some reader of the preceding chapter may perhaps remark, "this is all very well so far as it goes. it doubtless is entirely true from a purely technical point of view. but that is only one side of the matter. how about the real criminals?" this is neither an unexpected nor an uninvited criticism. who are the "real" criminals? charles dudley warner says: "speaking technically, we put in that [the criminal] class those whose sole occupation is crime, who live upon it as a profession and who have no other permanent industry. they prey upon society. they are by their acts at war upon it and are outlaws." now the class of professional criminals to which mr. warner refers as contrasted with the great mass of criminal defendants as a whole is, in point of fact, relatively so small, and so easily recognized and handled, that it plays but an inconspicuous part in the administration of criminal justice.

the criminals who conform accurately to childhood's tradition are comparatively few in number. the masked highwayman, the safe-cracker and even the armed house burglar have, with a few exceptions, long since withdrawn from the actual pursuit of their romantic professions and exist practically only in the eagerly devoured pages of sherlock holmes and the "memoirs of great detectives." new and[pg 20] almost more picturesque figures have taken their places,—the polite and elegant swindler, the out-at-the-elbows but confidence-inspiring promoter of assetless corporations, the dealer in worthless securities, and the forger who drives in his own carriage to the bank he intends to defraud. in some cases the individuals are the same, the safe-cracker merely having doffed his mask in favor of the silk hat of nassau street. of yore he stole valuable securities which he was compelled to dispose of at a tremendous discount; now he sells you worthless stocks and bonds at a slight premium. mr. j. holt schorling, writing in the contemporary review for june, 1902, points out that while all crimes other than fraud decreased materially in england from 1885 to 1899, the crime of fraud itself materially increased during the same period.[8]

the subject is a tempting one, but it is not essential to our thesis. the devil is not dead; he has merely changed his clothes. criminal activity has not subsided; it has instead sought new ways to meet modern conditions, and so favorable are these that[pg 21] while polite crime may be said still to be in its infancy, it is nevertheless thriving lustily.

while the degenerate criminal class is the subject of much elaborate and minute analysis by our continental neighbors, its extent is constantly exaggerated and its relation to the other criminal classes not fully appreciated. to read some supposedly scientific works one would imagine that every court of criminal justice was or should be nothing but a sort of clinic. to these learned authors, civilization, it is true, owes a debt for their demonstration that some crime is due to insanity and should be prevented, and, where possible, cured in much the same manner. but they have created an impression that practically all crime is the result of abnormality.

every great truth brings in its train a few falsehoods,—every great reform a few abuses. the first penological movement was in the direction of prison reform. while perhaps the psychological problem was not entirely overlooked, it was completely subordinated to the physical. it is a noble thing that the convict should have a warm cell in winter and a cool one in summer, with electric light and running water, wholesome and nutritious food, books, bathrooms, hospitals, chapels, concerts, ball games and chaplains. "but it must be noted that along with this movement has grown up a sickly sentimentality about criminals which has gone altogether too far, and which, under the guise of humanity and philanthropy, confounds all moral distinctions." to a large number of well-meaning people every convict is a person to whom the state has done an injury.

then came the study of degeneracy, with the cranium of every criminal as a subject of investigation.[pg 22] in 1881 or thereabouts professor benedickt published his conclusion that "the brains of criminals exhibit a deviation from the anthropological variety of their species, at least among the cultured races." it was a commendable thing to point out the relation of insanity to crime. it is an undeniable truth that there are insane people who are predisposed to crime just as there are those who are predisposed to dance.

the vicious criminal class contains many who are actually or incipiently insane, and it numbers a great many more who are physically and mentally normal, who yet by reason of their education and environment are not much to be blamed for doing wrong. but it is far from true that a majority of the "real" criminals are mentally defective. crime and insanity are no more closely related than sin and insanity. certain criminals are also perverts. but they would be criminals even if they were not perverts. the fact that a man who takes drugs is also a criminal does not prove that he is a criminal because he takes drugs. we know many drug-takers who are otherwise highly respectable. go to the general sessions and watch the various defendants who are brought into court and you will discover little more degeneracy or abnormality than you would find on the corner of twenty-third street and fifth avenue among the same number of unaccused citizens.

the point which the writer desires to make is that, leaving out the accidental and experimental criminals, there is a much closer relation between all law-breakers than the public and our legislators seem to suppose. the man who adulterates his milk to make a little extra money is in the same class with[pg 23] the financial swindler. one waters his milk, the other his stock. the same underhanded desire to better one's self at the expense of one's neighbor is the moving cause in each case. the forger belongs to the class whose heads the criminologists delight to measure, but they would not measure your milkman's. the man who steals your purse is a felon and a subject of scientific investigation and discussion; the man who forges a trade-mark commits only a misdemeanor and excites no psychological interest. but they are criminals of exactly the same type.

