Crime in its relations to social progress

Front matter

CRIME

IN ITS RELATIONS TO

SOCIAL PROGRESS

Introduction

OUR theories of crime and our conception of the criminal have undergone profound modification since our notions of mankind were transformed by the researches of Mr. Darwin. Crime is still thought of by the uneducated as merely a black kind of wickedness, and by lawyers as merely a punishable act. But scientific students of mind and of society have learned that wicked and punishable acts are correlated with anthropological and physiological facts, and with social and historical conditions, that are deserving of investigation. The criminal is still thought of by a majority of law-abiding persons as an " evil-doer," who sins deliberately, because he "likes to"; who deserves the vengeance of man in this present world and the wrath of God in a world to come. But to the scientifically trained mind the criminal is a character who should be examined with painstaking care and by precise methods, to determine how far he is responsible. He may be an atavistic variant from normal mankind, and devoid of moral sense, a dangerous creature, to be restrained as a wild beast might be, but not to be punished by rational beings. He may be a weak or passionate person, not evil in disposition but liable to go wrong under stress of temptation or excitement. Or, finally, he may be nothing more nor less than a "professional" — a man who has gone into crime as a profitable business, exactly as he might have gone into politics or promoting. To those who have become familiar with these distinctions, it seems quite clear that professional

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x Introduction

criminals only are likely to be restrained by punishment, and that the "instinctive" and "occasional" criminals must be dealt with by other methods : equally clear that a sentimental charity towards professional criminals, who ought to be punished with such severity as would make their business unprofitable, must result in an increase of crime.

The methods of the anthropologists, however, are not the only ones that are suggested by an evolutionist philosophy, as applicable to the study of crime and the criminal. An undiscriminating notion of the criminal as in every instance a wicked man, or as in every instance a defective and irresponsible man, leading, as it must, to an undiscriminating policy of punishment or of mercy, is not the only cause affecting the amount of crime in the community. Granting the distinctions that have here been named, crime may increase or decrease in amount without any change in law or in policy. Changing social conditions determine the birth-rates of. the atavistic and irresponsible ; of the violent, the weak, the unscrupulous. Changing social conditions determine also the range of temptation and of opportunity. Crime and criminals, therefore, must be studied by the methods of the statistician, as well as by those of the anthropologist, if we are to obtain an adequate knowledge of the causes that control human well-being.

Even these methods, however, do not exhaust the possibilities of investigation offered by the phenomena of crime. Not every wicked act, not every injurious act, is a crime Certain acts (and negligences) society through its law-making authority formally prohibits, and through its executive authority solemnly punishes. These acts, which the state thus authoritatively brands, and no others, are crimes.

It is obvious therefore that crime may increase or diminish from age to age without any change whatever in the number of wrongful acts. Deeds which at one time are tolerated or

Introduction xi

even approved, at another time may be denounced and punished. Any change in the attitude of society toward human conduct must consequently make a corresponding change in the statistics of crime. It is well within the limits of possibility that a community might become, generation by generation, more moral, and produce increasing crops of the " peaceable fruits of righteousness," and yet show in its moral statistics a steady increase of crime, in excess of the increase of population.

This is a phase of the phenomena of crime which is unfamiliar to the general reader and to the average voter, and which, indeed, is understood only by those few persons among the well-informed who have devoted themselves to studies in comparative jurisprudence or in the history of legislation. It is this phase especially that Dr. Hall has investigated, and has set forth in the present volume with a thoroughness which, I think, has not characterized any preceding study of the relation of crime to civilization.

A moment's reflection will satisfy an intelligent reader that, by its very nature, civilization must now and then increase the sum total of crime. Civilization devises, extends and improves a moral order among men, and this order takes the form of legality. One after another the acts and negligences which civilized men regard as evil are branded, prohibited and punished as "crimes." Sometimes in a moment of mistaken zeal, acts that a sober second thought declares to be innocent in themselves, and harmless to mankind, are so stigmatized. Yet, on the whole, this process of converting immoralities into positive crimes is one of the most powerful means by which society in the long run eliminates the socially unfit, and gives an advantage in the struggle for existence to the thoughtful, the considerate, the far-seeing, the compassionate; so lifting its members to higher planes of character and of conduct. While it would xii Introduction

be absurd to say that civilization is promoted by an increase of crime, if by "increase" we mean a multiplication of evil deeds, (the legal definition and the punishment of crime remaining the same) it is yet perfectly true to say that civilization in the long run is promoted by that "increase" of crime which is caused by an extension of the category of acts branded by society as criminal, the total number of evil deeds remaining unchanged.

