It is not proposed, herein, to offer an exhaustive criticism of a service that has won approval in every quarter of the globe. On the other hand it is always well enough to cast about and see that the house is in order. Analysis is not ultimately antagonistic to synthesis. Criticism is always helpful: if wholesome it reveals defects for correction; if weak it discloses the strength of the criticised.
Such analysis and criticism as are offered will proceed from a psychological point of view.
A word as to psychology before proceeding to its application. Its principles, like nature's laws in general, are as old as truth but their systematization as a science is modern. Practical application of this science is rapidly gaining in recognition through the influence of the younger generation of employees recruited from the classically educated to non-classical pursuits. It has application in every enterprise involving the human equation. Some men have a natural understanding in this direction and we say that they are "good judges of character" or that they "know men." Others have almost no natural aptitude of the kind; often they have great abilities in other directions but fail as administrators because they cannot "handle men." The study of psychology would show the former the theories of the science they partially apply and, by delineating mental processes, teach broader application. For the latter class the study would fill a void and complement abilities for well-rounded achievement.
The essential idea for application here is that of mental action and re-action.
With apologies for this digression in explanation of the point of view, we may proceed with the analysis.
The first premise is that the objective of the navy is efficiency.
The next premise is that efficiency is accomplishment with minimum expenditure.
From these premises may we deduce that the personnel of the navy completely accomplishes its purpose?
The second premise raises the question of waste.
During the fiscal year, ending June 30, 1913, there were 3544 desertions from the navy and marine corps and 1621 convictions by general court-martial. Desertions were about four and two-thirds percentum, and convictions about two percentum, of the whole force. Even these figures do not represent the first line losses for delinquency; for, of 1621 convictions, 8oi were for other offenses than desertion; hence the total loss from desertion and general court-martial convictions was 4345, or about five and two-thirds percentum, without saying a word about summary discharges.
The government's investment in these 4345 men is approximately a total loss. This conclusion is based upon the estimate that the average length of service before desertion is so short that the man does not acquire sufficient skill in the profession to be able to render service of sufficient value to off-set the time spent by other men in his training, and upon the further consideration that the embryo deserter was probably of such a frame of mind as to warrant the supposition that his services were not efficient: he was either an habitual offender, and thus a constant burden, or not sufficiently interested in his work to do it well, or so insincere as to be unreliable.
If we give value to the time of officers and men devoted to training these men who do not remain to apply that training, and value to the time of officers and men assigned to their apprehension, trial and imprisonment; and if we add the actual expenses involved in such measures, not forgetting the cost of restoring prisoners to civilian status and expenditures on account of pay for no value rendered in service; it is safe to say that the wastage is fully four millions of dollars yearly. But this is only the money loss. The detrimental effect upon the remaining personnel cannot be measured; it can only be suggested and urged for consideration as a potent factor; because of its intangibility it is the more insidious evil.
It goes without saying that a cure for desertion would nearly eliminate both the money and intangible waste. Removal of the cause is the first step to a cure in modern practice.
Statistics are available which may be helpful. Six hundred and eighty-three deserters, questioned and cross-questioned, gave their reasons for deserting as follows:
Bad company 10
"Couldn't get along with the crew" 44
Distaste for discipline 53
Distaste for the naval service 67
Dislike for the ship to which attached 34
Domestic troubles 21
Greater earnings promised in civil employment 9
Homesick 25
Involved in other crimes or offenses 126
Liquor 102
Negligence 12
No furlough 50
Physical ailments 8
Poor food 1
Relation needed support 36
Women enticed away 28
Work too hard 50
No reason 87
An analysis of these excuses will disclose no basis that will elicit the sympathy of any officer familiar with the conditions of the service. The reasons given reveal the temperamental inadaptability, the slothfulness, the indolence, the criminal tendencies, or miserable weaknesses of these deserters. Every excuse confesses moral dullness.
If, then, there are no valid excuses forthcoming from a large number of deserters, it may be argued that the cause of desertion was subjective and not in the nature or conditions of the service. It follows that they were not eligible for enlistment and should not have been enlisted.
The recruiting officer thus blamed may ask how he might have determined such ineligibility.
The answer is that recruiting should conform to business methods.
