But slavery brought about one result, and that the most difficult in the development of a race from savagery, and especially a tropical race, a race that has always been idle in the luxuriance of a nature that supplied its physical needs with little labor. It taught the negro to work, it transformed him, by compulsion it is true, into an industrial being, and held him in the habit of industry for several generations. Perhaps only force could do this, for it was a radical transformation. I am glad to see that this result of slavery is recognized by Mr. Booker Washington, the ablest and most clear-sighted leader the negro race has ever had.
But something more was done under this pressure, something more than creation of a habit of physical exertion to productive ends. Skill was developed. Skilled labor, which needs brains, was carried to a high degree of performance. On almost all the Southern plantations, and in the cities also, negro mechanics were bred, excellent blacksmiths, good carpenters, and house-builders capable of executing plans of high architectural merit. Everywhere were negroes skilled in trades, and competent in various mechanical industries.
The opportunity and the disposition to labor make the basis of all our civilization. The negro was taught to work, to be an agriculturist, a mechanic, a material producer of something useful. He was taught this fundamental thing. Our higher education, applied to him in his present development, operates in exactly the opposite direction.
This is a serious assertion. Its truth or falsehood cannot be established by statistics, but it is an opinion gradually formed by experience, and the observation of men competent to judge, who have studied the problem close at hand. Among the witnesses to the failure of the result expected from the establishment of colleges and universities for the negro are heard, from time to time, and more frequently as time goes on, practical men from the North, railway men, manufacturers, who have initiated business enterprises at the South. Their testimony coincides with that of careful students of the economic and social conditions.
There was reason to assume, from our theory and experience of the higher education in its effect upon white races, that the result would be different from what it is. When the negro colleges first opened, there was a glow of enthusiasm, an eagerness of study, a facility of acquirement, and a good order that promised everything for the future. It seemed as if the light then kindled would not only continue to burn, but would penetrate all the dark and stolid communities. It was my fortune to see many of these institutions in their early days, and to believe that they were full of the greatest promise for the race. I have no intention of criticising the generosity and the noble self-sacrifice that produced them, nor the aspirations of their inmates. There is no doubt that they furnish shining examples of emancipation from ignorance, and of useful lives. But a few years have thrown much light upon the careers and characters of a great proportion of the graduates, and their effect upon the communities of which they form a part, I mean, of course, with regard to the industrial and moral condition of those communities. Have these colleges, as a whole,—[This sentence should have been further qualified by acknowledging the excellent work done by the colleges at Atlanta and Nashville, which, under exceptionally good management, have sent out much-needed teachers. I believe that their success, however, is largely owing to their practical features.—C.D.W.]—stimulated industry, thrift, the inclination to settle down to the necessary hard work of the world, or have they bred idleness, indisposition to work, a vaporous ambition in politics, and that sort of conceit of gentility of which the world has already enough? If any one is in doubt about this he can satisfy himself by a sojourn in different localities in the South. The condition of New Orleans and its negro universities is often cited. It is a favorable example, because the ambition of the negro has been aided there by influence outside of the schools. The federal government has imposed upon the intelligent and sensitive population negro officials in high positions, because they were negroes and not because they were specially fitted for those positions by character or ability. It is my belief that the condition of the race in New Orleans is lower than it was several years ago, and that the influence of the higher education has been in the wrong direction.
This is not saying that the higher education is responsible for the present condition of the negro.
Other influences have retarded his elevation and the development of proper character, and most important means have been neglected. I only say that we have been disappointed in our extravagant expectations of what this education could do for a race undeveloped, and so wanting in certain elements of character, and that the millions of money devoted to it might have been much better applied.
We face a grave national situation. It cannot be successfully dealt with sentimentally. It should be faced with knowledge and candor. We must admit our mistakes, both social and political, and set about the solution of our problem with intelligent resolution and a large charity. It is not simply a Southern question. It is a Northern question as well. For the truth of this I have only to appeal to the consciousness of all Northern communities in which there are negroes in any considerable numbers. Have the negroes improved, as a rule (always remembering the exceptions), in thrift, truthfulness, morality, in the elements of industrious citizenship, even in States and towns where there has been the least prejudice against their education? In a paper read at the last session of this Association, Professor W. F. Willcox of Cornell University showed by statistics that in proportion to population there were more negro criminals in the North than in the South. "The negro prisoners in the Southern States to ten thousand negroes increased between 1880 and 1890 twenty-nine per cent., while the white prisoners to ten thousand whites increased only eight per cent." "In the States where slavery was never established, the white prisoners increased seven per cent. faster than the white population, while the negro prisoners no less than thirty-nine per cent. faster than the negro population. Thus the increase of negro criminality, so far as it is reflected in the number of prisoners, exceeded the increase of white criminality more in the North than it did in the South."
This statement was surprising. It cannot be accounted for by color prejudice at the North; it is related to the known shiftlessness and irresponsibility of a great portion of the negro population. If it could be believed that this shiftlessness is due to the late state of slavery, the explanation would not do away with the existing conditions. Schools at the North have for a long time been open to the negro; though color prejudice exists, he has not been on the whole in an unfriendly atmosphere, and willing hands have been stretched out to help him in his ambition to rise. It is no doubt true, as has been often said lately, that the negro at the North has been crowded out of many occupations by more vigorous races, newly come to this country, crowded out not only of factory industries and agricultural, but of the positions of servants, waiters, barbers, and other minor ways of earning a living. The general verdict is that this loss of position is due to lack of stamina and trustworthiness. Wherever a negro has shown himself able, honest, attentive to the moral and economic duties of a citizen, either successful in accumulating property or filling honorably his station in life, he has gained respect and consideration in the community in which he is known; and this is as true at the South as at the North, notwithstanding the race antagonism is more accentuated by reason of the preponderance of negro population there and the more recent presence of slavery. Upon this ugly race antagonism it is not necessary to enlarge here in discussing the problem of education, and I will leave it with the single observation that I have heard intelligent negroes, who were honestly at work, accumulating property and disposed to postpone active politics to a more convenient season, say that they had nothing to fear from the intelligent white population, but only from the envy of the ignorant.
The whole situation is much aggravated by the fact that there is a considerable infusion of white blood in the negro race in the United States, leading to complications and social aspirations that are infinitely pathetic. Time only and no present contrivance of ours can ameliorate this condition.
