Ploughshare and Pruning-hook/Lecture 2
CRIME AND PUNISHMENT
(1918)
THE two words Crime and Punishment have come to us in a conjunction which it is very difficult to separate. Our fathers have told us, and our teachers and theologians have strenuously insisted that the one necessarily entails the other.
The whole of our social order is based upon the idea that if a man commits crime—an offence, that is to say, against the written law of the community—he must be punished for it. If he were not, social order would go to pieces.
But our social order does not lay equal stress upon the idea that if a man lives virtuously he must be rewarded. If a man lives virtuously his reward is in Heaven—that is to say, he takes his chance. His virtue may assist or may hinder his worldly advancement; but we have not yet committed ourselves to the conviction that social order will necessarily go to pieces if virtue is not rewarded. It will only go to pieces if crime is not punished. Society can reconcile itself to the one omission; but it cannot reconcile itself to the other.
This inequality of interest in retribution and reward is based perhaps upon the calculation that while you look after the crimes, the virtues will look after themselves; and that the virtues will not—for lack of Birthday Honours—rebel against the society in which they find themselves.
And really, there is something in it. Virtue is already self-governing; vice is not. The virtuous and humane part of a man—his will to unite and co-operate with others for social development and service—inclines him to accept and make the best of the conditions of life, to take the rough with the smooth, the hindrances with the aids, the good with the evil: not, indeed, passively, or without some effort to get rid of bad smells, bad tastes, bad laws, bad governments—but with a definite consciousness that in operating against these he is operating not for his own single benefit, but for the benefit of the community. And that being so, he can be left, unrecompensed and unrewarded, to face a very considerable amount of discomfort, adversity, and even injustice, without becoming either a rebel or a criminal. Although if governed unintelligently enough, or wickedly enough, he may be turned into both.
But with the criminal it is not so. His social sense is more rudimentary; and when he finds himself up against adverse and perhaps unjust conditions, he seeks a solution satisfactory to himself alone. And I suppose the main idea of the use of punishment (apart from the vengeful pleasure it gives to those who inflict it) is that it takes the satisfaction out of him again, making him feel that, in a highly organised community, the individual solution has uncomfortable results. And Society's calculation, in thus punishing him, is (or has been hitherto) that it is a less troublesome and expensive way of making him cease to be a nuisance, than educating him, or employing him, or reforming the social conditions which have produced him.
So long as we believe that Society is right in that calculation, so long, I suppose, shall we continue to advocate punishment; but when we come to believe that Society is wrong, we shall begin to advocate education, employment, social reform, and, above all, human sympathy and understanding as a substitute; with the idea that they may gradually do away with the necessity for punishment.
But pending that consummation so devoutly to be wished, most of us will probably continue to believe that punishment is just and right; and will find it very difficult to think of Society, and of ourselves—as all equally criminal along with the individual whom our social contempt and neglect have de-socialised and made a fit recipient for punitive treatment.
The temptation to think that punishment is just and right has been with us from time immemorial; it is probably arboreal, certainly neolithic; and therefore, to our atavistic instincts, it is supremely sacred. We have got it firmly into our heads that punishment is a superior ordering of consequences. And as the law of cause and effect which we see operating in nature is the basis of our moral sense, we have fallen to the confused notion that punishment is the same. But as a matter of fact the two are entirely different. The law of cause and effect stands for natural consequences; the law of punishment substitutes artificial consequences; and we fly to punishment largely as an escape from the results of our age-long indifference to natural consequences. Having produced the criminal we set to work to destroy his self-respect, as a short cut to the preservation of our own.
That may sound a puzzling statement; but the more we accentuate the difference between the criminal and ourselves—the more, superficially, are we able to get rid of our sense of brotherhood and responsibility. And so, when bishops go on to the platform to advocate the flogging of men who live on the earnings of prostitutes, it helps them to forget that they also are living on the earnings of prostitutes, and are by their support of a capitalist system involving sweated labour and degraded housing conditions—neatly and efficaciously driving the prostitute into the hands of the male "bully"—whom they then flog for extracting his profit from a damaged article which, in the public market of supply and demand, they have already wrung dry. The very monstrousness of the proposed penalty helps us to forget that we are all links in the same chain of circumstances. In the "bully" the degrading brutality of the system finally emerges and becomes patent; just as in war the degrading brutality of our peace system finally emerges. Then we point to it with horror and cry that we are peace-lovers! So we are; we have loved peace at a price which we would not exceed—we ran it on sweated conditions; and we pay for it in war. For there exist, in every nation, sources of wealth, sufficient—if equitably distributed and constructively applied for the good of all—to allay that economic unrest which is the main incentive by which modern nations are led into war. But in every country alike there are interests which refuse to pay that price, and which will, if threatened, precipitate their country into war rather than be held at a ransom which would merely readjust wealth more equitably to the true sources of its production.
