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Charles Richmond Henderson.

Introduction to the study of the dependent, defective, and delinquent classes, and of their social treatment online

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Resentment and the sense of justice have a part to play in hold-
ing men to duty. In its perversion these same instinctive reactions
against those who hurt and threaten us, or balk our satisfactions,
become hate and revenge.

What Ferriani calls "egoism" is not any one particular vice,
but simply the natural impulse of self-assertion and self-gratification
unbalanced by cultivated affections, sympathies, and social justice.

Deceit, lying in all its forms, is the means by which the selfish
hopes to remove obstacles in the way of his satisfactions, or ward
off pains and punishments, or secure the means of pleasure.

From these elementary, undisciplined, and perverted passions
come assaults on women and girls, poisoning or stabbing of rivals,
theft, robbery, fraud.

Conditions. — If we look at those youths who find their way to
industrial and reform schools in consequence of committing viola-
tions of the criminal code, we may learn from measurements and
other tests that they are, on the average, physically and mentally
inferior to other children. In weight, stature, vital force, muscu-
lar energy, intellectual ability, and moral development they fall
below the average of children of the same neighborhood and
industrial group.

If we go into their homes, we discover that, on the average, their



26o An Introduction to Criminal Sociology.

surroundings have been defective, physically and morally. The
parents seem to be feeble, lack self-control and power to restrain
and direct their children. Hereditary weakness is further shown
in the average early death of parents, and thus the children are
thrown upon the world, inferior in strength and without direction.

If we extend our investigations to their neighborhood, we find
that it has, on the average, exerted an unwholesome influence.
The slums of cities breed juvenile offenders.

Inquiring into their educational opportunities, we find that, in
the main, they are without physical and technical training. They
have no industrial habits, have not been accustomed to steady
labor, and hence are unfit for competing with the strong and
disciplined.

Illegitimate children are at a special disadvantage, since they
are not only exposed to all the unfavorable conditions attending
birth, but lack parental care and afiection.

Orphans are frequent in a population of reform schools, and
their waywardness may often be traced to early neglect and pov-
erty, with consequent temptations to theft or prostitution.

Statistics indicate that the foster-care of step-mothers is defi-
cient in afi'ection, tact, and patience, and that demoralization and
vagrancy follow the loss of the real mother. Deserted children
and the offspring of habitual criminals have imperfect chance in
life and tend to drift into the ways of vice.

Economic conditions are unfavorable with this class. The
parents are ill fed, and the children are deprived of proper nour-
ishment, clothing, and shelter. The waifs, newsvenders, boot-
blacks, telegraph messengers and others engaged in irregular
employments, with the street for their school, naturally furnish a
heavy contingent to the army of juvenile offenders. They grow
up without education and without trades, until they are too old to
learn, and then they are cast adrift.

Turn now to the second generation of the family. The
diseased, the vicious, the criminal have children, and the parents
influence the fortunes of their offspring in two ways : by heredi-



Causes of Crime. 261

tary transmission of weakness, bias, disposition ; and also by evil
example, instruction, and training. The children of a base environ-
ment and defective stock have a fatuous attraction for each other,
tend to intermarry, and thus accumulate upon the heads of their
doomed descendants all their traits and tendencies. Degenera-
tion takes place not only in the individual, but in the family.

6. Hypnotism in Relation to Crime. — One question of some
interest in this discussion of causes is : Can a person of normal
nature and moral character be induced to perform criminal acts
under the suggestive power of an unscrupulous man ? The matter
is much debated, and as yet we have no results of a decisive
character. The courts thus far do not seem to recognize hypno-
tism as a probable explanation of a criminal act. But the influ-
ence of suggestion over susceptible persons, both by good and
evil men of strong personahty, is too obvious to ignore, and the
whole subject merits the deep and general interest which it has
awakened among the investigators of psychology.



CHAPTER III.

THE CRIMINAL BEFORE THE LAW.

