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as compared to the inconvenience inflicted by a
great struggle between labor and capital affecting
our great lines of transportation, national or mu-
nicipal. What is infelicitously called " compulsory
arbitration," what should be more tersely called
law, is simply the application to controversies be-
tween classes of citizens of the same principle
which has long since been applied to the settlement
of controversies between individual citizens. It


is the sim23le affirmation that the community has
rights which both contestants may be compelled to
respect. Compulsory arbitration is simply the
application to the settlement of industrial con-
troversies of the same essential principle which is
throughout the civilized world, and by all civilized
states, employed for the settlement of other con-
troversies. It devolves upon those who do not be-
lieve that this principle can be so applied to show
why it is inapplicable.

They have attempted to do this. It is said in
the first place, in general terms, that there are se-
rious objections to any plan proposed for securing
peace in a community, the individual members of
which are covetous, selfish, passionate, ambitious.
That is true. All such plans are in the nature of
makeshifts. They are lesser evils endured to
escape greater evils. We pay annually enormous
sums in support of judicial and police systems,
which would be rendered quite unnecessary if all
men lived according to the Golden Rule. But
they do not ; and we endure the taxation rather
than suffer the injustice which anarchism would
permit. No one, probably, supposes that law is a
specific for labor troubles. There is no radical
cure for labor troubles but character transformed
and conduct controlled by Christian principles.
Meanwhile the application of law is a device to
protect the innocent from the injuries inflicted
upon them by those whose character and conduct
are not controlled by Christian principles, nor even


by those of Moses or Confucius, but by the deviFs
maxim, " Every man for himself."

It is asked, How can the decisions of a court of
justice be enforced upon the contestants in a labor
controversy ? Labor controversies which assume
j^roportions sufficient to justify public interference
are generally controversies between a corporation
and a labor organization. Enforcement of the
law against the corporation is a ver}^ simple mat-
ter. If a railroad corporation does not pay inter-
est on its bonds the government takes the railroad,
manages the road itself, and so pays the interest
on the bonds. It puts the railroad into the hands
of a receiver, and so cares for the interests of the
creditors. The right of the nation in the highway
is greater than the right of either stockholder or
bondholder. It would be a perfectly simple thing
for the law to provide that when the corporation
cannot run its trains, through a labor war, a re-
ceiver shall take the road and manage it.

" This is all very well," replies the objector, " as
a means of enforcing the decree of the court on
the corporation ; but how will you enforce it on
the laborer ? Will you require him to work for
less wages or during more hours than he approves ?
To do this is to establish slavery." No, no one pro-
poses to establish slavery, or to compel any man to
work under any other compulsion than such as is
involved in the law, " If a man will not work,
neither shall he eat." And no other compulsion
would be required. Whenever the law provides


no remedy for a wrong, the wronged take the law
into their own hands. The law makes no adequate
provision for punishing the seducer. The husband
or friend, therefore, shoots the seducer at sight ;
and juries habitually acquit in such cases, not be-,
cause the avenger is insane, but because the law
is inefficient. Now the American workingman is
without a remedy for wrongs which he thinks ex-
ist, and which an increasing number of disinter-
ested spectators also think exist. He strikes be-
cause the law furnishes him no other remedy for
real or fancied injustice. When, as in England,
by the consent of the employers, a remedy is pro-
vided, he ceases to strike. If, without the consent
of the employers, a remedy was provided by law,
he would cease to strike. And if he did not, the
decision of the Supreme Court of the United
States in the Debs case has made it clear that a
combination of employees for the purpose of block-
ing the highways of the nation is a criminal con-
spiracy ; and it would not be a difficult matter to
frame a law which should forbid men employed on
the great transportation lines to leave in a body
without adequate notice, provided the law also fur-
nished them some other remedy for wrong than
such combination.

Conciliation, the recognition by employer and
em23loyed that they are partners in a common en-
terprise ; arbitration, the adjustment of all ques-
tions of self-interest, that cannot be adjusted
through conciliation, by reference to a mutually


chosen tribunal ; and the intervention of law where
public rights are infringed upon by controversy
between laborer and capitalist, — this seems to me
to be the application of Christ's method for the
solution of the labor war, until we come to the full
recognition of the fact that workingman and capi-
talist are partners in a common enterprise, and the
very motive of war ceases to exist.