the "crime-is-a-disease" theory has been worked entirely too hard. it is a penologic generality which does not need any truckling to popular sentimentality to demonstrate its truth. but there are as many sorts of this "disease" as there are kinds of crime, and some varieties would be better described by other and less euphemistic names. crime is no more a disease than sin, and the sinners deserve a good share of the sympathy that is at present wasted on the criminals. the poor fellow who has merely done wrong gets but scant courtesy, but once jerk him behind the bars and the women send him flowers. if crime is a disease, sin is also a disease, and we have all got a case of it. it is strange that there is not more "straight talk" on this subject. every one of us has criminal propensities,—that is to say, in every one of us lurks the elemental and unlawful passions of sex and of acquirement. it is but a play on words to say that the man who yields to his inclinations to the extent of transgressing the criminal statutes is "diseased." up to a certain point it is his own business, beyond it becomes ours, and he transgresses at his peril.

[pg 24]

the ordinary criminal usually is such because he "wants the money"; he either does not like to work or wants more money than he can earn honestly. he has no "irresistible impulse" to steal,—he steals because he thinks he can "get away with it."

the so-called professional thief is usually one who has succeeded in so doing or who, having been convicted of larceny, finds he cannot live agreeably other than by thieving; but the man is no less a professional thief who systematically puts money in his pocket by dishonest and illegal methods in business. the fact that it is not, in the ordinary sense, his "sole occupation" does not affect the question at all. indeed, it would be difficult for one whose business life was permeated by graft to refute the general allegation that his "sole occupation" was criminal. granting this, your dishonest business man fulfils every requirement of mr. warner's definition, for he "preys upon society and is [secretly] at war upon it." he may not be an "outlaw," but he should be one under any enlightened code of criminal laws.[9]

there is no practical distinction between a man who gets all of a poor living dishonestly and one who gets part of an exceedingly good living dishonestly. the thieving of the latter may be many times more profitable than that of the former. so long as both keep at it systematically there is little to choose between the thief who earns his livelihood by picking pockets and the grocer or the financier who swindles those who rely upon his representations. the man who steals a trade-mark, counterfeits a label, or adulterates food or drugs, who makes a fraudulent assignment of his property, who as a director of a cor[pg 25]poration declares an unearned dividend for the purpose of selling the stock of himself and his associates at an inflated value, who publishes false statements and reports, makes illegal loans, or who is guilty of any of the thousand and one dishonest practices which are being uncovered every day in the management of life insurance, banking, trust, and railroad companies, is precisely as "real" a criminal as one who lurks in an alley and steals from a passing wagon. each is guilty of a deliberate violation of law implying conscious wrong, and each commits it for essentially the same reason.

yet at the present time the law itself recognizes a fictitious distinction between these crimes and those of a more elementary sort. the adulteration of foods, the theft of trade-marks, stock-jobbing, corporation frauds, and fraudulent assignments are as a rule only misdemeanors. the trouble is that we have not yet adjusted ourselves to the idea that the criminal who wears a clean collar is as dangerous as one who does not. of course, in point of fact he is a great deal worse, for he has not the excuse of having a gnawing at his vitals.

if a rascally merchant makes a fraudulent conveyance of his property and then "fails," although he may have secreted goods worth fifty thousand dollars, the punishment of himself and his confederate is limited to a year in the penitentiary and a thousand dollars fine, while if a bank cashier should steal an equivalent amount and turn it over to an accomplice for safe keeping he could receive ten years in state's prison. even in this last case the receiver's punishment could not exceed five years. thus robert a. ammon, who was the sole person[pg 26] to profit by the notorious "franklyn syndicate,"[10] when convicted of receiving the proceeds of the fraud, could be sentenced to only five years in sing sing, while his dupe, miller, who sat at the desk and received the money, although he acted throughout by the other's advice and counsel, in fact did receive a sentence of ten years for practically the same offence. however inequitable this may seem, what inducements are offered in the field of fraudulent commercial activity when a similar kind of theft is punishable by only a year in the penitentiary?

one can hardly blame such picturesque swindlers as "larry" summerfield, who saw gigantic financial and commercial frauds being perpetrated on every side, while the thieves who had enriched themselves at the expense of a gullible public went scot-free, for wanting to participate in the feast. almost every day sees some new corporation brought into being, the only object of which is to enable its organizers to foist its worthless stock among poorly paid clerks, stenographers, trained nurses, elevator men and hard-working mechanics. the stock is disposed of and the "corporation" (usually a copper or gold mining enterprise) is never heard of again. apparently if you do the thing correctly there can be no "come back." accordingly summerfield and his gang of "sick engineers" hawked through the town nearly eighty thousand dollars' worth of the securities of the horse shoe copper mining company, which owned a hole in the ground in arizona. it was all done under legal advice and was undoubtedly believed to be within the letter of the law. but there were a few unnecessary falsehoods, a few slips in the schedule, a few complainants who would not be[pg 27] placated, and "larry" found himself in the toils. he was convicted of grand larceny in the first degree, secured a certificate of reasonable doubt and gave bail in a very large amount. within a short time he was re-arrested for working the same game upon an unsuspecting southerner. this time his bail was increased to thirty thousand dollars. it was not long after the investigations into the ship-building trust scandal and new york had been edified by seeing the inside workings of some very high finance. after his temporary release summerfield strolled over to pontin's restaurant for lunch, where he sat down at a table adjoining one occupied by the assistant district attorney who had prosecuted and convicted him.