I have made this outline of our negro problem in no spirit of pessimism or of prejudice, but in the belief that the only way to remedy an evil or a difficulty is candidly and fundamentally to understand it. Two things are evident: First, the negro population is certain to increase in the United States, in a ratio at least equal to that of the whites. Second, the South needs its labor. Its deportation is an idle dream. The only visible solution is for the negro to become an integral and an intelligent part of the industrial community. The way may be long, but he must work his way up. Sympathetic aid may do much, but the salvation of the negro is in his own hands, in the development of individual character and a race soul. This is fully understood by his wisest leaders. His worst enemy is the demagogue who flatters him with the delusion that all he needs for his elevation is freedom and certain privileges that were denied him in slavery.
In all the Northern cities heroic efforts are made to assimilate the foreign population by education and instruction in Americanism. In the South, in the city and on plantation, the same effort is necessary for the negro, but it must be more radical and fundamental. The common school must be as fully sustained and as far reaching as it is in the North, reaching the lowest in the city slums and the most ignorant in the agricultural districts, but to its strictly elemental teaching must be added moral instructions, and training in industries and in habits of industry. Only by such rudimentary and industrial training can the mass of the negro race in the United States be expected to improve in character and position. A top-dressing of culture on a field with no depth of soil may for a moment stimulate the promise of vegetation, but no fruit will be produced. It is a gigantic task, and generations may elapse before it can in any degree be relaxed.
Why attempt it? Why not let things drift as they are? Why attempt to civilize the race within our doors, while there are so many distant and alien races to whom we ought to turn our civilizing attention? The answer is simple and does not need elaboration. A growing ignorant mass in our body politic, inevitably cherishing bitterness of feeling, is an increasing peril to the public.
In order to remove this peril, by transforming the negro into an industrial, law-abiding citizen, identified with the prosperity of his country, the cordial assistance of the Southern white population is absolutely essential. It can only be accomplished by regarding him as a man, with the natural right to the development of his capacity and to contentment in a secure social state. The effort for his elevation must be fundamental. The opportunity of the common school must be universal, and attendance in it compulsory. Beyond this, training in the decencies of life, in conduct, and in all the industries, must be offered in such industrial institutions as that of Tuskegee. For the exceptional cases a higher education can be easily provided for those who show themselves worthy of it, but not offered as an indiscriminate panacea.
The question at once arises as to the kind of teachers for these schools of various grades. It is one of the most difficult in the whole problem. As a rule, there is little gain, either in instruction or in elevation of character, if the teacher is not the superior of the taught. The learners must respect the attainments and the authority of the teacher. It is a too frequent fault of our common-school system that, owing to inadequate pay and ignorant selections, the teachers are not competent to their responsible task. The highest skill and attainment are needed to evoke the powers of the common mind, even in a community called enlightened. Much more are they needed when the community is only slightly developed mentally and morally. The process of educating teachers of this race, fit to promote its elevation, must be a slow one. Teachers of various industries, such as agriculture and the mechanic arts, will be more readily trained than teachers of the rudiments of learning in the common schools. It is a very grave question whether, with some exceptions, the school and moral training of the race should not be for a considerable time to come in the control of the white race. But it must be kept in mind that instructors cheap in character, attainments, and breeding will do more harm than good. If we give ourselves to this work, we must give of our best.
Without the cordial concurrence in this effort of all parties, black and white, local and national, it will not be fruitful in fundamental and permanent good. Each race must accept the present situation and build on it. To this end it is indispensable that one great evil, which was inherent in the reconstruction measures and is still persisted in, shall be eliminated. The party allegiance of the negro was bid for by the temptation of office and position for which he was in no sense fit. No permanent, righteous adjustment of relations can come till this policy is wholly abandoned. Politicians must cease to make the negro a pawn in the game of politics.
Let us admit that we have made a mistake. We seem to have expected that we could accomplish suddenly and by artificial Contrivances a development which historically has always taken a long time. Without abatement of effort or loss of patience, let us put ourselves in the common-sense, the scientific, the historic line. It is a gigantic task, only to be accomplished by long labor in accord with the Divine purpose.
"Thou wilt not leave us in the dust;
Thou madest man, he knows not why,
He thinks he was not made to die;
And thou hast made him; thou art just.
"Oh, yet we trust that somehow good
Will be the final goal of ill,
To pangs of nature, sins of will,
Defects of doubt, and taints of blood.
"That nothing walks with aimless feet,
That not one life shall be destroyed,
Or cast as rubbish to the void,
When God hath made the pile complete."
THE INDETERMINATE SENTENCE—WHAT SHALL BE DONE WITH THE CRIMINAL CLASS?
By Charles Dudley Warner
The problem of dealing with the criminal class seems insolvable, and it undoubtedly is with present methods. It has never been attempted on a fully scientific basis, with due regard to the protection of society and to the interests of the criminal.
It is purely an economic and educational problem, and must rest upon the same principles that govern in any successful industry, or in education, and that we recognize in the conduct of life. That little progress has been made is due to public indifference to a vital question and to the action of sentimentalists, who, in their philanthropic zeal; fancy that a radical reform can come without radical discipline. We are largely wasting our energies in petty contrivances instead of striking at the root of the evil.
What do we mean by the criminal class? It is necessary to define this with some precision, in order to discuss intelligently the means of destroying this class. A criminal is one who violates a statute law, or, as we say, commits a crime. The human law takes cognizance of crime and not of sin. But all men who commit crime are not necessarily in the criminal class. Speaking technically, we put in that class those whose sole occupation is crime, who live by it as a profession, and who have no other permanent industry. They prey upon society. They are by their acts at war upon it, and are outlaws.
The State is to a certain extent responsible for this class, for it has trained most of them, from youth up, through successive detentions in lock-ups, city prisons, county jails, and in State prisons, and penitentiaries on relatively short sentences, under influences which tend to educate them as criminals and confirm them in a bad life. That is to say, if a man once violates the law and is caught, he is put into a machine from which it is very difficult for him to escape without further deterioration. It is not simply that the State puts a brand on him in the eyes of the community, but it takes away his self-respect without giving him an opportunity to recover it. Once recognized as in the criminal class, he has no further concern about the State than that of evading its penalties so far as is consistent with pursuing his occupation of crime.
