CONCLUSIONS.

We have now seen, in its main outlines, the present condition of this question of the nature and treatment of the criminal. We have seen that criminality is a natural phenomenon, to be studied gravely and carefully according to natural methods; and that by natural and reasonable methods alone can the problem of its elimination be faced with any chance of success.

A simple and obvious conclusion it seems. Yet it is a conclusion not even yet generally accepted, and which is only beginning to find expression in our social life. It is still quite usual to find that crime is regarded as an abstract matter, not to be treated seriously unless the criminal himself is ignored. On the other hand, when the criminal comes in for discussion it is merely as a subject for sensational excitement, or unwholesome curiosity, as a creature to be vituperated or glorified without measure.

The criminal has always been the hero, almost the saint, of the uncultured. That attitude of unbounded reverence for the lunatic, as for an inspired being, and unquestioning submission to his wildest acts which to-day can scarcely be found in Europe outside Turkey, has by no means died out where the criminal is concerned, even in the most civilised country. The same reverence or amazement that the educated feel for the man of genius, the uneducated feel for the criminal.

The Romans gave the name of Hercules to great criminals after death, and dedicated a distinct cult to them. If we go back to a still more primitive phase of life as preserved in folk-lore, and still to some extent perpetuated, we find that all that belongs to an executed criminal brings luck. A finger or other small bone kept in the purse will preserve it from ever being empty. It also keeps away vermin, and protects a thief from his victim. Buried beneath the threshold it brings perpetual blessing, and to have a thief’s thumb among his goods is an excellent thing for a shopkeeper. The people came for the Marquise de Brinvilliers’s bones the day after her execution; they regarded her as a kind of saint, says Mme. de SevignÉ. When at Breslau the old Rabenstein (the gallows) was broken down, a great trade was done by the workmen in the bones found beneath. Precious above all is the blood of a criminal; even a few drops on a rag are most costly. Such blood, when drunk, heals fevers and other diseases, just as the blood of gladiators was among the old Romans a cure for epilepsy. It must be drunk fresh, if possible warm. Bread dipped in this blood and eaten is good against the gout. The halter with which a criminal has been hanged has much power and brings luck. When it is struck three times on the threshold, the house is preserved from lightning. The same put into a beer cask with a criminal’s thumb has an excellent influence on the beer. In Franconia the fat of criminals is sometimes inquired for at the druggist’s, and a substance, so called, is handed over. When in Prussia executions took place in public, there was always friction between the armed guards and the crowd of women, who at all costs pressed forward with spoons, cups, and dishes to catch some of the blood. At the execution of a murderer at Hanau in 1861, several men leapt on to the scaffold and drank the steaming blood. At the execution of two murderers in Berlin in 1864, the executioner’s assistants dipped numbers of white handkerchiefs in the blood, and received two thalers for each. The bystanders even call upon the criminal for his most powerful intercession in Heaven. According to PitrÉ, there is still in Sicily a fetichistic adoration for the souls of the beheaded. The criminal is a person endowed with divine force, to be treated with awe and reverence, and whose blood and flesh have something of the old sacramental power of infusing the divine one’s energy into the body of him who eats of it.[112]

Lacenaire.

In a less crude form, and among persons who lay claim to a somewhat higher degree of culture, the same veneration has long existed and still exists. Appert, writing immediately after the execution of Lacenaire at Paris, says:—“His portraits were displayed on quays and boulevards. From all sides exquisite meats and delicate wines reached his cell, while, two steps away, miserable creatures driven to crime by hunger ate the black and hard bread of the gaol. Every day some man of letters visited him, carefully noting his sarcasms, his phrases composed in drunkenness or studiously calculated for effect; women, young, beautiful, and elegantly attired, solicited the honour of being presented to him, and were in despair at his refusal; a noble countess, the mother of a family, addressed verses to him, and drew upon herself a reply at which no doubt she blushed. He himself mocked at the infatuation he excited. ‘They come to me,’ he said, ‘as they would ask a ticket from M. Geoffroy Saint-Hilaire to see the elephants’ den.’” When Cartouche was in prison he was visited by many distinguished ladies and overwhelmed by their attentions. The AbbÉ Crozes tells us that Tropmann, the brutal murderer, when in prison received a great number of letters from ladies, full of anxiety in regard to his spiritual welfare, and asking for the most minute details concerning him. Some of these letters were reproduced in the Figaro. I have not seen them, but Dr. Corre says: “Their perusal stupefies one; they witness, among women who have been well brought up, to an ill-defined obsession, of the nature of which they are even themselves unaware, and which perhaps had its origin in an unavowable sentiment of love, born of mystery and the unknown.” It is not only women in whom this ancient worship of the criminal still survives. In a recent newspaper I read concerning a murderer: “One of the saddest sights we have ever witnessed was the prison van going along Waterloo Place at midnight under the beautiful moonlight with a great crowd running after it cheering loudly the poor wretch within—cheering that never ceased till the van disappeared inside the prison gate. The crowd was composed chiefly of young men, many of them well dressed, and not a few accompanied by their sweethearts. The scene suggested a convoy by the students of a favourite singer rather than that by the youth of even the lowest class in Edinburgh of a brutal murderer of a harmless English gentleman.” And, again, in another newspaper: “On Monday many visitors were in Seaham for Bank Holiday and the flower show. Those who visited the cavern where the girl is supposed to have been murdered were ten times more numerous than those who went to the flower show. Nearly all were strangers to the town, and had journeyed thither for the express purpose of viewing the scene of the tragedy. Many took a memento of some sort, either a chipping of rock, a pebble, or a stone from the cave. Some went so far as to take water from the pool where deceased was found, away with them in bottles.”

