Friday, March 30, 2007

Van Ornum, Why Government at All? - Part III, Chapter 6




One of the most important of the ostensible functions of government is the detection, punishment, and prevention of crime; in fact, the preservation of security is generally held to depend upon the repression of an assumed natural tendency among a part of the people to violate the rights of society, assuming that society has any rights to violate. That part of the people who are supposed to naturally prey upon others, and upon society, are called criminals; and are treated as if they were essentially different from other individuals not criminal. The difference between these, and the ordinary citizen, has come to be broadly and generally expressed as “bad,’ and “good,” the bad being understood to mean not only those actually criminal, but with strong criminal tendencies, while the good comprise those who are supposed to be devoid of such tendencies.

In the treatment of any subject it is important, at the very outset, to get a clear idea of the thing under consideration. So, in the examination of crime, we must first understand what crime is before we can reach any proper understanding of its cause and cure.

The popular conception of crime is that it consists in some lapse from a more or less generally accepted standard of virtue, arising from an inherent viciousness on the part of the criminal; in other words, a moral delinquency. This view is wholly erroneous, as is shown on slight consideration. Regarding the precept, “Thou shalt not steal,’ as a proper moral standard, does the law look upon its violation as necessarily criminal? Not at all. [244] He who takes the substance of another without recompense as rent, interest, taxes, or insufficient wages, is a highly respectable citizen. There is not the least suspicion of criminality about him; but if he from whom these sums were taken, recognizing his own property, retakes it, he is a thief, and is punished as a criminal. If an American farmer takes his wheat to market across an imaginary line called the Canadian frontier, and brings back clothing for himself and family without notifying a custom-house officer, and submitting to a robbery of a large part of the value of the clothing, he is a felon, and is punished criminally, although he has done no wrong to a living man. If under the brutalizing influences of poverty, and the stress of extreme want, one waylays and kills another, and thus obtains relief from present needs, he is a criminal—a murderer, and will be punished accordingly. But if a judge, a sheriff, a lawyer, and a jury of a dozen men organize a conspiracy to kill him, although without any of the impelling influences which prompted him to commit the first offense, they are highly respectable, will have their portraits published in the morning papers, and be looked up to, as, in a manner distinguished. And when the killing takes place it will receive the sanction and benediction of the church. If another, in a moment of anger slays a fellow man, this too is crime; but if a lot of politicians quarrel among themselves, they may organize war upon still others, against whom they had no quarrel, and slay innocent people at wholesale, and instead of an implication of criminality, the thing is “glorious war,” the amount of the glory depending upon the extent of the slaughter.

So that crime is exceedingly variable. It depends upon no recognized moral standard. It is what the law says is crime. Sometimes it says one thing, and sometimes another. It changes with every change In the law relating to crime. [246]

As this subject has to do with man in society it will be profitable at this point to recall some of the conclusions reached in Part II, in the study of man as an individual, because they throw important light upon the whole problem of crime.

Our analysis of man showed that all are actuated by the same motive; follow the same guide; and work to the same end: the making of individual character through the pursuit of individual happiness; that all possess the same mental and physical constitution; and all are subject to the same needs, and laws of growth. We found also, that society itself is but the expression of the selfish requirements of the individuals composing it; that it exists solely to gratify those needs; must be purely mutual and voluntary; and involves no surrender of any individual right. We found more; we found that men are practically equal in all those things which determine their relations to society; and that liberty is the equivalent, and resultant, of equality. These things being true, the law which violates equality by setting up artificial rights of property, and enforcing those rights by oppressive regulations which keep people poor, prevent the natural gratification of their desires, suppress their aspirations, and arrest their development, naturally and certainly operates to produce what are termed criminals. Then the nature of crime is, that it is the natural resistance, or protest, against the oppressions of the law; that law itself being a violation of natural right, is the real criminal, while those who resist it and put it to open shame are really the virtuous, and deserve the commendations instead of the curses of their fellows. This is not only true as to some crime, but if our previous analyses are correct, it must be true of all crime; and that law, which ostensibly exists to protect the persons and property of the people, directly promotes the violation of them; and thus, as in the [247] case of wars, invites the very evils it pretends to ward off. This thought is so opposed to all our old notions and prejudices that it is necessary to make such a careful and thorough examination as will leave no doubt of the truth of our conclusions.

It has, for a long time, been a well recognized fact that notwithstanding all the efforts to repress and prevent crime by law, it continues to recur with almost unvarying certainty. This has been observed and commented on by very many of the foremost writers on moral philosophy for the last fifty years, and in countries differing widely in language, customs, religion, and law. Along with those observations have gone like observations as to the variations in the ratio of marriages, and the causes of those variations, which throw a flood of light upon the main question of the cause and condition of crime.

