CHAPTER XV LAW REFORM

When the personnel of the Government of India from the bottom to the top has been reorganised on a basis of understanding of the people, it will begin to revise its laws, and the first will be its Penal Law, its Criminal Courts and Procedure.

To do this with any success it will be necessary first to study the causation of crime, because until you know how it is caused you cannot possibly frame any system of prevention that is likely to do less harm than good.

This is a subject that many men have been studying for some years past, but very little progress has yet been made. The old shibboleths that crime results from a desire for crime and that the only cure is savage punishment still hold good with all Governments, though quite discredited outside official circles. It is a most fascinating subject, and as it is one I have worked at for many years I may be excused for devoting a somewhat large space to it here.

It is more than twenty-five years ago that my attention was first attracted to the causation of crime. I was a young magistrate then, trying my first cases; very nervous, very conscientious that I should fulfil all the legal requirements as laid down in the Codes. It had never occurred to me then that there was any gulf between justice and law—I supposed that they were one, that law was only codified and systemised justice; therefore, in fulfilling the Law I thought that I was surely administering Justice.

I was trying a theft case. I cannot remember now what it was that had been stolen, but I think it was a bullock. The accused was undefended, and I, as the custom is, questioned him about the case, not with the view of getting him to commit himself, but in order to try to elicit his defence, if any. He had none. He admitted the theft, described the circumstances quite fully and frankly, and said he was guilty. I asked him if he knew when he took the bullock from the grazing ground that he was stealing it, and he answered "Yes." I asked him if he knew that the punishment for cattle theft was two years' imprisonment, which practically meant ruin for life, and he replied that he knew it would be heavy.

Then I asked, "Why did you do it?"

He moved uneasily in the dock without answering, looked about him, and seemed puzzled.

I repeated the question.

Evidently he was trying to remember back why he had done it, and found it difficult. He had not considered the point before, and introspection was new to him. "Why did I do it?" he was saying to himself.

"Well?" I asked.

He looked me frankly in the face. "I don't know," he said. "I suppose I could not help it. I did not think about it at all; something just made me take it."

He was convicted, of course, and I forgot the case.

But I did not forget what he had said. It remained in my mind and recurred to me from time to time, I did not know why. For I had always been taught that crime was due to an evil disposition which a person could change, only he would not, and I had as yet seen no reason to question this view. Therefore the accused's defence appealed to no idea that was consciously in my mind. I did not reflect upon it. I can only suppose that, unconsciously to myself, these words reached some instinct within me which told me that they were true. And at last from the very importunity of their return I did begin to think about them, and, consequently on them, of the causation of crime in general. A curiosity awoke which has never abated, has indeed but grown, as in some small ways I was able to satisfy it.

What causes crime? Is it a purely individual matter? If so, why does it follow certain lines of increase or decrease, or maintain an average? That looks more like general results following on general causes than the result of individual qualities. Why is it not curable? It should have been cured centuries ago. Why does punishment usually make the offender worse instead of better? If his crime were within the individual's control, its punishment certainly would deter. It does not. Any deterrent effect it may have is rarely on him who is punished, but on the outside world, and that is but little. So much I saw very clearly in practice, and every book I read on the subject confirmed this. The infamous penal laws of England a hundred years ago did not stop crime; flogging did not stop garotting, it ceased for other causes. I began to think and to observe.

Some three years later my attention was still more strongly drawn to this subject.

I was then for a short time the Governor of the biggest gaol in the world, that in Rangoon. It was crowded with prisoners under sentence for many different forms of crime, from murder or "dacoity"—that is gang robbery—to petty theft.

The numbers were abnormal, and they were so not only here, but in all the gaols of both the Upper and Lower Provinces. The average of crime had greatly risen.

Why was this?