To avoid misunderstanding as to the subject of this paper, it is necessary to say that it is not dealing with the question of prison reform in its whole extent. It attempts to consider only a pretty well defined class. But in doing this it does not say that other aspects of our public peril from crime are not as important as this. We cannot relax our efforts in regard to the relations of poverty, drink, and unsanitary conditions, as leading to crime. We have still to take care of the exposed children, of those with parentage and surroundings inclining to crime, of the degenerate and the unfortunate. We have to keep up the warfare all along the line against the demoralization of society. But we have hereto deal with a specific manifestation; we have to capture a stronghold, the possession of which will put us in much better position to treat in detail the general evil.
Why should we tolerate any longer a professional criminal class? It is not large. It is contemptibly small compared with our seventy millions of people. If I am not mistaken, a late estimate gave us less than fifty thousand persons in our State prisons and penitentiaries. If we add to them those at large who have served one or two terms, and are generally known to the police, we shall not have probably more than eighty thousand of the criminal class. But call it a hundred thousand. It is a body that seventy millions of people ought to take care of with little difficulty. And we certainly ought to stop its increase. But we do not. The class grows every day. Those who watch the criminal reports are alarmed by the fact that an increasing number of those arrested for felonies are discharged convicts. This is an unmistakable evidence of the growth of the outlaw classes.
But this is not all. Our taxes are greatly increased on account of this class. We require more police to watch those who are at large and preying on society. We expend more yearly for apprehending and trying those caught, for the machinery of criminal justice, and for the recurring farce of imprisoning on short sentences and discharging those felons to go on with their work of swindling and robbing. It would be good economy for the public, considered as a taxpayer, to pay for the perpetual keep of these felons in secure confinement.
And still this is not the worst. We are all living in abject terror of these licensed robbers. We fear robbery night and day; we live behind bolts and bars (which should be reserved for the criminal) and we are in hourly peril of life and property in our homes and on the highways. But the evil does not stop here. By our conduct we are encouraging the growth of the criminal class, and we are inviting disregard of law, and diffusing a spirit of demoralization throughout the country.
I have spoken of the criminal class as very limited; that is, the class that lives by the industry of crime alone. But it is not isolated, and it has widespread relations. There is a large portion of our population not technically criminals, which is interested in maintaining this criminal class. Every felon is a part of a vast network of criminality. He has his dependents, his allies, his society of vice, all the various machinery of temptation and indulgence.
It happens, therefore, that there is great sympathy with the career of the lawbreakers, many people are hanging on them for support, and among them the so-called criminal lawyers. Any legislation likely to interfere seriously with the occupation of the criminal class or with its increase is certain to meet with the opposition of a large body of voters. With this active opposition of those interested, and the astonishing indifference of the general public, it is easy to see why so little is done to relieve us of this intolerable burden. The fact is, we go on increasing our expenses for police, for criminal procedure, for jails and prisons, and we go on increasing the criminal class and those affiliated with it.
And what do we gain by our present method? We do not gain the protection of society, and we do not gain the reformation of the criminal. These two statements do not admit of contradiction. Even those who cling to the antiquated notion that the business of society is to punish the offender must confess that in this game society is getting the worst of it. Society suffers all the time, and the professional criminal goes on with his occupation, interrupted only by periods of seclusion, during which he is comfortably housed and fed. The punishment he most fears is being compelled to relinquish his criminal career. The object of punishment for violation of statute law is not vengeance, it is not to inflict injury for injury. Only a few persons now hold to that. They say now that if it does little good to the offender, it is deterrent as to others. Now, is our present system deterrent? The statute law, no doubt, prevents many persons from committing crime, but our method of administering it certainly does not lessen the criminal class, and it does not adequately protect society. Is it not time we tried, radically, a scientific, a disciplinary, a really humanitarian method?
The proposed method is the indeterminate sentence. This strikes directly at the criminal class. It puts that class beyond the power of continuing its depredations upon society. It is truly deterrent, because it is a notification to any one intending to enter upon that method of living that his career ends with his first felony. As to the general effects of the indeterminate sentence, I will repeat here what I recently wrote for the Yale Law Journal:
It is unnecessary to say in a law journal that the indeterminate sentence is a measure as yet untried. The phrase has passed into current speech, and a considerable portion of the public is under the impression that an experiment of the indeterminate sentence is actually being made. It is, however, still a theory, not adopted in any legislation or in practice anywhere in the world.
The misconception in regard to this has arisen from the fact that under certain regulations paroles are granted before the expiration of the statutory sentence.
An indeterminate sentence is a commitment to prison without any limit. It is exactly such a commitment as the court makes to an asylum of a man who is proved to be insane, and it is paralleled by the practice of sending a sick man to the hospital until he is cured.
The introduction of the indeterminate sentence into our criminal procedure would be a radical change in our criminal legislation and practice. The original conception was that the offender against the law should be punished, and that the punishment should be made to fit the crime, an 'opera bouffe' conception which has been abandoned in reasoning though not in practice. Under this conception the criminal code was arbitrarily constructed, so much punishment being set down opposite each criminal offense, without the least regard to the actual guilt of the man as an individual sinner.
Within the present century considerable advance has been made in regard to prison reform, especially with reference to the sanitary condition of places of confinement. And besides this, efforts of various kinds have been made with regard to the treatment of convicts, which show that the idea was gaining ground that criminals should be treated as individuals. The application of the English ticket-of-leave system was one of these efforts; it was based upon the notion that, if any criminal showed sufficient evidence of a wish to lead a different life, he should be conditionally released before the expiration of his sentence. The parole system in the United States was an attempt to carry out the same experiment, and with it went along the practice which enabled the prisoner to shorten the time of his confinement by good behavior. In some of the States reformatories have been established to which convicts have been sent under a sort of sliding sentence; that is, with the privilege given to the authorities of the reformatory to retain the offender to the full statutory term for which he might have been sentenced to State prison, unless he had evidently reformed before the expiration of that period. That is to say, if a penal offense entitled the judge to sentence the prisoner for any period from two to fifteen years, he could be kept in the reformatory at the discretion of the authorities for the full statutory term. It is from this law that the public notion of an indeterminate sentence is derived. It is, in fact, determinate, because the statute prescribes its limit.
