336

New Crimes and Penalties

posite side of the street, and I threw a kiss to her. Now I have thirty days to serve in the county jail."

"By Jupiter!" exclaimed Draco. "It is all very well for you to swear by Jupiter," said a man from New Jersey; "but I made the mistake of swearing by the name of Jesus Christ, and so I have two years to serve." "I," said a New York man, "tampered with an automatic ballot machine, and for the next five years I shall labor for the benefit of the state." "I," said another New Yorker, "was calling on a friend in the upper story of a sky-scraper, and I ventured to drop some of my advertising circulars down the letter-chute. Unfortunately, I had forgotten to address them. So I got five days." "I," said a New Jersey man bitterly, "did not drop my ad. into a letter-chute; I wish I had. I made the mistake of putting it up on the Palisades, and I am sentenced to three years for disfiguring the landscape." "As to advertising," said a lawyer from Washington, "I ventured to solicit divorce business by an advertisement in a newspaper, and now I shall read my newspapers in jail for the next six months." "I can go you one better," said a Pennsylvania criminal. "I thought it would be a compliment to my country to print my advertisement on a picture of the American flag. The court thought differently, and I am in seclusion for six months." "You ought to live in South Dakota," said a bystander. "I did the same thing, and I got off with a five-dollar fine." "But be thankful you do not live in North Dakota," said another criminal. "I ventured to organize a 'trust.' I thought I might promote trade by lessening competition; now I have ten years in which to reflect upon my conduct." "I," said a Wisconsin man, "sold some impure ice, and I shall spend the winter in the county jail." "Well! you have my company," said a Wisconsin baker. "I ventured to sleep in my bakery. My first offence cost me $50 a night; and the second $100 a

night. For the third offence I had to pay $250 a night. And now, to even things up, I am lodging six months in jail, at the expense of the state." "It all happens in the course of business," said a Michigander. "I thought it was all right to buy an empty beer bottle stamped with the brewer's name. My mistake costs me ninety days in jail." "Well, be thankful you don't keep a boarding house in Virginia," a Southerner remarked. "I failed to put up a sign which the law said must be in Roman letters not less than one inch square, 'Imitation Butter Used Here,' and now I am a jail-boarder myself for six months."

Perhaps, to close the interview, which might go on almost indefinitely, we can imagine two prisoners from Tennessee saying: "Well, you are all low-grade criminals.

nothing but misdemeanants; we have the honor to be felons." "You are, perhaps, murderers," said Draco, his face brightening at the thought of some crime with which he might be familiar. "Yes, we are both murderers. I murdered some fish with dynamite-a Greek word, you knowand am in' for three years. And my friend here murdered

some trees without the consent of the owner, and he also is 'in' for three years."

Would Draco think the world had grown better, or that it had grown worse, and would he note it as an occasion for modern thanksgiving that the Americans live under milder laws?

One great difference, however, these ancient law-givers would find between their time and ours. The laws of the American people bear a very close and intimate relation to their life. Right or wrong, good or bad, they are not imposed by external authority or by an aristocratic class. They are made by the people themselves. Whether enforced or not, the laws embody the ethical sentiment of the American people, and reflect the spirit and the characteristics of American civilization.

338

Liberty and License

What then? Is modern man becoming helplessly, and ever more and more firmly, bound around by the myriad twisting and constricting tentacles of a kind of social devilfish the criminal law-sucking the life and the individuality out of him, and preventing growth in almost every direction by increasing pressure and punishment? Is this the final outcome of our boasted civilization-that the individual shall be met at every turn by a prohibitory or a mandatory statute: Thou shalt not do this-Thou must do that-under penalty of the law; no, not even walk upon the grass, under pain of punishment as a criminal? Is not this sheer slavery, and is not savage liberty far better than such bondage? Dryden once had a dream:

"When wild in woods the noble savage ran."

But how painfully different was the truth. The free, untrammeled, primitive man, meeting with his fellows to form the "social contract" of Jean Jacques Rousseau, had absolutely no existence in real life. The farther back we trace human society, the more is the individual savage the slave of his superstitious fears, crawling in abject obedience under a mass of semi-religious or demoniac observances, compared to which the Aztec or Babylonish tyrannies were easy and pleasurable.

Liberty is very far from being a natural, original and fundamental right of man. On the contrary, its history shows a very slow and painful development. True liberty has been won by man for man in the progress of the ages, with the growth of civilization, and by the might of law. It is being won and amplified to-day.R

Do not let us confuse liberty with license. License is absolute freedom from restraint. A man may kill himself or his fellowman if he wills and has the power. Liberty

Following, as the author believes, God's law of evolution for the uplift of

mankind.

is also freedom; but freedom within limits, found necessary for the preservation of a like freedom for our brother man, and for the maintenance of the general welfare. It is precisely such liberty that we are developing in modern times: developing by means of law-criminal law. Think of it! Freedom of body, freedom of thought and speech, freedom of religious worship and belief-these are all modern achievements, guaranteed by law to-day. Political and civil liberty, the right to vote, the right to own property (especially for women); industrial liberty also-that is, the right to work (in general) where and when one wishes-these are forms of true freedom, struggled and fought for through the ages, established and still developing under the law to-day.

The key-note of the nineteenth century, writes Gladstone, the great English statesman, near the end of his long life, is "Hands off," "Strike off the fetters." Individual liberty, freedom of action and of thought, the opportunity to do that which seemeth best, have come to man far more fully in this than in any former age of the world's history. The unyielding, curiously cramping, despotic customs of savage races are not for us. Yes, strike off the fetters, the swaddling bands of infant societies, the hard, stern rules that hold and tame and socialize the brave, but cruel and passionate boyhood of mankind; for the leaders of the human race, the great Aryan civilizations, no longer need them, or most of them. They have grown strong through social discipline. They have learned through long centuries of drill in nature's school to walk upright, physically, mentally, and to some degree morally. It is no longer imperatively necessary, as in ancient days, to unite every available social force for the mere preservation of the social life against disruptive violence within the group and blood-thirsty enemies without, ever eager, ever ready to attack at the first evidence of weakness. The world is be

340

War Decreasing, Crime Increasing

coming a less cruel, a far safer place to live in. Not only are the rights of fellow-citizens enlarged, protected and respected, at least within the letter and beneath the shield of law, but there are international rights and duties, an international customary law as well. We shudder with horror when ambassadors, legations, women and children, or unarmed and wounded prisoners of war are slaughtered by the Chinese; but the masses of the yellow race regard all such as enemies, and think it right to kill them. The preservation of the Chinese Empire, the maintenance of its ancient religions and ways of life, they believe demand such barbarous actions. Our early ancestors held much the same ideas. Even Charlemagne, the great hero of early European Christianity, did not hesitate to slaughter thousands of brave, unarmed Saxons, who had voluntarily surrendered themselves, when he thought the welfare of the Frankish Empire and the spread of the Christian religion demanded it. Yet, as a rule, he was far more kind and generous to enemies than other conquerors of that olden time.

As the nations grow larger and more civilized the sphere of war is becoming gradually more exclusive. That is, organized hostilities are becoming practicable only between large social groups, and probable only for a comparatively few great causes. Meanwhile, the sphere of crime is becoming rapidly more inclusive. Men who formerly would have been enemies, because members of petty, independent, hostile groups, have become criminals to-day, through inclusion in a single commonwealth. The amount of war is decreasing; the amount of crime is increasing. Industry and commerce, Christianity and education, are strongly opposed to warfare, at any rate between the leaders of the world's civilization; but they are persistently demanding and securing new social prohibitions for the punishment of evils formerly disregarded. The brother