action of the various branches of the civil authority. Confirmation of Tolstoi's observations regarding the unin- telligible language of the £uestions submitted to the jury may be found in an incident which occurred after the appearance of the "Resurrection," in connection with the widely known case of Nicholas Griaznov, who was tried for patricide in the court of Tula and was acquitted by the jury in the face of his own confession of guilt. The prosecuting attorney explained the acquittal by the fact that the jury did not fully understand the significance of the words "premeditation" and "previous agreement with other persons;" the jury meant to deny these, and instead acquitted the defendant altogether. The con- fusion of ideas in this case was discussed at length in the opinion of the attorney-general of the Senate, V. K. Sluchevski. In this opinion he based his concurrence with the views of the appellants partly on the fact that at the trial the defense sub- mitted evidence that "Griaznov's late father had maltreated 33 and beaten almost to death all the members of his family, in- cluding his mother, who had frequently complained about it to her minister;" the attorney-general considered this as an admission of irrelevant matter, having no bearing on the case.* In speaking of the realism with which Tolstoi reproduces his thoughts and his impressions, one is inclined to ask why he selected the case of a conviction of an innocent person, when he set out to demonstrate that the entire system of criminal retribution is artificial in form and cruel in substance ? Would it not have been more to the point to take a person whose con- viction was the result of his own misdeeds, and then to show how unjust and how cruel the penalty was, even granting the guilt of its victim ? The fact is that Tolstoi does not invent, he creates; and he does it not from afar, soaring above the events he describes, but from their very midst, placing himself right among his characters. It would have been a far-fetched, an unreal picture indeed, had Tolstoi depicted in Nekhlyudov a philanthropist, whose wrath had been aroused by the modern penal system and who had taken for that reason, alone, a lively interest in Maslova's fate. Such a novel would not have been imbued with a living reality. Had Ma'slova been sentenced to hard labor for committing a real murder, Nekhlyudov would have taken the current attitude toward the matter and turned away from her. The con- sciousness of his own guilt in regard to her might have moved him to transmit to her through the authorities a hundred roubles or two, but he would have done no more. As events shape themselves in the novel, Nekhlyudov's knowledge of his own guilt is strengthened by th^ realization of Maslova's innocence, and his desire of changing her fate becomes a moral necessity with him and revolutionizes his entire existence. In addition to that it must be remembered that Nekhlyudov, while pedantic and supercilious, was also a "dummy, a terrible dummy," according to the expression used by his aunt, the Countess Charskaya, when she heard of his intention to marry Maslova. The phrase seemed to characterize to her his mental and moral personality. Yet she added: "But I love you for being such a terrible dummy." This explains somewhat the unexpected and extravagant course of action determined upon * "Journal of the Ministry of Justice," March, 1900, page 238. There are many instances of incongruous verdicts, resulting from a senseless piling up of words in the questions to the jury; for example, in a case where a peasant woman was accused of attempting to kill her husband by throw- ing poison in his milk, the jury, after lengthy deliberation, brought out the following verdict; "Guilty but she did not give him the milk, and she deserves the clemency of the c6urt." 34 by Nekhlyudov. The fact is that from his youth Nekhlyudov had been "one of those people for whom a sacrifice in the name of the mandates of morality is the highest mental satisfaction." Had Nekhlyudov read of Maslova's conviction in the papers, had he recognized her description, and had he been fully con- vinced of her innocence, even that would not have been a sufficient stimulus, under the existing relations between men, for him to feel an irresistible desire to do for Maslova, in spite of the chasm separating them, all that he actually does for her in the novel. His determination to do a heroic act becomes natural only because, in addition to his initial guilt, Nekhlyudov finds himself responsible for Maslova's unjust conviction. The realism of the novel is heightened by its unusual beginning, when Nekhlyudov, guilty of having wrecked Maslova's whole life, becomes, on top of that, a participant in the cruel legal injustice of which she is the victim. Nekhlyudov expresses it this way: "It is impossible to abandon the woman I have loved and to be satisfied to pay the lawyer's fee and to save her from hard labor, which she does not deserve: to expiate my guilt with money, as I had thought then." * * h= It is essential to appreciate the fact that, by making a legal error the basis of his novel, Tolstoi does not intend to criticise merely our criminal procedure which makes it possible for innocent persons to be easily convicted. Such a conclusion would be just as erroneous as the contention that Tolstoi meant to represent the administrative methods as being better than the judicial, simply because in the novel Nekhlyudov, after having failed to alleviate Maslova's fate through the agency of courts, finally succeeded in doing so through a- direct appeal to the administrative authorities. Tolstoi is not concerned with a legal error in the manner in which Voltaire was moved by the conviction of the innocent Callas, but by the moral error of the very existence of a criminal court. Tolstoi thinks that criminal trials sin not in methods of procedure, but in their fundamental principles. The very essence of a trial is, according to Tolstoi, the result of utter indifference of man to his neighbors and of his selfish desire to protect his sacred person and his property, no matter what outrage upon his neighbors that might involve. This is why one gains the im- pression from Tolstoi's description of a trial that all that is done in court professedly for the purpose of finding the motive of the defendant's past actions and of deciding his fate, really has no organic connection with the defendant's past 35 which has led him to his crime, nor with his future which depends on the verdict; the trial is one thing and the verdict another; no close relation exists between them. Tolstoi is astounded when he finds that, after all, the modern court seeks to establish the same fact which the Inquisition attempted to ascertain through torture, namely, the bare fact of the defendant's participation in the crime. It was thought in former days that that could be established with the greatest degree of certainty through the defendant's own confession, and when other methods failed this must be secured by tortures. Now, it is believed that the trained mind of the judge is able to gather the truth from the evidence, circumstantial and oral, of the defendant's action and behavior, and the judge can now dispense with the confession. But the aim of the trial is, in the final analysis, the same as that of the Inquisition, namely, to prove that a certain evil deed has or has not been committed by the defendant. The difference is one of method and not of purpose. Tolstoi does not consider that the important question is whether or not the accused has committed an eyil deed, but granted the deed, what were the reasons for the defendant's criminal inclinations, what is the real cause of the social disease of which the criminal is a symptom and a mani- festation .'' A proper culmination of the senseless structure known as criminal procedure, Tolstoi sees in the court of appeals. In that court the fate of the victim of the crime and of its per- petrator is not considered at all, for the judges occupy them- selves with utterly purposeless mental gymnastics, and their ultimate decision is not even a result of these mental exercises but the consequence of certain considerations of policy, or of the chance mood of the judge. Consequently, the exact observance of the rules and regulations of this phase of legal procedure, which is embodied in a special institution, appears to him like a strange comedy which is the less justifiable because, after all, the fate of living human beings depends on its decisions. If the methods of procedure of a trial had really been conducive to the solution of the problem raised by the crime, it would have been