Civilian employers find it necessary to require references from all except the lowest order of laborers. The prospective employer investigates the previous performances of the applicant and accepts the services of those who can convince him that their future employment will be satisfactory. He will not necessarily limit his consideration to a view of the applicant's past; a talk with the applicant may convince a psychologist (i. e. a judge of character) that a previous reputation has been amended; and so, while an ex-prisoner meets with a long line of rejections, he may convince an employer and persuade him to give employment for other than mean services. The low order of employment is comparatively open to all corners; as no responsibility is involved, contractors Can hazard engagements without reference to character because they can easily dispose of a troublesome man by police intervention or quickly discharge a worthless one.
Such is not the situation in the navy; here no engagement is for mean services; even great responsibility may fall to the incumbent in any rating; here every man is the agent of the sovereign power. Furthermore, the inconvenience in case of an unwise recruitment is embarrassing and costly.
No elaboration is called for to show that the waste resulting from lax recruiting is so enormous that it well warrants the adoption of extensive precautions in examining into the probable fitness of applicants.
The recruiting officer can accomplish much profitable elimination by subjecting the candidate to a thorough preliminary interrogation. In many cases the man's answers will disclose his unfitness by way of moral obtuseness, or his answers will indicate that he does not appreciate the binding force of the contractual obligation; it may be discovered that he seeks in enlistment a haven for indolence.
If the applicant is not rejected in this preliminary, and if during its course the name and address of his last employer have not been revealed, he should be required to give such information as will enable the recruiting officer to determine a suitable referee to whom interrogatories may be forwarded to obtain precise information as to the applicant's character as indicated by his last employment or status. Incidentally, it would be necessary to affirmatively establish the fact that the referee was bona fide; otherwise the applicant might collude with a confederate to give him an undeserved reference, or, possibly, enterprising men would go into the character-giving business. The police or other municipal officials would invariably give reliable reports on such referees. In passing, it may be stated that recruiting officers will vouch for the assurance that municipal officials are almost invariably inclined to co-operation in such matters.
Lest some who, possibly, have done a "rushing business in recruiting, fear that the proposed procedure might be laborious or unduly obstruct recruiting, it is suggested that, reduced to a system, it would not consume more time than should be given to the consideration of an applicant proposing a long tenure of employment in the responsible duties of defending his country; a recruiting officer should be apt in interrogation and thus be able to conclude the preliminaries in a very few minutes; the delay attendant upon the return of answers to interrogatories would be a profitable delay. The domestic adage, "marry in haste, repent at leisure," modified by the substitution of the word "enlist" for "marry," has application here. For that matter, once the requirement of. references had become a fixed rule, it would become generally known and men with the proper amount of foresight to warrant prompt enlistment would bring their references with them. If such references were properly attested by an official they would be acceptable without further investigation.
In 1911 the British Navy adopted the practice of requiring references (called "characters" there) for all persons enlisted. An official of the Admiralty stated to the writer their great satisfaction with the system and submitted data which showed results in a great reduction of personnel waste.
At first glance, it might be thought that the proposed stringency would produce too few recruits at each recruiting office. Even if this fear were realized the desired number of recruits could be obtained by increasing the number, of recruiting offices and still greatly reduce the ultimate expense. But it is not admitted that each recruiting office would secure less recruits. Psychology interposes here. It is well-recognized that normal man despises the easily-obtainable and prizes the rare, i. e., the thing that must be striven for. At every turn we meet with application of this doctrine. It is trite to say that to make a thing seem desirable one needs but to make it appear exclusive. But, the attitude of army and navy recruiting offices, at present, is one of supplication: men are urged to join; the employment is disparaged; men are likely to think employment that "goes a-begging" is too cheap. But let the impression once become current that it is difficult to enlist and a demand for the places will become the rule; a desire to hold the place, once secured, will also be a resultant. Then again, when it becomes generally known that naval employment can be obtained only after the establishment of a "character," fathers will be more disposed to propose, instead of interdict, their sons' enlistment. They will say, "Why! it is no easy matter to get into the navy; a man must be vouched for; my son will have good associates."
Careful investigation into the qualifications of every applicant for enlistment would result in a direct economy even in the first stages, i. e., in recruiting, because more acceptable candidates would apply at each station and a smaller number of ineligibles would have the temerity to apply. The ultimate economy would be decidedly more pronounced.
There is another feature of recruiting that suggests itself for examination. We have, in the main, considered only the question of whether or not the government desires the applicant; we should be just as sure that the applicant appreciates the nature of the pro-posed engagement and that it is for his interest to make the contract; this proposition is not only ethical but it is policy.