War has come to us—not as a punishment divinely imposed—(a splendid old lady of ninety told me the other day that the war was God's visitation upon us for our divorces and for having given votes to women)—war has come upon us, not as a punishment for these offences against Taboo, but as a natural consequence of our social peace conditions. And at present, in the mentality of nations, punishment (not of the system, but of the criminal act which has finally emerged from it to horrify us) is the only remedy.
And so punishment still appears to us as the very bed of justice—the foundation stone of morality. If you do not insist on it, social order will go to pieces. And as we have attempted scarcely any criminal reform without punishment—and none till the day before yesterday—the contention is accepted as true for lack of witnesses against it.
The standpoint toward human nature of our generally accepted "moral code" is that of a devout believer in corporal punishment—of that kind of parent who says: "I have to flog my boy because he is so untruthful." And the idea that the untruthfulness is the product of the corporal punishment never enters the parental mind.
But this vengeful exercise of parental authority is only a secondary symptom of belief in a vengeful order of Creation—of a God whose method it was to vindicate the moral law, not by bringing home to ill-doers through natural consequences the defects of certain courses of conduct, but by expressing His moral indignation in exemplary punishments of an arbitrary kind—generally of a miraculous character.
When man first conceived of God, he conceived of Him as a sort of Dr. Busby—one in whose mind the Rod was the beginning and end of wisdom; and the Rod of Heaven operated by intervention, over and above the operations of Nature—the law of cause and effect. Natural consequences did not sufficiently vindicate divine justice. A belief in miraculous and vengeful intervention and a belief in "exemplary" legal punishment go together; and will, I believe, die together.
A great deal of Old Testament teaching is merely an elaborate extension of Punch's picture of the British workman holding a brick's end over an unfortunate batrachian, and saying, "I'll l'arn ye to be a toad!" And all he succeeds in doing is producing a dead toad instead of a live one; the species itself remaining entirely unaltered.
That is a parable of the doings of our theologians, since theology was invented for the Fall of Man. And if humans came to the conclusion that that was the mind of God, it is no wonder that they imitated Him, and do so to this day.
We must believe in punishment as the proper reward of crime—we must even believe in unreformative punishment as the proper reward of crime, if we believe in a Hell to which lost souls are relegated against their will, and there kept with no hope whatever of cure or betterment from the process. And that is what the whole of Christendom believed about Hell when Christians really did believe in it.
Unreformative punishment upon earth was a necessary consequence of that belief; and, therefore, belief in punishment for the sake of punishment became universal.
And over against it—quite unregarded—stood the new gospel of humanity—"Love your enemies, bless them that curse you, do good to them that hate you, pray for them which despitefully use you and persecute you." And then the reason, the key to it all:—"That ye may be children of your Father which is in Heaven, for He maketh His sun to rise on the evil and on the good, and sendeth rain on the just and on the unjust. Be ye, therefore, perfect, even as your Father which is in Heaven is perfect."
The Sermon on the Mount, which threw over the doctrine of punishment on earth, threw over with equal emphasis the doctrine of punishment in Heaven—of any arbitrary or miraculous intervention for the betterment (to moral ends) of the law of natural consequences.
"Be ye the children of Creation!" is the real human solution—not by harking back (as opponents would pretend) to the savagery of a lower species, but by accepting the spiritualising impulse of evolutionary forces—which have brought us to this great development from the mentality of the lower animal world—the knowledge that we are all part of one whole.
And it is on that recognition of an underlying unity (from which we are inseparable) that the great natural revolution of our ideas about crime and punishment must be brought about. If we cling to the violent and the arbitrary, and the separative solution (of which miraculous retribution is the corollary) we are in the Dark Ages still.
It must have been the experience of many whose work has taken them not only into slums but into prisons and police-courts, that the oppressive sense of Evil triumphant, strong and proud of itself, has weighed more heavily upon them in the prison and in the police-court than in the slum; for the slum only represents the neglect of Society, but the administration of our penal code represents its stereotyped preoccupation (with sympathy and understanding almost entirely eliminated) on a problem which nothing but sympathy and understanding will ever solve. There Society is in its trenches fighting against the human nature which it first violates and then fears.
