In the course of an early morning constitutional I visited Charlestown. Among the changes, too numerous to attempt to indicate, which mark the lapse of a century in that quarter, I particularly noted the total disappearance of the old state prison.
"That went before my day, but I remember hearing about it," said Dr. Leete, when I alluded to the fact at the breakfast table. "We have no jails nowadays. All cases of atavism are treated in the hospitals."
"Of atavism!" I exclaimed, staring.
"Why, yes," replied Dr. Leete. "The idea of dealing punitively with those unfortunates was given up at least fifty years ago, and I think more."
"I don't quite understand you," I said. "Atavism in my day was a word applied to the cases of persons in whom some trait of a remote ancestor recurred in a noticeable manner. Am I to understand that crime is nowadays looked upon as the recurrence of an ancestral trait?"
"I beg your pardon," said Dr. Leete with a smile half humorous, half deprecating, "but since you have so explicitly asked the question, I am forced to say that the fact is precisely that."
After what I had already learned of the moral contrasts between the nineteenth and the twentieth centuries, it was doubtless absurd in me to begin to develop sensitiveness on the subject, and probably if Dr. Leete had not spoken with that apologetic air and Mrs. Leete and Edith shown a corresponding embarrassment, I should not have flushed, as I was conscious I did.
"I was not in much danger of being vain of my generation before," I said; "but, really--"
"This is your generation, Mr. West," interposed Edith. "It is the one in which you are living, you know, and it is only because we are alive now that we call it ours."
"Thank you. I will try to think of it so," I said, and as my eyes met hers their expression quite cured my senseless sensitiveness. "After all," I said, with a laugh, "I was brought up a Calvinist, and ought not to be startled to hear crime spoken of as an ancestral trait."
"In point of fact," said Dr. Leete, "our use of the word is no reflection at all on your generation, if, begging Edith's pardon, we may call it yours, so far as seeming to imply that we think ourselves, apart from our circumstances, better than you were. In your day fully nineteen twentieths of the crime, using the word broadly to include all sorts of misdemeanors, resulted from the inequality in the possessions of individuals; want tempted the poor, lust of greater gains, or the desire to preserve former gains, tempted the well-to-do. Directly or indirectly, the desire for money, which then meant every good thing, was the motive of all this crime, the taproot of a vast poison growth, which the machinery of law, courts, and police could barely prevent from choking your civilization outright. When we made the nation the sole trustee of the wealth of the people, and guaranteed to all abundant maintenance, on the one hand abolishing want, and on the other checking the accumulation of riches, we cut this root, and the poison tree that overshadowed your society withered, like Jonah's gourd, in a day. As for the comparatively small class of violent crimes against persons, unconnected with any idea of gain, they were almost wholly confined, even in your day, to the ignorant and bestial; and in these days, when education and good manners are not the monopoly of a few, but universal, such atrocities are scarcely ever heard of. You now see why the word `atavism' is used for crime. It is because nearly all forms of crime known to you are motiveless now, and when they appear can only be explained as the outcropping of ancestral traits. You used to call persons who stole, evidently without any rational motive, kleptomaniacs, and when the case was clear deemed it absurd to punish them as thieves. Your attitude toward the genuine kleptomaniac is precisely ours toward the victim of atavism, an attitude of compassion and firm but gentle restraint."
"Your courts must have an easy time of it," I observed. "With no private property to speak of, no disputes between citizens over business relations, no real estate to divide or debts to collect, there must be absolutely no civil business at all for them; and with no offenses against property, and mighty few of any sort to provide criminal cases, I should think you might almost do without judges and lawyers altogether."
"We do without the lawyers, certainly," was Dr. Leete's reply. "It would not seem reasonable to us, in a case where the only interest of the nation is to find out the truth, that persons should take part in the proceedings who had an acknowledged motive to color it."
"But who defends the accused?"
"If he is a criminal he needs no defense, for he pleads guilty in most instances," replied Dr. Leete. "The plea of the accused is not a mere formality with us, as with you. It is usually the end of the case."
"You don't mean that the man who pleads not guilty is thereupon discharged?"
"No, I do not mean that. He is not accused on light grounds, and if he denies his guilt, must still be tried. But trials are few, for in most cases the guilty man pleads guilty. When he makes a false plea and is clearly proved guilty, his penalty is doubled. Falsehood is, however, so despised among us that few offenders would lie to save themselves."
"That is the most astounding thing you have yet told me," I exclaimed. "If lying has gone out of fashion, this is indeed the `new heavens and the new earth wherein dwelleth righteousness,' which the prophet foretold."
"Such is, in fact, the belief of some persons nowadays," was the doctor's answer. "They hold that we have entered upon the millennium, and the theory from their point of view does not lack plausibility. But as to your astonishment at finding that the world has outgrown lying, there is really no ground for it. Falsehood, even in your day, was not common between gentlemen and ladies, social equals. The lie of fear was the refuge of cowardice, and the lie of fraud the device of the cheat. The inequalities of men and the lust of acquisition offered a constant premium on lying at that time. Yet even then, the man who neither feared another nor desired to defraud him scorned falsehood. Because we are now all social equals, and no man either has anything to fear from another or can gain anything by deceiving him, the contempt of falsehood is so universal that it is rarely, as I told you, that even a criminal in other respects will be found willing to lie. When, however, a plea of not guilty is returned, the judge appoints two colleagues to state the opposite sides of the case. How far these men are from being like your hired advocates and prosecutors, determined to acquit or convict, may appear from the fact that unless both agree that the verdict found is just, the case is tried over, while anything like bias in the tone of either of the judges stating the case would be a shocking scandal."
"Do I understand," I said, "that it is a judge who states each side of the case as well as a judge who hears it?"