A large proportion of deserters declare that they did not find the employment to be what it had been represented at the recruiting office. They relate details of the recruiting party's conversation and say that they were deceived by artistic posters and phrases suggesting a life of ease, travel and excitement; they point out that they have not realized these expectations but that, on the contrary, they have had hardships, discipline and dull routine. They insinuate that inasmuch as the government has not lived up to the representations made at the time of making the contract there was breach of contract by the government which discharged them from the duty of performing.
In defense of their desertion they very likely exaggerate in a desire to make out as good a case as possible. While surely no recruiting officer is a party to overt misrepresentation, is it not possible that there is tendency toward non-representation and that, thereby, the applicant obtains an erroneous idea of the features of the service? Is the authorized pictorial advertising a real portrayal? Without even suggesting intentional non-representation is it not possible that the recruiting parties do not realize how little the layman ordinarily knows of the service at sea and so does not tell enough?
Without dwelling upon the ethical, there is no denying that this is bad policy—bad psychology. If representations, active, passive or suggestive, lead, or permit, the applicant to obtain an unduly roseate expectation of the advantages of an enlistment, it goes without saying that he will be disappointed. The direct result will be inefficiency or desertion or both. Besides, the dissatisfied man will be an agent of evil among the other men. There is no conjecturing the amount of harm he may do. Therefore, if there is to be exaggeration at all let it be on the side of showing the disadvantages of the service; if there is to be non-representation at all let it be had in not mentioning the foreign travel (that may never be realized), the baseball nine (that may be able to practice but seldom), and some of the other youth-attracting features of the service. Let every applicant be told that his enlistment will entail serious occupation, hard work, irregular hours, plain food, strict discipline, and a binding contract from which there is no escape. Let him realize the probabilities of obtaining "foreign travel," that he will be in an environment quite different from anything he has previously known and that he will probably have some difficulty in accommodating himself thereto, that he probably will be homesick at first and sometimes discouraged. Tell him to assure himself, first, that the employment is what he desires, and then resolve that he will stick to it, in spite of everything, to the full performance of his contract..
Such stern presentation of the nature of the proposed employment may alarm the slothful and drive away the lazy man and tramp, but it will not discourage the desirable man; to the contrary, it will rather stimulate him to the undertaking, and with such introduction to the service he will regard his enlistment as an undertaking. Candidates for the Naval Academy invariably have advance information as to the difficulties of obtaining, and retaining, a cadetship; will not every officer confess that the goal was thus the more attractive?
So much for the selection.
Now let us consider the contract. At present the man signs an ex parte agreement in which the recruit's promises are specified and the government's engagements implied. Its execution is attended with form which tends to obscure the substance; i. e., the man's intent upon the form leads him into negligence as to substance. Furthermore, he may regard the requirements as matters of form instead of realities; if it is a question of age, for instance, he may view that as mere "red tape" ( for, of course, he considers himself old enough) and think it a small matter to state an age, regardless of fact, which will satisfy the form. Suppose that, for the present enlistment paper, a contract of service were substituted in which the government should set forth its promises to engage and the recruit his promises to serve, obey, etc., with a proviso that the recruit agreed to leave on deposit with the government at a stated rate of interest a certain proportion of each month's earned pay, such deposit to be security for his faithful performance and so liable to forfeiture for breach of contract by quitting his employment or by gross misconduct. A contract of this nature would place the enlistment precisely upon a business basis. (Civil contracts for services are determinable for nonperformance, drunkenness, or gross misconduct, and the employee is liable for such damages as the employer can prove). The terms of the agreement thus presented to the applicant would bring home to him the realities of the engagement offered and he would pause to consider them. While some men would still be found ready to sign the contract without thought, a larger percentage, than now, by having certain businesslike terms presented for consideration, would weigh the terms and be prompted to ask questions. An express contract would be better psychologically than the present requirement of a formal oath which deals in the abstract elements of allegiance and obedience to superior officers but does not clearly stipulate work, sobriety and good conduct.
A still better recommendation for the proposed contract is the security it offers to the government for its material investment in recruits. Not only that would be gained but the measure would be good psychology because it would bind the employee to his employment by a proprietary interest. He would, from the first, have a pecuniary investment, in the form of retained pay, in the institution that employs him. Subconsciously he would give his best efforts to furthering the interests of the enterprise in which he is a share holder. He would know that a forfeit of something already earned would attend misconduct or other: breach of contract. Surely if this should not bind him to his engagements nothing would.