reasonable to insist on a strict observ- ance of all the rules; that would have been as important as the insistence on correct multiplication, factoring and extraction of roots in the solution of a problem in mathematics. But the verification of the methods of the trial, of the order of examina- tion of the witnesses, the admission or rejection of documentary 36 evidence, etc., had no object, for nothing depended on these things; the decision of the court was not the answer to the problem presented by the case nor even the logical corollary which could be deduced from the evidence. Tolstoi cites Rablais' story of a jurist who was asked to straighten out a legal tangle and who, after looking over twenty pages of sense- less legal talk, suggested that the litigants toss a penny: if heads turned up, judgment to go in favor of the plaintiff, if tails, in favor of the defendant. Maslova's trial was no better than that. The final verdict was not due to a consensus of opinion among the jurors, but to a series of circumstances: first, the presiding judge, who had taken a long time for his summing up, had forgotten to mention a point that he always explained, namely, that the jury might, in answering the question, say: "Yes, butwithout intent to kill;" secondly, because one of the jurors, the colonel, had been telling a long and tedious story about his wife's brother-in-law; thirdly, because Nekhlyudov had been so excited that he had not noticed that the proviso "without intent to kill" had been omitted and had thought that the phrase "without premeditation" annulled the verdict; fourthly, because another juror, Peter Gerasimovich, had left the room when the chairman read over the questions and answers; and, most important of all, because everybody had been tired and anxious to be released and therefore willing to agree to any decision which was likely to bring the matter to a conclusion. The correctness of the answer to the question which Tolstoi expects a criminal trial to solve does not depend on legal technique which does not touch upon the vital matter at all.. The abstract nature of the work of the appellate judges cannot but transform their activities into something that is very dif- ferent from the artificial functions assigned to them. Tolstoi is firmly convinced that living men can work only when actuated by living motives. The senators in the consultation room are influenced in voting by real Hve considerations; the only trouble is that these considerations have nothing in common with the principles of appellate jurisdiction and still less with the prob- lems of pronouncing judgment over a fellow being. Nekhlyudov's feeling of painful depression is enhanced in the Senate by the contrast between the dry and empty nature of the work and the magnificence and the solemnity of the large surroundings; it is further enhanced by the presence of, a number of exceedingly courteous and well-groomed attendants. 37 p Nekhlyudov begins to wonder vaguely what the significance of this tribunal may be when the self-confident Fanarin reads him the petition of appeal in Maslova's case. The proceed- ings in that case, as well as in the preceding case of libel in print, do not dispell his doubts and meditations. Nekhlyudov listened and tried to understand the meaning of that which was going on before him, but, just as in the Circuit Court, the chief impediment to comprehension lay in the fact that they were not considering that which naturally seemed to be the main point, but a side issue. Fanarin's speech which Nekhlyudov heard was not calcu- lated to clarify the situation, or to explain it to Nekhlyudov. The tone of Fanarin's short but strong speech was to the effect that he begged the Senate's indulgence for insisting on something which the Senators, in their sagacity and judicial wisdom, saw and understood better than he, saying that he did so only because his duty demanded it. After Fanarin's speech, there seemed to be not the least doubt but that the Senate would reverse the decision df the court. Having finished his speech, Fanarin smiled a victorious smile. Looking at his lawyer, and seeing his smile, Nekhlyudov was convinced that the case was won. But when he glanced at the Senators, he noticed that Fanarin was the only one who was smiling and triumphing. The Senators and the associate prosecuting attorney-general neither smiled nor triumphed, but had the aspect of people who felt ennui, and who were saying: "We have heard a lot of your kind of people, and that all leads to nothing." Neither did Nekhlyudov's conscience derive much consola- tion from his talk with the associate prosecuting attorney- general, his former university colleague, who had read the decision in Maslova's case and who vainly tried to pacify Nekhlyudov by explaining to him the distinction between the merits of a case and the methods of procedure; he did not succeed in making Nekhlyudov understand why the correctness of the procedure took precedence over the erroneousness of the verdict. "The question is not in the appeal, but in the woman, who is not guilty and yet condemned!" Selenin heaved a sigh: "Very hkely, but — " "Not very likely, but absolutely — " "How do you know.'" "Because I was one of the jury. I know where we made a mistake." 38 " ^ Selenin fell to musing. "You ought to have announced it then and there," he said. ;]I did." "You ought to have written it down in the protocol. If that had been in the appeal for annulment" — " But it was manifest as it is that the verdict was senseless." "The Senate has no right to say so. If the Senate should take the liberty of annulling the judgment of the courts on the basis of their own views of their justice, not only the Senate would lose every point of support and would be rather in danger of violating justice than establishing it," Selenin said, recalling the previous case, "but the verdicts of the juries would also lose their meaning." "I know this much; the woman is absolutely innocent, and the last hope to save her from an unmerited punishment is gone. The highest court has con- firmed a case of absolute illegality." When Nekhlyudov heard his brother-in-law Ragozhinski, an orthodox mouthpiece of the authorities, refer to this everlasting matter of the merits of the case, he was greatly annoyed. No other effect could have been produced by the confident tone of his brother-in-law on Nekhlyudov who was seeking a remedy to the existing state of affairs rather than a reiteration of its principles. To quote again: "The Senate has refused the appeal." "If it has refused it, there could not have been sufficient cause for annul- ment," said Ignati Nikiforovich, apparently sharing the well-known opinion that truth is a product of a judicial verdict, "the Senate cannot enter into the merits of the case." In days gone by, lawsuits were decided by means of duels between the litigants or even between hired combatants who were obliged to follow the strict rules devised for such conflicts. Tolstoi is reminded of this custom by the modern trial with its forms and ritual over which the Senate passes final judgment: the weapons have changed — ■■ but in Tolstoi's eyes the essence of the trial has remained the same. Does not the outcome of a case even now depend on the cleverness and artfulness of the contestants ? The minds of judges in no way differ from the minds of other men. They have their own idiosyncrasies and can be influenced by the same facts either one way or the other. The outcome of a case thus depends on the chance mood or the state of mind of the judges, and the cleverness with which the sides appeal to their mental weaknesses and their prejudices. Thus, the assistant prosecuting attorney delayed the case of the sectarians on account of the absence of an unimpor- tant witness, who was not at all needed, and his reason for doing this was just 39 because the case was to be heard in a court where the jury were an intelhgent set, and where it might easily end in their favor. By agreement with the pre- siding judge, this case was to be transferred to the session in a county seat, where there would be more peasants on the jury, and a better chance to end the case unfavorably for the sectarians. During that same day in the civil department a case was being tried with the help of a famous lawyer, who managed to turn the case in such a manner that one of the sides, an old lady, was obliged to pay a large sum of money to the other side, although she was clearly in the right. The judges knew that, and the plaintiff and his attorney knew it even better; but the case had been conducted in such a manner that there was no other issue possible but that the property should be