Henry Thomas Buckle, in his “History of Civilization,” has probably given the most comprehensive and condensed summary of the researches in this direction, of any writer of his time, or even down to our own. He says:

“It becomes, therefore, in the highest degree important to ascertain whether or not there exists a regularity in the entire moral conduct of a given society; and this is precisely one of those questions for the decision of which statistics supply us with materials of immense value.

“For the main object of legislation being to protect the innocent against the guilty, it naturally followed that European governments, so soon as they became aware of the importance of statistics, should begin to collect evidence respecting the crimes they were expected to punish. This evidence has gone on accumulating, until it now forms of itself a large body of literature, containing, with the commentaries connected with it, an immense array of facts, so carefully compiled, and so well and clearly digested, that more may be learned from it respecting the moral nature of man than can be gathered from all the accumulated experience of preceding ages.”

In summing up his conclusions as to murder he says again:

“The fact is, that murder is committed with as much regularity, [248] and bears as uniform a relation to certain known circtimstances, as do the movement of the tides, and the rotation of the seasons.”

Again, in concluding his examination of the crime of suicide:

“In the different countries for which we have returns, we find year by year the same proportion of persons putting an end to their own existence; so that, after making allowance for the impossibility of collecting complete evidence, we are able to predict, within a very small limit of error, the number of voluntary deaths for each ensuing period; supposing of course, that the social circumstances do not undergo any marked change. . . . To appreciate the full force of this evidence, we must remember that it is not an arbitrary selection of particular facts, but that it is generalized from an exhaustive statement of criminal statistics, consisting of many millions of observations, extending over countries in different grades of civilization, with different laws, different opinions, different morals, different habits. if we add to this, that these statistics have been collected by persons specially employed for that purpose, with every means of arriving at the truth, and with no interest to deceive, it surely must be admitted that the existence of crime, according to a fixed and uniform scheme, is a fact more clearly attested than any other in the moral history of man. We have here parallel chains of evidence formed with extreme care, under the most different circumstances, and all pointing in the same direction; all of them forcing us to the conclusion, the offences of men are the result not so much of the vices of the individual offenders as of the state of society into which that individual offender is thrown. This is an inference resting on broad and tangible proofs accessible to all the world; and as such cannot be overturned, or even impeached, by any of these hypotheses with which metaphysicians and theologians have hitherto perplexed the study of past events. . . . Nor is it merely the crimes of men that are marked by this uniformity of sequence. Even the number of marriages annually contracted, is determined, not by the temper and wishes of individuals, but by large general facts, over which individuals can exercise no authority. It is now known that marriages bear a fixed and definite relation to the price of corn; and in England the experience of a century has proved that, instead of having any connection with personal feelings, they are simply regulated by the average earnings of the great mass of the people; so that this immense social and religious institution is not only swayed, but is completely controlled by the price of food and the rate of wages.”

But Mr. Buckle did not grasp the full significance of the facts he so clearly perceived. While recognizing the modifying influences of social conditions [249] on the ratio of crime, he did not see that its entire volume depends wholly upon the bad, or unfavorable social conditions which are brought about by the operations of the law. He saw that the ratio of marriages depends upon the prosperity of the people; “the price of food, and the rate of wages; and these are probably the same conditions which he recognized as modifying crime. But whether he saw them or not, they are precisely those conditions which diminish or increase the aggregate amount of criminality, according as those conditions are favorable, or unfavorable. And if a small average increase in the general prosperity of the people will decrease crime a little, it is reasonable to expect a much greater increase to diminish it much more. Is there any rational stopping place short of the complete extinction of crime? I think not.

But even looking upon crime according to the old standards, as a moral delinquency, this uniformity in its commission, in any given state of society, proves the utter impotence of the law, or any repressive measures whatever, to lessen it. Punishment becomes the vindictive resentment of ignorant passion, which can have no other than a brutalizing effect both upon those who punish and those who are the object of the punishment. The heart of one is hardened against every kindly impulse of sympathy, and the resentment of the other confirms him in his hostility to society, which he thenceforth preys upon as his enemy. It proves more. Taken in connection with the fact that, the more prosperous a community the less criminal will be the individual members of that community, everything which tends to lessen that prosperity will have a direct and positive tendency to increase the crime; so that, the immense establishments for the administration of the law,—the paraphernalia of protection, just so far as they add to the burdens of the [250] people in taxes for their support, reduce that prosperity, and directly increase the evils they claim to prevent. And further, if the several governments of this world are in possession of such complete information on the subject of crime, and the regularity of occurrence, as these extracts indicate, and yet they persist in the ordinary attempts at prevention, and methods of punishment, notwithstanding their possession of the most complete information that all such efforts are utterly useless and ineffective, we must conclude that their real object is not prevention, but simply to keep up the pretense, in order to furnish an excuse for their own existence,—to maintain the ostensible objects of government, the more effectually to carry out their real purpose, which is robbery.