The proposed condition would be a benefit to the man in building-up a savings fund for him. Having less to spend he would indulge in less harmful spending. Many desertions result from a too generous supply of money to be spent in a short period of shore leave. There are, it is true, some enlisted men with dependent relatives and if they were to be brought within the operation of the proposed rule there might be some temporary hardship, but the rule would not be applied to men already in the service; therefore, it would operate only in denying admission to those whose domestic affairs could not be brought into conformance. In this connection, it may be remarked that about 10 per cent of desertions are due to slothful domestic relations—unhappy marriages, incontinence, improvidence, etc. Hence, this objection is not real and would not materialize in cases where the navy would be deprived of desirable men to a degree worth considering.
Assuming, then, that the contract of enlistment will provide for a retention of pay subject to forfeiture as liquidated damages in case of breach of contract and assuming that there is a breach: the court-martial having determined that fact will assess the damage and decree such sum be checked against employee’s account; the court may further decree the contract terminated and the man discharged.
The elimination of the crime of desertion, in time of peace, is a corollary to the nature of the proposed contract of enlistment. Criminalizing breach of contract is psychologically bad because whereas breach of contract is no offense outside of military life it is impossible to instill into enlisted men's minds the idea that it involves moral obliquity. True, substantive law may define any act as criminal; to secure the observance of such a law is another matter. The history of legislation shows that legal definitions, to be effective, must approximately harmonize with the general understanding of the people; in a republican form of government legislation is the voice of the people and so there is, theoretically, such harmony; but in those administrations where the governed have little, or no, initiative in legislation, measures are ineffectual if not in keeping with the times. Blackstone, in Book IV, of his Commentaries, says:
It is a melancholy truth, that among the variety of actions which men are daily liable to commit, no less than a hundred and sixty have been declared by act of Parliament to be felonies without benefit of clergy; or, in other words, to be worthy of instant death. So dreadful a list, instead of diminishing, increases the number of offenders.
Particular attention is invited to the last sentence. In substance, he says that severity of definition increases offenders. One has but to read accounts of social conditions in England in the eighteenth century to ascertain the utter ineffectiveness of their severity in legislation. Criminalizing acts, even coupled with the threat of death, did not deter men then; the brutality of the legislation tended to brutalize society. Something better than a threat was required to make men decent.
But we need not go so far afield to ascertain that criminalizing breach of contract entirely fails in its object. Confronted with statistics as to desertion, the conclusion is irresistible that either:
(1) A small percentage of the men are sufficiently contented with the service to remain in it; or
(2) That few malcontents are deterred from quitting by the fact that such act is substantive crime or by the threat that, if caught, they will be imprisoned to serve a considerable sentence at hard labor.
Those familiar with the service can appreciate the general efficiency and contentment thereof; they must admit that the second conclusion, above, is the logical determination. If making it a crime to quit the service is not a preventative, it is only making criminals for the sake of punishing them. It is merely a relic of the past. It is hard to tear away from tradition. The high moral sense of our officers in general makes them impatient with the man who breaks his word—who disregards his contract; he feels that such conduct is offensive and, therefore, criminal. His instincts suggest expiation for the offense. But this view disregards another; it does not consider that the deserter was reared in environment that may not have permitted him to see the beauty of truth, or in social surroundings that did not suggest the blessings of his government and the consequent duty of loyalty. He may not have been taught even that "honesty is the best policy." And so the poor man took his obligations lightly; he broke his contract as many a respectable business man did the same day without any loss of caste; the navy man became a criminal; the business man, at the worst, responded in liquidated damages.
If we may apply undisputed theories of the tendencies of the human will, it is not difficult to see that the extraordinarily stern prohibition against quitting the service excites a desire to quit. Tell men that it is hard to escape and they will imagine they are in bondage and the natural desire for freedom will assert itself. But tell them that it will be hard to stay in and men worth while will be mettled to maintain their status. These latter are the only ones from whom the government can secure efficient service.
Summarizing: Men will seldom think of quitting the service if their interests lie in it; if they are not interested in their work their services are not worth compensation. Detain a man against his will and he will feel that it is imprisonment or bondage; involuntary servitude is not efficient. An attempt to secure involuntary service through defining desertion in times of peace has been found ineffectual in that there remains so high a percentage of desertion as to be entirely uneconomical.
Assuming that we adopt the proposed businesslike measures in selecting men and that we make a businesslike contract for their services, we may conclude that we will obtain normal employees.