In establishing a new social order upon the
earth, — an order of righteousness, peace, and hap-
piness, — Jesus Christ and his disciples have to
meet and overcome, not only ignorance, prejudice,
and indifference, but open, deliberate, and purpose-
ful hostility. That measure of righteousness which
man has already recognized and organized in human
society we call law ; the violation of such law is
crime ; those enemies of the social order who not
merely obstruct the development of society toward
its ideal, but set themselves against righteousness
as already organized in institutions, we call crimi-
nals. There is in every community a considerable
class of such enemies of the social order. Some
are so simply through ignorance or bad education ;
some through inherited vices ; some through ad-
verse social influences. For the wronfy-doiup; of
some, society is responsible, even more than the in-
dividual wrong-doer. Some have drifted into habits
of crime gradually and unconsciously ; some have,
of set purpose, engaged in criminal life, — have
devoted themselves to crime as men devote them-
selves to law, medicine, or the ministry. The sta-


tistics of our criminal population must be taken
with a great deal of allowance. It is a migratory
population ; banished from one State or from one
city, the criminal flees to another. Thus the same
man is counted in the statistical reports of differ-
ent institutions and even of different States. But
it has been estimated that the criminal population
of the United States, including in that term not
only the criminals themselves, but those who are
dependent upon them, numbers about 700,000 ;
in other words, that about one in every seventy of
the population is more or less aggressively and
deliberately an enemy of the social order. This
criminal class is increasing more rapidly than
population. Says Havelock Ellis : ^ —

" The level of criminality, it is well known, is rising,
and has been rising during the whole of the present
century, throughout the civilized world. In France, in
Germany, in Italy, in Belgium, in Spain, in the United
States, the tide of criminality is becoming higher
steadily and rapidly. In France it has risen several
hundred per cent. ; so, also, for several kinds of serious
crime, in many parts of Germany ; in Spain the num-
ber of persons sent to perpetual imprisonment nearly
doubled between 1870 and 1883 ; in the United States,
the criminal population has increased since the war,
relatively to the population, by one third. . . . Insular
Great Britain alone appears to be relatively unsub-
merged by the rising tide of criminality ; but even here

1 H. Ellis, The Criminal, p. 295.

criminals: enemies of social order. 299

there is a real increase, in proportion to the population,
in the more serious kinds of crime." ^

How ought we to treat these enemies of the
social order?

How do we treat them ? Chiefly in two ways :
we endeavor to get rid of them, or we endeavor to
inflict vindictive justice upon them. Our punitive
system alternates between these two methods, and
combines both in differing proportions.

Sometimes we try to get rid of them, — banish
them from our sight and from our memory. The
easiest and simplest way of getting rid of them is
to kill them. In England, in A. D. 1600, two hun-
dred and sixty-three crimes were punished with
death. At the close of the last century over two

1 " That crime is on the increase, out of proportion to popula-
tion, is indicated in many ways, but for the country as a whole
the United States census is the most reliable guide. Let us look
at it by decades : —


Rates of Population.







1 out of 3,442
I " " 1,647
1 " " 1,171
1 " " 855
1 " " 757

The rate of increase in a few States, we are glad to note, has
not been maintained, and, in one or two, for the higher crimes,
it has even decreased a trifle ; but, upon the whole, the swell has
been continuous, like a tide that has no ebb." General Brinker-
hoff, Address before National Prison Association, 1894, p. 13.
Compare " The Increase of Crime and Positivist Criminology,"
The Forum, vol. x^ai. 1894, p. 666.