We, law-makers and law-abiders, are in league with—and are dependent for our material prosperity and protection upon—a system which is very nearly as bad as the crimes we denounce. And until we have made our system very much more beautiful, very much better, and more convincing to the criminal and the revolutionarist—it is only by fear and a punitive code that we can keep it going.
It is not possible to maintain such adjuncts to our social system as profiteering, exploitation, class privilege, wage-slavery, race-subjection, international jealousy, without a penal code and its logical outcome, war. If we want to get rid of the one we must have a whole mind to get rid of the others too. Do not let us pretend to separate them, for we cannot. Not only does the attempt produce weak practical results—it produces also a false mind.
The attempt to separate one thing from another, one human being from another, is at the root of our belief in punishment. Punishment helps to separate, helps to make us feel separate; it does not unite. An English judge declared quite recently that the main object of punishment was not to reform the criminal but to protect society. And so long as that is true, the criminal is just as conscious as we are that the discipline laid on him is the expression of a divided standard of morality, knowing perfectly well that we in like circumstances should not think such punishment good for ourselves or our children.
For is it not true that wherever a local or group interest comes to be established, there the members of that group cease to believe that punishment from any outside power or authority is good for them?
Take the family—those of you who believe in punishment—those who profess to be law-abiding; one of its members commits a theft. Is he handed over to the police to be dealt with according to law? Not at all. On the contrary, everything is done to enable him to escape the punishment. We don't believe in legal punishment when it comes to our own circle. And we only believe in legal punishment for others, because, loving and understanding them less, we are unwilling to take as much trouble about them.
And that same vicious principle of belief in punishment only for others mounts up and up through every communal interest that has established itself in our midst on a unity of feeling closer than that which obtains generally. Every class-interest, every trade-interest, every party-interest that stands combined for its own benefit does all it can to evade the punishment of its members by the larger and more impersonal authority of the State. Scandals are hushed up in the police; scandals are hushed up in the Army; scandals are hushed up in the Cabinet; everything possible is done to prevent our penal code from acting equally on the vested interests in which we specially are concerned.
And yet we say that we believe in punishment!
But if we do honestly believe in punishment, ought we not then to insist not merely that the administration of our law-courts should be impartial and judicial, but that the source and promotion of our State-prosecutions should be impartial also? Probably most unreflecting people think that they are. But again and again the Government, when it chooses or refuses to put the law into motion and prosecute, though nominally the accuser, is really the accused, using its powers for the saving of its own skin, to keep the case out of court—sometimes even in spite of the protests of the magistracy itself. Again and again the judicial scales have been fraudulently weighted —not in court but out of it by the interests of party government.
Let us take a rather notorious instance where this was done.
Within quite recent times, two men have conspired—the one to raise an army of rebellion if Home Rule were imposed on Ulster; the other to raise an army of rebellion if conscription were imposed on Ireland. The crime in each case was precisely the same; but the punishment was different. The one—the more recent—was sent to prison for it without trial. The other, equally without trial, was elevated to Cabinet rank.
Now, each of these men, in conspiring to break the law, did probably what he conscientiously thought to be right under the circumstances. That we can believe. But it is very difficult to believe that the Government (when, with the connivance of Parliament, it punished the same offence so differently) thought that it was doing right—the equal and the just thing in each case. It was only doing the convenient thing to cover its own blunders. And the question is, therefore, whether—morally—the Government was not the real criminal.
But if we ask whether it is going to be punished for it, the answer is—probably not.
It is not my point to urge that the Government should be punished, but only to show how—as administered to-day—punishment is an arbitrary and artificial device, partially applied or not, according to the prosecutor's political convenience.
The consequence—the logical consequence of this corrupt inequality of State-prosecution, is that a Government which does such things is misliked and distrusted by men of honest character—and so weakens its hold on the more judicious minds of the community—and eventually, one may hope, its power over the country's policy.
One might point further to another instance. The Society of Friends, by its official committee, recently published, without submitting it to the Censor, a pamphlet called A Challenge to Militarism. For that corporate act of a committee of twenty—all equally guilty—the Government (to avoid too great a scandal) selected two members for prosecution, and got them sent to prison for six and for three months.
About a fortnight later another challenge to militarism, a pamphlet entitled A League of Nations, was published, without being submitted to the Censor, by Lord Grey of Falloden; and he has not been sent to prison for it.