The next step is to consider how we shall make the best use of their services.
The man being normal his efficiency will depend largely upon his interest. Under "interest," we may consider:
(1) Proprietary interest;
(2) Mental interest in general;
(3) Mental identification with daily tasks.
The first has been discussed in an attempt to show that men can be attached most satisfactorily to their employment by requiring them to invest therein a part of the earnings they realize therefrom. It is claimed that both the interest of the government and the interest of the man would be served thereby. It is suggested, further, that men whose circumstances, domestic or other, cannot meet this condition, should not be enlisted.
As to the second division of interest there is a different question. Here we have a manifestation of the workings of nature's stern law which decrees that every part of the human organism created for function must function or die. The limb that is denied mobility withers and becomes useless. The prisoner confined for a long time in a dark dungeon loses his vision when restored to light. So the mind unexercised, loses its power for thought. It responds only to the physical demands of the body. Its only processes are in the nature of involuntary physical reactions. They are directed only towards physical gratification. Aspirations for progress, which characterize the properly functioning human mind, are lacking. The unexercised mind either remains, or degenerates to, the bestial mind; this is atavism—a pronounced feature of a large class of criminals.
Some years ago an officer in command of a small complement was alarmed at the number of offenses and the bestiality of language he heard among his men. After considerable consideration he induced them to subscribe m cents each for a "paper mess." With the aggregate contribution he subscribed for a list of periodicals. As the reading matter arrived it was distributed and circulated. The men were jealous of their proprietary interest in the mess and read to get their "money's worth." Thus a taste for reading was initiated. The delighted officer then arranged for easy accessibility to books and the men enthusiastically availed themselves of the use thus afforded. Courts-martial became rare in that command.
Wholesome-mindedness is a pre-requisite to the rendition of efficient service. But that is not all; it is not entirely sufficient that men be decent and thoughtful. We require the third class of interest: adaptation of mental capacity to the nature of the employment. In other words, men must earn their pay by efficiently doing the tasks assigned.
Efficient service further depends upon proper organization and administration. The employee must know to whom he is to look for authorized direction. This condition is met by system in organization which defines the unit and its sub-divisions. Clearness as to direct responsibility eliminates waste. The efficiency of system is promoted by simplification of the chain of authority and responsibility. Logically, the captain is the general manager of the ship unit; heads of departments and division chiefs are responsible to him; enlisted men are responsible to these subordinate officers. The man of a division looks to his division officer for direction; it follows that such sub-ordinate officer should have authority to direct. Authority to direct must carry with it authority to approve and disapprove. A corollary to this proposition is that the disapproving officer should have authority to discipline. This is not suggesting the withdrawal of the punishing power from the captain's jurisdiction. Such a conclusion would be carrying consistency to that extreme which Emerson, in one of his essays, denounces by the assertion that " A foolish consistency is the hobgoblin of little minds." It does suggest, however, that it not only is unnecessary, but is improper, to take every case of dissatisfaction to the highest authority aboard. In municipal government, it has been found that the best policeman is not necessarily the one who makes the largest number 'of arrests but, rather, the one who maintains the best order in his district, conditions considered; by settling quarrels out of court, by seeing the first offender, in drunkenness safely home, by correcting the juvenile offender, etc.
The division officer, or head of department, is responsible that his unit be efficient and well disciplined. As a step to attainment of such desideratum it is essential that members of the subordinate's unit have confidence in, and devotion to, their immediate chief. The accomplishment of an approximation of this ideal is the latter's responsibility; methods are, therefore, his affair.
Here, again, is an important consideration: Individuality. No two men are cast of the same die. The officer in immediate contact with the men is the one who best knows their traits; if alert he will consider these in adopting measures and methods. He will find Brown's stimulus in encouragement; Smith's possibly in sterner measures; each man's individuality will be utilized in assigning work as well as in considering the requirements of discipline. It is the immediate director's business to develop the capacity of his men for the discharge of duty; discipline is an essential of such capacity and, therefore, is a means to the end. The immediate director, then, should not look to the captain to do his work for him unless and until, the subordinate must acknowledge that he has a' case that he cannot dispose of himself. A criminal discovered would be such a case; a man that failed to respond to any methods the subordinate officer had been able to devise would be another case.
If the captain, acting as inspector or otherwise in supervision of the whole unit, observes deficiency in a subordinate unit, he would, then, deprecate such deficiency to the responsible officer upon the theory that it was the latter's fault, and would not concern himself with, say, the individual manifesting the deficiency.