The introduction of the ticket-of-leave and the parole systems, and the earning of time by good behavior were philanthropic suggestions and promising experiments which have not been justified by the results. It is not necessary at this time to argue that no human discretion is adequate to mete out just punishment for crimes; and it has come to be admitted generally, by men enlightened on this subject, that the real basis for dealing with the criminal rests, firstly, upon the right of society to secure itself against the attacks of the vicious, and secondly, upon the duty imposed upon society, to reform the criminal if that is possible. It is patent to the most superficial observation that our present method does not protect society, and does not lessen the number of the criminal class, either by deterrent methods or by reformatory processes, except in a very limited way.
Our present method is neither economic nor scientific nor philanthropic. If we consider the well-defined criminal class alone, it can be said that our taxes and expenses for police and the whole criminal court machinery, for dealing with those who are apprehended, and watching those who are preying upon society, yearly increase, while all private citizens in their own houses or in the streets live inconstant terror of the depredations of this class. Considered from the scientific point of view, our method is absolutely crude, and but little advance upon mediaeval conditions; and while it has its sentimental aspects, it is not real philanthropy, because comparatively few of the criminal class are permanently rescued.
The indeterminate sentence has two distinct objects: one is the absolute protection of society from the outlaws whose only business in life is to prey upon society; and the second is the placing of these offenders in a position where they can be kept long enough for scientific treatment as decadent human beings, in the belief that their lives can be changed in their purpose. No specific time can be predicted in which a man by discipline can be expected to lay aside his bad habits and put on good habits, because no two human beings are alike, and it is therefore necessary that an indefinite time in each case should be allowed for the experiment of reformation.
We have now gone far enough to see that the ticket-of-leave system, the parole system as we administer it in the State prisons (I except now some of the reformatories), and the good conduct method are substantially failures, and must continue to be so until they rest upon the absolute indeterminate sentence. They are worse than failures now, because the public mind is lulled into a false security by them, and efforts at genuine prison reform are defeated.
It is very significant that the criminal class adapted itself readily to the parole system with its sliding scale. It was natural that this should be so, for it fits in perfectly well with their scheme of life. This is to them a sort of business career, interrupted now and then only by occasional limited periods of seclusion. Any device that shall shorten those periods is welcome to them. As a matter of fact, we see in the State prisons that the men most likely to shorten their time by good behavior, and to get released on parole before the expiration of their sentence, are the men who make crime their career. They accept this discipline as a part of their lot in life, and it does not interfere with their business any more than the occasional bankruptcy of a merchant interferes with his pursuits.
It follows, therefore, that society is not likely to get security for itself, and the criminal class is not likely to be reduced essentially or reformed, without such a radical measure as the indeterminate sentence, which, accompanied, of course, by scientific treatment, would compel the convict to change his course of life, or to stay perpetually in confinement.
Of course, the indeterminate sentence would radically change our criminal jurisprudence and our statutory provisions in regard to criminals. It goes without saying that it is opposed by the entire criminal class, and by that very considerable portion of the population which is dependent on or affiliated with the criminal class, which seeks to evade the law and escape its penalties. It is also opposed by a small portion of the legal profession which gets its living out of the criminal class, and it is sure to meet the objection of the sentimentalists who have peculiar notions about depriving a man of his liberty, and it also has to overcome the objections of many who are guided by precedents, and who think the indeterminate sentence would be an infringement of the judicial prerogative.
It is well to consider this latter a little further. Our criminal code, artificial and indiscriminating as it is, is the growth of ages and is the result of the notion that society ought to take vengeance upon the criminal, at least that it ought to punish him, and that the judge, the interpreter of the criminal law, was not only the proper person to determine the guilt of the accused, by the aid of the jury, but was the sole person to judge of the amount of punishment he should receive for his crime. Now two functions are involved here: one is the determination that the accused has broken the law, the other is gauging within the rules of the code the punishment that, each individual should receive. It is a theological notion that the divine punishment for sin is somehow delegated to man for the punishment of crime, but it does not need any argument to show that no tribunal is able with justice to mete out punishment in any individual case, for probably the same degree of guilt does not attach to two men in the violation of the same statute, and while, in the rough view of the criminal law, even, one ought to have a severe penalty, the other should be treated with more leniency. All that the judge can do under the indiscriminating provisions of the statute is to make a fair guess at what the man should suffer.
Under the present enlightened opinion which sees that not punishment but the protection of society and the good of the criminal are the things to be aimed at, the judge's office would naturally be reduced to the task of determining the guilt of the man on trial, and then the care of him would be turned over to expert treatment, exactly as in a case when the judge determines the fact of a man's insanity.
If objection is made to the indeterminate sentence on the ground that it is an unusual or cruel punishment, it may be admitted that it is unusual, but that commitment to detention cannot be called cruel when the convict is given the key to the house in which he is confined. It is for him to choose whether he will become a decent man and go back into society, or whether he will remain a bad man and stay in confinement. For the criminal who is, as we might say, an accidental criminal, or for the criminal who is susceptible to good influences, the term of imprisonment under the indeterminate sentence would be shorter than it would be safe to make it for criminals under the statute. The incorrigible offender, however, would be cut off at once and forever from his occupation, which is, as we said, varied by periodic residence in the comfortable houses belonging to the State.
A necessary corollary of the indeterminate sentence is that every State prison and penitentiary should be a reformatory, in the modern meaning of that term. It would be against the interest of society, all its instincts of justice, and the height of cruelty to an individual criminal to put him in prison without limit unless all the opportunities were afforded him for changing his habits radically. It may be said in passing that the indeterminate sentence would be in itself to any man a great stimulus to reform, because his reformation would be the only means of his terminating that sentence. At the same time a man left to himself, even in the best ordered of our State prisons which is not a reformatory, would be scarcely likely to make much improvement.
I have not space in this article to consider the character of the reformatory; that subject is fortunately engaging the attention of scientific people as one of the most interesting of our modern problems. To take a decadent human being, a wreck physically and morally, and try to make a man of him, that is an attempt worthy of a people who claim to be civilized. An illustration of what can be done in this direction is furnished by the Elmira Reformatory, where the experiment is being made with most encouraging results, which, of course, would be still better if the indeterminate sentence were brought to its aid.
