It was not until the Middle Ages, when society in Europe began to reorganize itself very painfully on a commercial basis, that a general obligation to work began to be heard of. St. Thomas Aquinas (c. 1226–74) preached it as a corollary to his doctrine of fixed and immovable social classes. It was the duty of certain lowly orders of men to labor diligently, as it was the duty of the noble and learned to cultivate the humanities, spread the True Faith, and smite the infidel. But there was no revelation in this, and not much theology. Thomas, as always, spoke thunderously ex cathedra, but he spoke as a sociologist rather than a theologian. In other words, his theory was simply a logical deduction from the social necessities of his time. Work was inescapably needful in a world in which money was becoming more and more important, and it thus had to be endured. But thrift was yet somewhat dubious. The first duty of a man who happened to accumulate a great deal of wealth was to spend it—a large part of it on the poor, but a part of it also on that conspicuous waste which was one of the major social phenomena of the age. A prince who showed caution in this department was held in low esteem, and likewise a prelate. Most of the great cathedrals were built, not primarily to the glory of God, but in gorgeous proof of the liberality of archbishops.
As the Middle Ages flowed into the Renaissance and sustained work became ever more necessary to the well-being of a rapidly changing society, it naturally to the well-being of a rapidly changing society, it naturally became more and more virtuous. But the Catholic theologians granted it their approval, one suspects, only under harsh economic compulsion: in their hearts they apparently still cherished the old Christian view of it as burdensome and painful, and when they praised it roundly it was chiefly as penance. It remained for the heretic, Martin Luther, to discover that the thing was laudable in itself. He was the true inventor of the modern doctrine that there is something inherently dignified and praiseworthy about labor—that the man who bears a burden in the heat of the day is somehow more pleasing to God than the man who takes his ease in the shade. Here, as in other directions, he gave an eager theological ratification to the economic revolution that was going on around him, and could not be stayed. He was the champion of the new masters of Europe, the bourgeois men of business, against its old masters, the soldiers and priests. These men of business needed willing laborers, and the easiest way to make them willing was to convince them that by working hard they were serving and gratifying God.
But even Luther was suspicious of the mere capitalist, as opposed to the entrepreneur, and in his early sermons he denounced the taking of interest in terms recalling the philippics of the early Christian Fathers. Later on, facing an ever-mounting tide that he could not stem, he prudently modified his position, and his final doctrine granted that taking rent for the use of land was pleasing to God, provided the charge did not run beyond 5% of the value. He held also that it was moral to recover from a borrower if the lender lost a chance of profit by making the loan, or if he had to borrow himself to replace what he had lent. But he never went the whole way: to the end he had grave doubts about certain kinds of investments. His great contribution to latter-day Christian ethics did not lie in this hazardous and dubious direction: it was his invention of the dignity of work. “With him,” says Tilgher, “the German word Beruf, meaning profession, took on a religious color which it was never to lose, and which from German passed into all the analogous words of Protestant countries. Profession and vocation or calling became synonymous. Luther placed a crown on the sweaty forehead of labor.
Free Will Again
From the same, pp. 64–66
THE STUDY of the massive and instructive phenomenon of sin always causes moral theologians to harbor larger and larger doubts of the freedom of the will, and some of the most talented of them, notably Augustine, Luther and Calvin, have been close to throwing it overboard altogether. How, indeed, is it to be reconciled with the omniscience and omnipotence of God, that first postulate of all revealed religion? If He knew that I was going to put in this evening at work upon the present ribald book, to the scandal of the True Faith and the menace of souls, then why didn’t He divert me to some more seemly labor? It is impossible to imagine, at least in the light of that True Faith, that He didn’t know what I was up to, and equally impossible to imagine that He couldn’t stop me. Ergo, He must shoulder at least a part of the blame for my sin, and will cut a sorry figure if He undertakes to punish me for it in Hell.