"Certainly. The judges take turns in serving on the bench and at the bar, and are expected to maintain the judicial temper equally whether in stating or deciding a case. The system is indeed in effect that of trial by three judges occupying different points of view as to the case. When they agree upon a verdict, we believe it to be as near to absolute truth as men well can come."
"You have given up the jury system, then?"
"It was well enough as a corrective in the days of hired advocates, and a bench sometimes venal, and often with a tenure that made it dependent, but is needless now. No conceivable motive but justice could actuate our judges."
"How are these magistrates selected?"
"They are an honorable exception to the rule which discharges all men from service at the age of forty-five. The President of the nation appoints the necessary judges year by year from the class reaching that age. The number appointed is, of course, exceedingly few, and the honor so high that it is held an offset to the additional term of service which follows, and though a judge's appointment may be declined, it rarely is. The term is five years, without eligibility to reappointment. The members of the Supreme Court, which is the guardian of the constitution, are selected from among the lower judges. When a vacancy in that court occurs, those of the lower judges, whose terms expire that year, select, as their last official act, the one of their colleagues left on the bench whom they deem fittest to fill it."
"There being no legal profession to serve as a school for judges," I said, "they must, of course, come directly from the law school to the bench."
"We have no such things as law schools," replied the doctor smiling. "The law as a special science is obsolete. It was a system of casuistry which the elaborate artificiality of the old order of society absolutely required to interpret it, but only a few of the plainest and simplest legal maxims have any application to the existing state of the world. Everything touching the relations of men to one another is now simpler, beyond any comparison, than in your day. We should have no sort of use for the hair-splitting experts who presided and argued in your courts. You must not imagine, however, that we have any disrespect for those ancient worthies because we have no use for them. On the contrary, we entertain an unfeigned respect, amounting almost to awe, for the men who alone understood and were able to expound the interminable complexity of the rights of property, and the relations of commercial and personal dependence involved in your system. What, indeed, could possibly give a more powerful impression of the intricacy and artificiality of that system than the fact that it was necessary to set apart from other pursuits the cream of the intellect of every generation, in order to provide a body of pundits able to make it even vaguely intelligible to those whose fates it determined. The treatises of your great lawyers, the works of Blackstone and Chitty, of Story and Parsons, stand in our museums, side by side with the tomes of Duns Scotus and his fellow scholastics, as curious monuments of intellectual subtlety devoted to subjects equally remote from the interests of modern men. Our judges are simply widely informed, judicious, and discreet men of ripe years.
"I should not fail to speak of one important function of the minor judges," added Dr. Leete. "This is to adjudicate all cases where a private of the industrial army makes a complaint of unfairness against an officer. All such questions are heard and settled without appeal by a single judge, three judges being required only in graver cases. The efficiency of industry requires the strictest discipline in the army of labor, but the claim of the workman to just and considerate treatment is backed by the whole power of the nation. The officer commands and the private obeys, but no officer is so high that he would dare display an overbearing manner toward a workman of the lowest class. As for churlishness or rudeness by an official of any sort, in his relations to the public, not one among minor offenses is more sure of a prompt penalty than this. Not only justice but civility is enforced by our judges in all sorts of intercourse. No value of service is accepted as a set-off to boorish or offensive manners."
It occurred to me, as Dr. Leete was speaking, that in all his talk I had heard much of the nation and nothing of the state governments. Had the organization of the nation as an industrial unit done away with the states? I asked.
"Necessarily," he replied. "The state governments would have interfered with the control and discipline of the industrial army, which, of course, required to be central and uniform. Even if the state governments had not become inconvenient for other reasons, they were rendered superfluous by the prodigious simplification in the task of government since your day. Almost the sole function of the administration now is that of directing the industries of the country. Most of the purposes for which governments formerly existed no longer remain to be subserved. We have no army or navy, and no military organization. We have no departments of state or treasury, no excise or revenue services, no taxes or tax collectors. The only function proper of government, as known to you, which still remains, is the judiciary and police system. I have already explained to you how simple is our judicial system as compared with your huge and complex machine. Of course the same absence of crime and temptation to it, which make the duties of judges so light, reduces the number and duties of the police to a minimum."
"But with no state legislatures, and Congress meeting only once in five years, how do you get your legislation done?"
"We have no legislation," replied Dr. Leete, "that is, next to none. It is rarely that Congress, even when it meets, considers any new laws of consequence, and then it only has power to commend them to the following Congress, lest anything be done hastily. If you will consider a moment, Mr. West, you will see that we have nothing to make laws about. The fundamental principles on which our society is founded settle for all time the strifes and misunderstandings which in your day called for legislation.
"Fully ninety-nine hundredths of the laws of that time concerned the definition and protection of private property and the relations of buyers and sellers. There is neither private property, beyond personal belongings, now, nor buying and selling, and therefore the occasion of nearly all the legislation formerly necessary has passed away. Formerly, society was a pyramid poised on its apex. All the gravitations of human nature were constantly tending to topple it over, and it could be maintained upright, or rather upwrong (if you will pardon the feeble witticism), by an elaborate system of constantly renewed props and buttresses and guy-ropes in the form of laws. A central Congress and forty state legislatures, turning out some twenty thousand laws a year, could not make new props fast enough to take the place of those which were constantly breaking down or becoming ineffectual through some shifting of the strain. Now society rests on its base, and is in as little need of artificial supports as the everlasting hills."
"But you have at least municipal governments besides the one central authority?"
"Certainly, and they have important and extensive functions in looking out for the public comfort and recreation, and the improvement and embellishment of the villages and cities."
"But having no control over the labor of their people, or means of hiring it, how can they do anything?"
"Every town or city is conceded the right to retain, for
its own public works, a certain proportion of the quota of labor its citizens
contribute to the nation. This proportion, being assigned it as so much
credit, can be applied in any way desired."