When the indeterminate sentence has been spoken of with a view to legislation, the question has been raised whether it should be applied to prisoners on the first, second, or third conviction of a penal offense. Legislation in regard to the parole system has also considered whether a man should be considered in the criminal class on his first conviction for a penal offense. Without entering upon this question at length, I will suggest that the convict should, for his own sake, have the indeterminate sentence applied to him upon conviction of his first penal offense. He is much more likely to reform then than he would be after he had had a term in the State prison and was again convicted, and the chance of his reformation would be lessened by each subsequent experience of this kind. The great object of the indeterminate sentence, so far as the security of society is concerned, is to diminish the number of the criminal class, and this will be done when it is seen that the first felony a man commits is likely to be his last, and that for a young criminal contemplating this career there is in this direction "no thoroughfare."
By his very first violation of the statute he walks into confinement, to stay there until he has given up the purpose of such a career.
In the limits of this paper I have been obliged to confine myself to remarks upon the indeterminate sentence itself, without going into the question of the proper organization of reformatory agencies to be applied to the convict, and without consideration of the means of testing the reformation of a man in any given case. I will only add that the methods at Elmira have passed far beyond the experimental stage in this matter.
The necessary effect of the adoption of the indeterminate sentence for felonies is that every State prison and penitentiary must be a reformatory. The convict goes into it for the term of a year at least (since the criminal law, according to ancient precedent, might require that, and because the discipline of the reformatory would require it as a practical rule), and he stays there until, in the judgment of competent authority, he is fit to be trusted at large.
If he is incapable of reform, he must stay there for his natural life. He is a free agent. He can decide to lead an honest life and have his liberty, or he can elect to work for the State all his life in criminal confinement.
When I say that every State prison is to be a reformatory, I except, of course, from its operation, those sentenced for life for murder, or other capital offenses, and those who have proved themselves incorrigible by repeated violations of their parole.
It is necessary now to consider the treatment in the reformatory. Only a brief outline of it can be given here, with a general statement of the underlying principles. The practical application of these principles can be studied in the Elmira Reformatory of New York, the only prison for felons where the proposed system is carried out with the needed disciplinary severity. In studying Elmira, however, it must be borne in mind that the best effects cannot be obtained there, owing to the lack of the indeterminate sentence. In this institution the convict can only be detained for the maximum term provided in the statute for his offense. When that is reached, the prisoner is released, whether he is reformed or not.
The system of reform under the indeterminate sentence, which for convenience may be called the Elmira system, is scientific, and it must be administered entirely by trained men and by specialists; the same sort of training for the educational and industrial work as is required in a college or an industrial school, and the special fitness required for an alienist in an insane asylum. The discipline of the establishment must be equal to that of a military school.
We have so far advanced in civilization that we no longer think of turning the insane, the sick, the feebleminded, over to the care of men without training chosen by the chance of politics. They are put under specialists for treatment. It is as necessary that convicts should be under the care of specialists, for they are the most difficult and interesting subjects for scientific treatment. If not criminals by heredity, they are largely made so by environment; they are either physical degenerates or they are brutalized by vice. They have lost the power of distinguishing right from wrong; they commonly lack will-power, and so are incapable of changing their habits without external influence. In short, the ordinary criminal is unsound and diseased in mind and body.
To deal with this sort of human decadent is, therefore, the most interesting problem that can be offered to the psychologist, to the physiologist, to the educator, to the believer in the immortality of the soul. He is still a man, not altogether a mere animal, and there is always a possibility that he may be made a decent man, and a law-abiding, productive member of society.
Here, indeed, is a problem worthy of the application of all our knowledge of mind and of matter, of our highest scientific attainments. But it is the same problem that we have in all our education, be it the training of the mind, the development of the body, or the use of both to good ends. And it goes without saying that its successful solution, in a reformatory for criminals, depends upon the character of the man who administers the institution. There must be at the head of it a man of character, of intellectual force, of administrative ability, and all his subordinate officers must be fitted for their special task, exactly as they should be for a hospital, or a military establishment, for a college, or for a school of practical industries. And when such men are demanded, they will be forthcoming, just as they are in any department in life, when a business is to be developed, a great engineering project to be undertaken, or an army to be organized and disciplined.
The development of our railroad system produced a race of great railroad men. The protection of society by the removal and reform of the criminal class, when the public determines upon it, will call into the service a class of men fitted for the great work. We know this is so because already, since the discussion of this question has been current, and has passed into actual experiment, a race of workers and prison superintendents all over the country have come to the front who are entirely capable of administering the reform system under the indeterminate sentence. It is in this respect, and not in the erection of model prisons, that the great advance in penology has been made in the last twenty years. Men of scientific attainment are more and more giving their attention to this problem as the most important in our civilization. And science is ready to take up this problem when the public is tired and ashamed of being any longer harried and bullied and terrorized over by the criminal class.
The note of this reform is discipline, and its success rests upon the law of habit. We are all creatures of habit, physical and mental. Habit is formed by repetition of any action. Many of our physical habits have become automatic. Without entering into a physiological argument, we know that repetition produces habit, and that, if this is long continued, the habit becomes inveterate. We know also that there is a habit, physical and moral, of doing right as well as doing wrong. The criminal has the habit of doing wrong. We propose to submit him to influences that will change that habit. We also know that this is not accomplished by suppressing that habit, but by putting a good one in its place.
It is true in this case that nature does not like a vacuum. The thoughts of men are not changed by leaving them to themselves, they are changed by substituting other thoughts.
The whole theory of the Elmira system is to keep men long enough under a strict discipline to change their habits. This discipline is administered in three ways. They are put to school; they are put at work; they are prescribed minute and severe rules of conduct, and in the latter training is included military drill.
The school and the workshop are both primarily for discipline and the formation of new habits. Only incidentally are the school and the workshop intended to fit a man for an occupation outside of the prison. The whole discipline is to put a man in possession of his faculties, to give him self-respect, to get him in the way of leading a normal and natural life. But it is true that what he acquires by the discipline of study and the discipline of work will be available in his earning an honest living. Keep a man long enough in this three-ply discipline, and he will form permanent habits of well-doing. If he cannot and will not form such habits, his place is in confinement, where he cannot prey upon society.
