The introduction of the ticket-of-leave and the parole systems, and the earning of time by good behavior were philanthropic suggestions and promising experiments which have not been justified by the results. It is not necessary at this time to argue that no human discretion is adequate to mete out just punishment for crimes; and it has come to be admitted generally, by men enlightened on this subject, that the real basis for dealing with the criminal rests, firstly, upon the right of society to secure itself against the attacks of the vicious, and secondly, upon the duty imposed upon society, to reform the criminal if that is possible. It is patent to the most superficial observation that our present method does not protect society, and does not lessen the number of the criminal cla.s.s, either by deterrent methods or by reformatory processes, except in a very limited way.

Our present method is neither economic nor scientific nor philanthropic. If we consider the well-defined criminal cla.s.s alone, it can be said that our taxes and expenses for police and the whole criminal court machinery, for dealing with those who are apprehended, and watching those who are preying upon society, yearly increase, while all private citizens in their own houses or in the streets live inconstant terror of the depredations of this cla.s.s.

Considered from the scientific point of view, our method is absolutely crude, and but little advance upon mediaeval conditions; and while it has its sentimental aspects, it is not real philanthropy, because comparatively few of the criminal cla.s.s are permanently rescued.

The indeterminate sentence has two distinct objects: one is the absolute protection of society from the outlaws whose only business in life is to prey upon society; and the second is the placing of these offenders in a position where they can be kept long enough for scientific treatment as decadent human beings, in the belief that their lives can be changed in their purpose. No specific time can be predicted in which a man by discipline can be expected to lay aside his bad habits and put on good habits, because no two human beings are alike, and it is therefore necessary that an indefinite time in each case should be allowed for the experiment of reformation.

We have now gone far enough to see that the ticket-of-leave system, the parole system as we administer it in the State prisons (I except now some of the reformatories), and the good conduct method are substantially failures, and must continue to be so until they rest upon the absolute indeterminate sentence. They are worse than failures now, because the public mind is lulled into a false security by them, and efforts at genuine prison reform are defeated.

It is very significant that the criminal cla.s.s adapted itself readily to the parole system with its sliding scale. It was natural that this should be so, for it fits in perfectly well with their scheme of life. This is to them a sort of business career, interrupted now and then only by occasional limited periods of seclusion. Any device that shall shorten those periods is welcome to them. As a matter of fact, we see in the State prisons that the men most likely to shorten their time by good behavior, and to get released on parole before the expiration of their sentence, are the men who make crime their career. They accept this discipline as a part of their lot in life, and it does not interfere with their business any more than the occasional bankruptcy of a merchant interferes with his pursuits.

It follows, therefore, that society is not likely to get security for itself, and the criminal cla.s.s is not likely to be reduced essentially or reformed, without such a radical measure as the indeterminate sentence, which, accompanied, of course, by scientific treatment, would compel the convict to change his course of life, or to stay perpetually in confinement.

Of course, the indeterminate sentence would radically change our criminal jurisprudence and our statutory provisions in regard to criminals. It goes without saying that it is opposed by the entire criminal cla.s.s, and by that very considerable portion of the population which is dependent on or affiliated with the criminal cla.s.s, which seeks to evade the law and escape its penalties. It is also opposed by a small portion of the legal profession which gets its living out of the criminal cla.s.s, and it is sure to meet the objection of the sentimentalists who have peculiar notions about depriving a man of his liberty, and it also has to overcome the objections of many who are guided by precedents, and who think the indeterminate sentence would be an infringement of the judicial prerogative.

It is well to consider this latter a little further. Our criminal code, artificial and indiscriminating as it is, is the growth of ages and is the result of the notion that society ought to take vengeance upon the criminal, at least that it ought to punish him, and that the judge, the interpreter of the criminal law, was not only the proper person to determine the guilt of the accused, by the aid of the jury, but was the sole person to judge of the amount of punishment he should receive for his crime. Now two functions are involved here: one is the determination that the accused has broken the law, the other is gauging within the rules of the code the punishment that, each individual should receive. It is a theological notion that the divine punishment for sin is somehow delegated to man for the punishment of crime, but it does not need any argument to show that no tribunal is able with justice to mete out punishment in any individual case, for probably the same degree of guilt does not attach to two men in the violation of the same statute, and while, in the rough view of the criminal law, even, one ought to have a severe penalty, the other should be treated with more leniency. All that the judge can do under the indiscriminating provisions of the statute is to make a fair guess at what the man should suffer.