Now if we believed in punishment, we should want the Government punished for these acts of corrupt favouritism in State-prosecution. But if we believe in natural consequences—those which I have already indicated—we shall confidently anticipate that in the end (the real end) divine justice will be done; and that these ephemeral misdoings will eventually help the spirit of man to a better and larger understanding of the follies which are committed when men substitute the Will to Power for the Will to Love.
And if we can—as we are going to—if we can leave injustice when done in conspicuous high places to the natural and logical consequences, without applying the penal code, why cannot we trust natural consequences a very great deal more, where smaller and more humble misdemeanours are concerned, and give to those natural consequences a greater unity of effect by irradiating them with the true spirit of man—love, joy, gentleness, peace, against which there is no law?
One of the reasons why we dare not be humane and curative instead of punitive to our criminals lies in the fact that the standard of life in which we have allowed honest and hard-working millions to subsist outside our prisons, has been so inhuman and degraded that if we made our prisons really humane, really curative, they would be a reward instead of a punishment.
We dare not offer so beautiful a temptation.
And so it is separation again—the separation of class from class, of rich from poor, which makes impossible the standardising of our prisons from living tombs into genuine reformatories and sanatoria. If we had not separated ourselves in our national life from a sense of responsibility for the poverty and misery around us, we should not be driven into so separate a treatment of our criminals. We cannot afford to humanise our prisons, while we will not afford to humanise our slums. Again and again, when you appeal for real prison reform, the obstructive argument arises: "Why should we take so much trouble for the criminal, when hundreds of thousands of the honest struggling poor are so much worse off?"
But we have to take trouble anyhow; and the more unintelligently we take trouble the greater is likely to be the cost of our criminals per head to the State. In New York State, America, where Mr. Mott Osborne has been trying to establish the principle of self-government among the prisoners of Sing-Sing, there was actually a danger that (under an extension of the system) the prisons might become self-supporting. And at once trade interests did everything they could to get it condemned; the contractors were afraid of losing their State contracts.
That is just one little glimpse of what we are up against where vested interests are concerned—interests so strongly represented in the legislatures even of "free nations." But we are up against something much bigger than that. We are up against a moral reluctance of the whole community to pronounce the word "Brother." For if the State is going to show a really understanding mind toward the criminal, it has got to show it just as much to the whole social problem of poverty and disease. And that is going to cost the State more money than it is prepared to spend on anything—except on War.
Crime is sometimes a very shameful thing But is not the record of the way powerful States have dealt with crime in the past more uniformly shameful even than crime itself? Has not that record stood out as a ghastly blind spot in the conscience of Christian Society?
People of conservative mind are so extraordinarily ready to make excuses for organised Society which they will not make for the individual. "That was a cruel age," they will say, when you recall the judicial horrors perpetrated against human nature three hundred, two hundred, one hundred years ago; it was tradition, it was custom. But there were nations, professing Christianity—a doctrine having exactly the same basis then as now—the same creed, the same gospel, the same divine life of compassion and mercy exemplary of what Heaven required in the conduct of man to man; and there were rulers and administrators with minds and power of reason just as capable as our own—giants of intellect some of them—who, with all their profession of Christianity—interpreting it to the supposed needs of the State—have left to us this ghastly record of a penal code worse than the crimes it was set to remedy That penal code—the obsequious servant of State-authority—stood hundreds of years behind the average individual conscience of the community. And yet in moral authority we exalt it above the individual! In age after age the conscience, the living conscience of this country went to prison and to execution to bring it just a little more up-to-date. Revolting juries refused to convict because of its savageries; and still it moved slowly and reluctantly, cruel in its fear of the human nature it did not understand.
Less than a century and a half ago a girl of fourteen was sentenced in this country to be burned alive for counterfeit coining; only eighty-five years ago a boy of nine was sentenced to death for breaking a pane of glass and stealing two pence. The sentences were not carried out, but they were pronounced. I suppose it was still considered "exemplary" to remind the criminal classes of what powers the law had over them.
Now let us imagine that some individual caught a boy indulging in petty theft; and to punish him—in hot blood perhaps—took him and hung him up by the neck till he was dead. Should we not be inclined to say that so rabid a wild beast must be exterminated from the face of the earth, lest he should have descendants like himself?