hundred were so punished. It is said that in
Henry the Eighth's reign seventy-two thousand
criminals were hanged ; ^ and, although the figures
are doubtless inexact, it is certain that they truly
represent the method of dealing with criminals in
that ao'e. Women and children were executed as
readily as men. It is not more than half a cen-
tury since a child of nine was condemned to death
in England for stealing paint of the value of two
pence half-penny,^ although he was not executed.
Human sensibility has been cultivated, and the
estimate of the value of human life increased,
within the last century, and we are no longer able
to adopt the short and easy method of extirpating-
crime by extirpating the criminal. But the spirit
remains. In France the criminal is sentenced to
the chain gang, in Russia he is exiled to Siberia.
The inhumanity of the one, Victor Hugo has
graphically illustrated in " Les Miserables ; " the
inhumanity of the other, recent revelations of
George Kennan have brought to the consciousness
of all Christendom. Within a very few years it
has been seriously proposed to establish a penal
colony in Alaska to which criminals might be
sentenced. It may perhaps be here assumed that
neither chain gang nor penal colony will ever find

1 Carroll D. Wright, in Annual Am. Acad. Pol. Sci., vol. iii.
p. 767 (May, 1893). See J. Birchall, England under the Tudor s,
p. 348 ; Pictorial History of England, vol. ii. p. 907. Froude, His-
tory of England, iii. 373, 374, note 2, discredits the statement.

2 See Henry Lea, History of the Inquisition, i. p. 235.


a place in American criminal jurisprudence, but to
banish and forget the criminal is still our practical
method, i£ not our deliberate aim. For a petty
offense, we send the offender to a county jail ; for
a graver offense, to a State's prison. In either
case our real object is to get rid of the offender as
an inconvenient and disagreeable member of so-
ciety, and go on with our business of money-mak-
ing. In the State's prison little or nothing is done
for his reformation. We congratulate ourselves if,
out of his industry, we can make money enough to
provide for his self-support. In the county jail
much is done for his deterioration. The convict
comes out of the prison no better than he went in ;
he comes out of the jail a great deal worse. The
former is not a school of virtue, the latter is a
school of crime.

" To establish a school of crime," says General Brink-
erhoff,^ " requires (1) teachers skilled in the theory
and practice of crime ; (2) pupils with inclination, op-
portunity, and leisure to learn ; (3) a place of meet-
ing together. All these requirements are provided and
paid for by the public in the erection, organization,
and equipment of county jails and city prisons. With
less than half a dozen exceptions, all the jails and city
prisons in the United States are schools of this kind,
and it is difficult to conceive how a more efficient sys-
tem for the education of criminals could be devised.
. . . Every observant jailor knows with what devilish

^ In an article in The Congregationalist, winter of 1884. My
notes do not give me the exact date,


skill the professors of this school ply their vocation.
Hour after hour they beguile the weariness of enforced
confinement with marvelous tales of successful crime,
and the methods by whicli escape has been accom-
plished. If attention fails, games of chance, inter-
spersed with obscene jokes and ribald songs, serve to
amuse and while away the time. In this way the usual
atmosphere of a jail is made so foul that the stamina
of a saint are scarce strong enough to resist. Let a
prisoner attempt to be decent, and to resist the contami-
nating influences brought to bear upon him, especially
in a large jail, and he will fhid that, so far as personal
comfort is concerned, he might as well be in a den of
wild beasts."

This description, written some twelve years ago,
is substantially as true to-day as then. Gen-
eral Brinkerlioff himself has demonstrated that
cleanly and well-ordered jails are not only practi-
cable, but may be economical ; and, thanks to his
efforts, the exceptions are perhaps more numerous
than when he wrote : but it is still true that the
county jail " is everywhere known as the training-
school for crime, the principal recruiting station
for the penitentiary ; " jails are still " schools of
crime, disseminators of evil." The comparatively
innocent boy, carried into some violation of law
by the recklessness, the ignorance, or the incon-
siderateness of youth, or by the influence of evil
companions, comes out of jail educated in the
ways of crime, and instigated to walk therein
by the associates which the county has furnished


him ; all that sense of shame with which he en-
tered is obliterated ; an ineffaceable stigma fas-
tened upon him shuts him off from all reform-
atory influences ; and not improbably he has
formed a deliberate purpose to pursue in the future
the criminal career which, before his imprison-
ment, was far from his thought, if not abhorrent
to his sensibilities.^ Such is the effect of the
policy of banishing the criminal from sight and
mind. It converts criminal impulse into criminal
purpose, and increases the class which it should
be an object to diminish.