1. The Relation of Criminal Law to Sociology. — Sociology
formulates the conditions of social welfare. Life itself, the nature
of the universe, ultimately determines what is good for mankind ;
but the sociologist surveys the totality of human relations and con-
ditions, and thus determines what is to be declared good, what is
to be sought by all available means. The race-preserving instincts
and the ethical impulses are the earlier formulations of duty, and
sometimes these are wiser than the results of elaborate calcula-
tion. But all reflective men seek to consider the sum of forces
and relations with reference to the best possible arrangement in a
community, at least the conduct which is tolerable and consistent
with general order and happiness. All this lies deeper than legis-
lation. The conduct which becomes illegal must first be recog-
nized as evil or hurtful to the people. Social conditions are
changing ; there are new standards, new evils, new methods of
business, which must affect the statute books and decisions of
courts. The discovery of the novel factors in life is made by
direct study of society, not by study of law books.

Thus sociology rationally formulates standards for defining and
judging antisocial conduct. Ordinarily the more thoughtful men
of experience do this work of criticism without consideration of
any particular science, simply by applying traditional moral
maxims to the situation. But there is need of an intermediate
stage of reflection ; there is need of a science of society which
will test even the ethical sentiments themselves by the standard
of facts, at the points where those sentiments seem to demand
concrete actions, habits, or customs.

262



The Criminal Before the Law. 263

Sociology, having made a general survey of the customs and insti-
tutions of society, assigns the task of each institution. The reac-
tion of a community against antisocial persons and its system of
defence are far wider than the mechanism of penal law. Many of
the arrangements and devices of business and industry are made
to check egoistic conduct, as books, accounts, auditors, securities,
private watchmen, detectives, supervisors, and foremen. In every
residence the citizen introduces protective devices, as bolts, bars,
locks. There is social censorship, ostracism, repulsion, and a
thousand nameless ways of inflicting punishment on disagreeable
and selfish or cruel men. There are voluntary associations which
act with and even before criminal law, as citizens' leagues, to
secure improved legislation, to enforce laws, and bring offenders to
justice, to educate public sentiment, to study the phenomena of
crime and vice, and apply the teachings of science to institutions
of law.

Government naturally assumes the most obvious and conscious
functions in relation to crime ; but family, church, school, and many
other forms of association must carry part of the burden, and do
for the community what the ponderous machinery of government
cannot accomplish.

Criminal law is a branch of jurisprudence, and to it must be
assigned the duty of working out for each age a detailed and ade-
quate treatment of the social mechanism which is constructed for
the purpose of social protection.

In this chapter we shall attempt to sketch, with special reference
to the United States, the institutional mechanism for the treatment
of antisocial classes, and indicate the bearing of criminal sociology
on criminal law. Criminal sociology is constantly discovering the
effects of the legal system on the criminal and on the community,
and has a right to criticise codes and procedure in the hght of
these consequences, general and specific. But the task of reshap-
ing the law itself belongs to legislators and courts.

2. The Sources of Criminal Law. — The ultimate human source
is the conviction and will of the community — a social belief that



264 An Introduction to Criminal Sociology.

certain kinds of conduct are hurtful to the common interest. The
law does not create these beliefs, but expresses them in authorita-
tive form. The social conviction is expressed in customs, court
decisions, and in statutes of legislatures and of Congress.

Common Law. — In every department of associated action men
form certain habits and customs, and are influenced to conform
themselves to the religious and ethical standards of their land and
age. It is found convenient and desirable to require all men to
order their ordinary affairs according to the methods used by the
majority in family, business, travel, communication, taxation, use of
streets and sidewalks, conveying goods, making agreements. Each
trade and profession gradually forms a set of rules and customs
which all are expected to follow, and the actions of men are based
on the expectation that these tacit agreements will be sacredly
kept. It would be impossible, for example, every time men sold
grain or cattle to specify every particular as to quality of com-
modity and mode of delivery, and therefore such matters are
regulated by customs which all understand. Sometimes there is a
neglect of the regulation, or refusal to abide by the tacit promise,
because there was no specific and written agreement, or there may
be a difference of opinion as to the rule itself. In all such cases
civilized communities carry their disputes to an authorized court
of learned men who will define the custom, settle the debated
point, and thus establish a distinct precedent which will thereafter
govern all citizens within the jurisdiction of the court. When the
court is known to be eminently able, competent, and just, with
large experience in the questions of mercantile life, the decisions
of that court have almost decisive influence on lower courts, and
are quoted in doubtful cases as authority. Such decisions which
make rules of conduct form a part of what is called common law,
and to these decisions may be added the essays, commentaries, and
digests which grow up around them.