I have some fear that Dr. Hall in these pages has not always been sufficiently careful to emphasize the distinction that I have just made. The attentive reader, however, will have no difficulty in discovering that Dr. Hall is not trying to demonstrate anything so absurd as a beneficial reaction of harmful deeds. And I am sure that those who examine the book as a study of results attributable to the long historical process of extending the category, "crime," over larger and larger areas within the field of socially injurious conduct, will find it a positive contribution to our present knowledge of this immensely important subject.

Franklin H. Giddings.

Columbia University.

TABLK OF CONTENTS

PAGE

Author's Preface v

Introduction, by Professor Franklin H. Gid dings ix

Chapter I

The Evolutionary Function and Usefulness of Crime and Punishment.

Modes of evolution I

Crude natural selection and intelligent social selection 3

The production of the criminal one of the saving processes of nature 5

Primitive democracy and the barbarian codes . . . t . . . 6

The meaning and definition of crime - 10

Crime includes misdemeanors 15

The distinction between tort, crime and sin 16

The social standard of right action determines what conduct shall be

criminal 20

CHAPTER II Social Punishment among Animals. Are animals ever rightly termed criminals ? 24

Punishments among monkeys, apes, elephants and wild cattle, ants and

the more intelligent bird communities 24

For conduct most destructive of the social life 30

Theory of social reflex-action 32

Animals do not know why they punish 32

Criminal law deep rooted in the imperative necessity for social self-preservation 35

CHAPTER III Crime Among Savages. The fundamental problem of every human society 38

Head-strong individualism and three powerful socializing instincts 39

The three great primitive crimes : treason, incest, evil-witchcraft 41

No idea of moral guilt originally connected with them 42

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xiv Contents

PAGE

A social standard of right action everywhere exists 46

Measurements of the antiquity of a crime 49

Primitive democracy and the strength of ancient custom 51

Horror of crime among savages and the passionate vengeance inflicted 57

The coming of the king and danger of too great tameness 61

The progressive social equilibrium and crime as the price of growth 62

CHAPTER IV Savage Races in Australia, America, Asia and Africa. Evidences of crime and social punishment all around the earth 65

Lowest savage hordes have fewest crimes, but both criminals and forms of

crime increase with higher social development 68

North and South Americans 78

Asiatic Races 89

African Peoples 100

Ancient Peruvians, Mexicans and Central Americans 107

Three great torts 112

CHAPTER V The European Aryans. Customs of the primitive Aryans 115

Crime among the early Romans, Greeks, Slavs, Celts and Teutons .... 118

CHAPTER VI The Anglo-Saxons in England. Legal customs and courts of justice 1 26

Evolution of the tort 129

Nation building through the might of king and Church ". 130

The extension of the king's peace and change of torts into crimes 132

The power of the Church and the punishment of sins as crimes 134

Wise King Alfred and education through social punishment 137

The " good old laws " and their development 139

CHAPTER VII England under Normans and Plantagenets. National unity and the usefulness of despotism 146

William the Conqueror and the " Lion of Justice " 148

Social anarchy and the decrease of crime 151

Beginning of the " Reign of Law " 153

Reserved pleas of the crown and new forms of crime 158

The bold, new scheme of justice 161

Contents xv

PAGB

Royal power enlarged and law unified through the multiplication of opposing

crimes and criminals , 165

The forest laws I/O

Greater peace but more crime in Norman than in Anglo-Saxon England. ... 172

CHAPTER VIII Parliamentary Government and the New Feudalism. The trial and failure of a great constitutional experiment 177