Under the present enlightened opinion which sees that not punishment but the protection of society and the good of the criminal are the things to be aimed at, the judge's office would naturally be reduced to the task of determining the guilt of the man on trial, and then the care of him would be turned over to expert treatment, exactly as in a case when the judge determines the fact of a man's insanity.

If objection is made to the indeterminate sentence on the ground that it is an unusual or cruel punishment, it may be admitted that it is unusual, but that commitment to detention cannot be called cruel when the convict is given the key to the house in which he is confined. It is for him to choose whether he will become a decent man and go back into society, or whether he will remain a bad man and stay in confinement. For the criminal who is, as we might say, an accidental criminal, or for the criminal who is susceptible to good influences, the term of imprisonment under the indeterminate sentence would be shorter than it would be safe to make it for criminals under the statute. The incorrigible offender, however, would be cut off at once and forever from his occupation, which is, as we said, varied by periodic residence in the comfortable houses belonging to the State.

A necessary corollary of the indeterminate sentence is that every State prison and penitentiary should be a reformatory, in the modern meaning of that term. It would be against the interest of society, all its instincts of justice, and the height of cruelty to an individual criminal to put him in prison without limit unless all the opportunities were afforded him for changing his habits radically. It may be said in pa.s.sing that the indeterminate sentence would be in itself to any man a great stimulus to reform, because his reformation would be the only means of his terminating that sentence. At the same time a man left to himself, even in the best ordered of our State prisons which is not a reformatory, would be scarcely likely to make much improvement.

I have not s.p.a.ce in this article to consider the character of the reformatory; that subject is fortunately engaging the attention of scientific people as one of the most interesting of our modern problems. To take a decadent human being, a wreck physically and morally, and try to make a man of him, that is an attempt worthy of a people who claim to be civilized. An ill.u.s.tration of what can be done in this direction is furnished by the Elmira Reformatory, where the experiment is being made with most encouraging results, which, of course, would be still better if the indeterminate sentence were brought to its aid.

When the indeterminate sentence has been spoken of with a view to legislation, the question has been raised whether it should be applied to prisoners on the first, second, or third conviction of a penal offense. Legislation in regard to the parole system has also considered whether a man should be considered in the criminal cla.s.s on his first conviction for a penal offense. Without entering upon this question at length, I will suggest that the convict should, for his own sake, have the indeterminate sentence applied to him upon conviction of his first penal offense. He is much more likely to reform then than he would be after he had had a term in the State prison and was again convicted, and the chance of his reformation would be lessened by each subsequent experience of this kind. The great object of the indeterminate sentence, so far as the security of society is concerned, is to diminish the number of the criminal cla.s.s, and this will be done when it is seen that the first felony a man commits is likely to be his last, and that for a young criminal contemplating this career there is in this direction "no thoroughfare."

By his very first violation of the statute he walks into confinement, to stay there until he has given up the purpose of such a career.

In the limits of this paper I have been obliged to confine myself to remarks upon the indeterminate sentence itself, without going into the question of the proper organization of reformatory agencies to be applied to the convict, and without consideration of the means of testing the reformation of a man in any given case. I will only add that the methods at Elmira have pa.s.sed far beyond the experimental stage in this matter.

The necessary effect of the adoption of the indeterminate sentence for felonies is that every State prison and penitentiary must be a reformatory. The convict goes into it for the term of a year at least (since the criminal law, according to ancient precedent, might require that, and because the discipline of the reformatory would require it as a practical rule), and he stays there until, in the judgment of competent authority, he is fit to be trusted at large.

If he is incapable of reform, he must stay there for his natural life. He is a free agent. He can decide to lead an honest life and have his liberty, or he can elect to work for the State all his life in criminal confinement.

When I say that every State prison is to be a reformatory, I except, of course, from its operation, those sentenced for life for murder, or other capital offenses, and those who have proved themselves incorrigible by repeated violations of their parole.

It is necessary now to consider the treatment in the reformatory. Only a brief outline of it can be given here, with a general statement of the underlying principles. The practical application of these principles can be studied in the Elmira Reformatory of New York, the only prison for felons where the proposed system is carried out with the needed disciplinary severity. In studying Elmira, however, it must be borne in mind that the best effects cannot be obtained there, owing to the lack of the indeterminate sentence. In this inst.i.tution the convict can only be detained for the maximum term provided in the statute for his offense.

When that is reached, the prisoner is released, whether he is reformed or not.