The reason was obvious. The annexation of the Upper Province six years before had caused a wave of unrest, not only there, but in the delta districts as well, that found its expression in many forms of crime. There was no doubt about the cause. But this cause was a general cause, not individual. The individual criminals there in the gaol did not declare the war. That was the consequence of acts by the King of Burma and the Government of India controlled by the English Cabinet, and was consequent on acts of the French Government. Therefore half of these individuals had become criminals because of the disagreements of three Governments, two of which were six thousand miles away from Rangoon.

There is no getting out of that. In normal times the average of convicts would have been only half what it was. The abnormality was not due to the convicts themselves.

Thus if A and B and C were suffering punishment in the gaol the fault is primarily not theirs. A special strain was set up from without which they could not stand and they fell.

But if this is true of half the prisoners, why not of the other half? There was no dividing line between the two classes. Political offences apart, you could not walk into the gaol and, dividing the convicts into two parts, say: "The crimes of this half being due to external causes, they must be pardoned; the crimes of the other half being due to their own evil disposition, they must continue to suffer." There was no demarcation.

Therefore, general causes are occasionally the cause of crime. Here was a long step in advance.

Again, four years later I was on famine duty in the Upper Province, and the same phenomenon occurred. There was an increase in certain forms of crime. Thefts doubled. Other crimes such as cheating and fraudulent dealings with money decreased. Here was again a general cause. Half of those thieves would have remained honest men all their lives, been respected by their fellow-men, and, according to religions, have gone to heaven when they died, but for the famine.

The causes of the famine were want of rain acting on the economic weakness of the people reared by the inability of government. Thus, had rain fallen as usual, had the people been able to cultivate other resources, had government been more advanced and experienced, half these thieves would not have been in gaol; and no one knew which half, for thefts of food did not increase. There was, in fact, no reason they should, as Government provided on the famine camps a subsistence wage for everyone who came.

On the other hand, certain individuals were saved from misappropriating money, or cheating in mercantile transactions, because there was little money left to misappropriate and not much business. If they lived honestly and went to heaven, the chief cause would be the failure of rain that year, not any superior virtue of their own. But no one knew who these individuals were who were so luckily saved.

But when you have acknowledged this, what is becoming of the doctrine of individual responsibility for crime? If a man has complete free-will to sin or not, if crime be due to innate wickedness, how does want of rain bring this on? And where is the common sense or common justice in punishing him for what is really due to a defective climate? He cannot control the rain. Manifestly then, as regards at least half of these thieves, there was no innate desire to steal, because that could not be affected by the famine. Had they desired to be thieves they would have been so in any case. The truth is that they did not desire to be thieves, but when the famine increased the temptation, and, through physical weakness, decreased their power of resistance, they fell. They sinned—not through spiritual desire of evil, but through physical inability to resist temptation.

But if this is true of half, why not of the whole? There is no line of demarcation. If true of some crime, why not of all? The doctrine of a man's perfect free-will to sin or not to sin as he pleases is beginning to look shaky. It will be as well to consider it.

What is free-will?

There is no necessity to discuss the meaning of "free"; we all know it; there is nothing ambiguous about it; but with "will" it is different. There are few words so incessantly misused as this word "will." Philosophers are the worst offenders, and the general public but follow their blind lead; yet unless you know exactly what you mean by it how can you use it as a counter of your thought?

What does will mean? "Where there's a will there's a way"—what does this mean? Does it mean wish? If, for instance, you are poor and stupid, can any quantity of wish make you rich? If you are weak will it make you strong? If you have no ear will it make you a musician? If you are a convict can it liberate you? That is absurd.

"Will," then means more than wish; to the desire must be added the ability—actual or potential. That is evident, is it not? Without the ability the wish avails nothing.

"Will," then, has two complements, both of which are necessary to it. Its meaning is not simple but compound; never forget this; never suppose that merely wishing with all your power can produce "will." It cannot unless the ability be developed to aid it.

