Mr. Bowers’s eye is cast mainly below the Potomac. In his discussions of the sordid abominations of Reconstruction he piles up documents with relentless industry, but when it comes to what went on simultaneously in the North he is not so copious. Such half-fabulous frauds as Henry Ward Beecher get only a few tart words, and there is next to nothing about the thieveries and oppressions which begat the industrialism of today. The South, in the long run, will probably suffer as unpleasantly under that industrialism as it ever suffered under Reconstruction: the signs of that effect are already numerous and striking. But Mr. Bowers has no time or steam for the subject: he is concerned primarily with the robbery and debauchery which went on in the conquered States immediately after the war. There are few parallels to the story in the history of civilized man. The ancients, butchering their defeated foes out of hand, were relatively humane. It remained for 100% Americans to invent the scheme of first disarming them and then starving and looting them, of setting savages upon them, of cruelly and deliberately reducing them to desperation and despair. It was American soldiers in uniform who carried out that chivalrous business, and it was the most glorious of American captains who bossed the job. Let the fact be remembered by exuberant patriots whenever the flag goes by.
Mr. Bowers unearths some curious and sardonic details. When, at the height of the saturnalia, certain tender-minded Northerners protested against it on grounds of humanity, the Northern Methodist bishops demanded that the whip be laid on with unabated ferocity. From the learned jurists of the Federal judiciary came support no less hearty: they were always ready with decisions justifying the suspension of the writ of habeas corpus, the confiscation of private property, the stealing of elections, the waste of the public funds. History repeats itself in our own day, but the denizens of the New South are too stupid to read its lessons. Mr. Bowers makes no vain pretense to judicial impartiality. He is frankly against the Sumners, Thaddeus Stevenses and other such appalling sadists of the era, and apparently hopes that they are now in Hell. The ground he covers has been covered before, but his documentation is largely new. He makes heavy use of the files of the New York World, the paper he now serves as an editorial writer. He also dredges a lot of interesting stuff out of contemporary manuscripts, notably the unpublished diary of George W. Julian of Indiana, a follower of Stevens who gagged at what went on, and ended his career as a Democrat. The book, as I have said, has some dullness; Mr. Bowers is not a brisk writer. But the tale he has to tell is one that every American should study on his knees.
IV. CRIMINOLOGY
The Nature of Liberty
From PREJUDICES: THIRD SERIES, 1922, pp. 193–200.
First printed in Issues of Today, March 11, 1922
LET US suppose that you are a peaceful citizen on your way home from your place of employment. A police sergeant, detecting you in the crowd, approaches you, lays his hand on your collar, and informs you that you are under arrest for killing a trolley conductor in Altoona, Pa. Amazed by the accusation, you decide hastily that the officer has lost his wits, and take to your heels. He pursues you. You continue to run. He draws his revolver and fires at you. He misses you. He fires again and fetches you in the leg. You fall and he is upon you. You prepare to resist his apparently maniacal assault. He beats you into insensibility with his espantoon, and drags you to the patrol box.
Arrived at the watch house you are locked in a room with five detectives, and for six hours they question you with subtle art. You grow angry—perhaps robbed of your customary politeness by the throbbing in your head and leg—and answer tartly. They knock you down. Having failed to wring a confession from you, they lock you in a cell, and leave you there all night. The next day you are taken to police headquarters, your photograph is made for the Rogues’ Gallery, and a print is duly deposited in the section labeled “Murderers.” You are then carted to jail and locked up again. There you remain until the trolley conductor’s wife comes down from Altoona to identify you. She astonishes the police by saying that you are not the man. The actual murderer, it appears, was an Italian. After holding you a day or two longer, to audit your income tax returns and investigate the pre-marital chastity of your wife, they let you go.
