CRIME is a word which, in everyday speech, is sometimes made to include more and sometimes less than the subject of the present article. On the one hand, the breach of a moral principle, with which the law has never con-cerned itself, is sometimes loosely described as criminal ; on the other hand, a distinction is sometimes drawn between crimes and minor offences, though the law prescribes a punishment for minor offences as well as for crimes. But if moral theories and slender shades of difference in guilt are disregarded, crime is simply conduct (either in commission or in omission) of which the state disapproves, and for which it demands a penalty.
Though, however, it is possible to give a definition of crime which may hold good for all times and for all countries, it by no means follows that crime is always and everywhere the same. On the contrary, the growth and the changes of criminal laws are among the most curious monuments of revolutions in public opinion as displayed by legislation. Nor can the study of morals be altogether dissociated from the study of crime, because the moralist may and frequently does influence the legislator, and that which is but a moral lapse in one generation may become a criminal offence in another. So also deeds which have been considered praiseworthy at one period, may at another be punishable; and new conditions of society may cause penalties to be exacted for action or for negligence which would be altogether inconceivable to the savage.
It is obvious that no moral philosopher or legislator, no one even uniting in himself the functions of both, would be able to devise a penal code which would be all-sufficient, and which would be applicable to every possible detail in the development of an ever-expanding civilization. New circumstances demand new laws ; and the adaptation of new laws to new circumstances is not the least interesting feature in the history of any country. Religious beliefs, religious and other theories of ethics, the attacks of foreign enemies, the growth of commerce, the progress of science, everything which affects the condition of the community, may affect its criminal legislation.
In very primitive tribes murder, robbery, and rape are not crimes -- not, at least, in the modern sense. For one tribe to attack another by surprise, to slaughter its men, to appropriate its land, and to ravish or enslave its women was, and in some places still is, very meritorious conduct. The first approach towards the reprobation of murder is to be found in the ancient blood-feud which, however, resembles quite as much the ferocity of the wild beast deprived of its young as the indignation of the civilized human being at an attack upon the general security of life. The family of the slain assumed the right to exact vengeance of the slayer and his kin if members of the same tribe as themselves ; and the earliest form of vengeance was bloodshed. This was not modified until men bad arrived at the notion of property distinguishable from that which was held in common by the tribe -- a very important stage in the progress of human affairs.
It is well established that the tenure of land in severalty is of later date than tenure by the tribe or community at large ; and as soon as the claim of any individual to any particular piece of land was recognized, in any form, the right of property in movables must have been recognized also, if indeed the latter did not precede the former. Sooner or later the ownership of certain families was ad-mitted in the case of plots of ground and flocks and herds, the ownership of particular persons in the case of arms and armour and the implements of agriculture. Hence arose the practice of compounding with the avenger of blood. The relatives of the slain agreed to accept cattle, or any movable goods of which they might stand in need, as an equivalent for the life of the kinsman whom they had lost. But Governments which had advanced very little on the path of civilization perceived that the loss of a tribesman was a loss to the community, because -- if for no other reason -- it represented a diminution of force in a conflict with. a rival tribe. When a fine was paid for murder, therefore, a portion of it only was allotted to the kin of the person murdered, and the remainder to the king or other governing power.
As soon as the state had thus claimed a share of the blood-fine, wer, or ____, the foundation of the criminal law bad been laid -- a distinction had been drawn between injuries affecting the individual alone and injuries affecting the community also. It was perhaps only natural that, when movables were accepted as compensation for a life held to be forfeited for murder, the wrongful appropriation of movables should be punishable by death -- a not uncommon penalty in many primitive laws. Extreme severity of punishment for all offences (except homicide) committed within the boundaries of the tribe is indeed the characteristic of all the earliest attempts to deal with crime. The idea of the uncivilized man is that the most ferocious chastisement is the most certain deterrent ; and as he has won most of that which he possesses by taking it forcibly from others, he is not disposed to attribute to his fellow tribesmen any very high respect for property in the abstract.
Nevertheless, with the tenure of land in severalty, and the acquisition of some personalty, was necessarily developed, in one form or other, the idea of protection for life and property in general. But small tribes continued to be engaged in frequent conff icts with their neighbours; and the principles of right and wrong which were applied to the various individuals composing any one tribe were in practice, if not in theory, long disregarded in dealings with the stranger. Outside a certain circle of no very great extent killing was still no murder, taking no theft or robbery, capture or violation of a woman no rape, in the modern sense. When tribes became united into nations, the rivalry of clan against clan was not immediately extin-gnished; and the sentiments of the robber chieftain co--existed with governments which sanctioned laws for the repression of robbers and their deeds of violence. National growth out of these discordant elements is to be traced, with the greatest clearness, in the marvellously complete series of records preserved in the English Public Record Office, and not least in those which concern the Scottish and Welsh borders.