I have assumed that crime, in its essence, is the spontaneous and possibly the unconscious but natural resistance of the criminal to the unjust restrictions of the law. But to assume a proposition is not to prove it. It is not enough to draw broad general conclusions from well established facts, without tracing the most intimate relationship between those facts and the conclusions. Let us see if there is such a close connection between the prevalence of crime, and the law, of which it is a violation, as to justify placing them in the relation of cause and effect.

Almost all offenses known to the law, and which are classed as criminal, are committed either against persons, or property; so that we may properly divide them into these two classes, for convenience of examination; those against persons, and those against property. And, inasmuch as most of those against persons grow out of offenses against property, and disputes about property, the later is much the largest and more important class. Accordingly I will consider that first. The reader must remember that in speaking of offenses against property, [251] I mean those so-called “rights of property,” which are set up by the law. If we accept the law’s definition of crime, (and it is that kind of crime we are considering) we must also of property, in treating of crimes against property.

The first and most conspicuous of the immediate incentives to infringements upon the accepted rights of property is poverty. It is among the very poor that we expect to find the greatest amount of petty thieving. People who never stole before will steal to get bread. It is comparatively easy for the rich to be honest; but when a man is out of work, and out of bread, with loved ones cold, and naked, and hungry, temptation is a thousand times more tempting. And if that man is a good, kind, and affectionate husband and father, keenly sensitive to the sufferings of his loved ones, those very ennobling qualities become whips to goad him to the commission of crime to provide for their wants. Did it ever occur to those who so readily condemn others for what they call crime, that there was anything incongruous or inconsistent in a condition that makes a noble quality an incentive to an ignoble deed? If the so-called “rights of property" were founded in nature, it would require no violation of natural instincts to respect them.

Again, men find themselves in straightened circumstances, unable to meet their engagements, with the prospect of disaster staring them in the face, involving not only themselves but those they love most, and for whose happiness, it may be, they would sacrifice life itself. It is often the case that men. like this have spent the best part of their lives in building up a character and reputation of which any man might be proud. To such, the greater his reputation, the more honorable his record, the more sensitive his nature, the more acute will be the pain and ignominy of loss of fortune, and with it the loss of friends, and the distinction earned in [252] a life of well doing. All these things are so many incentives to steal, cheat, defraud, embezzle, rob, murder, or whatever else stands between him and the preservation of his reputation. The greater the honor attained, the more bitter its loss, and the greater risks he will incur to maintain it. Again the noblest nd purest promptings are made those which most surely bring destruction.

But it will be objected, men commit these crimes who never had any reputation to lose. True I but they none the less love distinction, honor, pleasure and power; and they see that wealth, and wealth alone, brings these things, therefore, they infer, to get wealth by any means whatever, is the sure road to their attainment. This conclusion is strengthened by what they see of others. These noble promptings are still the force that impels them to commit what men call crime. To punish such a man for his crime, is to punish him for his noblest and loftiest impulses, and suppress the expression of them.

Even in the case of the confirmed criminal, who is said to have lost all sense of shame, and who persistently and systematically preys upon society like a wild beast; he had the same experience at first. He sought to obtain honor and wealth by the quickest and most direct methods. Men do these things by law, or in defiance of the law, and yet escape punishment. Is it to be expected that they ‘will always be particular to properly discriminate? The professional criminal is constituted exactly like other men. In his case the law has punished him, persecuted him, made war upon him; and even after the punishment, has sent its officers to spy upon, and inform against him. It has closed every avenue to his legitimate employment. It embittered him, confirmed and intensified his hostility until all hope of improvement is utterly destroyed. He is what he is because and only because of the [253] law. Viewed in any light, punishment can never benefit the criminal. It is unnatural and arbitrary, L and always degrades and debases him. It makes him a covert, if not an open enemy. It comes too late to prevent the crime, because it has already been committed. But it adds to the commission of the second crime the motive of revenge, which was absent from the first. This is one reason why in all the annals of crime, and notwithstanding all the efforts of all the governments in the world to pre. vent it, it recurs with unvarying regularity.