taken away from the old woman, and given over to the pettifogger. In the jury room one of the jurors, a venerable looking man, talked about the lawyer's genius with unfeigned enthusiasm. Even the court chaplain made the famous advocate's acquaint- ance with a feeling of especial respect. The question is, what relation has all this with the seeking of truth for which Nekhl- yudov's soul was yearning } Some of Tolstoi's critics from the ranks of the judiciary have taken him to task for depicting in his novel such ordinary persons, even granting that the judges described by him are real, rather than selecting more prominent characters. From Tolstoi's viewpoint that would of course have made no differ- ence, since even an exceptional man on the bench is occupied only with himself and his private affairs while performing the superhuman and cruel task of administering criminal justice. But, one cannot help but inquire, who are the men who do the common every-day judicial work, the work which affects the people most: are they the exceptional or the ordinary judges ? One need only attend a county session of the justices of the peace a single time and watch them perform their daily duties, to be converted from scepticism to belief in the truthfulness of Tolstoi's description of criminal trials. Tolstoi selected his trial and his judges from every-day occurrences. He did not wish to make Maslova's case a "cause celebre." If that were not so he would have filled the courtroom with a fashionable audience, like Dostoyevski, and would have introduced a famous counsel. Tolstoi, the portrayer of real life, took the court in its workaday appearance, the only manner in which a court is known to the masses of the people, and the manner 40 also, one is bound to admit, in which the essence of criminal justice is revealed more clearly, more directly and convincingly, without the ornamental and extraneous admixtures which invariably characterize a "cause celebre." The truthfulness of Tolstoi's observations is further ques- tioned by his critics on the ground that the important scene in the novel when Maslova looks indifferently at the jury and glances at Nekhlyudov, among the rest, without recognizing him, could not have occurred had Tolstoi known the code of criminal procedure which prescribes that a list of the jurors shall be handed to the defendants; Maslova, say the critics, niust have seen the list and being literate, must have recog- nized her seducer's name, and must have been looking for him in the jury box. Such a criticism of Tolstoi is possible only to a judge, who not only knows the code, but is mentally saturated with its provisions. To such a judge it seems incon- ceivable, since such a provision exists, and the judge knows the reason for its existence and the possible evil consequences for a defendant who does not make use of it, that a defendant, upon receiving the list, should not devour its contents with his eyes and analyze consecutively all the names on the docu- ment. Such a judge is, of course, entirely unable to compre- hend the attitude toward a piece of paper, be it indeed a legal document, which considers it only from the point of view of its usefulness for rolling cigarettes. As a matter of fact it is a common occurrence for defendants, both literate and illiterate, to use the paper stating the charge against them for a social smoke, omitting in their childish carelessness to cast so much as a cursory glance upon its contents. Such a judge, even if he knows about it, thinks: "So much the worse for them, it's their own fault if they do not choose to avail themselves of the guaranties granted them by our humane legislators." This reflection satisfies the judge. Not so the artist. His genius sees life and comprehends it as it is, and no sections of the code, no methods of procedure can conceal reality from him. He knows all the phases of life and even the daily official surroundings of the judges better than the judges themselves. One of the leading ideas of the "Resurrection" is that judges and other officials look at everything through, the eyes of their vocation, and lose the ability to understand things in a natural manner. The horror of a criminal trial hes in the fact that it follows rules and precedents, and ignores the human life behind them. A criticism of Tolstoi from the point of view 41 of the technicalities of criminal procedure is the height of inappropriateness. The critics are apt to say with scorn : "You speak of childish thoughtlessness! We wonder that the prisoners show it only in regard to others, and never to themselves?" The following incident supplies an answer to this query. On the 8th of March, 1900, the case of the poisoning of a party of prisoners was tried in Kiev; eight of them had died. The poisoning was caused by a mistake: the prisoners in carrying some furniture out of a restaurant had taken rat poison for cheese and had lunched on it. The owner of the restaurant was tried for keeping poison carelessly, and was, of course, acquitted. But did the judges stop to think what lack of fore- thought was shown by these grown-up men at the sight of a supposed delicacy, and how unjust it had been to judge these men for their transgressions and to condemn them to hard- labor .? Could there be any doubt that these prisoners, when the list of their jurors was handed them, had never given it a thought and had used it for cigarettes ? The psychological reason why Maslova did not recognize Nekhlyudov when she met him in court is very plausibly explained in the novel: She (Maslova) never thought of her childhood and youth, and especially of her love for Nekhlyudov. That was too painful. Those recollections lay somewhere deep and untouched in her soul. Even in her sleep had she never seen Nekhlyudov. She had not recognized him that morning at court, not so much because when she had seen him the last time he had been a military man, without a beard, with short moustache, and with short, thick, waving hair, whereas now he was a man of middle age, with a beard, as because she never thought of him. She had buried all her recollections of her past with him on that terrible, dark night, when he did not stop over at his aunt's upon his way from the army. Neither was it surprising that Maslova did not hear Nekhl- yudov's name when the presiding judge proclaimed it as he drew out the ticket from the urn; common people show utter indifference to all the proceedings of the court, unless directly addressed to them. Nor would the secretary's reading of the final panel have been noticed, since he usually mumbles these things to himself. A proper understanding of Tolstoi is possible only to those who cast aside the current views of life and allow the mind to travel forward in time; forward or backward nineteen hundred years; Tolstoi cannot be understood by a philistine, who con- 42 siders his own ideas correct and impregnable, and admits the possibility of argument only about secondary details. Such critics, judges old and new, cannot reverse the verdict of the court in Maslova's case on account of the proceedings; they cannot do away with the slightest detail of the true and powerful picture of Maslova's conviction, which was not the result of good or bad legal practice, but of the indifference and self-love of man in his dealings with his neighbors. Neither can Tolstoi be correctly understood by epicurean critics, who love literature and understand it only to the extent that it gratifies their aesthetic sense. In his "Resurrection," as well as in all his recent writings, Tolstoi does not permit his reader to be passively entertained. Quite on the contrary, he uses all his powers to poison the existence of the epicureans. To delight in his descriptions is highly inappropriate. They represent the truth of life which deprives the easy-going pleasure seeker of his peace of mind and his conviction that he is not to blame for the evils which surround him. According to Tolstoi, we are all participants in and accessory to the evils of society. The epicureans cannot tolerate this uncom- fortable assertion. They are willing to read stories like Turguenyev's "Living Corpse," which delights them by the manner in which the author describes the sufferings of the ill- fated woman and her touching resignation. One can finish such a story, close the book and forget about it. One does not feel pledged to anything by the perusal. In reading Tolstoi now-a-days — one feels it one's duty to change some- thing in one's environment and in one's self; especially in one's self. Our epicurean friends object to a book which does not stop at delighting their mental pallet — but imposes a burden on