Let us define a criminal as a person who has committed a crime, whether or not he is known as such. A crime, according to Austin and Stephen, is “an act or omission that the law punishes.” Perhaps this definition does not sufficiently set apart crimes from torts and violations of contract, for which penalties payable to individuals are provided. I prefer to think of a crime as an act or omission which is punishable after public prosecution.
It is a crime to spit on the floor in certain places, it may be one to drive an automobile around the corner at a speed higher than eight miles an hour. There are many parts of the United States where mocking at the name of Jesus Christ constitutes the crime of blasphemy. It is also a crime to kill a man who refuses to hold up his hands to permit his pockets to be rifled, or to give aid and comfort to the enemy of the country of which the offender is a citizen.
In our wide sense of the word, crime is extremely common. There can be little doubt that, among the normal adults now resident in the United States, the criminals outnumber the non-criminals. It does not affect the argument that many men and women have violated the law without so much as being aware of the fact: ignorance, according to an old rule, is no defense.
Moreover, it is not extremely rare and unusual to be arrested. Many minor offenders are summoned to court instead of being lodged in jail while awaiting trial, but usage in this respect is not at all consistent. Especially since the automobile has become popular, receiving a summons and having to pay a fine have lost their power to confer ignominy, except as they imply lack of influence with the local politicians.
Being jailed is more disgraceful. It shows, if the prisoner is yet unconvicted, either that he is unable to provide a bond or that he is charged with a crime which is considered very serious. If the person is in jail after having been convicted, it may be because he is unable to pay his fine. While poverty and lack of friends are not formally crimes in any modern state, they are conditions that do tend to degrade.
It may be worth while to pause a moment to consider the psychology of minor offenses. Why do automobile drivers violate the speed limits set up by law? Perhaps chiefly because they would be considered queer people if they didn’t. In other words, the notion of propriety in the matter of motor car speed, especially among people who habitually drive or ride in automobiles, has been somewhat different from that expressed in statutes and ordinances. Since the ordinary citizen has become a motorist, a tendency has appeared to relax the restrictions, and even to abolish all definite speed limits in country districts.
Also, it is a sort of game to run beyond the established limit without being caught. The excitement of going sixty or seventy miles an hour is enhanced by the thought that there are policemen and deputy sheriffs out on the road to prevent that sort of thing. For the rich man, it is a poker game or dice match with very small stakes. For the poorer person, the fine which may be imposed looms up large, but this consideration hardly restrains him, especially since he knows that not one offender in a thousand is actually brought to court.
Let us consider a group of college boys celebrating a football victory or the being released from the requirement of wearing freshman caps. Very frequently, such a celebration turns into a riot. The young men take possession of a theater or a subway car, yell and throw things without consideration for the feelings of those who do not share their joy, and even destroy valuable property. Their excuse is that they are carrying on old traditions, keeping up college spirit. They are hardly conscious of any wrongdoing. Because they are in a crowd, rioting seems the socially proper thing to do, so long as their fellows are all engaged in the same form of pleasure.
The approbation or disapprobation of the community counts for much, but the real community in which a man lives is not always the cluster of houses about his residence. Thus, in the American Bible Belt, opposition to the church, though not a crime, is considered an anti-social act. But the village atheist, having contacts with an outer world through books and magazines, may be fortified against the opinion of his neighbors. Or, to take an even clearer example, opposition to the short skirts, bobbed hair, and cocktail-shaking associated with the new youth still exists; but the young girl lives primarily in her “crowd” or “set,” and heeds its standards more than those of her perhaps soberer elders.
Ordinarily, we think of a criminal as one who has committed a serious crime or who is accustomed to support himself by means of unlawful practices. The line is not very easily drawn. It is, everywhere in the United States, a crime to sell intoxicating liquor for beverage purposes. Yet, if this narrower conception of the criminal involves the idea of great moral depravity, it does not, in many communities, include the bootlegger. Smuggling has been treated as a serious crime even in times and places where it has been very common.