The law of development is not restricted to one island, or to races speaking one particular language. Its range appears to be as wide as history, and is sometimes to be detected even where history can hardly be said to exist. If, for instance, we compare the Latin word virtus, the Greek word _____, and the Cymric word gwroldeb, with the English word virtue, we find a curious light thrown upon the progress of human opinion. The first three all had originally the same meaning—"virility;" and all three acquired precisely the same secondary signification—"courage." The reason, of course, was that in the most primitive times courage was the one great quality which above all others commanded approbation. The want of a moral attribute so universally approved was in those days a crime, and the imbelles, or cowards, were, if Tacitus is to be believed, subjected by the Germans to a punishment sufficiently horrible. They were thrown under a hurdle, and smothered in filth. But now the word virtue, which once had the special meaning of strength of muscle and nerve in the man, has (if any special meaning at all) that of chastity in the woman.
Brave law-breakers, in past times, have not only believed themselves to be good men and true, but have also had the sympathy of great numbers of their fellow-countrymen. Indeed, if we regard the history of criminal legislation and of crime in England, we find the ideas of the primitive tribesman steadily resisting the advance of civilization, retreating very slowly from position to position, and rarely yielding one without a long and desperate struggle. A most prominent example of this tenacity was in the crime of forcible entry, which hardly ceased to be common before the 18th century. When valour was the greatest or only virtue, one e1wri took land by force froin another, and clansman differed from clansman only in the greater or less vigour and courage shown in making the appropriation. Long af ter this half-savage condition of society, it remained a maxim of the English law that there was no legal possession of land without actual seism. The law, indeed, would not allow its right hand to know that which was done by its left. It forbade forcible entries in the reign of Richard II., while forcible entries were an essential part of its theory. As late even as the reign of William IV. be fiction of a forcible entry continued to be one of the chief implements of the conveyancer’s art. Without the "common recovery" be would have been unable to carry on the ordinary routine of his business ; and the basis of that fictitious action at law was that one person had wrongfully disseised another of his land.
The much abused Court of Star-Chamber owed its definite constitution under the Tudors to a very laudable desire for the repression of forcible entries and certain other kindred offences. Nor was it altogether unsuccessful in attaining the object for which it was established. Those private feuds in which the nobles, like the heads of tribes, had previously delighted, began to die out when private armies could no longer be kept on foot under the name of retainers, or supplied with uniforms under the name of liveries and tokens. Yet the fact that the Star-Chamber did not entirely put an end to forcible entries is a proof that even the most vigorous legislation is not all-powerful against the human nature and the surrounding circum-stances with which it may have to deal. Those circumstances, and even that nature, may to some extent be changed, for were it otherwise the British empire and British civilization could now have no existence. But there is a reciprocal action and reaction of laws upon society and of society upon laws. No edict or statute ever made a sudden and complete alteration in the manners of a whole nation, though the growing wisdom of a nation may frequently have suggested a law, and though a well-devised law may have gradually fostered the growth of national wisdom. If it is true that nemo repente fuit turpissimus it is no less true that nemo repente fuit honestissimus.
The modern security of life and property of every description represents the triumph of new ideas over old. There is or was a popular delusion that the savage was noble, that while his manners were simple his nature was honest, and that he abhorred all such mean arts as those commonly attributed to the huckster and the trader. The truth is that his misdeeds were limited to his own parti-cular sphere of action, which was excessively small, and that if he did not commit some of the offences known in our own time it was because he had not the opportunity. Fraud has never increased in equal proportion with the increase of trade and civilization. It infected commerce at the very beginning, and existed during the darkness of the Middle Ages in every form then possible. It may and it sometimes does assume new shapes as society groups itself anew, as occupations and the relations of man to man are changed. But force is its near relative and ally, and it flourishes in times of violence and anarchy. It made itself conspicuous throughout the age of chivalry, though poets and romance writers have attempted to hide it away. With infinite difficulty has civilized mankind so far gained the victory over its own primitive nature as to concur, with some approach to unanimity, in reprobation of the forger-monk, the brigand-knight, and the man who regarded a woman as a chattel and a tempting object for appropria-tion.