their conscience and forces them not only to meditate but to act in response to their emotions. Tolstoi's description of criminal tribunals places heavyweight upon the conscience of every man who lives in modern society, altogether irrespective of the question of his direct connection with the existing administration of justice and retribution. Before John Howard's time, it was not considered proper in England to examine into the causes of deadly epidemics in prisons and other places of detention, because these diseases were interpreted as expressions of Divine wrath which was justly directed against the malefactors. What a change from this point of view to that of the modern methods of prison administration, with its perfected system of ventilation and its 43 enforcement of all the rules of hygiene conducive to the pre- vention of the evil effects of confinement ! But Tolstoi naturally goes a great deal further in his appreciation of these effects. Nekhlyudov thinks that the death of prisoners from sunstroke, caused by their journey under the burning sun after a w^inter's confinement, is no better than deliberate murder. His sister, Natalya Ivanovna, exclaimed: "Why killed.? Who killed them ?" when he said: "Ah, what I have seen to-day! Two prisoners were killed!" According to his conviction, the cause of this murder is not in men, but in the system. To cite Nekhlyudov: "The most terrible thing of this all is that he has been killed, and nobody knows who it is that has killed him. There is no doubt about his having been killed. He was led, like all the prisoners, by order of Maslennikov. Maslen- nikov, no doubt, sent forth his habitual order, with his stupid flourish signed a paper with a printed heading, and, of course, in no way will regard himself as guilty. Still less can the prison doctor, who examined the prisoners, con- sider himself guilty. He accurately executed his duty, segregated the weak, and in no way could foresee this terrible heat, nor that they would be taken away so late and in such a throng. The superintendent ? — but the super- intendent only executed the order to send out on such and such a day so many enforced labor and deportation convicts, men and women. Nor can the officer of the guard be guilty, whose duty consisted in receiving a certain number of prisoners and delivering the same to such and such a place. He led the party according to the regulation, and he could not foresee that such strong men as those two whom Nekhlyudov had seen would not hold out and would die. Nobody is guilty — but the people have been killed, by these very men who are innocent of their deaths." These men are quite indifferent to the death of prisoners. While looking at the severe but kind expression of the second dead prisoner in the police station, a man who was in the prime of life and remarkably handsome in face and form, Nekhlyudov thought: "Let alone the fact that it was evident from his face what possibilities of spiritual life had been lost in this man, one could see, by the strong muscles of his well-proportioned limbs, what a handsome, strong, agile human animal he had been — in its way a much more perfect animal than that dung stallion, whose lameness so angered the fire captain. And yet, he died, and no one pitied him, neither as a man, nor even as an unfortunately ruined beast of burden. The only feeling which had been evoked in people by his death was the feeling of annoyance caused by the necessity of disposing of his rapidly decaying body." Many defenders of the existing state of affairs will consider such incidents in the transportation of prisoners as an unavoid- able evil, to be put up with for the sake of the entire system of r44: retribution. "What matter, indeed, is the death of one or two convicts? What is to be done?" — say the defenders. But Tolstoi sees in such incidents the proofs of the fact that even now prisoners are being dealt with in the primitive spirit of revenge. He contends that, while divided into several phases, the essence of the revenge which is now in the hands of authority and which formerly was in the hands of the injured parties has remained the same, only that the tortures have been spread out in space and time. Tolstoi has collected all the rays, which do not appear to ordinary man, and has given us a picture of modern revenge which from his moral standpoint does not differ from ancient bloody slaughtei:. Torture inflicted with pincers is no longer practiced during the preliminary examination or at court. But men are still tortured by being deprived of their liberty and by the hard- ships of prison life when they undergo their punishment, and the essence of retribution is still seen in the painful sensations of the culprit. It would indeed be conceded by most that a system which reformed the criminal without causing him pain would be preferable to the modern one, and, if devised, should be adopted in its place. But such a system, say the critics, is impossible and is contrary to the very nature of the thing, and all efforts in that direction are as futile as the seeking by self- taught mechanicians for eternal motion. But to Tolstoi this is no answer; with the realism with which we view the present, he conceives of an entirely new order of things. In this special field a man looking from the standpoint of the future back to the present can find plenty of examples of times when the radical changes later happily achieved seemed absolutely inconceiv- able. Let us look into the treaties by Judge Jeronimus Chris- toph Meckbach, published in June in the year 1756. This book contains scientific and practical explanations and direc- tions to the administration of tortures. In paragraph five the author says with firm conviction that, while it is a pity to sub- ject men to the tortures described in that section, and while a man who could invent a system of torture which would force criminals to confess without causing them pain would be worthy of a high reward, yet all this is a dream and a Utopia equal to the discovery of a "perpetum mobile," and judges must prac- tice the existing system and observe that the pain inflicted to their victim be gradually increased as the milder forms prove to be ineffective.* * Richard W. Wrede, Die Korperstrafen bei alien Volkern von den altesten Zeiten bis auf die Gegenwart, pages 351-363- Some readers saw in Tolstoi's work a caricature of the Russian courts in particular. But Tolstoi's view of modern criminal justice would have remained the same had he described an English or any other judge, or an American prison with its electric lights, its automatic fans, its newspapers, and other accessories of comfort. Other critics suspected Tolstoi of a prejudice against the bench, but Tolstoi is far from entertaining evil feelings toward any class of men. His entire moral figure, gigantic as it is, admits of no possibility of bias or ill will towards any part of the universe he describes. He con- siders all government officials in the same light as the judges, and believes that the exigencies of their official duties make them insensible to the mandates of humanity; Nekhlyudov compared them with the ground covered by a pavement. And in truth all the officials in the novel seem to have had veritable " paved souls." Like the ground covered by stone, they lose their natural qualities and are unable to show them even when they wish to. " If all these people," thought Nekhlyudov, "Maslennikov, the superintendent the officer of the guard — were not governors, superintendents, and officers, they vyould have considered twenty times whether they ought to take out the prisoners in such a heat and in such large crowds; they would have stopped twenty times during the march, in order to take out such as were weakening and falling ill; they vi^ould have taken them into the shade, would have given them water to drink, would have allowed them to rest, and, if a misfortune had happened, would have expressed their compassion. They have not done it, and have even interfered with others who would have done it, because they saw before them, not men and their obligations to them, but their own service and its demands, which they placed higher than the demands of human rela- tions." The impression of a soul hardened by the demands of the service is gained from the assistant prosecuting attorney- general Selenin, and from Ragozhinski, Nekhlyudov's brother- in-law. The gradual development of Selenin's soul — a "clean soul" as his was called in social circles — under the influence of selfishness, concealed by various euphonious motives, is described in detail by the author. As regards the numerous members of the official world