But this, of course, is going a great deal further than any really discreet moral theologian ever lets himself go. Before he comes to the point of putting the whole blame upon God he always transforms the divine omniprescience into something considerably less sweeping, usually with a disarming metaphysical name, and thereby makes room for free will. The Catholic Molinists, for example, split it neatly into three parts, simplex intelligentia, scientia visionis and scientia media, none of them capable of precise definition: thus the question is disposed of by making it unintelligible to the vulgar. And thus, despite His infinite wisdom and awful powers, God is left free to be surprised, disappointed, grieved or indignant, and man is left free to sin, and to be roasted for it throughout eternity. This concession, I fancy, gives some pain to the theologians in their rôle of logicians, but as practical pastors they make it with good grace, for making it is absolutely essential to their business. Take away the idea of free sinning, freely arrived at, and revealed religion ceases to be a going concern.
The secular philosophers proceed in the other direction, but they arrive at substantially the same position. Their problem is not to find a precarious foothold for free will under the universal shadow of God, but to keep it within plausible evidential bounds. The ideal savage, immersed as he is in his animistic naïveté, sees will in everything that moves and in many objects that do not, and can scarcely imagine it curbed and circumscribed in man, the lord of creation. If A kills B, even though it be by plain inadvertence, A must pay the ordained penalty: either his own life or a heavy indemnity. The will, in other words, is assumed from the act; there is no legal difference between the most deliberate premeditation and what we would call mere chance. But this ideal savage and his jurisprudence exist only as abstractions in the more romantic sort of anthropology books. In the real world even the most primitive tribes think of free will with certain reasonable reservations. Homicide under one set of circumstances is felt to differ materially from homicide under another, and the concepts of the unintentional, the excusable and the compulsory creep in.
An Ethical Dilemma
From the Smart Set, April, 1920, P.42
IT is still socially dangerous for an American man to have the reputation of being virtuous. Theoretically, he who preserves his chemical purity in the face of all temptations is a noble and upright fellow and the delight of the heavenly hierarchy; actually he is laughed at by women and viewed with contempt by men. Such are the disparities that engage and torture the student of practical ethics in this great moral republic. It is the only country in the civilized world, so far as I know, in which male virtue is inculcated officially. And yet of all countries this is precisely the one in which private conversation among men is most largely made up of boudoir braggadocio and eloquent eye-winkings.
Most such bragging, I am convinced, is mendacious. The ratio of conquests hinted at to conquests actually achieved is probably not far from ten thousand to one. The American man, in point of fact, is anything but a Don Juan. He is far too sentimental for the rôle. Moreover, he lacks the sort of courage that it demands; he is brave enough in a combat with clubs, injunctions or fists, but he is a very timid performer in a combat of wits. When there is a conquest in amour, he is not the conqueror but the victim. But whether conqueror or victim, he goes on boasting just the same—and his boasts are even gaudier when there has been no conquest at all. In brief, the vast majority of his deviltries are purely theoretical. He pretends to gallantry in order to hush the sneers of men who pretend to gallantry in order to hush his sneers. He is ashamed to
admit that, by the moral code of the land, he has no reason to be ashamed.
Honor
From the Smart Set, Oct., 1919, p.84
IT is a commonplace of moral science that absolute morality is impossible—in other words, that all men sin. What is often overlooked is that the same fallibility shows itself upon the higher level of what is called honor, which is simply the morality of superior men. A man who views himself as honorable usually labors under the delusion that his honor is unsullied, but this is never literally true. Every man, however honorable, occasionally sacrifices honor to mere morality behind the door, just as every man of morals occasionally sacrifices morality to self-interest.
VI. CRIME AND PUNISHMENT
The Criminal Law
From the Smart Set, May, 1922, pp. 30–34
THE SCIENCE of penology, in these days, is chiefly in the hands of sentimentalists, and in consequence it shows all the signs of glycosuria. The idea seems to be to turn the dungeons and bullpens of the law into laboratories of the uplift, so that the man who goes in a burglar will come out a Y.M.C.A. secretary. To this end all harsh handling of the felon is frowned upon, and on the slightest showing of renascent piety in him he is delivered from his cage, almost with apologies.