There is not space here to give the details of the practices at Elmira. They are easily attainable. But I will notice one or two objections that have been made. One is that in the congregate system men necessarily learn evil from each other. This is, of course, an evil. It is here, however, partially overcome by the fact that the inmates are kept so busy in the variety of discipline applied to them that they have little or no time for anything else. They study hard, and are under constant supervision as to conduct. And then their prospect of parole depends entirely upon the daily record they make, and upon their radical change of intention. At night they are separated in their cells. During the day they are associated in class, in the workshop, and in drill, and this association is absolutely necessary to their training. In separation from their fellows, they could not be trained. Fear is expressed that men will deceive their keepers and the board which is to pass upon them, and obtain parole when they do not deserve it. As a matter of fact, men under this discipline cannot successfully play the hypocrite to the experts who watch them. It is only in the ordinary prison where the parole is in use with no adequate discipline, and without the indefinite sentence, that deception can be practiced. But suppose a man does play the hypocrite so as to deceive the officers, who know him as well as any employer knows his workmen or any teacher knows his scholars, and deceives the independent board so as to get a parole. If he violates that parole, he can be remanded to the reformatory, and it will be exceedingly difficult for him to get another parole. And, if he should again violate his parole, he would be considered incorrigible and be placed in a life prison.
We have tried all other means of protecting society, of lessening the criminal class, of reforming the criminal. The proposed indeterminate sentence, with reformatory discipline, is the only one that promises to relieve society of the insolent domination and the terrorism of the criminal class; is the only one that can deter men from making a career of crime; is the only one that offers a fair prospect for the reformation of the criminal offender.
Why not try it? Why not put the whole system of criminal jurisprudence and procedure for the suppression of crime upon a sensible and scientific basis?
LITERARY COPYRIGHT
By Charles Dudley Warner
This is the first public meeting of the National Institute of Arts and Letters. The original members were selected by an invitation from the American Social Science Association, which acted under the power of its charter from the Congress of the United States. The members thus selected, who joined the Social Science Association, were given the alternative of organizing as an independent institute or as a branch of the Social Science Association.
At the annual meeting of the Social Science Association on September 4, 1899, at Saratoga Springs, the members of the Institute voted to organize independently. They formally adopted the revised constitution, which had been agreed upon at the first meeting, in New York in the preceding January, and elected officers as prescribed by the constitution.
The object is declared to be the advancement of art and literature, and the qualification shall be notable achievements in art or letters. The number of active members will probably be ultimately fixed at one hundred. The society may elect honorary and associate members without limit. By the terms of agreement between the American Social Science Association and the National Institute, the members of each are 'ipso facto' associate members of the other.
It is believed that the advancement of art and literature in this country will be promoted by the organization of the producers of literature and art. This is in strict analogy with the action of other professions and of almost all the industries. No one doubts that literature and art are or should be leading interests in our civilization, and their dignity will be enhanced in the public estimation by a visible organization of their representatives, who are seriously determined upon raising the standards by which the work of writers and artists is judged. The association of persons having this common aim cannot but stimulate effort, soften unworthy rivalry into generous competition, and promote enthusiasm and good fellowship in their work. The mere coming together to compare views and discuss interests and tendencies and problems which concern both the workers and the great public, cannot fail to be of benefit to both.
In no other way so well as by association of this sort can be created the feeling of solidarity in our literature, and the recognition of its power. It is not expected to raise any standard of perfection, or in any way to hamper individual development, but a body of concentrated opinion may raise the standard by promoting healthful and helpful criticism, by discouraging mediocrity and meretricious smartness, by keeping alive the traditions of good literature, while it is hospitable to all discoverers of new worlds. A safe motto for any such society would be Tradition and Freedom—'Traditio et Libertas'.
It is generally conceded that what literature in America needs at this moment is honest, competent, sound criticism. This is not likely to be attained by sporadic efforts, especially in a democracy of letters where the critics are not always superior to the criticised, where the man in front of the book is not always a better marksman than the man behind the book. It may not be attained even by an organization of men united upon certain standards of excellence. I do not like to use the word authority, but it is not unreasonable to suppose that the public will be influenced by a body devoted to the advancement of art and literature, whose sincerity and discernment it has learned to respect, and admission into whose ranks will, I hope, be considered a distinction to be sought for by good work. The fashion of the day is rarely the judgment of posterity. You will recall what Byron wrote to Coleridge: "I trust you do not permit yourself to be depressed by the temporary partiality of what is called 'the public' for the favorites of the moment; all experience is against the permanency of such impressions. You must have lived to see many of these pass away, and will survive many more."
The chief concern of the National Institute is with the production of works of art and of literature, and with their distribution. In the remarks following I shall confine myself to the production and distribution of literature. In the limits of this brief address I can only in outline speak of certain tendencies and practices which are affecting this production and this distribution. The interests involved are, first, those of the author; second, those of the publisher; third, those of the public. As to all good literature, the interests of these three are identical if the relations of the three are on the proper basis. For the author, a good book is of more pecuniary value than a poor one, setting aside the question of fame; to the publisher, the right of publishing a good book is solid capital,—an established house, in the long run, makes more money on "Standards" than on "Catchpennies"; and to the public the possession of the best literature is the breath of life, as that of the bad and mediocre is moral and intellectual decadence. But in practice the interests of the three do not harmonize. The author, even supposing his efforts are stimulated by the highest aspirations for excellence and not by any commercial instinct, is compelled by his circumstances to get the best price for his production; the publisher wishes to get the utmost return for his capital and his energy; and the public wants the best going for the least money.
Consider first the author, and I mean the author, and not the mere craftsman who manufactures books for a recognized market. His sole capital is his talent. His brain may be likened to a mine, gold, silver, copper, iron, or tin, which looks like silver when new. Whatever it is, the vein of valuable ore is limited, in most cases it is slight. When it is worked out, the man is at the end of his resources. Has he expended or produced capital? I say he has produced it, and contributed to the wealth of the world, and that he is as truly entitled to the usufruct of it as the miner who takes gold or silver out of the earth. For how long? I will speak of that later on. The copyright of a book is not analogous to the patent right of an invention, which may become of universal necessity to the world. Nor should the greater share of this usufruct be absorbed by the manufacturer and publisher of the book. The publisher has a clear right to guard himself against risks, as he has the right of refusal to assume them. But there is an injustice somewhere, when for many a book, valued and even profitable to somebody, the author does not receive the price of a laborer's day wages for the time spent on it—to say nothing of the long years of its gestation.