described in the novel, they occupy various stages in the official hierarchy and their souls are not paved alike. The members of the central gov- ernment in St. Petersburg have souls paved with asphalt, smooth and even, but impenetrable, without the smallest aperture through which a living emotion could penetrate. Their attitude is voiced by the governor-general who refused 46 Nekhlyudov's request to leave Maria Pavlovna with the dying Kryltsov, even though she was wiUing to marry him for the purpose. During his conversation with the governor-general, Nekhlyudov confessed that he had had occasion to gain admit- tance to the pohtical criminals through bribery. The General then said: "I know that you must act like that. You want to see a political, and you are sorry for him. The superintendent 'or a guard will accept a bribe, because he gets about two dimes of salary, and he has a family, and cannot help accepting the bribe. I, in your place or in his, would act just like you or him. But in my own place, I do not permit myself to deviate from the strictest letter of the law, for the very reason that I am a man and might be moved by compassion. I am an executor. I have been trusted under certain conditions, and I must justify this trust." One is tfempted to ask this stalwart public servant what his thoughts about duty would be, if he had to refuse mercy to his own grandson and granddaughter — that fine pair of young- sters whom their mother had proudly shown to Nekhlyudov in their sleep — or whether it is consistent with the demands of duty to pity the boy who found no other place in the over- crowded transport station to rest his sleeping head except on a prisoner's knee in the midst of liquid flowing out of a refuse pail. The memory of this picture kept Nekhlyudov awake. The lower officials have souls paved in a rougher manner; the pieces do not fit together perfectly, and real emotions can more easily penetrate through the openings. This recalls the opening sentence of the novel: No matter how people, congregating in one small spot to the number of several hundred thousand, tried to deform the earth on which they were jost- ling; how they paved the earth with stones, that nothing might grow upon it; how they weeded out every sprouting blade; how they smoked up the air with coal and naphtha; how they lopped the trees and expelled all animals and birds — spring was spring, even in the city. An example of less self-control but of the greater respon- siveness in the lower officials may be found in the memorable incident, of the officer of the guard and the prisoner who was carrying in his arms the girl left him by his wife, who had fallen a victim to typhoid fever in Tomsk. The expression of unrestrained anger in that instance soon gave way to the demands of human sympathy. The prisoner's remark that he could not carry his girl while handcuffed had excited the officer, who was out of sorts, whereupon he dealt blows to a prisoner, who did not submit at once. 47 In front of the beaten prisoner stood a soldier of the guard and a thickset, black-bearded prisoner with a handcuff on one hand, gloomingly looking up, now at the officer, and now at the beaten prisoner and the girl. The officer repeated his command to the soldier to take away the girl. Among the prisorjers the murmuring became even more audible. "He had no handcuffs on him all the way from Tomsk," was heard a hoarse voice in the back ranks. "It is not a pup, but a child." "What is he to do with the child .' This is against the law," said the some- body else. "Who has said that.''" the officer shouted, as though stung, rushing at the prisoner, " I will show you the law! Who said it } You .? You ?" "All sav it, because — " said a broad-shouldered, stocky man. He did not finish his sentence. The officer began to strike his face with both his hands. "You mean to riot ? I will teach you how to riot! I will shoot you down like dogs, and the authorities will only thank me for it. Take the girl!" The throng grew silent. A soldier tore away the desperately crying girl; another began to manacle the prisoner who submissively offered his hand. "Take her to the women," the officer cried'to the soldier, adjusting the sword hanger. The little girl tried to free her hands from the kerchief and, with flushed face, whined without intermission. Marya Pavlovna stepped out from the crowd and walked over to the soldier. "Mr. Officer, permit me to carry the girl!" "Who are you?" asked the officer. "I am a political." Apparently, Marya Pavlovna's pretty face, with her beautiful, bulging eyes (he had noticed her before, when receiving the prisoners), had an effect upon, the officer. He looked in silence at her, as though considering something. "It makes no difference to,me. Carry her, if you want to. It is easy enough for you to pity him; but who will be responsible, if he runs away .''" "How can he run away with the girl?" said Marya Pavlovna. "I have no time to discuss with you. Take her, if you want to." This officer became even more tractable later. "Evidently, the officer was ashamed," shouted Marya Pavlovna, so that Nekhlyudov might hear her through the rumble of wheels. "They have taken off Buzovkin's manacles. He is carrying the girl himself" This incident serves as confirmation of Tolstoi's opinion of the soullessness of a penal system, which blindly does its work without noticing that it makes men do things to which their very natures are opposed. The separation of husbands and wives, of parents and children, are unavoidable incidents of the system, and are of such common occurrence that we often forget their cruelty. Not so Tolstoi: he reacts to all these things with the freshness of a man coming from another planet. Separations are the usual thing in the enforcement of legal penalties. The following incident illustrates what the modern law may lead to. On' the 15th of November, 1896, the Kiev court pror,ounced sentence on the Danilevskl's, husband and wite ihe husband was convicted of embezzlement and sent in exile to the government of Tomsk. His wife was an accessory and her penalty was two degrees below her husband's; she was sent to the government of Olonetsk. Had her penaltv been as severe as her husband's, she would have been with him in his exile; the leniency of the court in administering the law led to a sentence which separated her from her husband. They will both be exiles to be sure, but there will be several thousands of miles between them. And this is a result of the court's leniency! Such a case is liable to make one entertain misgivings about the entire system which is capable of producing such results. When, in solving a problem in arithmetic, one obtains results contrary to the nature of things, such as fractional men or horses, one decides unhesitatingly that the method of solution is erroneous. Why not in a case Hke the above .? The incident just quoted, as well as all the other horrors of confinement and exile, are to Tolstoi inevitable results of the very existence of criminal retribution. In his eyes punishment is the most flagrant of crimes. A crime, not similar to those for which transgressors are tried, but a crime of human society itself. Tolstoi is firmly convinced of this, but in his all-for- giving soul he ascribes this crime of humanity to its bhndness: the penal institutions are practicing cruelty over man, but no one is directly to blame for their operations.* Novelists and dramatists have pictured to us the souls of individual criminals in such a manner as to make their depravity and cruelty appear fatal, so that their responsibility, in the sense of criminal retribution, is out of the question; such are the various types, different and yet alike in their common irresponsibility — Macbeth, Richard HI, Franz Moor, Ras- kolnikov. Tolstoi has done the same thing in regard to the whole penal system with the distinction that no individual's blindness is brought out, but the blindness of the collective soul of society. Just as novelists and dramatists represent their heroes as the victims of their selfish instincts, neglecting all but their own selves, so Tolstoi pictures criminal justice in its inner essence as the sordid and soulless defense on the part * This conclusion reached by Tolstoi, through his offended moral sense, is confirmed by the fol* lowing opinion based on scientific observation. Professor von List, the greatest living authority on criminal law, says, after studying German criminal statistics, that "our penalties do not reform, intimidate or prevent crime, they do not keep a man from criminal activity; quite on the contrary, they usually strengthen criminal propensities." — (Journal of the Ministry of Justice, June, 1900, p. 287.) 