It is said that there are houses in New York well known to the sanitary and police officers where malignant fevers never disappear, where murder has stained every wall of their gloomy stories, and vice riots from one year’s end to the other. Their inhabitants are the children of poverty and vice. They will break a bank, murder, sack the city; are ignorant and brutal. They are the roughs that sustain the ward politicians, frighten honest voters, repeat, and stuff ballot-boxes. They have full credit at the saloons and exert a powerful influence in politics. They realize in some vague and dim way that the rich have always had all the good things of this world while the evil has fallen to their lot. Here the criminal is, in a large measure, under the protection of politicians, frequently officers of the law who owe their places to their criminal acts, and he is thus encouraged to recoup himself against society knowing that those officers must protect him.—But there is another and stronger reason; and one that has not only been previously stated, but one which is so obvious, from what has already preceded in the foregoing chapters of this book, that the reader has doubtless anticipated it. The law itself being an unnatural and arbitrary restriction of the liberty of the people, violations of it are but the natural resistance engendered by the [254] law. For instance, if force is applied to raise a column of water to a given height, the pressure of the water against that force, whatever form it may take, will exactly equal the force applied to raise it. And just in the same way, if laws are made, restricting the natural liberty of the people, the resistance to those laws will always exactly equal the force of the administration of the laws themselves. The greater the volume and stringency of the laws and their administration, the greater will be the criminality. And, on the other hand, the less the volume and stringency of the law, the less will be the crime. Why is crime in all the older and more stable governments exactly the same from year to year? Simply because the average burdens of the people remain about the same one year with another. If an average improvement in the harvests give a slight average improvement in general prosperity, so that bread is cheaper, and wages higher, there are more marriages, more happiness, less misery, less criminals. Then let taxes or rents be increased, sufficiently to absorb the surplus, and the improvement is lost; criminality goes back to what it was before.

The laws establishing and enforcing “rights of property” are a complete demonstration of the truth of this proposition. The one invariable condition of natural property is occupation, or possession. Under it no man could oppress another. Under it no man could have any object to steal from another. Under it every natural impulse of man would find scope for gratification. There would absolutely be no crimes against property. Property itself would very soon cease to be an individual possession, and become common; not by law, and not by any regulation, but by common consent, in order to avoid the labor and inconvenience of individual attention. The production of property would become, through improvements, an universal pastime; while the real [255] business of life would be the development of individual character in all its varied manifestations. For a fuller treatment of property, see Chap. VI., Part II.

But, as I have already pointed out in the chapter on property,” already referred to, this condition, of occupation, or possession, is the first one that the law violates; and through that violation makes possible every abuse, every injustice, every slavery in this world. It makes men criminals by denying them the means for the natural gratification of their desires, and thus forcing them to resort to unnatural means. It invests property with unnatural powers, so that the possession of property carries with it those powers, which are wielded over those who have none. And finally, it builds up gigantic f or- tunes in the hands of men who did not earn them, while those who did, remain in abject poverty and want. There is not a single crime against poverty which cannot be traced directly to this primary wrong of the law, in violating the natural condition of property,—in making property in law, what it is not in nature.

While I have not mentioned directly more than a very small number of crimes against property, it is scarcely necessary to do so. I have indicated the way in which they stand to the law in the relation of cause and effect. To go over the whole list would be but a tiresome repetition, and unnecessarily enlarge this work. The principles laid down can be easily applied to all forms of crime against property, and to crimes against persons growing out of attacks upon property, and disputes about property.

Turn now to crimes against persons, and we shall find that they also spring from legal restrictions which are violations of natural liberty; and that in the absence of law very few, if any of them could ever occur, because there would almost never be a [256] motive for their commission; but, on the other hand, every motive in the world against it.

A large proportion of the crimes against persons occur in the domestic relations of people. But even in these, most of them have their source in property troubles. Questions of the succession of estates, occasioning disputes which lead to violence, and even tragedies, could never occur if the possession of wealth did not carry with it a larger degree of gratification, and increased power, and influence. Again, the pressure of want embitters domestic relations, and is the exciting cause of quarrels, estrangements, desertions, etc., which often culminate in violence. And beyond the outbreak of violent acts, the brutality itself in which those quarrels have their ultimate source, is promoted by poverty. In fact, the course of human development through increase in knowledge, the gratification of desire, the refining influences of association under conditions of comfort and leisure, is arrested. So that the operation of the law, mainly in relation to property, is directly responsible for the conditions of brutality from which come all those crimes of violence, the repression and punishment of which forms so large a part of the ostensible functions of government.