The system of reform under the indeterminate sentence, which for convenience may be called the Elmira system, is scientific, and it must be administered entirely by trained men and by specialists; the same sort of training for the educational and industrial work as is required in a college or an industrial school, and the special fitness required for an alienist in an insane asylum. The discipline of the establishment must be equal to that of a military school.

We have so far advanced in civilization that we no longer think of turning the insane, the sick, the feebleminded, over to the care of men without training chosen by the chance of politics. They are put under specialists for treatment. It is as necessary that convicts should be under the care of specialists, for they are the most difficult and interesting subjects for scientific treatment. If not criminals by heredity, they are largely made so by environment; they are either physical degenerates or they are brutalized by vice. They have lost the power of distinguishing right from wrong; they commonly lack will-power, and so are incapable of changing their habits without external influence.

In short, the ordinary criminal is unsound and diseased in mind and body.

To deal with this sort of human decadent is, therefore, the most interesting problem that can be offered to the psychologist, to the physiologist, to the educator, to the believer in the immortality of the soul. He is still a man, not altogether a mere animal, and there is always a possibility that he may be made a decent man, and a law-abiding, productive member of society.

Here, indeed, is a problem worthy of the application of all our knowledge of mind and of matter, of our highest scientific attainments. But it is the same problem that we have in all our education, be it the training of the mind, the development of the body, or the use of both to good ends.

And it goes without saying that its successful solution, in a reformatory for criminals, depends upon the character of the man who administers the inst.i.tution. There must be at the head of it a man of character, of intellectual force, of administrative ability, and all his subordinate officers must be fitted for their special task, exactly as they should be for a hospital, or a military establishment, for a college, or for a school of practical industries. And when such men are demanded, they will be forthcoming, just as they are in any department in life, when a business is to be developed, a great engineering project to be undertaken, or an army to be organized and disciplined.

The development of our railroad system produced a race of great railroad men. The protection of society by the removal and reform of the criminal cla.s.s, when the public determines upon it, will call into the service a cla.s.s of men fitted for the great work. We know this is so because already, since the discussion of this question has been current, and has pa.s.sed into actual experiment, a race of workers and prison superintendents all over the country have come to the front who are entirely capable of administering the reform system under the indeterminate sentence. It is in this respect, and not in the erection of model prisons, that the great advance in penology has been made in the last twenty years. Men of scientific attainment are more and more giving their attention to this problem as the most important in our civilization. And science is ready to take up this problem when the public is tired and ashamed of being any longer harried and bullied and terrorized over by the criminal cla.s.s.

The note of this reform is discipline, and its success rests upon the law of habit. We are all creatures of habit, physical and mental. Habit is formed by repet.i.tion of any action. Many of our physical habits have become automatic. Without entering into a physiological argument, we know that repet.i.tion produces habit, and that, if this is long continued, the habit becomes inveterate. We know also that there is a habit, physical and moral, of doing right as well as doing wrong. The criminal has the habit of doing wrong. We propose to submit him to influences that will change that habit. We also know that this is not accomplished by suppressing that habit, but by putting a good one in its place.

It is true in this case that nature does not like a vacuum. The thoughts of men are not changed by leaving them to themselves, they are changed by subst.i.tuting other thoughts.

The whole theory of the Elmira system is to keep men long enough under a strict discipline to change their habits. This discipline is administered in three ways. They are put to school; they are put at work; they are prescribed minute and severe rules of conduct, and in the latter training is included military drill.

The school and the workshop are both primarily for discipline and the formation of new habits. Only incidentally are the school and the workshop intended to fit a man for an occupation outside of the prison.

The whole discipline is to put a man in possession of his faculties, to give him self-respect, to get him in the way of leading a normal and natural life. But it is true that what he acquires by the discipline of study and the discipline of work will be available in his earning an honest living. Keep a man long enough in this three-ply discipline, and he will form permanent habits of well-doing. If he cannot and will not form such habits, his place is in confinement, where he cannot prey upon society.

There is not s.p.a.ce here to give the details of the practices at Elmira.