49 of society, as a whole, of the selfish emotions of the individual. This social institution, which is supposedly intended to work for the common good and to guard common safety, is in reality the very apotheosis of egoism and brutality. This institution not merely creates selfishness, but also fosters it; it makes a recognized institution out of that brand of human sympathy which finds expression in revenge, a sympathy which hardens one against all fellow feeling for one's neighbor whose mis- fortunes, sufferings and ignorance are the causes of his crimi- nality; a sympathy, indeed, fed exclusively by the selfish motive of guarding one's safety at whatever cost to one's fellow man. Tolstoi, in seeking the salvation and regeneration of humanity, concentrates all the force of his intellect and his loving heart on this institution, the very existence of which renders impos- sible to his mind any normal relations of man to man. Crim- inal tribunals as a social institution are, in a class by themselves; of all the judicial and administrative institutions, the criminal tribunal alone is directly concerned with the development of social instincts among citizens, that is, with the curbing of selfish impulses among them: the court says, do not kill, do ' not offer violence, do not rob a man of liberty, etc. ; all other institutions approach the matter indirectly. And this institu- tion, in the final analysis, makes a dogma of the very thing it pretends to combat. The penal system in its present form is not merely an unsuccessful attempt caUing for reform, not one of the means to an end, but a suicidal institution, the very existence of which, according to Tolstoi's conviction, renders impossible a moral basis for social relations. Tolstoi, as a reformer, does not propose, of course, to destroy the present system, but to enlighten humanity about its moral aberrations; without a conscious and a willing change toward sincere love and sympathy for one's neighbors, there is no salvation for society. Men must cease to judge one' another, individually or socially. This does not mean that they must cease from analyzing each other's actions and motives. Quite on the contrary, analysis must become more universal and com- prehensive, and in that sense men must judge and be judged more than ever, but men must judge, not in ofder to condemn, but to understand and help one another. The point is not to fjargive, but fully to understand. A change must come not by way of a revolution, at least not a social nor a political revolution, but by way of a complete recasting of man's view of life, the enlightenment of his mind and the purification of 5° his heart of all ignorance and ill will. To accomplish that we must not remove ourselves from those whom we accuse of sin, not guard ourselves from them by means of prison walls, but we must approach them and enter into their midst with un- feigned sympathy in our hearts. The thoughts which came to Nekhlyudov's mind, after he had personally seen the prisoners on their way to Siberia, follow: To know that somewhere far away one set of people torture another, sub- jecting them to all kinds of debauches, inhuman humiliations, and suffering, or for the period of three months continually to see that debauch and the torture practiced by one class of people on another, is quite a different thing. Nekhlyu- dov was experiencing this. During these three months he had asked himself more than once: "Am I insane because I see that which others do not see, or are those insane who produce that which I see ?" But the people (and there were so many of them) produced that which so bewildered and terrified him -with such quiet conviction that it must be so, and that that which they were doing was an important and useful work, that it was hard to pronounce all these people insane; nor could he pronounce himself insane; because he was conscious of the clearness of his thoughts. Consequently he was in continuous doubt. What Nekhlyudov had seen during these three months presented itself to him in this form: from all people who are living at large, by means of the courts and the administration, are selected the most nervous, ardent, excitable, gifted, and strong individuals, who are less cunning and cautious than the rest, and these people, not more guilty or more dangerous to society than those who are at liberty, are locked up in prisons, halting places, and mines, where they are kept for months and years in complete idleness and material security, and removed from Nature, family, and labour, that is, they are forced outside all the conditions of a natural and moral human existence. So much in the first place. In the second place, these people are, in these establishments, subjected to all kinds of unnecessary humiliation — to chains, shaven heads, and dis- gracing attire, that is, they are deprived of what is, for weak people, the chief motor of a good life — of the care of human opinion, of shame, of the con- sciousness of human dignity. In the third place, being continually subject to all the perils of hfe — not to mention the exceptional cases of sunstroke, drowning, fires, of the ever-present contagious diseases in the places of con- finement, of exhaustion, and of beatings — these people are all the time in that condition, when the best and most moral man, from a feeling of self-preservation, commits and condones the most terrible and cruel acts. In the fourth place, these people are forced to have exclusive intercourse with dissolute people who have been corrupted by life, and especially by these very institutions — ■with murderers and villains, who, as a leaven on the dough, act on all others who have not yet been completely corrupted by the means employed agamst them. And, at last, in the fifth place, all the people who are subjected to these influences are, in the most persuasive manner, encouraged, by means of all kinds of inhuman acts committed in regard to themselves — by means of the torture of children, women, and old men, of beating and flogging with rods and straps, of offering rewards to those who will give up alive or dead a fugitive, of separating men from their wives and connecting for cohabitation strange 51 men with strange women, of shooting and hanging — they are encouraged im the most persuasive manner to believe that all kinds of violence, cruelty, bestial- ity, are not only not forbidden but even permitted by .the government when it. derives any advantage from them, and that therefore they are especially per- missible to those who are under duress, in misery and want. All these institutions seemed to him to have been specially invented in order to produce the compactest possible debauch and vice; such as could not be attained under any other conditions, with the further purpose in view later to^ disseminate the compact debauch and vices in their broadest extent among the people. "It looks as though a problem had been put how to corrupt the largest possible number in the best and surest manner," thought Nekhlyudov, as he tried to get at the essence of jails and prisons. Hundreds of thousands of people were every year brought to the highest degree of corruption, and when they were thus completely debauched they were let loose to carry the corruption,, which they had acquired in confinement, among the masses. Nekhlyudov saw how this aim, which society had in view, was successfully reached in the prisons of Tyumen, Ekaterinburg, and Tomsk, and at the halting places. People, simple, common people, brought up in the tenets of Russian social. Christian, peasant morality, abandoned these conceptions and. acquired new prison ideas, which consisted mainly in the conviction that every outrage and violation of the human personality, every destruction of the same,, was permissible whenever it was advantageous. People, who had hved in the prisons, with all their being came to see that, to judge from what was being done to them, all the moral laws of respect and compassion for man, which had been preached by religious and moral teachers, were, in reality, removed, and that, therefore, there was no need for holding on to them. Nekhlyudov saw this process in all the prisoners whom he knew: in Fedorov, in Makar, and even in Taras, who, having passed two months with the convicts, impressed. Nekhlyudov by the immorality of his judgments. On his way, Nekhlyudov learned that vagabonds who run away to the Tayga persuade their comrades, to run with them, and then kill them and feed on their flesh. He saw a living man who was accused of it, and who acknowledged this to be true. Most terrible was the fact that these were not isolated