It is most necessary to bear in mind the contrast between the habits or ideas of one period and of another, if we wish to estimate correctly the position of the criminal in modern society, or the alleged uniformity of human actions to be discovered in statistics. There is, no doubt, some truth in the statement that in a modern civilized country -- Great Britain, for example -- the statistics of one year bear a very strong resemblance to the statistics of another in many particulars. But a little reflection leads to the conclusion that there is nothing at all marvellous in such coincidences, and that they do not prove human nature to be unalterable, or circumstances to be unchangeable. They only show what might have been predicted beforehand, that human beings of the same race, remaining in circumstances approximately the same, continue to act upon nearly the same motives and to display nearly the same weaknesses.
The statistics of a quarter of a century, of half a century, even of a whole century (if we had them complete for so long a period), could tell us but little of those subtle, changes in human organization which have come to pass in the lapse of ages, and the sum of which has rendered life in Britain in the 19th century so different as it is from life in the 6th. Some of the earliest statisticians, indeed (and their science is of very recent origin), did an injustice both to themselves and to their favourite study through their own enthusiasm. They were eager to claim for numbers all and more than all that had been claimed by the Pytha-goreans of old. Not content with praising the virtues of numbers in general, they appeared to believe that the par-ticular numbers of a particular period would suffice for the discovery of social and political principles of universal application. They found certain uniformities in an area so bounded, and a time so short, as to bear to the previous existence of the whole earth and its inhabitants about the same proportion that a drop of water bears to the ocean ; and they assumed that they had found a law or laws of a range co-extensive with human existence. But this exaggeration does not impair the real value of the statistical method or of some of the facts which it has brought to light. It has supplied us with some generalizations which are demonstrably true within certain limits, and which constitute useful elements of comparison with others discover-able elsewhere. It has not established that human conduct, regarded as a great whole, is absolutely invariable, but it has supplied a powerful instrument for an inquiry into the conditions by which variation may be determined.
If, for instance, we look at the statistics of homicide and suicide in England during any ten recent years we perceive that the figures of any one year very little exceed or fall below the general average. Yet no inference could be more erroneous than that homicide has always borne the same proportion to population in England as at present, for in the reign of Edward III. there were in proportion to population at least sixteen cases of homicide to every one which occurs in our own time. On the other hand, according to modern statistics, the number of male suicides is far greater than the number of female ; and the inference that the number of male suicides always has been greater is at least supported by records as early as the middle of the 17th century. Again, the homicides in one country may be and are far more numerous than in another, among equal populations; but nowhere does there exist any exception to the rule that there are more male suicides than female. Thus it is clear that any suggestion of uniformity offered by statistics requires the most careful verification before being accepted as even approximately true; but it is also clear that the suggestion may be of the highest value in leading us to distinguish those cases in which uniformity really exists from those in which uniformity is only apparent.
The criminal statistics of any one country and period should be carefully examined by the light of history, and of any relevant details which can be procured from other parts of the world. Only by the aid of the adequate information thus to be acquired can criminal legislation ever be wise and effective, no matter what definition of crime may be accepted by the legislators. A knowledge of human nature in the widest sense, not excepting, indeed, some of the principles of physiology, may give some power of discriminating between the mutable and the immutable, the Possible and the impossible, in human affairs. Without it, well-meaning efforts to improve the condition of society may be not only unsuccessful but even mischievous. Without it, disappointment is apt to follow upon the failure of some apparently well-conceived law to effect the purpose for which it was devised. The disposition inherited from past ages can (in some fields of action and in some individuals at least) as little be changed by the fiat of a Government, as the ebb and flow of the sea can be con-trolled by the word of a king. But, nevertheless, there is good reason to believe that judicious lawgivers may gradu-ally effect a salutary change in the manners of a people.
One of the most remarkable illustrations of uniformity in the phenomena of crime is one which may be regarded also as an illustration of the influence of past conditions of society upon the present. As the human embryo passes through sundry stages of an inferior state of existence, so, after birth, the human being is before the age of thirty more apt to fall into courses which we now regard as criminal (but which the savage considered laudable) than the human being of more advanced years. This, like the rule of the sexes in suicide, is a rule having no exception at any time or in any country concerning which it is possible to obtain information. But even here the proportions are not absolutely invariable, though the general law holds universally good. From various causes, of which one is the abolition of transportation, another the establishment of reformatories, the criminal age has perceptibly risen in England since the year 1851. So also, although the general law that men are more prone to commit suicide than women is altogether beyond dispute, the proportions of the sexes vary considerably in suicide and in various crimes in different countries and apparently also at different times in the same country. Hence we may infer that there is hardly any social change of which the human species need absolutely despair, though some changes may be far more easily brought about, and may more reasonably be the subject of legislation, than others. But all legislation should be adapted to the possibilities of the existing generation.