And now we get back from words to human nature—Is the criminal so because he wants to be so? No, and No, and No again. No such wicked fallacy was ever foisted upon a credulous world as this. Nobody at any period of the world ever wished to be criminal. Everyone instinctively hates and fears crime; everyone is honest by nature; it is inherent in the soul. I have never met a criminal that did not hate his crime even more than his condemners hate it. The apparent exceptions are when a man does not consider his act a crime; he has killed because his victim exasperated him to it; he has robbed society because society made war on him. The offender hates his crime.

"But he is not ashamed of it."

Now that is true. He is not ashamed of it in the current sense. He hates it; he fears it; but it does not fill him with a sense of sin.

"Therefore," says the purist, "he has a hardened conscience. It is his conscience, as I said, that is at fault."

But the purist is wrong. He does not understand the criminal. He has never tried to understand him as I have tried. What the criminal feels towards his crime is what the sick man feels towards the delirium that seizes him—what the "possessed of devils" feels towards the possession when it comes. It terrifies him; he knows he must succumb; he fears not the mere penalty, but the crime. But he is not ashamed, because he knows he cannot help it. And punishment exasperates him because he has not deserved it, and it will do him harm, not good. He wants to be cured—not made a fit dwelling for still worse devils. And that is what punishment does.

The effect of punishment in deterring a criminal from repeating his crime is small. All study of criminal facts proves this. It generally makes him more prone to crime, not less; and all the great crimes are committed by men who have been still further ruined in gaols. What good effect punishment may have is mainly exercised on other than the criminal.

Punishment has some effect, but how much we do not yet know, because the matter has never been investigated, and it is not on the patient. Crime is a disease, and will you stop a fever by punishing the patients? Whatever good gaols do lies in the fact that they isolate the unhealthy from the healthy and so stop for a time infection, as do hospitals with disease. But the hospitals do not discharge the patient till he is cured; the gaol aggravates the liability to the disease and turns out the sufferer worse than before.

Let us go back. A man is criminal not because he wishes to be so, but because he cannot resist the temptation. He lacks will. True, but it is the ability he lacks, not the wish. Why does he lack ability?

This brings us to the second theory of crime—a new one—that criminals are born, not made. The tendency to crime is said to be inherent, to be a reversion, to be inherited. That explains why it is generally incurable when once contracted.

Many books have been written on this, but one fallacy vitiates them all. The observers have not observed the criminal in the making but when made. They have assumed the criminal to be of a race apart, and so founded their house upon the sand. Lombroso went so far as to lay down certain stigmata that inferred a criminal disposition. The stigmata have been shown to be universal, and there is no such thing as a "criminal disposition." If there be other qualities that do differentiate the criminal from the normal man, they are not innate.

That those born crippled in some way frequently become criminals is no exception; it denotes no criminal disposition. But the cripple is handicapped in the struggle for life. He is cut off from the many pleasures of work and play, of love and children, which his fellows have. He is sensitive and he is jeered at and despised. Is it any wonder that under such circumstances he becomes sometimes embittered? A cripple is set apart from his fellow-men. There are for him but two alternatives—to be a saint or a criminal. Love and care and training will make him a saint; neglect too often makes him a criminal. But to whom the blame for the latter? Not to him.

Connected with this theory is the supposition that criminality is hereditary.

There are few subjects on which so much "scientific" nonsense is talked and written as this of heredity. Not very much is known of it as regards plants, less of animals, and almost nothing as regards humanity. Furthermore, the experience gained in plants and animals is useless as regards humanity. Evolution in humanity tends to greater brain power, but all cultivation in animals and plants has tended to destroy brain power and even adaptability. To read books on heredity is to read a mass of suppositions and hazardous inductions where most of the facts are negative and the exceptions are positive. There is nothing so easy and nothing so fatal as this tendency to attribute to heredity what is due to training, or want of training. It excuses supineness in Governments and professions. Here is what John Stuart Mill, a profound thinker, thought of this facile recourse to heredity as an excuse:

"Of all vulgar methods of escape from the effects of social and moral influences on the mind, the most vulgar is that of attributing the diversions of conduct and character to inherent natural differences."