The captain is not only the supreme executive of his unit but he is a court of appeal in interpreting the law applicable to his ship so far as internal administration is concerned. As an executive he is involved in larger units as well as his own; the nature of his office implies generalization; his aptitude develops in the direction of generalization and thus away from specialization and details. As an appeal officer he should be removed, as far as possible, from the details of the original jurisdiction in order that his mind may not be fettered by the partiality that attaches to early association with the pro's and con's of a question.
Appreciation, and application, of this doctrine invariably are rewarded with success. The genius in administration is the one who has the faculty of obtaining results through subordinates to whom authority has been given.
The proposal to leave the subordinate to his own devices does not exclude healthy co-operation between chief and subordinate. The latter should feel free to ask advice; the former to offer suggestions and general directions depending upon the necessities of the case. As a large illustration for minor application, take the commander-in-chief's instructions to the commander of the scouts. The orthodox order will be in general terms like the German Direktiven (general instructions leaving the details to the execution of a subordinate), but circumstances may require specification. So the captain may find that specific instructions become necessary for the administration of a sub-unit in extraordinary circumstances, but, generally, if the officer is not able to manage the unit appropriate to his rank that fact, determined, should mean but one thing—his elimination. If he is equal to the assignment let him do his work without interference.
Some officers who are, say, natural psychologists, unconsciously proceed along these lines:
(1) They obtain the confidence and devotion of their men; the latter are convinced that their interests are considered; they do not hesitate to go to their officers for advice, even in reference to personal affairs. (Men are never deceived in the matter of this interest in their welfare; they invariably are suspicious of every act emanating from an official whose sincerity and genuine interest they mistrust).
(2) These successful officers are solicitous for the mental and physical needs of their men; if this one is deficient in general education, if that one has special aptitude for a technical branch, or if another is falling-off physically, the fact is officially known and the need supplied.
(3) Negligence or other unsatisfactory performance of duty is pointed out in such a way as to convey to the delinquent that his good is sought since his advancement will be seriously threatened by a continuation of poor performance.
(4) Such reciprocity of loyalty and confidence will necessarily result in divisional spirit which, in turn, will promote not only team-work but individual efficiency.
THE ANOMALY
Thus far we have largely assumed the normal: we have laid a fair weather course; now, for the bad weather.
Men are never perfect and conditions seldom ideal. Under the fairest administration there will be offenders. As we cannot picture abstract good without the concept of evil, so we cannot conceive of law without its violations. Crime is manifestation of disease in some form or other, i. e., it is manifestation of disordered condition. Modern practice proceeds along the line of eradicating the cause to effect a cure. But first we must discover the cause. That is accomplished through inquiry into the offender's condition and individuality. We should judge of the offender and not alone of the offense. Knowledge of the act the offender has committed, in violation of law, is of no utility except where it helps to determine the nature of his disordered condition. Now, all the punishments prescribed in the official schedule are based upon the offense without reference to the individuality of the offender. Courts have been enjoined to adhere to such maximum punishments for the sake of uniformity. Such uniformity is merely a continuation of the lex talionis, the Mosaical doctrine of "an eye for an eye and a tooth for a tooth." At the present day, few jurisdictions will confess that such is the idea of punishment; to the contrary, it is almost universally professed that punishment is designed as reformatory and there is denial of the expiatory feature. "One man's meat is another's poison" has application here. In fact, it seems necessary only to identify the present system of punishment with the lex talionis to reveal its unsoundness in theory and practice. Whether or not it is necessary to prescribe that punishments shall not exceed a specified maximum need not be discussed here. But it is urged that uniformity of punishment is not desirable. Measures, in each case, should be applied with reference to the individuality involved, and that measure should be adopted which will give the best promise of effective correction.
As previously intimated, the nature of the offense sometimes almost conclusively establishes the condition of the individual; e.g., crimes of so-called degeneracy. But many of those cases are the result of physical deformity which a surgeon could remedy. Even though the crime may be revolting, that is no reason why the state should not pause to consider whether or not it may not restore the offender to normal status. It may be remarked that the state, in theory, has great solicitude for the preservation of its subjects as a matter of material policy. Some criminal courts, in municipal jurisdictions, have a medical attaché to whom are referred, for physical examination, all persons under charges or indictment, if there may be the slightest question of discoverable abnormality.
