A crime is something that is considered socially injurious. For primitive man, it is especially a sinful act or omission that is calculated to bring down the wrath of a divinity unless the offense is expiated. Thus, it may be much worse for a priest to allow the sacred flame of the village to go out than it would be for him to kill a person who had insulted him. The great Calvin, living in the enlightened period of the Protestant Reformation, considered it necessary to have that dreadful wretch Servetus, who was wicked enough to deny the Holy Trinity, put to death for the greater glory of God. Whether it was God the Father, God the Son, or God the Holy Ghost, or all three in one, who desired the death of heretics, I cannot tell; but perhaps Calvin, a greater theologian than I, did know.
We still occasionally read about trials for blasphemy or its equivalent. The offense of teaching that man descended or ascended from a lower order of animal belongs in this class; and the most frequent penalty for it, loss of the opportunity to earn a living, is not a particularly light one. It is certainly not misleading to say that the Southern mountaineers consider evolutionists criminal.
The laws of blasphemy are now generally justified on the ground, not that God would inflict a special act of vengeance on the community that left atheists or heretics unpunished, but that some form of religion, or Christianity in particular, is necessary to maintain the moral standards of a nation. There is not room here to consider the argument in detail. It is enough to say that criminals are much more likely to be religious than non-criminals; at least, this is true of those who are convicted of capital and penitentiary offenses. Mr. McCabe’s Little Blue Book No. 366, Religion’s Failure to Combat Crime, deals at some length with the observed fact that increased indifference to religion brings with it no waves of crime.
Sodomy, bestiality, and similar “unnatural” sexual offenses seem to be punished now merely because of their prohibition in the Hebrew Scriptures. Apologists for the laws that provide heavy prison sentences for homosexual persons are accustomed to say that the human race would die out if sexual indulgence other than the normal intercourse between men and women were permitted. This, too, is the excuse for penalties against those who disseminate neo-Malthusian information. Their real offense is helping Israelitish and Christian children of God evade the divine decree to increase and multiply.
Mercier has properly pointed out that the long sentences given in Great Britain to sodomists do not deter others from committing the same crime, because the trials are conducted with the least possible amount of publicity. Neither do they operate to “reform” the offenders. In fact, many prisons are breeding-places of homosexuality. Those that are not, because the inmates are carefully kept apart, invariably stimulate autoeroticism.
If the Urning is a wicked person, as laws against sodomy seem to imply, it is certainly better that he does not become the father of children. He would transmit his wickedness to them either in the germ plasm or in the course of family relations. Moreover, some homosexual men are psychically incapable of having normal relations with women. No statute law conceivable could force them to help increase the population.
We allow witches to live, despite the Biblical prohibition, because educated people do not any longer believe them to be what they are considered by themselves and the uneducated. But it is a religious consideration, I suppose, that makes fortune-telling at least nominally criminal. Paradoxically, some spiritualists profess to foretell the future in the name of religion.
Total abstinence from intoxicants as a religious duty has been grafted upon American (Protestant) Christianity despite the clear objection to it of the mythical Jesus, the perhaps equally mythical Paul, and the very human Luther, Calvin and Wesley. Here is the reverse side of the connection between mores and religion; indeed, the real motives for prohibition are largely economic, though the disgrace brought upon the churches by drunken ministers in the eighteenth and nineteenth centuries has much to do with the matter.
Sociologists and anthropologists tell us that crime, sin and violations of custom are very rare among primitive peoples. Perhaps the conformity of savages has been exaggerated, because the resemblances rather than the differences between individuals of an unfamiliar class are most striking: all Negroes or all Chinese may look alike to the white man. At any rate, there is no good evidence to support the view that advancing civilization, which increases the opportunities for crime and the variety as well, actually is the cause of a decreasing respect for the property and the person of others.
It must be kept in mind that a simple society has no mass of petty ordinances, and it is comparatively easy to be law-abiding. Skepticism about the utility of accepted rites and customs, which is spread among us through the printed page, is rare in a savage village. In the higher savage state, bloodthirstiness is likely to be a virtue rather than a vice. The slaying of a man from the next village may be a test of manhood or a heroic act, putting to death an unwanted child or an aged father simply the convenient and expected thing to do, driving a spear through a fellow-villager in a fit of anger a wrong atoneable by giving a few articles to his heir.
Our civilized society has not entirely abandoned this general attitude. The signing of a treaty or two does not postpone by a fraction of a second the coming of the next general war. Human beings are so constituted that it sometimes gives them pleasure to inflict and even to receive pain. Their algolagnia, or, as some psychologists still say, their fighting instinct, does not necessarily mean that armed conflict will prevail until men and women cease to live upon the earth; but it makes the problem of abolishing war a very difficult one. Right now, it is not murder for the citizen of one country to stick his bayonet through the viscera of the citizen whose allegiance belongs to another, so long as the two are formally belligerent. It is no crime for the executioner to pull an electric switch or release the knife of a guillotine in order to put an end to the earthly troubles of a condemned prisoner. But it is a crime for a surgeon to allow a misshapen and hopelessly idiotic infant to die, if it can be kept alive.
That treason will appear to our not very remote descendants a barbaric delict, in the same general class with heresy, now seems probable enough. At the moment, allegiance to the individual state is of great importance, especially in time of war. If it is right to kill men for the wickedness or perhaps misfortune of being able-bodied Germans, it cannot be regarded as other than merciful to lodge Americans who refuse to participate in the war in a fairly comfortable prison.