The second method of dealing with criminals
is that of vindictive justice. The man who has
done wrong — such is the argument — ought to
suffer for his wrong-doing. This suffering it is
the duty of society to inflict. By inflicting this
suffering we satisfy the retributive sense of jus-
tice in the community ; we deter both the crimi-
nal and others of his class from like crimes in
the future ; and thus we protect society from the
aggression of its enemies. This theory of the
treatment of criminals proposes, as the motive-
power for action, the wrath of society against
crime ; as the end of its action, the protection of
society ; as the means to be employed, the deter-

1 See the paper on " County Jails as Reformatory Institutions,"
by Edward B. Merrill, in the Forty-Ninth Annual Report of the
Prisoners' Association of New York for the year 1893, and the
address by ex-President Rutherford B. Hayes in the Proceed-
ings of the Annual Congress of the National Prison Association
of the United States, held at Boston, July, 1888.


rent power of fear. '' I think it highly desir-
able," says Sir James Stephen, " that criminals
should be hated ; that the punishment inflicted
upon them should be so contrived as to give
expression to that hatred, and to justify it, so far
as the public provision of means for expressing
and gratifying a natural healthy sentiment can
justify and encourage it." ^ This was the spirit
and this the method of society during the Middle
Ages. It is often, but erroneously, supposed that
religious persecution was peculiarly cruel. The
cruelty belonged, not to the Church, but to the
age ; it belonged to this theory of retributive jus-
tice, seeking the protection of society by the deter-
rent power of fear. Heresy was considered as the
greatest of crimes, because a crime against God ;
but it was punished in no different spirit, for no
different end, and by no different method, than
characterized the punishment of civil offenses.
Says Mr. Henry Lea : ^ " The wheel, the caldron
of boiling oil, burning alive, burying alive, flaying
alive, tearing aj^art with wild horses, were the
ordinary expedients by which the criminal jurist
sought to deter crime by frightful examples which
would make a profound impression on a not
over-sensitive population. An Anglo-Saxon law
punishes a female slave convicted of theft by mak-
ing eighty other female slaves each bring three

^ Sir James Stephen, History of Criminal Law, vol. ii. eh. xvii.
p. 82.

2 Henry Lea, History of the ly^quisition, i. p. 284 f.


pieces of wood and burn her to death, while
each contributes a fine besides. The Carolina,
or criminal code of Charles V., issued in 1530,
is a hideous catalogue of blinding, mutilation,
tearing with hot pincers, burning alive, and break-
ing on the wheel. In England, prisoners were
boiled to death even as lately as 1542, as in the
cases of Rouse and Margaret Davie."

I believe this vindictive system is entirely, radi-
cally, and irretrievably wrong, — wrong in its
spirit, wrong in its purpose, wrong in its methods.
It cannot be reformed ; it must be destroyed, root
and branch, and a new and redemptive system
substituted in its place, different in its spirit, dif-
erent in its purpose, different in its methods.
The very phrase " administration of justice " is
a mis-phrase. It is not the function of society
to administer justice ; it has neither the authority
nor the capacity so to do. Jesus Christ is per-
fectly explicit in condemning the system of retri-
butive justice, its spirit, its method, its means.

The criminal is the enemy of society. He is
the enemy of the homes which constitute the foun-
dation of society ; the enemy of the rights of pro-
perty and of person, without which the social
organism cannot be maintained ; the enemy of
the individuals who compose the social organism,
and whose prosperity and life constitute the pros-
perity and life of the organism. How we are to
feel toward our enemies, and how we are to treat
them, Christ has told us in explicit language.