Formal Enactments. — The constitution of the nation, the treaties
with foreign peoples, and the statutes of the states constitute the
more distinct code of statutory law. The constitutions of the



The Criminal Before the Law. 265

United States and of the several states fix the framework of gov-
ernment in all its branches, determine the functions of each branch,
and define the fundamental principles which regulate the methods
of legislatures. The legislatures, under the limitations of the con-
stitution, provide for courts, executive and administrative ofiicers,
prisons, reformatories, and other institutions of the penal system.

3. Scope and Divisions of Criminal Law. — The student who will
follow the details of criminal law must use the text-books which
summarize the general features of this branch of law, and, for local
use, must study the annotated statutes of his own commonwealth.
Attention is called here to a few of the most vital points in this field
of social science.

The Distinction between Civil and Ci'iminal Law. — There
is no absolute line of demarcation which separates these fields of
social regulation, but it is convenient and desirable to make a dif-
ference between the regulation of normal conduct and the repres-
sive justice which has chiefly in mind the conduct of persons more
or less abnormal.

Criminal Law differs from Civil Law in its Sanctions. —
By sanction here is meant the inducement to obedience. "When
the injury which would result from the violation of the law is such
that it can be redressed by a mere compensation or restitution to
the party injured, it is deemed sufficient to compel the aggressor
to render this kind of satisfaction. There are other injuries, both
to the person and to property, of so atrocious a character that
either they do not admit of anything like compensation, or, for
other reasons, the welfare of society requires a more efficient sanc-
tion in order to prevent them. Such injuries are called crimes,
offences, or misdemeanors " (Walker).

They differ in the Lnitiation of Legal Process. — In civil cases
a private person brings suit. In criminal cases the public officer
arrests and prosecutes on behalf of the people. The expenses of
this prosecution in this country are borne by the state.

A large part of the civil law is devoted to the business of defining
rights and obligations among normal citizens, while criminal laws



266 An Introduction to Criminal Sociology.

deal with persons whose acts are purposely vicious and injurious to
the community. This is the distinction which is most fundamental
- — the attitude of the person toward society. Criminal sociology
has brought out this distinction with the utmost clearness, and
made the difference in treatment rest more on the character of the
offender than on the outward form of the deed.

Legal Definition of Crime. — A crime is an overt act, forbidden
by law, with a penalty for violation. There must be an open deed,
because the law cannot discover the inner motive of men nor look
into their hearts, except as inferences may be drawn from the nature
and circumstances of the act. This act must be of sufficient im-
portance to affect the interests of society, since it would be impos-
sible for the state to use its machinery in relation to the petty
quarrels of private citizens which are too trivial to influence the
fortunes of other men. It is injury to the public, actual or
threatened, with which the criminal law deals.

Different codes have distinctive names for injurious actions of
varying degrees of apparent harm — as crime, misdemeanors, and
offences.

Exemptio7is and Mitigations. — Since crime is considered in
law as the act of a responsible person, in normal possession of
human faculties, certain exceptions from the rule of punishment
are recognized ; as infants, insane, feeble-minded, persons com-
mitting prohibited acts by accident or mistake, by necessity, or in
self-defence. These exceptions rest upon the belief that the court
must take cognizance of the nature of the accused, and that the
particular deed must be considered in the light of all the facts.