Yet that is what our own Courts of Justice—the authorised instrument of the people of England—were doing in cold blood to young boys in the time of Charles Lamb. They had not the excuse of national danger, or war; yet we don't think that our ancestors ought to have been abolished off the face of the earth for doing it, or for allowing it. We manage to forgive them, because after all they were—our ancestors. When it comes to a State-act, the individual shares the responsibility with so many that he is able to shift it from his conscience.
But in that process what had the State done to itself? In so dealing with the criminal—it had become a criminal, making of itself a moral monstrosity—all the more foul because in the perpetration of such acts it declared that it was doing no wrong!
How, one may ask, was it possible for such penalties as these, and others even more savage than these, to become embedded in the penal code of a civilised and a Christian State?
Mainly for two reasons I believe: first the fact (referred to before) that the doctrine of unreformative punishment, as expressive of the Justice of God, was part of its religion; and secondly, that the State based itself then, as now, on the Will to Power, and not on the Will to Love. And seeking its safety in terms of power it perpetrated these atrocities. From those two premises the results were only natural.
Are we going to salve our consciences to-day by mere degrees of comparison, by saying: "We are not so bad as that now"? Perhaps we are not so bad; but the basis on which we continue to act has not altered. The Will to Power (for which the State still stands) must always lag behind the Will to Love in its understanding of human nature. And while it lags behind the penal code of the State will always be a drag upon the social conscience.
Now so far we have been considering this doctrine of punishment in relation to the criminal section of society—force and punitive treatment being necessary, we say, for the discipline and control of the waste products of our civilisation. But in the whole body politic what does it all come to? What type of mind is finally evolved by the State which so deals with its human material? What is the final moral aspect of the State itself?
Examine that question from the international point of view. Why is every State armed? Because every State, when all is said and done, is a potential criminal whom other States cannot trust. And though these States look down upon their criminals, they are proud of themselves.
We are grouped to-day, many States together, in armed alliance for what (when we took up arms) we believed to be a great and a just cause; and while we are so grouped we speak well of our Allies. But the groupings of to-day are not the groupings of yesterday; and the international spectacle which we have presented age after age has been simply this: that no nation could trust any other nation to behave morally, justly, humanely, and for the good of the whole, where single self-interest was concerned.
So like to its own criminals did each nation remain, that all the others had ever to keep their instruments of punishment ready to hand in case of need.
Is not that an extraordinary commentary on the law of punishment; that not merely does it fail to do away with the criminal within its own jurisdiction, but reproduces his likeness in all the high places of the world—giving him his justification by showing him that, where community of interest ends, States are no other and no better than he?
We all agree that war is a very horrible thing. But at one point it has a moral value which is not shared so obviously by other penal codes; a value which people are coming more and more to recognise to-day, and which will—more than anything else perhaps—help to put an end to war.
For when you seek to punish wrong by going to war, then you yourself have to share the punishment. Innocent and guilty alike must agonise and suffer and die. To inflict that punishment you must choose out your bravest and your best, and send them to share equally with those you would punish the sentence of suffering and death.
All punishment, inflicted by penal codes, really comes back to the community; but only in war do we see it shared: actively and voluntarily by some, passively and unavoidably by others. And perhaps it is that more than anything else which will eventually persuade civilised man that war is intolerable—that he cannot punish without sharing the punishment. It may sound fantastic to suggest that a like condition should be definitely attached to our civil and penal system, in order to bring home to us that all punishment is shared, that what we manufacture in our prisons becomes a staple commodity.
But I can think of no device that would so quickly and effectively get rid of that separation of interest which punishment seems to establish. Imagine that for every prisoner sentenced, a lot fell on someone else, calling upon him or her to go and share in that demonstration of society's failure to produce only good citizens. Imagine the Prime Minister, about to make an important statement in the House of Commons, called suddenly by lot to share the incarceration of a defender of the liberty of the press or of a robber of hen-roosts! Should we have to wait a month—a week—to have our prisons transformed into places where human nature was no longer thrown to waste, with its energies cut off from sane employment and development? Would it not bring home to us—as perhaps nothing else would—the mill-stone weight on the life of the nation of all punishment that is not purely reformative and curative? Would it not very soon put an end to punishment in the old sense altogether?
You may look upon this suggestion as a fantastic parable; but spiritually it is what we shall have to do.
"There is only one sin," said the unknown writer of one of the most beautiful and famous books of devotion produced during the middle-ages—the Theologia Germanica. "The only sin is separation."
We shall never get rid of the criminal till we cease to separate ourselves from him, till we make his interest our interest, till we share, willingly and consciously, the responsibility of the society which has produced him.