"how are you, mr. ——?" inquired "larry" with his usual urbanity. "how are things?"

"so so," replied the prosecutor, amused at the nonchalance of a man who might reasonably expect to be in sing sing within three months. "how's business?"

"oh, pretty good," returned larry. "you know there is a sucker born every minute."

"i should think after your conviction you would have had sense enough to keep out of swindling for a while," continued the assistant.

"swindling!" exclaimed summerfield. "swindling nothin'! my lawyer says i didn't commit any crime. didn't the supreme court say there was a reasonable doubt in my case? well, i'm just giving myself the benefit of it,—that's all. i'm entitled to it. how about those ship-building fellers?"

the "ship-building fellers" have never been convicted of any wrong-doing. perhaps they committed[pg 28] no crime. summerfield has three years more to serve in sing sing.[11]

in this connection the reader will recall the attitude of the inhabitants of lilliput as chronicled by gulliver.—"they look upon fraud as a greater crime than theft, and therefore seldom fail to punish it with death; for they allege that care and vigilance, with a very common understanding, may preserve a man's goods from theft, but honesty has no defence against superior cunning; ... the honest dealer is always undone, and the knave gets the advantage. i remember when i was once interceding with the king for a criminal who had wronged his master for a great sum of money, which he had received by order, and ran away with; and happening to tell his majesty by way of extenuation that it was only a breach of trust, the emperor thought it monstrous in me to offer as a defence the greatest aggravation of the crime; and truly i had little to say in return, further than the common answer, that different nations had different customs; for, i confess, i was heartily ashamed."

any definition of the criminal class which limits it to those who "make their living" by crime is inadequate and begs the question entirely. there is no choice between the grafter and the "professional" thief, the boodler and the bank robber. they are all "real" criminals. one is as "diseased" and "degenerate" as the other. every reversed conviction of a "grafter" lowers a peg the popular respect for law. the clerk in the corner grocery in dakota feels the wireless influence of the boodler in st. louis, and[pg 29] the "successful" failure in new york sets some fellow thinking in san francisco.

the so-called degenerate and professional criminals constitute a very small fraction of the law-breakers and it is not from either class that we have most to fear. our real danger lies in those classes of the population who have no regard for law, if not an actual contempt for it, and who may become criminals, or at least criminal, whenever any satisfactory reason, coupled with adequate opportunity, presents itself. from this class spring the experimental criminals of every sort, who in time become "professionals," and from it the embezzler, the stock jobber, the forger and business thief. from it as well are largely recruited those who commit the crimes of violence which, however undeservedly, give the united states such an unenviable place upon the tables of the statisticians. from it spring the "fellow who does not care" or who "will take a chance," the dynamiter, the man who is willing to "turn a trick" at a price, and all those who need the strong arm of the law to restrain them from yielding to their entirely normal evil inclinations.

the man who deliberately violates the law by doing that which he knows to be wrong is a real criminal, whether he be a house-breaker, an adulterator of drugs, the receiver of a fraudulent assignment or a trade-mark thief, an insurance "grafter," a bribe giver, or a butcher who charges the cook's commission against next sunday's delivery. the writer fails to see the slightest valid distinction between them and believes it should be made possible to punish them all with equal severity. there is[pg 30] no reason why one should be a felon, another guilty of only a misdemeanor, while still another is guilty of nothing at all. the cause of crime is our general and widespread lack of respect for law, and this in turn is largely due to the unpunished, and often unpunishable, dishonesty which seems to permeate many phases of commercial activity. diogenes's job is still vacant.

footnotes:

[8] including under the general term "fraud," obtaining money by false pretences, thefts by solicitors, bankers, agents, directors, trustees, etc. ("generally recorded under the euphony 'misappropriation'"), falsifying accounts, etc., mr. schorling found that taking the number of these two divisions of crime between 1885-1889 as 100% there had been the following relative decrease and increase between them:

all crimes except fraud frauds

1885-1889 100% 1885-1889 100%

1890-1894 96.2% 1890-1894 110.1%

1895-1899 90.4% 1895-1899 138.3%

a similar table constructed for the united states during the last fifteen years would be instructive but perhaps unduly depressing. recent financial and other disclosures would probably send up the mercury of the "fraud" thermometer until it burst.

[9] cf. "unpunished commercial crime" in "moral overstrain," by g.w. alger. houghton, mifflin & co., 1906.

[10] see "true stories of crime," referred to supra, p. 15.

[11] since the publication of this book summerfield has been discharged from prison, having earned his parole by exemplary conduct. he has gone west to lead a new and better life, and there is reason to believe that he will succeed in doing so.