But there are other crimes of violence which are not so directly the result of property troubles, and yet are just as directly traceable to the law as those we have just considered. The laws relating to marriage are founded upon the idea that each of the parties to the marriage owes to the other certain obligations, which it is the province of the law to enforce. The law, in all so-called civilized countries, and in all time, has been made by men; and as a matter of course, has been made in the interest of men, on the principle of the subjection of women; so that, while certain mutual obligations have been imposed, the bulk of the obligations are [257] on the side of the women, and the benefits on that of the men. This is an illustration of the way in which the law always protects the weak against the strong? The real trouble arises from imposing obligations on either side. The marriage contract works just like every other contract; it offers a premium to fraud and deception in the first place, and then calls upon the law to enforce the fraud. Domestic tragedies and crimes of violence in domestic life almost wholly arise from efforts to enforce or resist those obligations, or to compel others to assume obligations and relations that are repugnant to them. Obligations, however imposed, and however enforced are based upon the control of some, by others; and are necessarily violations of natural liberty. The only thing that makes them injuriously effective is the law which puts a club into the hands of either party with which to worry and harass the other. Freedom in domestic relations is just as necessary as in anything else; and legal restrictions produce the same unhappiness, violence, and crime there that they do in other things. The only just relations are those that are mutually voluntary; and they can only be mutually voluntary as long as they are just, which is to say equal.

It is unnecessary to carry the examination of this class of offenses any further. The same principles will be found in full operation in every possible form in which crimes against persons may be found. In one way or another, or in many ways, the law acts directly to stimulate the perpetration of crime, and to prevent the growth of civilization, which would in time abolish crime.

There remains still another class of offenses which are denounced by the law as crimes, but which are neither offenses against persons, or against property, unless they may be regarded as offenses against the persons of their perpetrators, if a person can be said to commit a crime against himself. I speak of [258] crimes against what is called “public morals,” whatever that may mean. Here we spend more than ever upon the law to designate what constitutes “public morals.” I have never been able to find any authoritative code of either public or private morals, even in the law. In one city, or in one state, the public morals seems to be one thing, while in another it is quite another thing; but in all, it depends wholly upon the law. For instance, in one place it is highly immoral for the public to gamble, work on Sunday, or to sell whisky; while in others any one may do all these things provided he submit to blackmail on the part of public officers openly in licenses, and taxes, or covertly in contributions to the prosecuting attorney, to campaign funds of political parties, or to the police authorities of the district. Another difficulty; I have never been able to see how the public could be either moral, or immoral, and therefore how there could be any such thing as “public morals.” This is one of the absurdities of the law; but I do not wish to be querulous. I will admit, for the time being, that there may be such a thing as “public morals;” and I will consider one class of offenses that is most generally regarded as a violation of public morals; that of prostitution.

Regarding prostitution as the law does, a crime, we have presented, in the most striking manner, the baneful effects of the law; and an instance of the way in which it promotes the very thing it condemns. While the statistics as to the causes which lead women to adopt the life of a prostitute are very meager, as well as unreliable, enough is known to justify the conclusion that in a vast majority of cases the cause is poverty. The conditions of life have been made so hard through the operations of the law, that vast numbers of people are kept just on the verge of starvation. They find themselves cut off from all hope of anything but a slavish existence [259] of severest toil in poverty and rags; and they accept what appears a promise of more comfort, more enjoyments, and less toil. Sometimes this is the result of sudden misfortune, and at others of a long continued pressure of adverse circumstances; sometimes a disappointment in love where poverty prevented the natural consummation of the womanly instincts, and again it is resorted to secretly at first to eke out a scanty provision, and enable them to make a better appearance in the world, or enjoy greater comforts. Even where passion, or dissipation was the immediate cause, it will be found that in a considerable proportion of cases the dissipation was resorted to to drown sorrow, or disappointment; and, if passion, they were denied the natural and legitimate gratification of desire, and were thus driven to unnatural gratification. In all of them it will be found that somewhere the natural and proper instincts have been suppressed, and this is the inevitable revolt against the arbitrary limitations which hamper the free play of their activities. The law interferes in the relations of the sexes, forbids the gratification of natural desires except in certain prescribed ways, and, just as in all other things, it excites resistance exactly corresponding in amount to the force of the law itself.

What I am trying to make clear, and what I think has been abundantly shown, is, that all criminality in this world has its source in the law itself, and that in the absence of law there would be neither offenses against persons, or property, regarding property in the light of what nature made it.

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