You are naturally somewhat irritated by your experience and perhaps your wife urges you to seek redress. Well, what are your remedies? If you are a firebrand, you reach out absurdly for those of a preposterous nature: the instant jailing of the sergeant, the dismissal of the police Commissioner. But if you are a 100% American and respect the laws and institutions of your country, you send for your solicitor—and at once he shows you just how far your rights go, and where they end. You cannot cause the arrest of the sergeant, for you resisted him when he attempted to arrest you, and when you resisted him he acquired an instant right to take you by force. You cannot proceed against him for accusing you falsely, for he has a right to make summary arrests for felony, and the courts have many times decided that a public officer, so long as he cannot be charged with corruption or malice, is not liable for errors of judgment made in the execution of his sworn duty. You cannot get the detectives on the mat, for when they questioned you you were a prisoner accused of murder, and it was their duty and their right to do so. You cannot sue the turnkey at the watch house or the warden at the jail for locking you up, for they received your body, as the law says, in a lawful and regular manner, and would have been liable to penalty if they had turned you loose.
But have you no redress whatever, no rights at all? Certainly you have a right, and the courts have jealously guarded it. You have a clear right, guaranteed to you under the Constitution, to go into a court of equity and apply for a mandamus requiring the police to cease forthwith to expose your portrait in the Rogues’ Gallery among the murderers. This is your inalienable right, and no man or men on earth can take it away from you. You cannot prevent them cherishing your portrait in their secret files, but you can get an order commanding them to refrain forever from exposing it to the gaze of idle visitors, and if you can introduce yourself unseen into their studio and prove that they disregard that order, you can have them hailed into court for contempt and fined by the learned judge.
Thus the law, statute, common and case, protects the free American against injustice.
The Beloved Turnkey
From the Baltimore Evening Sun, Feb. 12, 1923
Whenever the liberties of the average citizen are grossly invaded and made a mock of, as happened, for example, in the United States during the late war, there are always observers who marvel that he bears the outrage with so little murmuring. There is, however, no real reason for wondering at it. The fact is that the average man’s love of liberty is nine-tenths imaginary, exactly like his love of sense, justice and truth. He is not actually happy when free; he is uncomfortable, a bit alarmed, and intolerably lonely. Liberty is not a thing for the great masses of men. It is the exclusive possession of a small and disreputable minority, like knowledge, courage and honor. It takes a special sort of man to understand and enjoy liberty—and he is usually an outlaw in democratic societies. It is, indeed, only the exceptional man who can even stand it. The average man doesn’t want to be free. He simply wants to be safe.… Nietzsche achieved something when he changed Schopenhauer’s will-to-live into a will-to-power. But he didn’t go far enough—or maybe he went too far, and in the wrong direction. He should have made it will-to-peace. What the average man wants in this world is the simplest and most ignominious sort of peace—the peace of a trusty in a humane penitentiary, of a hog in a comfortable sty. That is why he has such a superstitious regard for policemen. A policeman is one who protects him (a) from his superiors, (b) from his equals, and (c) from himself. This last service is the most esteemed of them all; theoretically, it keeps ice-wagon drivers, Y.M.C.A. secretaries, insurance collectors and other such morons from smoking opium, ruining themselves at champagne orgies, and travelling all over the country with Follies girls. It is a democratic invention.
Cops and Their Art
From the American Mercury, Feb., 1931, pp. 162–63
The basic trouble with the American Polizei, it seems to me, is that they are badly chosen for their work, and even worse trained for it. The rule almost everywhere in the country is that a recruit for the force must start at the bottom, and spend years pounding a beat before he is eligible to aspire to the higher ranks. This is a good way, perhaps, to train competent night watchmen and traffic regulators, but certainly it is an idiotic way to train detectives. The young man with intelligence enough to be a good detective simply refuses to waste the best years of his youth tagging automobiles parked in the wrong place, and stealing peanuts. He declines to take orders from a sergeant who, in nine cases out of ten, is an illiterate ignoramus, fit only for clubbing Communists and boozing in speakeasies. He is revolted by the thought of associating for years with men who, whatever their natural charm and virtue, are at best only a gang of truck-drivers and trolley motormen outfitted with shields, revolvers and shillelaghs. So he never goes upon the force at all, and his perhaps highly useful services are lost to law and order, and the subtle and difficult art of catching criminals falls to men who are truck-drivers and trolley motormen still, though every bootlegger bows to them and they are hymned by the newspapers, when a murderer accidentally walks into their hands, as the peers of Sherlock Holmes.