Classification of Crimes in Laiv. — Almost every text- writer
adopts his own scheme of grouping the particular crimes and
offences. We may name some of the principal groups, and give
illustrations under each head, [a) Offences against the govern-
ment itself. That organ of community which protects all rights
and punishes all crimes must first of all protect its own dignity,
authority, and agencies. Hence the statutes define treason, the
betrayal of the national interest to the enemy; bribery, which



The Criminal Before the Law. 267

corrupts the agents of government and of justice ; extortion and
oppression by public officers who misuse the power devoted to
pubHc welfare to their own private ends ; perjury, which destroys
the value of the testimony given in courts ; contempt of court,
which deprives the magistrate of force and respect ; resist-
ance of prison officials, since that is to add crime to crime.
{b) Offences against public order, as affray, riot, forcible entry
and detainer, eavesdropping, libel and slander, engrossing, con-
spiracy. (^) Offences against public health, as nuisance, {d)
Crimes against rehgion, morality, and decency, as apostasy, blas-
phemy, adultery, bigamy, seduction, abduction, kidnapping, abor-
tion, lasciviousness, fornication, sodomy. (<?) Offences against
the person ; as assault, mayhem, homicide, false imprisonment,
rape, robbery. (/) Offences against the dwelling-place, as arson,
burglary, {g) Offences against property, as larceny, embezzle-
ment, false pretences, cheating, malicious mischief, receiving
stolen goods, forgery, counterfeiting. (/z) Maritime offences,
as piracy and barratry.

Each state defines these crimes and affixes a penalty for all, and
there is a great variety in these definitions and penalties, as well
as in the judicial interpretations of the law, and the fixing of the
particular fine or length of imprisonment. These differences
awaken a sense of injustice, because it is of the essence of dis-
tributive justice that it should be impartial and equal. At a later
point we shall consider the extent of this evil and the mode of
avoiding it.

The Reason for defining Crimes. — Social security demands that
every citizen shall know, as precisely as possible, what conduct is
illegal and punishable. Liability to arrest is a very serious matter.
It cannot safely be left to executive officers to decide out of their
own heads the proper occasion of arrest and restriction of liberty.
This definition is an education of conscience. Many members of
society need such a standard, low as it is morally, by which they
can judge what is right and wrong. Many acts are not in them-
selves signs of bad character, but are forbidden in order to have



268 An Introduction to Criminal Sociology.

a rule to guide conduct where uncertainty would lead to frequent
injury to persons and property. Thus the conditions of city life
require that carriages and bicycles moving at night along public
streets should display lights; and the conditions of river and
ocean transportation demand that certain routes should be fol-
lowed, certain signals given by passing ships j and the wilful neg-
lect of such regulations must be punished. All these rules and
penalties must be published for the information of the persons
concerned.

4. Social Reasons for Penal Laws. — Without attempting to
repeat here the definitions of the vast number of prohibited acts,
we may briefly, by means of concrete illustrations, consider the
way in which the pubhc sentiment and will is formed far deeper
down than the decrees of legislatures or the decisions of courts.

All the common beliefs and convictions which demand and sup-
port government are at the basis of the penal laws which protect
the existence and secure the efficiency of that government. The
traitor who betrays the army to a public enemy; the judge or
witness or voter who sells his service to a private party to the
injury of the community ; the man who swears falsely in signing
a record or assessment roll ; or who refuses to obey the command
of a court ; or who resists the officers of a penitentiary, — all these
are in various degrees rebels against the order of society, and are
common foes to mankind.

Unless public sentiment, on the whole, decisively favors the law
and the penalty, they become powerless. Examples of this prin-
ciple are numerous. In large cities it is found impossible to
enforce prohibitory liquor laws, because drinking habits are com-
mon among the people and are not regarded as evil, while the
law itself is regarded as oppressive and despotic. In such situa-
tions the friends of the law must work to educate and persuade
the citizens that the regulation is good, and form a sentiment
which will not only pass the law but enforce it.