At the bottom of this softness, of course, there is a sound instinct, and that is the instinct of revolt against cruel and excessive punishments. We inherited such a system of punishments from the English Common Law; in the Bill of Rights there is the first evidence of a rebellion against them. But our current error lies in the fact that softness has not stopped with disposing of the punishments that were barbarous and excessive; it has also sorely limited and conditioned the punishments that were reasonable and fitting; and so the problem of dealing effectively with crime remains a puzzle, and crime itself continues to flourish.
When I say crime, of course, I mean the thing in its conventional sense. In the abstract it scarcely has any existence. Practically all so-called crimes are justifiable on occasion, and nine-tenths of them, to certain kinds of men, are unavoidable on occasion. It is a platitude that you will find quite as many intelligent and honest men in the average prison as you will find in the average club, and when it comes to courage, enterprise and determination—in brief, to the special virtues which mark the superior man—you will probably find a great many more. But society, in order to protect the weak and botched against the bold and original, has had to proclaim certain human acts, under certain circumstances, as too dangerous to be permitted, and hence as what we call criminal. Most of us aspire to the majority of those acts in secret, and some of us commit them surreptitiously, but the man who performs them in such a manner that the fact becomes notorious is a menace to the security of the rest of us, and we go through the solemn hocus-pocus of seizing him and trying him, and pump up indignation over his rascality, and finally visit upon him the thing called punishment.
The trouble with this so-called punishment, in a great many cases, is that it is hypocritical and dishonest at bottom, and thus at constant war with abstract justice and common sense. What we find practically is a crowd of poltroons in the jury box venting their envious hatred of enterprise and daring upon a man who, at worst, is at least as decent as they are; and a scoundrel on the bench lording it over a scoundrel in the dock because the latter is less clever than he is. In the old days this ill nature took the form of floggings, mutilations and damnations. In our own days, with an evil conscience gnawing the gizzard of the world, it takes the shape of formalities which tend to grow more and more ineffective, sentimental and meaningless. In particular, it takes the shape of a grotesquely circumscribed répertoire of penalties, so that the business of fitting the punishment to the crime becomes more and more difficult, even to the stray judge with intelligence. In a few rare cases he may condemn a prisoner to death; in all other cases he has a Hobson’s choice between a mulcting in damages which seldom punishes at all, and a deprivation of liberty which usually punishes inappropriately, and often too much. The medieval judge had an almost unlimited series of choices; if no habitual punishment suited his purposes, he could devise a new one to fit the case. But the modern judge must forever oscillate absurdly between fine and imprisonment—in other words, between allowing one prisoner to pay a bribe for his liberty, and taking away the liberty of another prisoner because he hasn’t got the bribe.
It is a deep consciousness of this absurdity which lies at the bottom of all the fantastic experiments of modern penology, and of many of the extravagances which we witness on the bench. It seemed ridiculous, perhaps, for Judge Kenesaw Mountain Landis, LL.B., to fine the Standard Oil $29,240,000, but in its essence it was an honest effort to bring an offender to something approaching scientifically exact justice. It seems (and may be) sugarishly sentimental for uplifters to transform prisons into moving-picture parlors, but underneath it there is the sound doctrine that locking up a man in a cell is, for most crimes, too harsh, and that its effect on the man is precisely the opposite of the one intended, for it makes him a more determined antagonist of so stupid and cruel a society than ever he was before. What we need is a thorough overhauling of our punishments—an overhauling looking to their rescue from formalism and imbecility. They must be made more fluent, more intelligible, more various. We must get rid of the mawkish and false humanity which shrinks from simple and forthright penalties, and restore the true humanity which makes the criminal stop doing what he is doing, and yet halts before it has made a hopeless wreck of him. If revenge is admitted (and I suppose it always will be), it must be admitted openly and unblushingly, and not swathed in that dishonest concealment which now seeks to make it appear as something else.