They are easily attainable. But I will notice one or two objections that have been made. One is that in the congregate system men necessarily learn evil from each other. This is, of course, an evil. It is here, however, partially overcome by the fact that the inmates are kept so busy in the variety of discipline applied to them that they have little or no time for anything else. They study hard, and are under constant supervision as to conduct. And then their prospect of parole depends entirely upon the daily record they make, and upon their radical change of intention. At night they are separated in their cells. During the day they are a.s.sociated in cla.s.s, in the workshop, and in drill, and this a.s.sociation is absolutely necessary to their training. In separation from their fellows, they could not be trained. Fear is expressed that men will deceive their keepers and the board which is to pa.s.s upon them, and obtain parole when they do not deserve it. As a matter of fact, men under this discipline cannot successfully play the hypocrite to the experts who watch them. It is only in the ordinary prison where the parole is in use with no adequate discipline, and without the indefinite sentence, that deception can be practiced. But suppose a man does play the hypocrite so as to deceive the officers, who know him as well as any employer knows his workmen or any teacher knows his scholars, and deceives the independent board so as to get a parole. If he violates that parole, he can be remanded to the reformatory, and it will be exceedingly difficult for him to get another parole. And, if he should again violate his parole, he would be considered incorrigible and be placed in a life prison.

We have tried all other means of protecting society, of lessening the criminal cla.s.s, of reforming the criminal. The proposed indeterminate sentence, with reformatory discipline, is the only one that promises to relieve society of the insolent domination and the terrorism of the criminal cla.s.s; is the only one that can deter men from making a career of crime; is the only one that offers a fair prospect for the reformation of the criminal offender.

Why not try it? Why not put the whole system of criminal jurisprudence and procedure for the suppression of crime upon a sensible and scientific basis?

LITERARY COPYRIGHT

By Charles Dudley Warner

This is the first public meeting of the National Inst.i.tute of Arts and Letters. The original members were selected by an invitation from the American Social Science a.s.sociation, which acted under the power of its charter from the Congress of the United States. The members thus selected, who joined the Social Science a.s.sociation, were given the alternative of organizing as an independent inst.i.tute or as a branch of the Social Science a.s.sociation.

At the annual meeting of the Social Science a.s.sociation on September 4, 1899, at Saratoga Springs, the members of the Inst.i.tute voted to organize independently. They formally adopted the revised const.i.tution, which had been agreed upon at the first meeting, in New York in the preceding January, and elected officers as prescribed by the const.i.tution.

The object is declared to be the advancement of art and literature, and the qualification shall be notable achievements in art or letters. The number of active members will probably be ultimately fixed at one hundred. The society may elect honorary and a.s.sociate members without limit. By the terms of agreement between the American Social Science a.s.sociation and the National Inst.i.tute, the members of each are 'ipso facto' a.s.sociate members of the other.

It is believed that the advancement of art and literature in this country will be promoted by the organization of the producers of literature and art. This is in strict a.n.a.logy with the action of other professions and of almost all the industries. No one doubts that literature and art are or should be leading interests in our civilization, and their dignity will be enhanced in the public estimation by a visible organization of their representatives, who are seriously determined upon raising the standards by which the work of writers and artists is judged. The a.s.sociation of persons having this common aim cannot but stimulate effort, soften unworthy rivalry into generous compet.i.tion, and promote enthusiasm and good fellowship in their work. The mere coming together to compare views and discuss interests and tendencies and problems which concern both the workers and the great public, cannot fail to be of benefit to both.

In no other way so well as by a.s.sociation of this sort can be created the feeling of solidarity in our literature, and the recognition of its power. It is not expected to raise any standard of perfection, or in any way to hamper individual development, but a body of concentrated opinion may raise the standard by promoting healthful and helpful criticism, by discouraging mediocrity and meretricious smartness, by keeping alive the traditions of good literature, while it is hospitable to all discoverers of new worlds. A safe motto for any such society would be Tradition and Freedom--'Traditio et Libertas'.

It is generally conceded that what literature in America needs at this moment is honest, competent, sound criticism. This is not likely to be attained by sporadic efforts, especially in a democracy of letters where the critics are not always superior to the criticised, where the man in front of the book is not always a better marksman than the man behind the book. It may not be attained even by an organization of men united upon certain standards of excellence. I do not like to use the word authority, but it is not unreasonable to suppose that the public will be influenced by a body devoted to the advancement of art and literature, whose sincerity and discernment it has learned to respect, and admission into whose ranks will, I hope, be considered a distinction to be sought for by good work. The fashion of the day is rarely the judgment of posterity.

You will recall what Byron wrote to Coleridge: "I trust you do not permit yourself to be depressed by the temporary partiality of what is called 'the public' for the favorites of the moment; all experience is against the permanency of such impressions. You must have lived to see many of these pa.s.s away, and will survive many more."