Imagine a Sherlock Holmes in real life, and at the beginning of his career. Naturally enough, he is aware of his gifts, and eager to display them, so he applies for a post on the constabulary. First he is examined by doctors to make sure that he is as strong as an ox, and then he is examined by other quacks to determine whether he can read and write. Having passed both tests, he becomes a probationer and is sent out with an older cop to learn the secrets of the profession. The first is a way of standing first on one foot and then on the other, so that mounting guard while a five-hour parade passes laboriously along the street will not result in varicose veins. The second is a method of guessing under oath how long a given automobile has been parked at a given spot, without actually timing it. The third is a way of stealing three naps a night in a garage without getting caught by the roundsman. The fourth is a scheme of oral deodorization whereby an hour’s earnest guzzling in a speakeasy will not arouse the suspicions of the captain. And so on, and so on. Sherlock stands it for a couple of weeks, and then turns in his equipment—to enter, perhaps, the investment securities business, to take holy orders, or to turn criminal himself. Hundreds and thousands of youngsters are thus lost to the police every year, and many of them belong to the most intelligent five per cent of recruits.
It is exactly as if every officer in the Army had to be a graduate from the ranks—as if every admiral in the Navy had to be a former coal-passer or mess attendant—as if every surgeon had to have years of service as a hospital orderly or dissecting-room Diener behind him. Now and then, to be sure, the scheme lets a really good man survive. I have known detectives, come up from pounding beats, who were extremely competent, just as I once knew a surgeon who actually began as an embalmer. But it must be plain that such things are miracles, and that the probabilities run cruelly against them. The average detective is simply an ex-paperhanger or bartender thrown into a job demanding five times the information and intelligence of a Harvard professor. He is pitted against men who, at their best, are shrewder than Morgan partners and more daring than deep-sea divers. Is it any wonder that they so often beat him? And is it any wonder that, conscious of his incompetence and revolting against it, he resorts to such brutalities as the third degree to conceal it?
Therapeutics is surely not my Fach, but in this case I venture upon a modest suggestion. It is that the corps of cops be divided into two halves, as the Army is divided. Let the rank and file be recruited from out-of-work grocery clerks, plumbers, bricklayers and farm-hands, as now, but let entrance into the higher posts be restricted to men of superior education and intelligence. I see no reason why an extraordinarily bright young man, if he survives pavement pounding, should not pass from the one category to the other, just as enlisted men in the Army are sometimes given commissions, but I can imagine no reason why every recruit should be forced to start at the bottom, with years of dull and stupid work amid depressing associations. If the good ones, after due examination, could begin as detectives, the whole force would be vastly improved, and it would be measurably less easy than it is now for criminals to escape detection and punishment. There is no real secret about detective work; it simply requires a good head. But under the present system it is open to men with good legs.
Jack Ketch as Eugenist
From PREJUDICES: FIFTH SERIES, 1926, pp. 284–85.
First printed in the American Mercury, July, 1925, p. 353
Has any historian ever noticed the salubrious effect, on the English character, of the frenzy for hanging that went on in England during the Eighteenth Century? When I say salubrious, of course, I mean in the purely social sense. At the end of the Seventeenth Century the Englishman was still one of the most turbulent and lawless of civilized men; at the beginning of the Nineteenth he was the most law-abiding. What worked the change in him? I believe that it was worked by the rope of Jack Ketch. During the Eighteenth Century the lawless strain was simply choked out of the race. Perhaps a third of those in whose veins it ran were actually hanged; the rest were chased out of the British Isles, never to return. Some fled to Ireland, and revivified the decaying Irish race; in practically all the Irish rebels of the past century there have been plain traces of English blood. Others went to the Dominions. Yet others came to the United States, and after helping to conquer the Western wilderness, begat the yeggmen, Prohibition agents, footpads, highjackers and other assassins of today.
