nature, and so it was religious freedom that attracted the rebels to the New World. But opinions of a purely moral nature may be just as gratuitous and just as tyrannical, and the battle against them, by the same token, may be just as worthy the enterprise and sacrifice of a civilized white man.
It is moral tyranny that now afflicts These States, and the worst of the matter is that thousands of Americans seem disposed to submit to it without protest. If theological tyranny were revived tomorrow, they would loose a bellow loud enough to shake the earth, but in the face of moral tyranny they remain silent and sit still. Thus it is that militant moralists, moved by that will to power which is universal in man, have proceeded from excess to excess, until now an almost endless roll of wholly harmless acts is under the ban of the law.
It is unlawful in Baltimore for a citizen to hear Beethoven’s Fifth Symphony on the Sabbath. It is unlawful for him to buy a cigar. It is unlawful for him to have his hair cut. It is unlawful for him, on a summer Sunday, to recreate himself by playing baseball. In various large areas of his city he is forbidden to buy a bottle of wine, even on a week-day. Many plays that he may want to see, indubitable works of art, are barred from the theatres he patronizes. He is forbidden to possess certain great and valuable books, or to send them to his friends by mail. The law decides what games of chance he shall play and what games of chance he shall not play, and the division is purely arbitrary and nonsensical.
What is more, this invasion of his common rights is still going on. Here in Baltimore there are half a dozen organizations devoted exclusively to the concoction and prohibition of new and wholly artificial crimes. And in Washington the Congress of the United States is preparing to pass a law making it a crime for a man to have a bottle of beer in his possession—not to sell it or give it away, remember, but merely to have it.
What is the theory at the bottom of all this oppressive and intolerable legislation? Simply the theory that no man shall do, even in his own house, anything which the majority of his fellow-citizens do not care to do in their houses. His act need not be vicious in itself; it need not be dangerous; it need not be disturbing nor even physically visible to his neighbors. All it need be is abhorrent to the opinion of those neighbors, or, to be more exact, to the opinion of 51 per cent. of them. This is the theory at the bottom of moral snouting and moral legislation, and this was also the theory at the bottom of the hanging of Jews and Quakers, the Massacre of St. Bartholomew and the Inquisition in Spain.
No sane man, I take it, objects to laws necessary to the public security, even when they limit his own liberties. I have never heard anyone defend burglary, or arson, or rape. I doubt that any such defense has ever been made in Christendom. But is it necessary to the public security that boys who work hard all week be forbidden to take reasonable recreation on Sunday? Is it necessary to the public security that a sane man, fully competent to take care of himself, be forbidden to drink a bottle of beer? Is it necessary to the public security that a good citizen be forbidden to hear Beethoven’s Fifth Symphony one day out of every seven, or that he be forbidden to read the books he wants to read, or to see the plays be wants to see?
I think not. On the contrary, it seems to me that such prohibitions are wholly intolerable and indecent. It seems to me that any person who essays to enforce them upon free citizens is a far more dangerous criminal than that poor wretch who essays to pick their pockets. The pickpocket steals only a watch, and a man without a watch is still a man. But the militant moralist tries to steal liberty and self-respect, and the man who has lost both is a man who has lost everything that separates a civilized freeman from a convict in a chain-gang. [11 January 1913]
THE PUNISHMENT OF CRIMINALS
Marshal Farnan’s3 sensible suggestion that pickpockets be punished by amputating their fingers is not likely to get any attention from the Legislature of Maryland. It sums up the experience and reflection of an intelligent man, and therefore it is offensive, ipso facto, to lawmakers. Besides, even if the lawmakers were able to see its merit, the bawling of sentimentalists would make it impossible for them to put it into a law. A politician may safely laugh at reason, but he must beware of sentiment. The common people, whom he represents and visualizes, do all their thinking emotionally. A sob impresses them vastly, but they distrust and detest a syllogism.
However, as I have said, Marshal Farnan’s suggestion has sense in it, and some day, after mob rule has been overthrown and a natural aristocracy has seized the reins, it may be dug up and put into effect. The rise of democracy during the last 400 years has brought about a correlative augmentation of judicial sentimentality, and the result is that all the ingenious and varied punishments of a more clear-sighted age have disappeared. Today we have but two ways of punishing crime. One is that of killing the criminal—a punishment reserved for a few extra-heinous crimes and (with an accidental exception now and then) for poor men. The other way is that of compelling the criminal to live, for a definite time, in some given place. This last is the punishment commonly called imprisonment. It is a real punishment only to those criminals who hold to the old delusion that the joys of freedom outweigh its responsibilities, or to those who find the house in which they are confined less comfortable than the house they have left.
The so-called punishment of fining the criminal is really no punishment at all. On the contrary, it is a means of evading punishment—a scheme whereby the occasional criminal who can afford it is permitted to escape the just penalty of his crime by paying a bribe. The Chinese culprit bribes the judge personally; the American culprit bribes the judge as wiskinski4 for the community. The effect is exactly the same in the two cases; it makes no difference to the culprit what role the judge professes to play. All he knows is that, having money, he may go free, whereas if he were without money he would have to go to jail.
What we need, of course, is a revival of the fluent and scientific punishments of the feudal ages—punishments which bred ingenuity and honesty in judges, and worked exact justice. A medieval judge had to keep his wits about him. His highest duty was that of making the punishment fit the crime. If, having one day punished a perjurer by cutting a schnitzel from the fellow’s tongue, he next day essayed to visit the same punishment upon a pickpocket, a kidnapper or a strolling actor, the superiors to whom he reported would probably set him down an osseocaput and take away his commission. He had to be alert—or quit.
But today a judge labors under no such incentive to intelligence. He is esteemed, not as he displays ingenuity, but as he suppresses ingenuity. He works entirely by rote. If the murderer before him is a pauper and friendless, he must pronounce sentence of death. If the murderer is rich and well-lawyered, he must grant the classical series of stays and appeals. If the drunkard has no money—seven days in jail. If the drunkard has a wad—a slice of that wad for the communal tin-bank. And in dealing with all intermediate crimes, he can impose only imprisonment, with the occasional alternative of accepting a bribe from an extra-opulent rogue. His sole discretion lies in determining the length of the imprisonment, and even here rigid laws limit his range of choice, and other laws condition and modify his choice after it is made.
How much better and saner the old system! How much better and saner the plan of Marshal Farnan! Cut off a pickpocket’s fingers and you at once make it impossible for him ever to pick pockets again. Here is the ideal combination of punishment and prevention. The crime is penalized and the criminal is cured. Imprisonment, it must be obvious, never cures a pickpocket. All it does is to forbid him, for a limited time, to practice his profession. As soon as he is liberated he goes back to that profession, and to it he clings until the last horn blows.
If, now, picking pockets is a profession that we are justified in suppressing, just as we have suppressed piracy, then it certainly follows that we should adopt the means best adapted to suppressing it. The physical disablement of the pickpocket is that means. It is not only the best means, but also the only means. Moral suasion will not do the trick. Imprisonment will not do it. Espionage will not do it. But mutilation will do it—and therefore Marshal Farnan, as a police officer of long experience and as a man of common sense, is in favor