The chief concern of the National Inst.i.tute is with the production of works of art and of literature, and with their distribution. In the remarks following I shall confine myself to the production and distribution of literature. In the limits of this brief address I can only in outline speak of certain tendencies and practices which are affecting this production and this distribution. The interests involved are, first, those of the author; second, those of the publisher; third, those of the public. As to all good literature, the interests of these three are identical if the relations of the three are on the proper basis. For the author, a good book is of more pecuniary value than a poor one, setting aside the question of fame; to the publisher, the right of publishing a good book is solid capital,--an established house, in the long run, makes more money on "Standards" than on "Catchpennies"; and to the public the possession of the best literature is the breath of life, as that of the bad and mediocre is moral and intellectual decadence. But in practice the interests of the three do not harmonize. The author, even supposing his efforts are stimulated by the highest aspirations for excellence and not by any commercial instinct, is compelled by his circ.u.mstances to get the best price for his production; the publisher wishes to get the utmost return for his capital and his energy; and the public wants the best going for the least money.

Consider first the author, and I mean the author, and not the mere craftsman who manufactures books for a recognized market. His sole capital is his talent. His brain may be likened to a mine, gold, silver, copper, iron, or tin, which looks like silver when new. Whatever it is, the vein of valuable ore is limited, in most cases it is slight. When it is worked out, the man is at the end of his resources. Has he expended or produced capital? I say he has produced it, and contributed to the wealth of the world, and that he is as truly ent.i.tled to the usufruct of it as the miner who takes gold or silver out of the earth. For how long? I will speak of that later on. The copyright of a book is not a.n.a.logous to the patent right of an invention, which may become of universal necessity to the world. Nor should the greater share of this usufruct be absorbed by the manufacturer and publisher of the book. The publisher has a clear right to guard himself against risks, as he has the right of refusal to a.s.sume them. But there is an injustice somewhere, when for many a book, valued and even profitable to somebody, the author does not receive the price of a laborer's day wages for the time spent on it--to say nothing of the long years of its gestation.

The relation between author and publisher ought to be neither complicated nor peculiar. The author may sell his product outright, or he may sell himself by an agreement similar to that which an employee in a manufacturing establishment makes with his master to give to the establishment all his inventions. Either of these methods is fair and businesslike, though it may not be wise. A method that prevailed in the early years of this century was both fair and wise. The author agreed that the publisher should have the exclusive right to publish his book for a certain term, or to make and sell a certain number of copies. When those conditions were fulfilled, the control of the property reverted to the author. The continuance of these relations between the two depended, as it should depend, upon mutual advantage and mutual good-will. By the present common method the author makes over the use of his property to the will of the publisher. It is true that he parts with the use only of the property and not with the property itself, and the publisher in law acquires no other t.i.tle, nor does he acquire any sort of interest in the future products of the author's brain. But the author loses all control of his property, and its profit to him may depend upon his continuing to make over his books to the same publisher. In this continuance he is liable to the temptation to work for a market, instead of following the free impulses of his own genius. As to any special book, the publisher is the sole judge whether to push it or to let it sink into the stagnation of unadvertised goods.

The situation is full of complications. Theoretically it is the interest of both parties to sell as many books as possible. But the author has an interest in one book, the publisher in a hundred. And it is natural and reasonable that the man who risks his money should be the judge of the policy best for his whole establishment. I cannot but think that this situation would be on a juster footing all round if the author returned to the old practice of limiting the use of his property by the publisher.

I say this in full recognition of the fact that the publishers might be unwilling to make temporary investments, or to take risks. What then?

Fewer books might be published. Less vanity might be gratified. Less money might be risked in experiments upon the public, and more might be made by distributing good literature. Would the public be injured? It is an idea already discredited that the world owes a living to everybody who thinks he can write, and it is a superst.i.tion already fading that capital which exploits literature as a trade acquires any special privileges.

The present international copyright, which primarily concerns itself with the manufacture of books, rests upon an unintelligible protective tariff basis. It should rest primarily upon an acknowledgment of the author's right of property in his own work, the same universal right that he has in any other personal property. The author's international copyright should be no more hampered by restrictions and enc.u.mbrances than his national copyright. Whatever regulations the government may make for the protection of manufactures, or trade industries, or for purposes of revenue on importations, they should not be confounded with the author's right of property. They have no business in an international copyright act, agreement, or treaty. The United States copyright for native authors contains no manufacturing restrictions. All we ask is that foreign authors shall enjoy the same privileges we have under our law, and that foreign nations shall give our authors the privileges of their local copyright laws. I do not know any American author of any standing who has ever asked or desired protection against foreign authors.