General rottenness of the age 181

An immature House of Commons versus a reactionary nobility 184

The triumph of armed anarchy and fewness of the nation's criminals 186

London in the Middle Ages 189

CHAPTER IX Tudor England. A despotic monarchy supported by the people r 195

The crushing of the anarchic nobility by the Court of Star Chamber 200

The English Reformation, and treason laws protecting the religious and

political development , 204

New forms of crime: Forgery, perjury, political libel and attempts to com- •

mit crimes 209

The first statute punishing fraudulent bankruptcy 211

Curbing of the Ecclesiastical Courts 213

The severity of the new laws and the prevalence of serious crime 217

How murder became a crime for all men 220

Was there more crime, or less, in Tudor than in modern England? 222

CHAPTER X England under the Stuarts. Constitutional liberty vs. the divine right of kings 227

Seventeenth century criminals mainly political and religious 230

Royal courts of extraordinary jurisdiction 231

Religious intolerance of both parties 235

Military despotism of Cromwell 239

The beginnings of freedom of conscience 240

The common law courts 241

Utter indifference of the age to acts of violence against the person 246

CHAPTER XI Modern England

An era of domestic peace and material prosperity, but abundant crime 49

The death penalty for even petty offences inimical to the new social life. . 254 xvi Contents

PAGE

The humanitarian reaction against excessive punishments, and the decriminalizing of crimes 258

Great development of trade and manufactures, and the birth of opposing

crimes 262

The abuses of the factory system and their remedy by statute law 268

The Compulsory Education Act and the modern multiplication of criminals . 270

The injury to one regarded more and more as a wrong to all 272

Increasing crime may be a sign of social betterment 276

CHAPTER XII Has Crime Increased During the Nineteenth Century? The age of rapid progress, science and democracy 279

Records of the criminal classes in the great European civilizations ......... 280

Growth of crime greater than the growth of population 281

England 281

France 283

Austria 293

Italy 296

Germany 299

In Spain alone criminality shows practically no increase 299

The relation between crime, industrial efficiency and education 300

CHAPTER XIII Is Punishment Powerless against Crime ? Are we degenerating ? 302

Decreasing totals of serious crime, in England, Ireland, France, Austria,

Italy and Scotland 304

But have not some of the most dangerous crimes increased? 311

The wave of industrialism in Germany and the resulting wave of crime 315

Murder and homicide : the crimes of backward races 320

The evolution of a crime and its educational advantages 324

Serious crimes against property 326

Chapter XIV

The Trend of Crime in Modern Times. A Brightening Outlook.

Sensitiveness of modern life and the rapid multiplying of prohibitions 331

Is the individual losing his liberty ? 338

True freedom by the might of law 338

The success of education through social punishment 340

Legislation of social guardianship 345

Contents xvii

PAGE

Lessons to be learned from Spain 347

Industrial Democracy and the preponderance of English crime 357

Courts of summary jurisdiction 360

Misdemeanors in 1836 and 1896 : 366

The relation of the growth of crime to the progressiveness of England's

counties 370

The age of maximum criminality 374

CHAPTER XV An Ethical Theory of Crime

The sifting processes of natural selection 376

Fundamental laws of growth, their antagonisms, and the resulting criminal

class ■• 377

Progress always means greater strength 379

The most successful forms of life are gregarious 380

Intelligent social selection displacing crude physical selection 381

Probable beginnings of morality 383

The criminal is the rebellious social laggard 385

Civilization through enforcement of new social prohibitions 387

Nature's limitations to the rule of selfishness 390

The survival of the fittest among nations 392

Crime is the reaction against pressure toward a higher altruism 393

Increasing crime and the goal of social welfare 394

APPENDIX I Special forms of English crime 396

APPENDIX II Statistics of England and Wales 402

Chapter I The Evolutionary Function And Usefulness Of Crime And Punishment

Each human community, in every age, is busy moulding its individual members into conformity with its own type — into a closer resemblance to the social ideal. The American is different from the Englishman and both are unlike the German. The French type is markedly distinct and separate from both the Italian and the Spanish. A social education environs us from the cradle to the grave — a pressure to be this kind of man and not to be this other and antagonistic kind. If, for the most part, we are scarcely conscious of this moulding influence, it is because we are so used to it, and because we are ourselves scions of the national stock, inheriting these national traits and tendencies from our remote ancestors. Settle in a foreign land, and the pressure soon becomes disagreeably, perhaps painfully, apparent; and you must conform, in large measure, to these unwonted customs, rules and ways of doing things, if you would be happy and prosperous in the new environment.