There is a class of criminals which criminologists have been prone to denominate "hopeless"; these are recidivists who fail to respond to any effort at their reformation. It is believed that they owe their fate to prenatal conditions; they usually are found to have heads showing a large number of anomalies. Surgery has made some progress with this class by relieving skull depression, and by surgery on the brain itself.
Careful recruiting will almost entirely prevent representatives of these two classes from entering the service. If inquiry does discover such men, there is little that can be done short of condemning them to prison.
If in considering other cases, by inquiring into the condition and surrounding circumstances of the individual, there is reasonable ground for believing that any such would be a menace if unrestrained, imprisonment should be imposed.
With the foregoing exceptions, offenders may be regarded as candidates for reformation aboard ship wherever they may be serving, or for discharge.
By receiving such evidence, as may be available, of the previous environment of the accused and the circumstances surrounding the commission of the offense under consideration, it should not be difficult to arrive at a conclusion as to his amenability, and to fix a sentence that would dispose of the case to the best interests of the government and the accused. Let us consider the most usual offenses:
Fraudulent enlistment: The fraud may have had its inception in circumstances that would properly enlist the sympathy of the court; the early environment may have been like that of some millions of American urban poor where the struggle for bare existence is so sordid that fathers and mothers do not pause to consider how either they or their children might gain an advantage honestly; pressed by urgent necessity they take the course that appears the easiest. As remarked of deserters, they do not even know that "honesty is the best policy." The majority of them are probably taught, by example, that it is best to try dishonesty first. But it is not pretended that fraudulent enlistment is punished by imprisonment for the mere lie the offender uttered; the punishment is justified upon the theory that the man obtained pay fraudulently by reason of such false representations; this is not entirely sound application of a fiction, at least, as it works out; obtaining money under false pretenses usually means the manipulation of an exchange wherein one party gives something without receiving value in return, this by reason of falsehood. The government, however, does get what it contracted for, substantially, i. e., the services of a man; therefore the man does not obtain pay for nothing but gives full value therefor. The only respect in which the government has been cheated is that it was imposed upon with a lie; hence the actual substance of the offense is lying. Certainly, very few "fraudulent enlisters" appreciate that they are committing a grave offense. The fiction is employed to criminalize the offense for fancied expediency—to keep undesirables out of the service. Such onus should not be placed upon the public but upon recruiting officers. Careful recruiting will eliminate fraudulent enlistment. At any rate, criminalizing the offense does not prevent its commission. If the contract of enlistment were adopted, misrepresentation would invalidate the contract, by specification. Under the existing system, a man enlisted under such misapprehension of the facts as to his condition, should be discharged unless there is reasonable ground to believe that his services will be efficient. He should not be sent to prison for his lie.
Drunkenness: In case of fixed habit we have the disease of dipsomania; they should be discharged as unqualified for the service. These unfortunates are sometimes convicted upon a combination of offenses dissected from a single transaction, under charges of, "Drunkenness," "Resisting arrest," "Treating with contempt his superior officer and being disrespectful to him in language and deportment while in the execution of his office," "Assaulting and striking another person in the navy," etc. Many such convictions have been accompanied by long sentences at hard labor in prison. Drunkenness in such cases cannot be shown in defense of the allegations; in the eye of the law the accused is as guilty as if he had committed the offending acts with sober intent. Ordinarily, it would seem that a specification of "drunk and disorderly" should satisfy the conditions of such cases, unless there were special circumstances suggesting that the pan was involved more deeply by intent. These are questions for the pleader, with the statements of probable witnesses before him; unless it appears to him that the actual intent covered so wide a field, he may select the substantial fact upon which to base a charge and limit the charge accordingly, but if he includes all the charges of which the transaction is susceptible, the court must find upon the charges and cannot entertain offered evidence of drunkenness as a defense to establish lack of actual intent. It is costly and unproductive of good to consign these men to long periods of imprisonment for acts committed when they were non compos mentis.
Desertion: Quitting the employment without authority has been proposed as amounting to mere breach of contract to be answered for in damages and not to be considered a crime.