This, too, is what Buckle said: "We often hear of hereditary talents, hereditary vices, and hereditary virtues; but whoever will critically examine the evidence will find that there is no proof of their existence. The way in which they are usually proved is in the highest degree illogical; the usual course being for writers to collect instances of some mental peculiarity found in a parent and his child, and then to infer that the peculiarity was bequeathed. By this mode of reasoning we might demonstrate any proposition. But this is not the way in which the truth is discovered; and we ought to enquire not only how many instances there are of hereditary talents, etc., but how many instances there are of such qualities not being hereditary."


I have for myself, neither in life nor in books, found one single case in which it could be confidently said that a criminal weakness was inherited. That A, a criminal, has a son B, who also became criminal, proves nothing. You must first prove that a similar child of different stock would not become criminal if brought up as A's son was. You must also prove that if you took away A's son as a child and brought him up differently he would still show criminal weakness. But all the facts negative this. The child even of a criminal tribe in India, if removed from its environment, grows up like other children. Coming of criminal ancestors has not handed down a criminal aptitude. You must not mistake inheritance of other traits for inheritance of criminal aptitudes. A is very quick-tempered, which he has not from a child been trained to control. Under sudden provocation he kills a man. His son B inherits his father's quick temper, is similarly badly brought up, and the same thing occurs. The hasty hereditary theorist says: "Behold the inheritance of a propensity to murder." But quick temper is not a criminal trait; it is often an accompaniment of the kindest disposition. It is an excess of sensitiveness. The training, physical and mental, was in each case lacking, and a coincidence of provocation caused a coincidence of crime.

Let it be once clearly discerned that if a quality be hereditary it is always hereditary, and cannot appear, except as the result of heredity—and the absurdity of modern theories will be manifest.

There is not—there has never been in anyone—a tendency to crime until either gaols or criminal education creates it. No one ever wanted to commit crime as crime. A daring boy with no outlet for his energy may break out into violence, robbery, and later into burglary; he would not have done so had his physical need for exercise and his spiritual need for facing danger had another outlet. The instincts that led him into crime were good and noble instincts which, finding no legitimate channel, found an illegitimate channel for themselves.

In that fine book of Mr. Holmes', entitled London's Underworld, is an account of how hooligans are made. The young men are full of energy—they want exercise, struggle, the fight of the football field or the hockey match, and they cannot get it. They have no playground but the streets and no outlet for their energy save hooliganism. The pity of it!

What, then, causes crime?

It is never the wish for crime. It is one of two causes. Either it is the only outlet for some natural instinct which is denied legitimate outlet by the environment, or it is due to an inability to resist temptation when it offers.

How can it be prevented?

Now this inability is physical. The wish is spiritual—the ability is physical and depends greatly on health. With ill-health or malnutrition in the young the first thing to give is the power of control. The average of criminals are a stone underweight. Therefore, crime is dependent to a great extent on health. Ill-health causes crime; accidental mutilation causes crime; accident creates an aptitude to crime; neglected youth and education cause crime.

Religion does not affect crime one way or another. The greatest criminals are often religious. Medi?val Europe was very religious and very criminal, and there are many other instances. Honesty is inborn in all; it is part of the "light that lighteth every man that is born into this world"; it requires no teaching. What must be acquired is the ability to give effect to it. Crime is a physical, not a spiritual disease. And crime is no defect of the individual. It is a disease of the nation—nay, of humanity—exhibited in individuals. You have gout in your toe, but it is your whole system that is wrong. This disease can be cured by Humanity alone. Criminals are those whom we should pity, should prevent, should isolate, and, if possible, cure.

Remember what John Bradford said, looking on a man going to be hanged: "But for the grace of God there goes John Bradford." He, too, would have been the same had he had bad training in his youth.

We have all of us within us instincts which rightly directed result in good, which in default of outlet we can be trained to control, but which without outlet and without the receipt of training may result in crime. Crime is, therefore, a defect of training and environment, not of personality.