In the furtherance of this social education, two great natural forces — strong, ever-present, social tendencies — are made use of, encouraged, trained, by the social group. One is the natural admiration and imitation of strong men, largely resembling their comrades, only somewhat better representatives of the developing social type ; and the second is the instinctive abhorrence and persecution of individuals unlike their fellows — anti-social variations — dangerously hostile to the common weal. These two great

2 Social Education

socializing tendencies, or forces, work together in absolute harmony ; and along the line of progress they induce, social pressure becomes more and more strongly developed, with increasing social evolution. This pressure is partly conscious and partly unconscious, in both directions : of praise or blame, of honor or persecution. The limits of the field of crime are largely coterminous with the extent of conscious persecution and punishment by the social group for wrongs against itself, and are continually being extended with the progress of civilization.

The creation of a new crime (that is, the branding by society of some form of conduct as criminal) always implies social punishment — a punishment enforced to raise the community to a higher plane of life, a nearer approach toward the social ideal. A new form of crime means either a step forward or a step backward for the nation choosing it. Wisely chosen, it is an active force driving man upward to a better, more truly social, stage of civilization ; but the nation that persists in choosing its crimes wrongly is on the high road to degeneration and decay. Crime is to the body social much what pain is to the individual. Pain is the obverse of the shield of pleasure, and without the existence of pain there is no pleasure possible ; without increasing pain there is no growth of higher pleasures. So, also, crime is the obverse of the shield of social good, and without increasing crime, there is probably no growth in social goodness — or, in other words, no development of the nation into the fullness of its strength, happiness and usefulness. It will cease to be a living force in the evolution of a higher, world civilization, and will become stationary, like the Chinese, or degenerate, like the American Indian.

Crime, therefore, is an inevitable social evil, the dark side of the shield of human progress. The most civilized and progressive states have the most crime. It is a social product, Increasing with the growth of knowledge, intelligence and social morality — with all that is summed up in the words higher civilization. 1 The increase of crime largely takes the direction of acts in opposition to new social prohibitions. These prohibitions are neither accidental nor whimsical, but are inevitable consequences of the increasing complexity of life. In general, new crime follows lines of greatest resistance to the new life of society.

This book is an attempt to study some of the relations of crime to social progress ; chiefly two great phases of the subject; namely: The evolutionary function and usefulness of crime and punishment; and, Crime as a social product, increasing with the increase of social prohibitions.

Nature's great task, throughout the ages, seems to have been the elevation of the individual, at the expense of his powers of reproduction — individuation versus procreation — resulting in the persistent rise in value of the individual life, as measured in terms of size, strength and activity of body and of brain. The forces preservative of race are two, writes Herbert Spencer, the power to maintain the individual — the power to generate the species. These vary inversely — as one decreases the other increases. 2 The evolution of larger, stronger, more highly developed forms of life is always accompanied by the same phenomenon, a decreasing birth rate. The minutest organisms multiply in their millions ; the small compound types next above them in their thousands, while larger and more compound types

1 There is scarcely a state in the American Union for which the census statistics do not show a large, and for the most part, progressive increase in the number of criminals (i. e. prisoners) in proportion to population, since 1 850. The average numbers for these five census periods are: For Massachusetts, 1,899 prisoners per i,coo,ooo population; for New York, 1,378; Maryland, 993; Missouri, 689; Arkansas, 651; Mississippi, 551; Utah (4 last census periods), 529; New Mexico (4 last census periods), 510.

2 See Principles of Biology, II., 401.

4 Lowest Forms of Life

multiply but in their hundreds or their tens, and the largest and most highly developed types only by twos or units. 1 Lowest organisms are marvelously prolific. The shallow seas of the Paleozoic age swarmed with minute life, which left its history written in the fossils of the hills, in the coral reefs of ocean, in chalk cliffs and silicious deposits everywhere, and in " the summits of great mountain ranges in Europe, Africa and India," formed of tiny shells of animals (known as numulites) which lived and died and helped to build our earth, during those early ages. 2 Undeveloped life is almost completely dependent upon its physical environment. The lower the organism the smaller its ability to contend with external dangers, and great fertility is absolutely necessary to preserve the species from destruction. Evolutionary forces act upon these lowly forms of life mainly from the outside, upon whole groups, rather than from within the group, upon its members singly. 3 The development produced by such means is enormously expensive. Nature seems to squander life, holding it of little worth.