COURTS-MARTIAL
The court-martial tribunal has potentiality for ideal administration of justice: its members are judges of both law and fact; they are intelligent and conscientious; its procedure is little fettered by technical pleadings. Possibly its greatest liability to error lies in the fact that its members may be too conscientious—too zealous for justice. The paradox arises in this way: If there is considerable reason for believing an accused guilty but there is a lack of legal proof because of the inadmissibility of certain testimony offered, members sometimes may be inclined to depart from the rules of evidence and thus admit the objectionable testimony in what they may consider the "interests of justice." The difficulty about this procedure is that, although a guilty man may be thereby convicted, the charge against him was not legally proven and the accused would go to prison merely through the illegal proceedings of the court. Then again, the rules of evidence, founded upon centuries of judicial experience, offer more efficient means of ascertaining the truth than would rules improvised to fit the case. Many of the rules that, at a glance, may seem ultraconservative are the out-growth of experience that dictated their adoption as a safe-guard against the admission of testimony that seemed to be evidence when it was not. Take a crude illustration: Courts-martial have received in evidence, in disregard of the rules, a telegram received in due course the contents of which purported to come from a material witness. Such error subjected the case to disapproval by the revising authority. Suppose, however, the error were overlooked and the conviction should be approved, and subsequently, while the accused was serving sentence in prison, it was discovered that the telegram was not sent by the material witness but by an enemy of the accused, or, if sent by the material witness, a single word was lost in transmission and the sense thus reversed; there are many other suppositions that might be made that would illustrate the peril of thus disregarding the rules, to say nothing of the court's failure to support the accused in his constitutional right to be confronted by witnesses against him that he might test their veracity or accuracy by cross-examination.
There is another potent reason for strict observance of the rules. Enlisted men are fond of saying that a charge is tantamount to a conviction: that an accused has "no show." Another superstition is that members of a court-martial resent pleas of "not guilty" and that a contest of the charges prejudices the court against the accused. However benighted these superstitions, they should be considered. It is important to the morale of the service that enlisted men should feel assured that by entering the service they do not sacrifice the right to an impartial trial by due process of law in case their innocence is impeached. Civil governments are solicitous that the people have confidence in the judges. The administration of justice, in the trial of men, is merely the interpretation and application of the law as it exists; not, necessarily, the application of the law that we might think ought to exist.
Some countries have a public official known by some such title as "Public Defender," whose duty it is to defend indigents not otherwise provided with counsel. It might be well to have a "public defender" or, say, "general defender," in the fleet and one in attendance wherever general courts-martial are in session. It does not seem that the special counsel, detailed upon request, answers the purpose. The proposed "general counsel" would visit each accused man when charges were preferred and offer his services; the accused, of course, would be free to reject them and secure other counsel, but if the services of the "general counsel" were accepted, he would require the accused to confide the latter's view of the facts. It would be the duty of the defender to see, to the best of his ability, that only legal proof appeared against the accused, to make no effort to obstruct such legal proof, to present matters of defense in their true light, and to show any facts of previous environment or surrounding circumstances that might give the court a clearer view of the whole case. By such faithful and full presentation of both sides of the question, the work of the court would be facilitated so that a most fitting sentence could be expected. It would seem that there would be great advantage in. having the defense presented by a public officer in the regular course of his duties for it cannot be conceived that he would be actuated by any other desire than that of revealing the truth.
PUNISHMENTS
By the adoption of the contract of enlistment, desertion would be eliminated. By the proposed reform in recruiting, fraudulent enlistment and the enlistment of criminals would be rare. Thus offences calling for commitment to prison would be reduced to a small number: only vicious and hopeless criminals. As criminal sociological work is not a profitable line of endeavor for the military services, arrangement might be made with state or federal prisons to receive all such prisoners. But if there are reasons for maintaining naval prisons, they should be administered with rigorous requirements as to unremitting application. The prisoner's time should be fully occupied in useful work, study and school. Upon arrival the prisoner should be thoroughly examined by the prison physician to discover the possible existence of latent, or active, disease, or deformity, that might explain the delinquency. The next step should be an attempt to restore abnormals to a normal state. Then discipline, work and study will prepare the man for useful citizenship. Punishment that does not punish (does not cause repentence) is an absurdity which the prisoner is quick to see. It furthers his unconcern for the requirements of law. By this is not meant that punishment should be unkindly. To the contrary, the prisoner should be induced to feel that his jailers are ready, in any and every way, to help him help himself; that the work and discipline imposed are intended for his good; that the imprisonment is decreed, not in the spirit of the lex talionis, but with the hope of preparing him for useful citizenship.
This scheme for personnel does not provide for so-called disciplinary barracks as reformatories. By carefulirecruiting and the use of the contract of enlistment the service can be kept filled with good men available for duty; the few that cannot be effectively and economically adapted to the service by training in their own ships are quite eligible for discharge.