In medieval law, as I have hinted, there are suggestions that should engage the penological reformer of tomorrow. The medieval mind was unburdened by transcendental theories as to the nature and causes of crime. It was realistic in habit, and disdained to seek behind the palpable fact for hidden portents and significances. In particular, it disdained to conceal its working beneath gossamers of fabulous purpose. It thus defined its crimes simply and clearly, and punished them frankly. For the runaway clod-hopper the obvious punishment was hamstringing, and, being obvious, it was executed without further ado. For the perjurer, the removal of his offending tongue. For the scoundrel who bit in clinches, extraction of the incisors. For the rowdy housewife and husband-baiter, prolonged immersion in a horse-pond—that is, enforced and painful silence. For the habitual thief, branding of the forehead with a large and warning T. For the short-weight grocer, three hours in the pillory, that his victims might pay him up with his own eggs and mark him well for future avoidance.
A judge, in those naïve and far-off days, had to be a fellow of resource and ingenuity, a man capable of quick and accurate reasoning. His public expected him, not merely to punish crime, but to punish it in some germane and felicitous fashion. If he could get a touch of humor into his sentence, so much the better, for the common people, then as now, remembered a jocosity much longer than they remembered a syllogism. In any event he had to maintain some intelligible connection between the offense and the penalty, that its lesson might be plain. If, finding the application of capsicum plasters to the pantaloons an efficient punishment for napping catchpolls, he next day prescribed it for a pirate, a witch, or a well-poisoner, then he was himself laughed at as a jackass, and perhaps even cashiered. In brief, he had to keep his wits about him if he would go on wallowing in the ermine. The law presumed him to be a man of sagacity, of ingenuity, of resource; and if, by any stupidity, he showed that he wasn’t its wrath consumed him.
The judge of today needs no such virtues. He is not the agent and exponent of justice, but its mere lackey. A great body of intricate law and precedent protects the felon against his effort to ferret out and determine the crime, and another great body of law protects the felon against his effort to fit the punishment to it. Consider, for example, the difficulties confronting him when he faces a very familiar task: the sente
ncing of a convicted pickpocket. Two or three considerations must inevitably flit through his darkened mind in this situation. One is that picking pockets requires a very high degree of manual skill—that it is an avocation as difficult technically as dentistry or playing the piano. Another, following upon the first, is that it is almost always pursued professionally—that, generally speaking, the pickpocket always devotes his whole time to it. A third is that, having thus entered the profession deliberately, and mastered its excessive difficulties, and taken over its known risks, he is firmly set in it, and cannot be shaken out by any process which leaves his actual expertness undamaged.
In other words, the pickpocket is a deliberate, habitual and incurable criminal, and neither chaining him by the leg nor forcing him to view moral moving-picture shows will ever cure him. To be bagged now and then, to make occasional sojourns in prison—all that, to him, is mere professional risk. When, by some mischance, he is taken and jailed, he lays the business to the fortunes of war, as a surgeon does when a patient dies on the table or a lawyer when a client is caught. As soon as he has paid his debt to the law he resumes the practise of his profession. If anything, a term in prison heartens and emboldens him, for he commonly debits it, not to the acts preceding it, but to the acts to follow it. In brief, he regards it as a sort of fee or license, paid to the community for the privilege of extracting wallets. No one ever heard of a reformed pickpocket; he exists only in the dreams of sentimental penologists. He may give up the business when his eyes give out, or his fingers get too stiff, but so long as he can snatch a pocketbook and get away he will keep on at it. And yet, so absurd is our law that we try to cure him by making him stop temporarily—by locking him up for two or three years, or maybe for only six months, As well try to cure a poet by forbidding him, for six months, to get drunk.
Mencken Chrestomathy (Vintage) Page 13