It is well known that when a woman has murdered her husband it is by no means unusual for a number of letters to be sent to her, before the issue of the trial is known, containing offers of marriage.

It is not possible to regard the criminal as a hero or a saint after we have once seriously begun to study his nature. He is simply a feeble or distorted person to whom it has chanced—most often, perhaps, from lack of human help—to fall out of the social ranks. It is as unreasonable and as inhuman for a whole nation to become excited over him, and to crave for the minutest details concerning him, as we now deem it to expose the miseries of any other abnormal person—man of genius or idiot, leper or lunatic—to the general and unmerciful gaze. Not that any of these may not be studied; they must be studied, but not delivered over to unrestrained curiosities, sentimentalities, cruelties. No external force can change this attitude; no censorship of newspapers will avail. Only the slow influences of education, and a rational knowledge of what criminality means, can effect a permanent change. But until this has been effected, one of the most fertile sources of crime, what has been well called the contagion of crime, will remain, as it is to-day, a danger in all civilised countries, a danger which is suggesting heroic remedies. The minute details of every horrible crime are to-day known at once by every child in remotest villages. The recital of it stirs up all the morbid sedimentary instincts in weak and ill-balanced natures; and whenever a large community grows excited over a crime, that community becomes directly responsible for a whole crop of crimes, more especially among young persons and children.[113]

We have, then, to reform our emotional attitude towards the criminal. On the other hand, we have yet something to do in reforming our rational attitude towards crime. “There are no crimes; there are only criminals.” That saying of Lacassagne’s indicates the direction in which practical changes must develop. “All progress in penal jurisprudence,” as Salillas well says, “lies in giving consideration to the man.” The question of legal methods, criteria, and tribunals is one of considerable importance from this point of view, and it is one to which sufficient attention has not yet been given. It is unfortunate that, in this country at all events, there seems to be a tendency to antagonism or divergence between, on the one hand, the medical and scientific side and, on the other, the judicial and executive side in the treatment of the criminal.[114] Whether this divergence is due chiefly to the lawyers or to the doctors is not quite clear, but it is essential that it should come to an end. Both lawyers and doctors exist for the sake of society, and are the servants of society; society, in its own interests, must see to it that they agree quickly. But so long as society allows antiquated laws and methods to prevail, there must be disagreement—disagreement which is disastrous to social interests. We need, before everything else, an enlightened public opinion.

A question which is constantly arising, and constantly leading to direct divergence between the exponents of science and the exponents of law, is the question of insanity. Under existing conditions it is frequently a matter of some moment whether a criminal is insane or not. Now whether a man is insane or not is largely a matter of definition. Even with the best definition we cannot always be certain whether a given person comes within the definition, but it is still possible to have a bad definition and a good definition. The definition which lawyers in England are compelled to accept is of the former character. The ruling still relied on is that of the judges in the MacNaghten case, many years ago: “That to establish a defence on the ground of insanity, it must be clearly proved that at the time of committing the act the accused was labouring under such a defect of reason from disease of the mind as not to know the nature and quality of the act he was doing, or if he did know it, that he did not know he was doing what was wrong.” That this metaphysical and unpractical test will not do has been clearly recognised by some of the most eminent lawyers, who are quite in agreement with medical men. “The test of insanity which commends itself to medical men,” says Sir J. Crichton-Browne, “was never more clearly and succinctly expressed than by Lord Bramwell when in the Dove case he asked, ‘Could he help it?’ Could he help it? That is the real practical question at issue in any case in which the defence of insanity is set up.”[115] It should be added that Lord Bramwell has not always been able to maintain this position. “It ought to be the law of England,” says Mr. Justice Stephen, a very great authority, “that no act is a crime if the person who does it is at the time when it is done prevented by defective mental power, or by any disease affecting his mind, from controlling his conduct, unless the absence of the power of self-control has been produced by his own default.” A reasonable doctrine to lay down, no doubt, and one which medical men generally would accept; but one asks oneself at once: How many persons guilty of serious crimes—the only class in regard to whom the question is of practical importance—are to be counted sane?

