Chapter IV: The Criminal Law

We shall probably see in the near future some remarkable changes in the Criminal Law which, particularly in England, is a peculiar blend of barbaric violence, medieval prejudices, and modern fallacies. To-day its sanctions are still largely theological. For instance, suicide is a crime in Great Britain mainly because it is a sin against God; but there is a growing tendency to determinism and to regard crimes and punishments purely in relation to social welfare. Thus murder is punished by hanging because it is a deadly sin; but the public are beginning to distinguish between murder by poison and murder by violence in so far as premeditation enters into the question.

There is also a disposition to avoid unnecessary cruelty or insults. If a man can be sterilized by a surgeon or standardized by a psycho-analyst, this solution of the problem will be preferred to indefinite loss of liberty, and where indefinite loss of liberty appears inevitable there is a new sentiment in favour of painless extinction. The modern criminal is either to be reformed by prison or else shut up for life and given such amenities as beer and tobacco to console him for loss of liberty. He used to be looked upon as possessed by the devil. To-day he is regarded as an imperfectly constructed creature who cannot safely be left at large if his defects cannot be set right.

This scientific point of view is in some respects not so human as the Christian attitude; but it makes for politeness to the criminal. The younger judges (_e.g._, Mr. Justice Finlay) are courteous and sympathetic even when pronouncing sentence of death. The scolding manner of the old type of judge will probably disappear in the next twenty years, and perhaps we shall one day escape even the intolerable inquisitiveness and pharisaical insolence displayed by the less gentlemanly type of coroner, who presumes on the anomalous privileges of his venerable Court to ransack irrelevant details and censure long-forgotten irregularities in the lives and careers of persons sufficiently unfortunate to be united by kinship or friendship to suicides and murderers. Sir Hall Caine recently made an useful protest on this point.

The famous narrative of the execution of Socrates by voluntarily taking hemlock is not very creditable to our modern civilization. Socrates is surrounded by his friends and his executioner is civil and amiable. Socrates feels that this death is due to a certain blindness on the part of his fellow-citizens to the importance of what he has to tell them; but this collective stupidity does not diminish his respect for the laws of his country. He is perfectly willing to suffer death in order to vindicate laws which, taken as a whole, are essential to the public safety. “Father, forgive them for they know not what they do” are words which would have fitted quite naturally into Plato’s account of the famous scene. The last utterances of many criminals have often implied an acquiescence in the public necessity of laws which pinch the individual hardly at certain crises of life.

A man is found guilty of rape if by persistent effort he has tired the woman out or weakened her impulse to resist him. That may seem harsh but is it any less harsh than to hang a man who has been mercilessly nagged for an hour by an uncongenial wife after years of matrimonial misery aggravated by the irritant of chronic semi-starvation? On the other hand, this condemned criminal may feel that by his death he is providing a better security for human life in time to come, just as, according to William James, the vivisected dog might (if properly instructed) know that he was helping to save both dog and man from the ravages of incurable disease.

It may be hoped that crime may be reduced by legal reforms. The reform of marriage and divorce laws should reduce conjugal murder, legitimation by subsequent marriage should reduce infanticide, the abolition of really grinding poverty should reduce all crimes of violence, and the reform or repeal of certain laws relating to offences which concern only adult individuals and not society at large should reduce blackmail.