Refusal to share communal hysteria is often a crime, and a very serious one. Whether the social standard of the moment will seem right or wrong to the historians of two centuries later makes no difference: seriously anti-social conduct is criminal. And the laws, whether made by a tyrannical man, a small group, or legislators who pretty accurately reflect the attitude of the people whom they represent, are alone binding. To be sure, they may change gradually or suddenly, and the nature of crime with them. The successful rebel, instead of being hanged, drawn, and quartered, ends his life with excellent physicians about him writing bulletins to explain why it was impossible for all their knowledge and skill to save the national hero. Lenin, you know, was not one of those damned radicals who were electrocuted because, if they didn’t actually commit murder, an American prison is too good for them, anyway. And he would have died the death of a criminal if he had been hanged by His Imperial Majesty’s executioner.
The genuine political criminal, is to a certain extent, the hero of the ethical textbooks. That is to say, he is an altruist. It certainly makes no difference, from our present point of view, whether his Utopia is a desirable one or not. The anarchist in Mussolini’s Italy, the democrat or the monarchist in Stalin’s Russia, fit into the same class with the American syndicalist who is in a penitentiary on a trumped-up charge of sabotage. And we need not here inquire into the right of a government to protect itself against subversive elements, or into the advantages and disadvantages of the particular methods it employs.
Why did P. Kropotkin learn to know Russian and French prisons from the inside, when he might, as Prince Kropotkin, have stayed in more attractive places? Why did a Virginia gentleman named Washington subject himself to the penalties of treason? Perhaps the answer is somewhat similar in the two cases, except that the prospects of direct personal gain were much slimmer for Kropotkin. For fear of being misunderstood, I hasten to say that I am not an anarchist and am not comparing the greatness of the two men. Not for the world would I imply that an unsuccessful revolutionist ought to have birthday speeches dedicated to him, just like a successful one.
Some of the qualities that made a hero of Washington made a criminal of Kropotkin. The willingness to take chances, courage, the ability to derive pleasure from pain, are characteristic traits of the martyr-masochist, whatever his cause may be. The atheists who submitted to be burned at the stake rather than recant their opinions had no heavenly bliss to look forward to. They must have found joy in the very tortures that were heaped upon them.
Since men make gods in their own images, it is not very difficult for them to conclude that the anti-social individual is devoted to or enslaved by devils. This seems to have been the very first, chronologically, of theories about the nature of the criminal. It served especially well to account for the heretic.
Later, when it became impossible for most educated people to believe in literal diabolic possession, the criminal was regarded as an inherently wicked being. Such a conception fitted best of all certain mentally diseased individuals. Men who killed and destroyed property without any apparent motive were put to death. Although there had long previously been laws prohibiting the execution of lunatics, it was not until after the French Revolution that insanity became a defense in the courts.
The view gradually developed that some classes of offenders should be separately treated. It was only a few decades ago that juvenile delinquents were segregated for detention, trial, and imprisonment. In mid-Victorian England, boys were given prison sentences for such crimes as stealing apples from an orchard and breaking a window with stones carelessly thrown; and they were punished much in the same way as adult burglars.
As late as 1897, Oscar Wilde wrote a letter to the Daily Chronicle in defense of a prison warder who had been dismissed “for having given some sweet biscuits to a little hungry child.” He told of having seen the boy, “for whom they had evidently been unable to find clothes small enough to fit. I had, of course, seen many children in prison during the two years during which I was myself confined.... The cruelty that is practiced by day and night on children in English prisons is incredible, except to those that have witnessed it and are aware of the brutality of the system.”
Cesare Lombroso (1835-1909) was largely responsible for the creation of a new science of criminology. While still a student of medicine, this Italian Jew wrote an essay on the connection between insanity and genius. Then, as a military surgeon during the Austro-Italian War, he made a study of Italian racial types. Later, he became interested in a famous bandit.
Examining the man’s skull after his execution, he found a depression “precisely in the middle of the occiput as in inferior animals.” It was this observation that led eventually to Lombroso’s theory that there is a class of born criminals, distinguished by anatomical and mental peculiarities, who represent atavism or reversion to primitive type.
“It flashed across my mind,” Lombroso tells us, “that many criminal characteristics not attributable to atavism, such as facial symmetry, cerebral sclerosis, impulsiveness, instantaneousness, the periodicity of criminal acts, the desire of evil for evil’s sake, were morbid characteristics common to epilepsy, mingled with others due to atavism.” According to Lombroso, “epilepsy represents the genus of which criminality and moral insanity are the species.” The born criminal is an epileptic with “that desire for evil for its own sake which is unknown to ordinary epileptics.”
Not all criminals, but about a third of them, seemed to him to fit into this class. They are distinguishable, we are told, by such signs or stigmata as enormous jaws, strong canine teeth, long arms, little hair on the face and much on the body, and the projection of the lower part of the face and jaws, as well as comparative insensibility to pain.
Lombroso’s views became quickly popular, and he attracted a host of disciples, especially in Italy, who worked away confidently at what they considered the new science of criminal anthropology. His criminal phrenology and physiognomy, like other systems of character reading from the head and face[1], have proved entirely untenable; but the views about penal methods which he somewhat incongruously connected with them were widely influential.
Perhaps Lombroso’s real importance consists not in his assertion that a third of all criminals are such innately, but rather in his pointing out that a full two-thirds commit single crimes or even engage in lawbreaking as a profession simply because of environmental factors. Certainly he focused public attention on cause and effect in the development of criminals, and thus helped the people who were already working for a more rational penology.
Lombroso denied that the idea of punishment could ever be useful. He placed the prevention of crime first in importance, with cure or reform second and the segregation of incurable criminals as a last resort. He considered the probation system, which was being worked out chiefly in the United States, a matter of great importance.