" A thousand types are in the hills."

During the Mesozoic, or Reptilian age, natural selection was working along a low plain of individual self-interest; dominance was the reward of great size and enormous physical strength. But in united effort there is greater power than any gigantic brute can possess, and social life, with its mutual helpfulness against enemies and stimulation of mental

1 See Principles of Biology, II., 426-7. 2 Mitchell, p. 47.

3 A numerically large group of these microscopic organisms would occupy a very small space on the surface of our earth, and their environment would be practically the same for all individuals : that is, the forces acting upon them for good or evil would be in general the same throughout the entire group; and, being so very plastic under external influences, they would all develop in much the same way, until success or destruction came to the entire band. Another similar group, a little removed in space, might have a different set of forces acting upon it, have its individual units differently developed and perhaps succeed where the first group failed.

development, become the prime requisite for success in the struggle for existence ; the great means to the attainment of a higher, more unselfish life.

After some mental activity has been aroused within the social group, there is, as it were, an effort of nature to promote upward growth by a less wasteful process, using the awakened individual intelligence, combined with the inherited social instinct, to induce evolution from within the group, by encouraging useful variation from the average — thus producing the leader — and punishing harmful variation, thus ultimately converting the mere malefactor into the criminal. Social pressure from within the group unites with the pressure from without to uplift and socialize the individual. One of the most important forms of this inner pressure is called among men criminal prosecution and punishment.

A social group is fundamentally a kindred group. Its members feel a resemblance among themselves and a sense of safety and of pleasure develops. There is general likeness with individual variation. The natural leaders are very like their fellows, being simply somewhat stronger exponents of the developing social type. Divergence from this type is disliked and antagonistic variation meets with conscious or unconscious persecution. And rightly so, for the social might stands as a shield before each and every member, protecting him from the destruction his weakness must call down, if left unaided. In so doing, society makes itself, as it were, responsible to nature for the acts of all its members. The individual whose persistent conduct weakens the social bond, or injures the effectiveness of the social group, must be made powerless to harm ; for, since social life to a large extent prevents the immediate action of natural selection upon the individual, wise social selection must take its place, or destruction comes to all.

This is the explanation of crime and of the necessity for

6 The Rebellions Laggard

its punishment. Individual variations, actively antagonistic to the prevalent social type, exist in all the higher social groups. Commonly they are social laggards, who have not kept pace with the average development toward the social ideal. The rebellious social laggard is the true criminal ; other laggards belong to the pauper class. Even the higher animal societies collectively punish the most dangerous anti-social acts. Much the same conduct with a few additions is punished by the lowest human societies now known upon the earth ; and, as social life attains to higher planes, more and more actions become socially harmful, are generally recognized as such, and added to the list of crimes — that is, the list of actions which society punishes as wrongs against itself, for the sake of the general welfare, for the preservation of the social life, for the elevation of the individual toward the ideal of the social type.

Thus the production of crime and criminals is one of the saving processes of nature, substituting a lesser for a greater evil, promoting upward progress at a smaller cost. For if nature had not induced this increasingly severe social selection and pressure within the group, toward the elevation of the individual and the improvement of the type, then that primitive and unreasoning form of pressure from physical forces without the group, which always persists, must have continued alone in operation, destroying countless individuals and groups, without, if we may so express it, the attempt to educate them into the true lines of their upward development.

Ancient human society was organized upon the basis of kindred — blood relationship — and not upon the possession of a common territory. Now, the individual is the unit, and is responsible to the state alone. Then, the kindred was the unit, and a wide system of group responsibility prevailed. 1 1 Hearn, p. 457; Maine, p. 126-7.

Usefulness of Crime and Punishment J

A man was responsible to his kindred, gens (or clan), his phratry, tribe and tribal confederacy, ij this last existed. Each of these groups was likewise responsible for the man, for each and every member. It suffered for his misdeeds and could be rewarded for his good actions. The minor groups were originally independent — not yet included in any larger and more complex social body — and possessed, or, we may almost say, were possessed by, a wild and ferocious justice, reeking itself in fierce spasms of social vengeance, " half punishment, half outrage," upon some hated member of the band. Few acts, however, were punished by the social groups, as such, and few acts were therefore crimes. Injuries to individuals were left to private revenge, and there were other harmful acts — sins — supposed to be punished by the gods.