cases, but of common occur- rence. Only by a special cultivation of vice, such as is carried on in these institu- tions, could a Russian be brought to that condition to which the vagabonds are brought. "Why then, do they do all these things?" Nekhlyudov asked himself,, and found no answer. What surprised him most was that all this was not done at haphazard,., by mistake, incidentally, but continuously, in the course of centuries, with this distinction only, that in former days they had their noses slit and their ears cut off, then, later, they were branded and beaten with rods, and now they were manacled and transported by steam, instead of carts. The reflection that that which provoked him originated, as those serving in these institutions told him, in the imperfection of the arrangements at the places of confinement and deportation, and that all this could be remedied, did not satisfy Nekhlyudov, because he felt that that which provoked him had nothing to do with the more or less perfect arrangements of places of confinement. He- had read about perfected prisons with electric bells, of electrocutions, recom- mended by Tarde, and this perfected violence offended him only more. 52 Ne^hlvudov'nT' .''T'^ acquainted with the prisons and halting places, iNekhlyudov noticed that all the vices which developed among the prisoners miSb'tt' ?^'"'"-gv",-'^yr -'I a" those terribL crimes 'whS/aroml Ss ornJ, '"'"^''^r/''^' P"^.°"^ ^"'^ '="^" cannibalism itself, are not acci- Sain it nr""' '•tg^""«f "' "™inalism, and cretinism, as dull savants of the incr^H l^r^ '"'° u" '''"'^f °^ ''^^ government, but the inevitable result rLn K r ^ i' '"°[ '*'" .P'°P'' "^='y P""'^*^ "A'^f^- Nekhlyudov saw that cannibalism did not bepin in the Tavn-, k,,.- ,„ *u ■ • ■ • an^ ^„.,,,f . iiut oegm in tne 1 ayga, but in the ministeries, committees, and departments, and was only accomplished in the Tayga. Tolstoi's idea of the necessary changes in human motives and emotions can be materialized only through an entire regeneration. The spiritual quaHties of sympathy and unsel- fishness must win the battle over bodily interests which generate ill will and revengefulness. This is the real "Resurrection." The scene with the pigeon in the beginning of the novel, when Maslova is being led from the prison to court through the streets of Moscow, may be regarded as a symbolic antici- pation of her future destiny: As she passed near a flour shop, in front of which pigeons waddled, unmo- lested by anybody, she almost stepped on one: the pigeon fluttered up, and flapping its wings, flew past the prisoner's ear, fanning the air against her.. She smiled, and drew a deep sigh, as she recalled her situation. Between Tolstoi and John Howard, the prison reformer of the last century, there exists an interesting similarity. Being a Puritan, Howard could not tolerate the desecration of the Christian faith, which in his eyes was practiced in Italy through the church ritual and its accessories. During the last years of his life, he used vegetable food exclusively and refrained from the use of spirituous liquors. He was opposed to any exact science, such as geology, thinking that it led man away from true Christian morality. The following incident is recorded in Howard's biography and emphasizes the comparison with Tolstoi. He was a Puritanj and, like his forefathers, had made a solemn covenant with the Deity. He renewed that covenant and signed it for the last time in the year 1789 in the city of Moscow. That is why the countess Charski meets Nekhlyudov with the smiling remark: "Vous posez pour un Howard." Howard's main work, "The State of Prisons in England and Wales," is characterized by Spassovich in the following manner : This work is very remarkable in its way; one of the most important pro- ductions of the XVIIIth century, it was written by an author who was neither S3 a scholar nor a man of letters. Never before had a descriptive book, full of statistics, as objective as an account book, and avoiding all expression of per- sonal feeling, had a like success in England, and not vyith specialists, but with the general pubhc. The book deserved its success by its unusual simplicity, in vyhich the truthfulness of the author is apparent. And further: Howard's example is valuable because it demonstrates what may some- times be accomplished by a private individual, who holds no office and has no authority, but who of his own free will labors unceasingly for the common welfare. This work of Howard's, as well as all his other writings, had a great significance and a powerful influence on prison methods. But evidently his grasp of the situation,* his method of study and of exposition were not sufficient to exhaust his subject, and a hundred years later it is still possible to find in a civilized land such methods of handling criminals as are described by Tolstoi. In this respect the novelist has a great advantage; the abundance of personal feeling makes every reader live through all the events of the novel, and is much more forceful and convincing than a scientific treatise, especially when the author is possessed of a pure soul, full of sincerity and of truthfulness. An artist alone could succeed in making us love the man who wears stripes. Many authors have discussed and are now writing about the futility and the cruelty of punishment. Tolstoi has thrown new light on the matter by connecting the futility and cruelty, with the very essence of the criminal tribunal. Old observa- tions have, in this manner, gained a new significance. Tolstoi's thoughts in regard to criminal trials seem strange to us because we consider them as the outgrowth of society's struggle with the criminal, and a struggle that can be no dif- ferent. But to Tolstoi an accepted viewpoint is no dogma; he thinks and what is more he feels wholly without respect to the estabHshed ordei; whenever it deviates from the precepts- of universal kindness. Every conception or dreamof a diflFerent manner of handling criminals is met by the argument that the desire for revenge is so ingrained in man that he insists on seeing his offender , punished, and that this insistence on criminal retribution is one of the bulwarks on which the entire social structure rests. * "Never," says Spassovich in this connection, "did he ask himself the momentous question of the logical foundation of th& right to punish. Punishment in his eyes needed no justification, it. was an integral part of the divinely ordained order of things." > 54. •To Tolstoi this bulwark is not essential, and the demand of •torture for the offender is not a fundamental trait of man His negative attitude toward these matters is perhaps justified by the following anthropological observation: A certain Krantz, an investigator who spent a long time with the bamoyeds of Greenland in the last century, tells us that at that time all quarrels were decided among those people through a song and dance known as the song conflict. When a Greenlander is offended, he manifests no signs of anger and does not seek revenge; instead he occupies himself by the composition of a satire on his offender; he repeats his song with appropriate gestures before his associates who all master Its details. Then he publicly challenges his opponent to a conflict, not of swords, but of songs, and the opponent appears in the arena, which is surrounded by the public. Then the offended combatant sings his satire to the accompaniment of a drum, and all his friends join in the chorus; he tells his opponent in a witty form many bitter truths to the delight of the watching populace. When he is through the offender answers the attack with his song; he defends himself and ridi- cules his opponent; his friends laugh at his jokes and join in the chorus. The first man replies again, and so this conflict lasts until one or the other of the combatants finds himself unable to compose any longer. The victor is congratulated and crowned with laurels and the opponents become friends once more. Nansen recently confirmed the existence of this custom in Greenland and expressed regret that it had been abolished in the Western part of the island through the inter- ference of Catholic missionaries. Such a method of settling disputes seems to us to be incredible, and possible only to the abnormal men who live surrounded by the snow and ice of the polar region. The same method of conflicts in song, how- ever, has been found among the ancient inhabitants of Arabia who live in close proximity to the tropics.