In some regions the persons who are engaged in a strike may
be so favored by the surrounding community that it is difficult



The Criminal before the Law. 269

to make arrests even when the law is violated. Juries may
refuse to convict. Here again, where public sentiment is wrong,
it must be changed by education, and where the law itself is
imperfect and works hardship and injustice, it must be modified
so as to be just to all. For example, union working-men are in
antagonism to the law in certain places because the government
suppresses strikes by armed force, and yet supplies no tribunal
of law before which they can bring their grievances and secure a
hearing and an adjustment. New Zealand has such tribunals, and
both parties, upon a legal demand, must submit their disputes for
compulsory arbitration. In that country they have no strikes,
because public sentiment will not tolerate suspension of industry
when it is known that all can be heard by an impartial court. If
public sentiment should change under the pressure of some new
force, the law would be a failure.

Deeper still than pubhc opinion are the forces which make
for change, the conditions to which sentiment and belief must
ultimately yield as the price of existence and of well being. The
growth of population, improvements in machinery and means of
transportation, the diffusion of knowledge in consequence of the
labors of original investigators and advance in public instruction,
create new possibilities of offence and make some crimes obsolete.
Thus the modern trade union and the strike have compelled states
to pass new penal statutes. The massing of children and women
in factories has called for regulations of hours and machinery, and
thus for new definitions of crime.

The criminal law against profanity and blasphemy is seldom
enforced, and all penalties against dissent in religion are anti-
quated, save in backward communities. Society finds other and
better ways of suppressing coarse and impious language, and
abandons legal prosecution of religious opinion and worship as
useless and unjust.

The more refined and just estimate of the value of literary
products has created copyright laws protecting authors from theft
of the fruits of their spiritual labors.



I'-jO An Introduction to Criminal Sociology.

The recent and colossal forms of commercial combinations and
great organization of capital have compelled fresh thought and
novel laws regulating monopolies and special privileges. The
community can never permit a small minority of men, protected
by society, enriched by its labor and purchases, to raise the price
of goods at will and act without regard to the common welfare.
Selfish use of arbitrary power is inevitable, unless there is legal
control in the interest of all. Hence new legislation is made
necessary by conditions utterly unlike anything known to the
former lawmakers and courts.

In the ancient world the destruction of superfluous and especially
of deformed infants was regarded as praiseworthy, as necessary to
the welfare of the community. But under Christianity infanticide
came to be regarded as wicked, and was made punishable by law.
Only a short time has passed since slavery was legal ; now the
attempt to restore it would bring punishment. More fundamental
than opinion was the economic fact that slavery was no longer
suited to the modern conditions of production.

Thus, multitudes of illustrations might be given to prove that
what in the conditions of Hfe is hurtful comes to be recognized as
morally wrong, and at last is authoritatively forbidden under legal
penalties. The legislatures and courts are the final organs for the
declaration of the moral judgment of the people ; but the moral
judgment itself is changed by the readjustments made necessary
by the shifting of conditions and relations.

5. Organization of Courts and Criminal Procedure. — A descrip-
tion of the social mechanism for dealing with crime must include
a sketch of the agency for interpreting and applying the criminal
law in concrete cases in federal and state and local courts.

The courts of the United States have jurisdiction in all cases
which arise under the constitution, general laws, and treaties, and
they take cognizance of violations of the laws of the Union, as
embezzlement of pension money, fraudulent voting for members
of Congress, illicit distilling of liquor, and neglect to pay internal
revenue taxes. State courts have jurisdiction within the bounda-



The Criminal before the Law. 271

ries of the states to which they belong. There is much variety in
the titles, arrangements, and functions of these courts, and we can-
not take up details in this place.

The legal investigation and decision must observe certain
technical forms which have been evolved through a long experi-
ence, and the purpose of these forms is to protect social welfare
and the rights and liberty of each citizen. The criminal himself
has rights which must be sacredly guarded, even while he is held
to account for his transgression. Every citizen has a right to be



Online LibraryCharles Richmond HendersonIntroduction to the study of the dependent, defective, and delinquent classes, and of their social treatment → online text (page 23 of 35)