"almost physical loathing" of the criminal must have made him a very rare type of man. Only the necessity for internal peace (for the blood feud was simply civil war socially sanctioned), strengthened the hands of society to substitute compulsory arbitration and composition for private vengeance, at a time when the development of wealth made compensation possible, and the increasing cultivation of the soil made internal peace more and more indispensable." Composition became a favorable factor in the struggle for existence, and society, by gradually changing certain torts into crimes, intrenched itself, as it were, on a higher plane of human existence. The number of acts punished as crimes was increased. The number of criminals was greatly multiplied, but social welfare was conserved and individual security and freedom were enlarged.

No depth of moral heinousness is sufficient in itself to make an action criminal. Sin is never crime unless society makes it such. The mere fact that laws exist decreeing punishment for certain conduct, will not make that conduct criminal. In the statute books of England and the United States, there are many penal statutes (Blue Laws) never repealed, but unenforced for generations. The acts they were aimed to punish are certainly not crimes now, and they may never have been crimes. For it is not sufficient that society desire to punish, make laws to punish, or even try to punish. Unless it actually succeeds in punishing, often enough to make the average citizen believe offenders likely to be brought to justice, the act is not yet a true crime. On the other hand, social punishment need not fall upon a majority of offenders to make their conduct criminal. In the United States to-day, comparatively few men are executed, or imprisoned, for the many murders committed; but the average 1Maine, p. 120.

'Steinmetz, book i., pp. 427–8; also Hearn, p. 393.

20

The Essentials of Crime

citizen, not called upon to investigate such matters closely, does not realize this, and believes that "murder will out," and in general be punished. Laws need not exist and be enforced to make the actions they prohibit crimes. Lynch violence may do the work neglected by the courts of justice. The essentials of crime are two.

First. The act must be one that society abhors and desires to punish as a wrong against its welfare.

Second. The act must be punished often enough to make the displeasure of society evident and its deterrent force plainly felt. Then, and not till then, does the action become a crime. But, if society is at all united in the intention to punish, it will generally succeed in inflicting some form of penalty, and this the more surely as social organization becomes stronger and more effective.

For it is the social standard of right action that determines what conduct shall be criminal. Society says: You must live up to a certain standard, at your peril. The test is essentially an objective one, and deals with manifest conduct, not the motive behind the act. A man thoroughly bad morally, need not fear punishment if he keep within the letter of the law. Again, it matters not how good a man's intentions may be, if he breaks the law he will be punished as a criminal; for society thinks he ought to have known better-unless, indeed, he prove idiotic or insane. The standard is not fixed and unchanging, but is modified from age to age, according to the general level of knowledge, intelligence and social morality, and the actual needs of an advancing civilization.

Social evolution implies increasing complexity of life, a larger interdependence among men, and necessitates a nicer adjustment of mutual rights and duties, which must be enforced (largely through the criminal law), if society is to

1 Holmes, pp. 110–113.

2

hold together and maintain a healthy growth. the lower animals, has had to be his own domesticator." * "Man, unlike The criminal is the rebellious social laggard and must in some way be prevented from destroying, or seriously harming, the social life. There are many ways of accomplishing this end: by his death, imprisonment, education, reformation; but all are forms of punishment for the man who refuses to live up to the standard of right action set by his fellow men, and the social welfare imperatively demands that such rebels be punished. With increasing civilization, more and more actions become socially bad, are perceived to be injurious by the common sense of the community, and are punished as crimes, thus increasing the number of criminals.

So long as social progress continues, so long as there is growth from a lower to a higher plane of brotherly love and mutual helpfulness, so long as the rebellious social laggard continues upon earth, for so long will crime continue to exist and possibly also to increase.3 That it has increased till now this book will give the evidence, so far, at least, as the Englishspeaking people is concerned. But the nature of crime has changed and will continue to change, from more to less heinous offences, if we judge from the standpoint of present public opinion. Under the rule of law men have been slowly and painfully learning to curb their hasty passions. Crimes of force show a very great decrease during the last few centuries, and they are decreasing still.

1

1 Bagehot, p. 51.

* See the hatred of Elmira and other Reformatory prisoners for education, the parole system and the indeterminate sentence.

'If in any age and nation a larger amount of crime is punished than in a later and higher stage of social development, it is probably because actions not rightly criminal are being punished in the former time, or because degeneration, which often brings non-punishment for even very dangerous offences, is setting in at the latter period.

22

Shall Crime Ever Cease

If crime shall ever cease upon earth, it can be only when obedience to social commands has become an overmastering habit in the individual; when society has grown so wise as to prohibit only the true crimes of its age; so strong and efficient that the mere dread of its displeasure is quite enough for the prevention of evil acts; when, in a word, the aim of Christianity, the brotherhood of man, is realized on earth. Then social morality can rise to higher and higher planes without increasing crime. Hitherto the social mind has had in every age "le défaut de ses qualités," and has punished or tried to punish as crimes, actions helpful or at least not harmful to the social welfare."

It is an old truth that the greatest benefactors of the world have been also its greatest martyrs. New liberty, new life, have come to men often under a criminal ban. Are we wiser than our fathers? Do we no longer make these old mistakes? Thus much seems sure. The nation that persists in choosing its crimes wrongly is on the high road to social degeneration and destruction; and since the English-speaking people has continued to grow more strong, more united, more dominant upon the earth, we may believe that it has, upon the whole, through many errors, chosen its crimes rightly, and that it will continue to be, through coming years, the great teacher of Christianity and of civilization.3

1A condition practically fulfilled among lowest savage tribes, where obedience to a few fundamental ancient customs is thoroughly instinctive and unreasoning, because run into the very fibre of the race, by stern processes of natural selection, teaching elementary social necessities.

'The Statutes of Laborers in England, the subsequent attempts to make labor unions criminal, and the punishments of the Inquisition in Spain, will serve as examples; as will also the attempts, in our own day, to make trusts as such criminal, and not simply the abuses of trnsts.

'A crime and a form of crime express two closely related yet diverse ideas, between which we should distinguish clearly. A crime is an act, the act of a criminal, punished by society as a wrong against itself. A form of crime is a kind of conduct which society would punish in this manner, if the act were perpetrated, if

the criminal existed. Thus, treason is and has always been (as far back as we can trace) a most heinous form of crime among men. Throughout the centuries acts of treason have been very frequent, and severely punished as crimes; but among lowest savage hordes and the most highly civilized modern nations we find almost no instances of punishment for this offence. The traitor has practically disappeared from the English criminal statistics during the last half century, and abhorrence of the traitorous act is so intense among lowest savages that no one is found to commit this most heinous of crimes. A form of conduct may therefore be criminal without the actual infliction of social punishment, but such instances are very rare. Piracy is an example for modern times.

We may dream of a nation, in some future age, when even a new form of crime may not necessarily mean an increase of criminals. With us, the transgressor is so very natural and customary a result of the prohibition that we expect him as a matter of course, and are never pleasantly disappointed by his non-appearance. He is not, however, an absolutely inevitable social product, provided knowledge, intelligence and morality are high and strong enough, and the habit of obedience dominant enough in the social group.