In gentile society, the household was the economic institution. Its chief function was the obtaining of a food supply. The Gens, or clan, was a mutual protective association, for help, defence and redress of grievances. Its function may be called judicial protective. 1 The Phratry, ((pparpta — brotherhood), was formed by a union of related gentes. It was the chief religious institution and had also social and judicial protective functions. 2 The Tribe or Tribal Confederacy, was primarily a military institution, standing for the unity and might of the gentile people. 3

Each one of these social groups possessed judicial and penal authority, by right of ancestral, immemorial custom. Yet, in the most primitive legal codes which have come down to us, the evidence for such authority is very scanty. Why is this ? Early Germanic codes of customary law embody but a part of the ancient penal customs of the race. Thus we find no mention of the father's right to punish for offences within the family. Such power was regulated, then as now, by

1 Morgan, Ancient Society, pp. 76, 77. ''■Ibid., p. 94. 3 Ibid., p. 117.

8 Barbaric Codes

social custom and existed none the less surely, though not chronicled in written laws. 1 Thus, also, crimes, 2 or authority to punish for such offences, are rarely mentioned; yet crimes existed, and the ability and will to punish were not lacking. These codes of the German barbarians afford us, nevertheless, by far the most clear and complete record we possess of ancient legal systems. 3 They deal almost entirely with offences which would now be classed as criminal, but which were not criminal then, in any true sense of that word. 4 They were injuries inflicted by man upon his fellow man, such as would now result in a civil suit for damages. These acts were not regarded nor punished by society, (or the State), as wrongs against itself, and in this consists the very essence of all crime. The laws, at first, simply afforded an opportunity for the injured party to accept compensation, rather than exact private vengeance (his undoubted right). The penalty was proportioned to the provocation, and not to the offence. Later, the laws hardened into a compulsory seeking and acceptance of composition offered for an offence, before private vengeance could be legally pursued. The man who refused to ask and accept an atonement for the injury received, and the offender who would not pay the customary price for his forgiveness, thus preserving the peace of the community, came to be regarded as untrue to the folk, and were solemnly declared outside of the law's protection — outlaws. Such men were true criminals ; possibly the first dealt with, under the law, as distinguished from ancient social custom. 5

1 Offences against the father's authority have never been crimes in any age, no matter how great the paternal right of chastisement. They were sins rather.

2 Brunner, ii, 603 et seq. 8 Maine, p. 367.

* See article on Crime, Encyclopedia Britannica.

6 R. R. Cherry, p. 14. For Iceland, see The Story of Gisli, the Out/aw; edited by Sir J. Dasent.

Usefiuness of Crime and Punishment 9

Thus we find in the earliest Germanic codes many penal laws, but not much true criminal law. 1 They were attempts, at first weak, but steadily gaining in firmness and hardening into law, to tame these wild men of the woods, by substituting an elaborate system of composition for the dearly loved right of blood revenge. But the lack of a developed criminal law is no evidence that crimes were not recognized and punished by early Germanic society. In fact, we have positive proof to the contrary, not only for the Germans, but for all other races of the great European-Aryan stock, and even for the lowest savage hordes known to man, such as the Australian Black-fellows and the African Bushman. Human society everywhere, writes Waitz, " has some common interest in opposition to the private interests of the individuals composing it." 2 Where the individual insists upon acting in opposition to social necessity, there we have the true criminal, and society must punish him or cease to exist.

How did primitive society punish the criminal? Just as private vengeance struck down the man who had harmed his fellow man, so social vengeance destroyed the malefactor who had injured the social body so seriously as to awaken in its members the passionate longing for revenge. There was no criminal law, because there was a separate action and procedure in the case of every criminal. Fundamentally instinctive, as are many acts of self-preservation, and for long largely unreasoning, like the lynch law of mobs, primitive society struck at its criminal members directly, through the folkmote, or assembly of all freemen. The people tried, condemned and punished, following the dictates of ancestral custom, with its roots deep in instinctive necessary action. Socially necessary action equals right action, because it is indispensable for social self-preservation and upward pro-