The relation between author and publisher ought to be neither complicated nor peculiar. The author may sell his product outright, or he may sell himself by an agreement similar to that which an employee in a manufacturing establishment makes with his master to give to the establishment all his inventions. Either of these methods is fair and businesslike, though it may not be wise. A method that prevailed in the early years of this century was both fair and wise. The author agreed that the publisher should have the exclusive right to publish his book for a certain term, or to make and sell a certain number of copies. When those conditions were fulfilled, the control of the property reverted to the author. The continuance of these relations between the two depended, as it should depend, upon mutual advantage and mutual good-will. By the present common method the author makes over the use of his property to the will of the publisher. It is true that he parts with the use only of the property and not with the property itself, and the publisher in law acquires no other title, nor does he acquire any sort of interest in the future products of the author's brain. But the author loses all control of his property, and its profit to him may depend upon his continuing to make over his books to the same publisher. In this continuance he is liable to the temptation to work for a market, instead of following the free impulses of his own genius. As to any special book, the publisher is the sole judge whether to push it or to let it sink into the stagnation of unadvertised goods.
The situation is full of complications. Theoretically it is the interest of both parties to sell as many books as possible. But the author has an interest in one book, the publisher in a hundred. And it is natural and reasonable that the man who risks his money should be the judge of the policy best for his whole establishment. I cannot but think that this situation would be on a juster footing all round if the author returned to the old practice of limiting the use of his property by the publisher. I say this in full recognition of the fact that the publishers might be unwilling to make temporary investments, or to take risks. What then? Fewer books might be published. Less vanity might be gratified. Less money might be risked in experiments upon the public, and more might be made by distributing good literature. Would the public be injured? It is an idea already discredited that the world owes a living to everybody who thinks he can write, and it is a superstition already fading that capital which exploits literature as a trade acquires any special privileges.
The present international copyright, which primarily concerns itself with the manufacture of books, rests upon an unintelligible protective tariff basis. It should rest primarily upon an acknowledgment of the author's right of property in his own work, the same universal right that he has in any other personal property. The author's international copyright should be no more hampered by restrictions and encumbrances than his national copyright. Whatever regulations the government may make for the protection of manufactures, or trade industries, or for purposes of revenue on importations, they should not be confounded with the author's right of property. They have no business in an international copyright act, agreement, or treaty. The United States copyright for native authors contains no manufacturing restrictions. All we ask is that foreign authors shall enjoy the same privileges we have under our law, and that foreign nations shall give our authors the privileges of their local copyright laws. I do not know any American author of any standing who has ever asked or desired protection against foreign authors.
This subject is so important that I may be permitted to enlarge upon it, in order to make clear suggestions already made, and to array again arguments more or less familiar. I do this in the view of bringing before the institute work worthy of its best efforts, which if successful will entitle this body to the gratitude and respect of the country. I refer to the speedy revision of our confused and wholly inadequate American copyright laws, and later on to a readjustment of our international relations.
In the first place let me bring to your attention what is, to the vast body of authors, a subject of vital interest, which it is not too much to say has never received that treatment from authors themselves which its importance demands. I refer to the property of authors in their productions. In this brief space and time I cannot enter fully upon this great subject, but must be content to offer certain suggestions for your consideration.
The property of an author in the product of his mental labor ought to be as absolute and unlimited as his property in the product of his physical labor. It seems to me idle to say that the two kinds of labor products are so dissimilar that the ownership cannot be protected by like laws. In this age of enlightenment such a proposition is absurd. The history of copyright law seems to show that the treatment of property in brain product has been based on this erroneous idea. To steal the paper on which an author has put his brain work into visible, tangible form is in all lands a crime, larceny, but to steal the brain work is not a crime. The utmost extent to which our enlightened American legislators, at almost the end of the nineteenth century, have gone in protecting products of the brain has been to give the author power to sue in civil courts, at large expense, the offender who has taken and sold his property.
And what gross absurdity is the copyright law which limits even this poor defense of author's property to a brief term of years, after the expiration of which he or his children and heirs have no defense, no recognized property whatever in his products.
And for some inexplicable reason this term of years in which he may be said to own his property is divided into two terms, so that at the end of the first he is compelled to re-assert his ownership by renewing his copyright, or he must lose all ownership at the end of the short term.
It is manifest to all honest minds that if an author is entitled to own his work for a term of years, it is equally the duty of his government to make that ownership perpetual. He can own and protect and leave to his children and his children's children by will the manuscript paper on which he has written, and he should have equal right to leave to them that mental product which constitutes the true money value of his labor. It is unnecessary to say that the mental product is always as easy to be identified as the physical product. Its identification is absolutely certain to the intelligence of judges and juries. And it is apparent that the interests of assignees, who are commonly publishers, are equal with those of authors, in making absolute and perpetual this property in which both are dealers.
Another consideration follows here. Why should the ownership of a bushel of wheat, a piece of silk goods, a watch, or a handkerchief in the possession of an American carried or sent to England, or brought thence to this country, be absolute and unlimited, while the ownership of his own products as an author or as a purchaser from an author is made dependent on his nationality? Why should the property of the manufacturer of cloths, carpets, satins, and any and every description of goods, be able to send his products all over the world, subject only to the tariff laws of the various countries, while the author (alone of all known producers) is forbidden to do so? The existing law of our country says to the foreign author, "You can have property in your book only if you manufacture it into salable form in this country." What would be said of the wisdom or wild folly of a law which sought to protect other American industries by forbidding the importation of all foreign manufactures?
No question of tariff protection is here involved. What duty shall be imposed upon foreign products or foreign manufactures is a question of political economy. The wrong against which authors should protest is in annexing to their terms of ownership of their property a protective tariff revision. For, be it observed, this is a subject of abstract justice, moral right, and it matters nothing whether the author be American, English, German, French, Hindoo, or Chinese,—and it is very certain that when America shall enact a simple, just, copyright law, giving to every human being the same protection of law to his property in his mental products as in the work of his hands, every civilized nation on earth will follow the noble example.