* All this leads us to the conclusion that no final decision can be reached about the potentiahties of human nature on the basis of the feelings of our contemporaries alone. In the realm of criminal retribution, generalizations, based on modern con- ditions, are the less justifiable because the history of criminal law establishes the fact tliat bloody revenge was invariably followed by a period when the feelings of an offended party and his clan, as well as the demands of the authorities, were * S. R. Steinmetz, " Ethnologische Studien zur ersten Entwicklung der Strafe," v. II, p. 69-76. 5S satisfied with a payment of a fine for the offense without the infliction of any pain on the offender; a regular tax existed for various crimes and the payment of the tax took the place of bloody vengeance in criminal trials. Often a negative attitude toward criminal punishments is met by the query: What shall be put in their place ? From Tol- stoi's viewpoint this reply merits no consideration. If some one discovered that quinine, for instance, not only did not counter- act a specific disease of the organism but made it worse, could there be found a man who would insist on the continuation of the use of quinine against fever until a new remedy be discov- ered ? And, finally, we must keep in mind that Tolstoi is not examining so much into the conditions which may lead a man to kill his neighbor, as into the unnaturalness of the state of affairs which forces one man to say to another about his neighbor: "Here, put him away, destroy him!" and yet, figuratively speaking, every criminal sentence does just that, and a death sentence does it literally. Taking all this into consideration, and trusting to Tolstoi's instinct as to what is and what is not an attribute of healthy human nature, one is constrained to admit that, with his sermon in defense of those undergoing punishment, he has brought about a real revolution in the question of retribution. He has accomplished more with his novel than the most enlightened courses of philanthropy, or the most crowded meetings of prison associations; he has made it clear that those who under- take to reform others are themselves in greatest need of reform. Every one admits now that the evil will of the criminal is not the sole cause of crime, as was formerly believed, and that to reform a criminal it is not sufficient to cause him pain; the new conceptions of responsibility are reflected in the improved up-to-date reformatories. Tolstoi has approached the subject from a different side; he has made us feel that the cause of the evil is not where it is looked for, and that the futility of the struggle with crime is due to the wrong direction of thought. That which we have been accustomed to canvass in two dimen- sions, has been proved to be possessed of three. Punishment which follows crime, not in the natural order of things but according to the sinful foundations of modern society, calls for an executor. And thus the judge who pronounces the verdict, the policeman who guards the defendant, the jailer who keeps him under lock and key, and the executioner who kills him, all of them collectively become this executor, in spite of the fact that S6 they attempt to placate their conscience each by placing the blame on the other. This is the new dimension discovered by Tolstoi in the problem of crime and punishment. The momen- tous question is not the success or failure of various kinds of penalties, but the moral effect of punishment on those who pro- nounce the verdict and those who carry it out.* Those who punish must reform themselves before punishing others; they must send their own consciences into reformatories; they must, like Nekhlyudov, "cleanse their souls" before taking upon them- selves the right to subject others to privations for purposes of reformation. This attitude is diametrically opposed to that manifested by the presiding judge in Maslova's case, who, before the trial, exercises in his chamber with dumb-bells, and stopping before the last antic known as "mouliner," and testing the muscle of his right arm with his left, exclaims with perfect self-satisfaction, "Nothing keeps up a man's physique as water and gymnastic exercises." History is not made by the intellect, but by emotions. Tol- stoi's crusade against criminal repression is strong, not in arguments proving that it has never achieved and does not now succeed in the destruction of crime, but in the feeling of sympathy it arouses toward the victims of repression; punishment is not the outcome of a deep and sane view of life but an undignified and morally infantile manner of handling one's neighbor's liberty, health, and existence. Tolstoi attacks criminal retri- bution in the manner in which an opponent of chess would plead against the game; he would not merely prove that the feigned seriousness of the game, which indeed requires patience, skill, concentration and ability, is not justified by the insignifi- cance of the results, but he would clothe with flesh and blood all the pawns and other pieces on the board and would demon- strate how they suffer at the hands of the players, how they struggle and fall, when they are persecuted according to the rules of the game, and are then thrown off the board. Tolstoi not only proves that no matter how often the courts cry "check' to crime, they can never succeed in "mating" it; but, by lending life to the emotions of all the participants in the trial, he makes us feel deeply that the sufferings purposely imposed by law are contrary to the mandates of the heart as well as of the intellect. To educate human emotions, to lend them new substance and direction, is the highest vocation. In this respect the influence * LetTs remember here, that in Russia there are about ii,ooo prison inspectors and assistants alone. 57 of the "Resurrection" is immense and incalculable. It is enough to say that under the influence of the novel no man will be able to see, without moral pain, a passing transport of prisoners with their chains, their handcuffs and other sad appurtenances. That feehng which was experienced by the boy in the elegant carriage, when it was stopped by the passage of the transport through the streets of Moscow, will become universal — the boy's lips "swelled more and more" under the fearful impression of what he saw, as is vividly described in the novel. But this feeling will become universal, without the embarrassment which forced the boy to make violent efforts to keep from crying, because he thought "that it was a shame to cry on such occasions." The sight of prisoners always aroused an uneasiness in onlookers which was for the most part caused by curiosity, but now the spectator will shut his eyes before this sight as though he felt himself responsible for its horrors. All men will feel the moral sickness bordering on physical, which was experienced by Nekhlyudov in prison, in the transport station, and on all such occasions. This in itself is a great reform; the shape which these new feelings will take in life are secondary considerations. What exists must do so no longer; what will take its place is another question.* The chief value of Tolstoi's book is in the kind feelings it evokes in men. The part which the "Resurrection" will play in combating criminal slavery will no doubt be similar to that played by Harriet Beecher Stowe's novel in the abolition of negro slavery. Tolstoi's task is a heavier one; he attacks an institution which is everywhere considered normal and neces- sary, whereas Mrs. Stowe was indignant at a practice which was condemned as a disgrace by the entire civilized world. The peculiarities of Tolstoi's view of life, his mistakes and aber- rations — even granting their existence — do not detract one whit off the moral significance of his work. His new work has proved once more that he has no equal in the ability to evoke sympathy, love, and humane aspirations in the heart of man; in reading him alone, one becomes kinder and kinder with every line he reads. At the end of the novel is the inscription: "Moscow, Decem- ber I2th, 1899." One can hardly deny that, in the manner * There are at present strictly scientific works, based on abstract theories, which take a negative- attitude toward the existing penal system; such is the fundamental two-volume study by Professor Vargha: "Zur Abschaffung der Strafknechtschaft," which demands the immediate abolition of punishment and proposes in its stead a specially organized system of guardianship. 58 suggested here, this work of Tolstoi's, which Russia may proudly call her own, and which appeared at the very close of the last century, is one of the most remarkable, if not the most remark- able, book of the XlXth century. 59 HV8686 .G6T"l909""' ""''" "^^'"llllllllllRii miiTSi'i!iia'l'.S.,RMP's'inient a crim olin 3 1924 030 374 015 / >4rm^ ^ . //^ "^^ ^1' *fZ'