" Ye have heard that it hath been said, Thou
shalt love thy neighbor, and hate thine enemy.
But I say unto you. Love your enemies, bless
them that curse you, do good to them that hate
you, and pray for them which despitefully use you
and persecute you." ^ If I may not hate the man
who robs me, neither may society hate the men
who rob society. If one man may not do evil to
one man who has done evil to him, a hundred
thousand men, constituting a community, may not
do evil to a hundred men who have done evil to
that community. The spirit which is wrong in
a single soul is not made right by being diffused
through a hundred thousand souls. Hate thine
enemy, says Sir James Stephen ; love thine en-
emy, says Christ. Administer justice, says society.
" Do not administer justice," says Paul.^ Over-
come evil by the deterrent power of fear, says the
law ; overcome evil by good, by the inspiration of
love and hope, says the New Testament. It is im-
possible to harmonize the two systems ; if one is
right, the other is radically wrong. The redemp-
tive system may mitigate the evils of the vindic-
tive system, but cannot be combined with it. We
must choose between vindictive justice and redemp-
tive love. It is true that there is an instinct of

1 Matt. V. 43, 44.

2 Compare Romans xii. 17-21 : " Do not give back evil for evil.
. . . Beloved, do not yourselves administer justice ; it is written,
I will administer justice, saith Jehovah." See the original Greek,
which I literally follow in this translation.


retributive justice. We rightly feel that wrong
action deserves penalty. If there were no such
feeling, there could be no reformatory discipline.
The father could not punish his child; society
could not punish the criminal. But punishment
is not to be the mere expression of that feeling,
nor to be administered for the purpose of satisfy-
ing it. Instincts are never ends. The appetite
is essential to life, but we are not to eat merely to
gratify our appetite. We are rational beings, and
are to understand the object of the apj^etite, and
are to guide and control it to the fulfillment of its
divine end. The difference between a beast and
a man is that one eats simply to gratify his appe-
tite, the other controls his appetite to minister to
his life ; that the one inflicts injury simply to
gratify his instinct for revenge, the other guides
and controls that instinct to the accomplishment
of a nobler purpose. That purpose is the reforma-
tion of the wrong-doer, not the infliction of retri-
butive justice upon him.

The authority to inflict such justice is not con-
ferred upon us, — is, indeed, emphatically denied
to us by Christ himself. "Judge not," he says.
Judgment belongs only to Him who sees the mo-
tives, and therefore knows how to make adjust-
ment of reward and penalty to virtue and to sin.
To assume the seat of judgment is to assume a
function which belongs only to the All-seeing One.
Christ's prohibition is enforced by our own limita-
tions. We have not the capacity to exercise this


function. " Prisoner at the bar, stand up and re-
ceive the sentence which the law pronounces against
you." What judge will claim the knowledge ade-
quate to enable him to make this sentence just?
Do you know, Mr. Justice, what character this
man inherited from his ancestors ? — what were
the elements of his education ? what was the
moral atmosphere of his early life ? what were
the temptations which environed him ? what
mixed motives of good and evil led him to the
deed ? Do you really know which of you two is
in inmost character the better man ? No ! every
judge confesses his inability. The greater his ex-
perience, the profounder his consciousness of that
inability. " When Pantagruel arrived at Myre-
lingues, he found that Judge Brydoyo, after care-
fully considering all the facts of the case, was
accustomed to decide it by means of dice, and Pan-
tagruel fully admitted the impartiality of this
method. If our judges, before pronouncing sen-
tence, were first to determine the years to be
awarded by the solemn casting of dice, the result
might be as good as those reached by the not very
dissimilar system now adopted." ^ Who was the
greater criminal, — the child of nine years old sen-
tenced to death for stealing twopence half-penny
worth of paint, or the judge who sentenced him ?
Probably greater criminal than either was the so-
ciety which made such a sentence of such a child
for such an offense possible. I have heard the

J H. Ellis. The Criminal p. 256.

criminals: enemies of social order. 309

story told in one of the Prison Reform Congresses
of two men cauglit in a burglary. One, a young
man, beguiled into the crime by his older asso-
ciates, thoroughly ashamed of himself, eager to
receive his sentence and pay his penalty and be-
gin his life anew, came before a severe judge,
pleaded guilty, and was sentenced to twenty years.
The old offender, too wise to be so caught, secured

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Online LibraryLyman AbbottChristianaity and social problems → online text (page 20 of 25)