A very curious feature of crimes in the modern sense, though one susceptible of very easy explanation, is the effect upon them of the seasons. Those which are prompted by the animal passions are most common in the summer months; larceny, and offences wholly or partly prompted by want, in the winter months. As might also have been predicted a priori, theft increases in times of adversity, and various minor offences, such as drunkenness, in times of prosperity. The metropolitan police returns, indeed, show a very complete descending scale of drunkenness, beginning with a maximum on that day of the week on which wages are paid, and ending with a minimum six days afterwards.
Insanity, in its relation to crime, is a subject which might appropriately be considered in connection with the tendencies inherited by each human being at birth, but cannot be adequately discussed here. Suffice it to say that as youth, when the instincts and passions are at their strongest, is the period at which the human being is most inclined to commit crimes in general (as now understood), so old age, when both the bodily powers and the intellect are decaying, is the period at which one particular class of sexual offences is most frequently committed ; and there is good reason to suppose that persons committing them in earlier years are weak-minded also. Kleptomania and homicidal monomania are asserted by medical theorists to be forms of mental aberration. This doctrine, however, though perhaps sufficiently well-founded, can hardly be established upon the basis of a very wide induction, but only by a subtle reasoning from particular instances upon which it is now impossible to enter.
With regard to the very complex subjects of the preven-tion and punishment of crime, it maybe suggested that the broader the view taken by legislators the more likely is their legislation to be successful. Crime, as defined at any period, may be considered a recognized disease of the body social. But as well might the physician concentrate his whole attention upon each individual pustule of an eruptive fever, one after the other, as the criminal legislator upon actual criminals alone. The symptoms of a malady are of course not to be neglected, and it is necessary to be careful in the treatment of persons who have already fallen into crime. Prison management and every form of punish-ment are important subjects ; but the preservation from guilt of the great majority who are as yet guiltless is of an importance infinitely higher. There is one golden rule taught by history with respect to punishments -- let them not afford an evil example of cruelty to the spectators. There is one great preventive of crime, one great antidote to instincts inherited from the past, and that is education. But the education which is effectual is not simply that of the schoolroom it is the sum of the external circumstances which can in any way affect the character of any individual in the state. So far, therefore, as legislation has the power of diminishing, crime, it can exercise its power by indirect means quite as much as by direct-indeed far more. If the crimes of the English in the l9th century are different both in quantity and in kind from those of the 14th, the difference, we may be quite sure, is not wholly nor even principally caused by changes in the criminal law.
See various passages in the books of Numbers, Deuteronomy, and Joshua, In Homer’s Iliad (especially book xviii.), in Caesar's De Bello Gallico, in the Germania of Tacitus, in the Codex Theodosianus (especially lib. ix.), in the Ancient Laws and Institutes of England, and the Ancient Laws and Institutes of Wales, (both published by the Record Commission), in the Ancient Laws and Institutes of Ireland, Senchus Mor (published by commissioners), in Maine’s Ancient Law and Village Communities, in McLennan’s Primitive Marriage, in Savigny’s Geschichte des römischen Rechts in Mittelalter, and (so far as natural or inherited tendencies are concerned) in Darwin’s Descent of Man and Herbert Spencer’s Principles of Psychology.
See also the Rotuli Curiae Regis (published in part by Palgrave), the Records of the Court of Queen’s Bench and of the Star chamber, the State Papers relating to the Scottish Border, the Criminal Papers, and various other Records and State Papers preserved in the Public Record Office in London the Records of the various circuits, the Statutes relating to criminal affairs, the Year Books and other legal Reports, various collections of Criminal Trials, the Criminal Tables (England and Wales, 1810-1855), the Judicial statistics of England and Wales, of Scotland, and of Ireland, the Reports of the Inspectors of Prisons for England and Wales, for Scotland, and for Ireland, the Reports of the Directors of Convict Prisons, the Compte général de l’administration de to justice criminelle en France (published annually), the Statistik der preussischen Schwurgerichte, Quetelet's Sur l’Homme, Guerry’s Statistique morale de la France and Statistique morale de l’'Angleterre comparée avec la statistique morale de la France, various papers in the Journal of the Statistical Society, and in the Transactions of the Association for the Promotion of Social Science, Beccaria’s Dei Delitti e delle Pene. Bentham’s works, Livingston’s Système de legislation criminelle, the Indian Penal Code, Taylor’s Medical Jurisprudence, Chever’s Indian Medical Jurisprudence, Maudsley’s Responsibility in Mental Disease, and other sources indicated in Pike’s History of Crime in England. (L. O. P.)
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The above article was written by Luke Owen Pike, M.A., Barrister; formerly of the Record Office, London; author of A History of Crime in England and Yearbooks in the Reign of King Edward the Third.