The murder rate is very low in England, perhaps the lowest in the world. It is low because nearly all the potential ancestors of murderers were hanged or exiled in the Eighteenth Century. Why is it so high in the United States? Because the potential ancestors of murderers, in the late Eighteenth and early Nineteenth Centuries, were not hanged. And why did they escape? For two plain reasons. First, the existing government was too weak to track them down and execute them, especially in the West. Second, the qualities of daring and enterprise that went with their murderousness were so valuable that it was socially profitable to overlook their homicides. In other words, the job of occupying and organizing the vast domain of the new Republic was one that demanded the aid of men who, among other things, occasionally butchered their fellow men. The butchering had to be winked at in order to get their help. Thus the murder rate, on the frontier, rose to unprecedented heights, while the execution rate remained very low. Probably 100,000 men altogether were murdered in the territory west of the Ohio between 1776 and 1865; probably not 100 murderers were formally executed. When they were punished at all, it was by other murderers—and this left the strain unimpaired.
The Humanitarian Fallacy
From the Baltimore Evening Sun, Jan. 28, 1924
What brings penology so constantly to grief is the modern craze for reducing all punishment to a few simple, standardized penalties, thought erroneously to be humane. This craze was unknown before the Eighteenth Century. It originated in England toward the end of that century as a phase of a general humanitarian movement which, among other fruits, has succeeded so brilliantly in debasing the so-called Anglo-Saxon stock that the descendants of English peasants who, in the year 1700, were hearty, red-faced, tall and healthy animals are today a race of almost pathological men, small in stature, frail in body, without teeth, and wholly devoid of intelligence. In the field of penology the movement obliterated all the protean and often highly ingenious and effective penalties known to classical English jurisprudence and substituted fines and imprisonment, with hanging reserved for murder only. That is to say, all criminals regardless of the nature of their crimes and of the end sought to be achieved by punishing them at all, were thrown into prisons and there punished exactly alike. Thus, the penalty for getting drunk an
d falling off an omnibus became precisely the same, save for its duration, as the penalty for counterfeiting, highway robbery and bigamy. A boy taken in the act of stealing an apple from a grocer’s barrel, voluptuously displayed to catch his eye, was sent to the same prison which sheltered men convicted of robbing widows and orphans, blowing safes, buying and selling prostitutes, and burning down churches.
Obviously, this scheme was quite insane. It not only failed to dissuade and reform the major criminals; it made major criminals of all the minor ones. A youth got into prison for breaking a window, and came out an accomplished and ambitious burglar. In the course of time even the imbeciles in charge of such high matters began to realize that there was something wrong, and the history of penology since that time has been a history of efforts to ameliorate and improve the prison system. Reformatories have been opened for young offenders, a parole system has been developed to sort out chance criminals from the professionals, and a hundred and one other devices have been proposed and tried to correct the plain defects of the underlying scheme. But in the United States, at least, all such devices, in the larger sense, have failed. Crime continues to increase among us, especially in its more violent and hence more dangerous anti-social forms. As our penal system has grown in humaneness toward the lesser varieties of criminals, and in the effectiveness, or, at all events, in the elaborateness of its artifices for reclaiming them and making docile drudges of them, it has steadily lost capacity to discourage or diminish the really serious crime. In order to avoid punishing the petty criminal too much, and so driving him in despair into genuine crime, we have had to reduce the punishment of the major criminal so greatly that, in many cases, it is now scarcely any punishment at all. A Jack Hart, robbing and murdering peaceable citizens in broad day-light while the Polizei snore in the adjacent garages, is sent to exactly the same prison which houses men whose only crime is that they have sold, perhaps, a drink of bay rum to a Prohibition officer disguised as a Christian down with cramps, and once Hart gets there he is treated exactly as they are.
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