As it now stands, authors who annually produce the raw material for manufacturing purposes to an amount in value of millions, supporting vast populations of people, authors whose mental produce rivals and exceeds in commercial value many of the great staple products of our fields, are the only producers who have no distinct property in their products, who are not protected in holding on to the feeble tenure the law gives them, and whose quasi-property in their works, flimsy as it is, is limited to a few years, and cannot with certainty be handed down to their children. It will be said, it is said, that it is impossible for the author to obtain an acknowledgment of absolute right of property in his brain work. In our civilization we have not yet arrived at this state of justice. It may be so. Indeed some authors have declared that this justice would be against public policy. I trust they are sustained by the lofty thought that in this view they are rising above the petty realm of literature into the broad field of statesmanship.
But I think there will be a general agreement that in the needed revisal of our local copyright law we can attain some measure of justice. Some of the most obvious hardships can be removed. There is no reason why an author should pay for the privilege of a long life by the loss of his copyrights, and that his old age should be embittered by poverty because he cannot have the results of the labor of his vigorous years. There is no reason why if he dies young he should leave those dependent on him without support, for the public has really no more right to appropriate his book than it would have to take his house from his widow and children. His income at best is small after he has divided with the publishers.
No, there can certainly be no valid argument against extending the copyright of the author to his own lifetime, with the addition of forty or fifty years for the benefit of his heirs. I will not leave this portion of the topic without saying that a perfectly harmonious relation between authors and publishers is most earnestly to be desired, nor without the frank acknowledgment that, in literary tradition and in the present experience, many of the most noble friendships and the most generous and helpful relations have subsisted, as they ought always to subsist, between the producers and the distributors of literature, especially when the publisher has a love for literature, and the author is a reasonable being and takes pains to inform himself about the publishing business.
One aspect of the publishing business which has become increasingly prominent during the last fifteen years cannot be overlooked, for it is certain to affect seriously the production of literature as to quality, and its distribution. Capital has discovered that literature is a product out of which money can be made, in the same way that it can be made in cotton, wheat, or iron. Never before in history has so much money been invested in publishing, with the single purpose of creating and supplying the market with manufactured goods. Never before has there been such an appeal to the reading public, or such a study of its tastes, or supposed tastes, wants, likes and dislikes, coupled also with the same shrewd anxiety to ascertain a future demand that governs the purveyors of spring and fall styles in millinery and dressmaking. Not only the contents of the books and periodicals, but the covers, must be made to catch the fleeting fancy. Will the public next season wear its hose dotted or striped?
Another branch of this activity is the so-called syndicating of the author's products in the control of one salesman, in which good work and inferior work are coupled together at a common selling price and in common notoriety. This insures a wider distribution, but what is its effect upon the quality of literature? Is it your observation that the writer for a syndicate, on solicitation for a price or an order for a certain kind of work, produces as good quality as when he works independently, uninfluenced by the spirit of commercialism? The question is a serious one for the future of literature.
The consolidation of capital in great publishing establishments has its advantages and its disadvantages. It increases vastly the yearly output of books. The presses must be kept running, printers, papermakers, and machinists are interested in this. The maw of the press must be fed. The capital must earn its money. One advantage of this is that when new and usable material is not forthcoming, the "standards" and the best literature must be reproduced in countless editions, and the best literature is broadcast over the world at prices to suit all purses, even the leanest. The disadvantage is that products, in the eagerness of competition for a market, are accepted which are of a character to harm and not help the development of the contemporary mind in moral and intellectual strength. The public expresses its fear of this in the phrase it has invented—"the spawn of the press." The author who writes simply to supply this press, and in constant view of a market, is certain to deteriorate in his quality, nay more, as a beginner he is satisfied if he can produce something that will sell without regard to its quality. Is it extravagant to speak of a tendency to make the author merely an adjunct of the publishing house? Take as an illustration the publications in books and magazines relating to the late Spanish-American war. How many of them were ordered to meet a supposed market, and how many of them were the spontaneous and natural productions of writers who had something to say? I am not quarreling, you see, with the newspapers who do this sort of thing; I am speaking of the tendency of what we have been accustomed to call literature to take on the transient and hasty character of the newspaper.
In another respect, in method if not in quality, this literature approaches the newspaper. It is the habit of some publishing houses, not of all, let me distinctly say, to seek always notoriety, not to nurse and keep before the public mind the best that has been evolved from time to time, but to offer always something new. The year's flooring is threshed off and the floor swept to make room for a fresh batch. Effort eventually ceases for the old and approved, and is concentrated on experiments. This is like the conduct of a newspaper. It is assumed that the public must be startled all the time.
I speak of this freely because I think it as bad policy for the publisher as it is harmful to the public of readers. The same effort used to introduce a novelty will be much better remunerated by pushing the sale of an acknowledged good piece of literature.
Literature depends, like every other product bought by the people, upon advertising, and it needs much effort usually to arrest the attention of our hurrying public upon what it would most enjoy if it were brought to its knowledge.
It would not be easy to fix the limit in this vast country to the circulation of a good book if it were properly kept before the public. Day by day, year by year, new readers are coming forward with curiosity and intellectual wants. The generation that now is should not be deprived of the best in the last generation. Nay more, one publication, in any form, reaches only a comparatively small portion of the public that would be interested in it. A novel, for instance, may have a large circulation in a magazine; it may then appear in a book; it may reach other readers serially again in the columns of a newspaper; it may be offered again in all the by-ways by subscription, and yet not nearly exhaust its legitimate running power. This is not a supposition but a fact proved by trial. Nor is it to be wondered at, when we consider that we have an unequaled homogeneous population with a similar common-school education. In looking over publishers' lists I am constantly coming across good books out of print, which are practically unknown to this generation, and yet are more profitable, truer to life and character, more entertaining and amusing, than most of those fresh from the press month by month.
Of the effect upon the literary product of writing to order, in obedience to a merely commercial instinct, I need not enlarge to a company of authors, any more than to a company of artists I need to enlarge upon the effect of a like commercial instinct upon art.
I am aware that the evolution of literature or art in any period, in relation to the literature and art of the world, cannot be accurately judged by contemporaries and participants, nor can it be predicted. But I have great expectations of the product of both in this country, and I am sure that both will be affected by the conduct of persons now living. It is for this reason that I have spoken.