What is a serious crime? Technically, we can separate those delicts for which indictments lie from minor offenses, felonies from misdemeanors, or crimes which may and usually do involve penitentiary or state prison sentences from those for which the usual penalty is a fine or a jail sentence. To some extent, differences in the prescribed penalties reflect popular opinion about degree of turpitude. This is especially true in a democracy. Smuggling flourished most in England when the mass of the people went unrepresented in Parliament.
There is always some discrepancy between the laws and the mores or morals and manners of a civilized community. Certain actions which are generally considered disgraceful and wicked are not prosecuted in the courts at all. Some deeds and omissions which are not considered particularly vicious are subject to heavy penalties, if it is possible to secure convictions.
Generally speaking, a jury will not convict a man for a crime which the members consider harmless. If nine-tenths of the people of such a city as New York or Boston are opposed to Prohibition, an increase in the penalty for the sale of liquor is certain to make the task of securing a guilty verdict even more difficult than it has already been. If, in a Kentucky county, there is a widespread feeling that duties of revenge are binding upon all honorable men, the feud killer is not at all likely to suffer the prescribed punishment for murder.
It is, strictly speaking, only the law that makes the criminal. Perhaps it is wicked to sell whisky. If so, it may be that the liquor-seller in England is a bad man, though he obeys all the statutes that are binding upon him. The preacher may call him a criminal, if he likes; but that is merely a term of abuse, in no sense a scientific description. In the same way, whatever we think of Prohibition, we must consider the man who sells liquor in the United States a criminal. Also, George Washington and Benjamin Franklin remained guilty of treason against the British crown until the independence of the United States was established. In calling them criminals, I imply no moral condemnation. Franklin himself knew that, if the rebel leaders did not all hang together, there was grave danger of their hanging separately.
When the Volstead Act changed bartending from a licit occupation to a crime, what sudden change took place in the men who practiced it? The personnel did not remain unaltered, of course. Some who had been proprietors or employees in the liquor business sought other fields for their talents. Some men who had formerly done other work or engaged in crimes already existing became manufacturers, handlers, and vendors of whisky and beer. But, for our present purpose, the important thing is to discover what psychological change took place in Bill Brown, who presided over the free lunch in the good old days, when the pretzels were put away and the price tags much altered.
He felt that he was thenceforth to run new risks, and to be paid well for running them. Did he think of himself as a sinner or wrong-doer? Hardly. He was simply continuing to do what he had previously been in the habit of doing without hindrance from the authorities. As for the violation of law, that had been not at all unusual in his line of work. It was recognized in many cities as a natural thing for saloonkeepers to pay bribes for the privilege of keeping their business open on Sunday. The money handed over to police officers was simply considered an additional tax, of a somewhat informal nature. Some other businessmen who were at the same time forbidden by law to engage in their usual vocations on Sunday were permitted by custom to keep their doors open without the payment of bribes.
The fine, which is a criminal penalty, is often confused with the license fee. Thus, brothel proprietors have been brought into court with a certain amount of regularity and each time fined a uniform amount. Theater owners have arranged to operate on Sunday and to pay a small sum in court each Monday.
Without redefining crime and criminal, it may be said that we are interested here in acts and omissions which the community where the offense is committed holds to involve considerable turpitude, and in the peculiarities of the men involved. Indeed, there is no exact line of demarcation, even at a given time and place, between the delict of great magnitude and that which is more or less pardonable. By almost any definition of crime which might be put forward today in a civilized country, the thief is a criminal. Yet men who are caught stealing a little coal to provide fire for freezing wives and children are not always punished. Sometimes they are provided with fuel and food enough to carry them over the winter, and positions are found for them.
There is no such thing as an act or omission which is criminal according to the laws of all times and places. It has been permissible to cohabit with a sister, to slay a grown son without stating any reason for doing it, to rob and to steal. Crime depends upon a complex variety of circumstances. Acts forbidden by law or primitive custom are not criminal unless a penalty carried out by the community as a whole or its agents is prescribed. The murderer who must pay the relatives of the person he slays blood money or flee before their private vengeance is guilty of a tort rather than a crime.