The point on which we must fix our attention, however, is that it should make so much difference whether a criminal is insane or not. Our law is still in so semi-barbaric a condition that the grave interests of society and of the individual are made to hinge on a problem which must often be insoluble. Practically it cannot make the slightest difference whether the criminal is sane or insane. Sane or insane, he is still noxious to society, and society must be protected from him. Sane or insane, it is still our duty and our interest to treat him humanely, and to use all means in our power to render him capable of living a social life. Under any system, at once fairly humane and fairly rational, the question of insanity, while still of interest, can make little practical difference, either to society or to the criminal. It is unreasonable and anti-social to speak of insanity as a “defence.” It is an explanation, but, from the social point of view, it is not a defence. Suppose we accept the definition of insanity which, as we have seen, is now widely accepted by medical men and favoured by many eminent lawyers, that insanity is a loss of self-control, the giving way to an irresistible impulse. It cannot be unknown to any one that self-control may be educated, that it may be weakened or strengthened by the circumstances of life. If we define insanity as a loss of self-control and accept that as a “defence,” we are directly encouraging every form of vice and crime, because we are removing the strongest influence in the formation of self-control. When a “defence” of kleptomania was brought before an English judge in a case of theft he is said to have observed: “Yes, that is what I am sent here to cure.” We need not hesitate to accept this conception of the function of the court, provided always that the treatment is scientific, effectual, and humane.The fact that to-day it is not so, and that lawyers and doctors are helpless to make it so, is a glaring proof of the necessity which exists for society, in its own interests and in those of its weaker members, to take intelligent cognisance of these matters, and to pave the way for reasonable action. In the first chapter of this book I noted, without calling any special attention to it, the curiously divergent way in which somewhat similar cases were treated. One girl was treated kindly and sent to a clergyman’s house: she “recovered.” Little Marie Schneider was sent to prison for eight years, the years during which she will develop into a woman. What will she be fit for when she comes out at the age of twenty? She may come out a human tigress, or merely the crushed and helpless product of prison routine. In either case what intelligent principle guided the society that condemned her to spend those eight years in prison? The lad who killed his little sister was sent to penal servitude for ten years. What will he be good for when he comes out? “In any case,” as Dr. Savage remarks, “the boy is pretty certain to end his days either as a lunatic or a confirmed criminal, and I fancy the best course has been taken to make him the latter. So society will suffer the more, and the boy himself will be none the better.”

These problems are unknown to the law, but they are beginning to stir among the community. A girl of twelve not long since murdered a child of four, as she herself subsequently confessed, in much the same manner as Marie Schneider murdered Margarete Dietrich. The jury acquitted her. They acted in defiance of the evidence and of the law. It is clear that what they said to themselves was this: The law will send this girl to prison for some ten or fifteen years. We do not believe in the advantage of that, and we prefer to deliver her from the law altogether. They were, as the judge said, a very merciful jury. But it is not by shuffling evasions of law that civilisation progresses. We need just and reasonable laws, not merciful juries. It is not to the advantage of society that young murderesses should wander at large, though it may very possibly be better than throwing them into the prison as at present constituted. The “merciful” jury, as in the south of Italy, becomes the hysterical and too often venial jury. We cannot be too grateful for the courage and honesty with which, as a rule, English juries and judges fulfil their functions; it is to this adherence to law that many intelligent foreign observers attribute the fact that criminality in England is in some respects less serious than one might be led to expect. If, however, this attitude is to be maintained, and we are to avoid the dangers of lying and cowardly verdicts, we must see to it that our law keeps pace with our knowledge and with our methods of social progress.

The institution of the jury is well rooted in England, and on the whole very efficient. There is not likely to be any agitation for some time to come for its abolition, as there has been in Italy and France and Switzerland. But there is at all events one modification in our criminal courts which is urgently required. It is entirely opposed to the interests of justice, and therefore of society, that the scientific conclusions in a case should be thrust into a partisan position. Experts will often differ as lawyers often differ, but the lawyer is not more competent to decide on the science of the expert than the expert is competent to decide on the law of the lawyer. It is not for the interests of justice that one expert, representing perhaps only his own opinion, should weigh against another representing perhaps the general body of scientific opinion on that subject. It is not calculated for the ends of justice that the judge, however quick and intelligent, should have to pronounce on matters concerning which he can only speak as a layman, and necessarily falls into frequent errors of judgment. Special points involving special knowledge or skill must be submitted to a commission of experts, and the verdicts of the commission on these special points must be accepted by the court, though subject to an appeal to a supreme medico-legal tribunal. Some such method as this is now being widely demanded by intelligent opinion in the interests of justice. At the International Congress on Forensic Medicine, held in Paris in 1889, this tendency came out very clearly, and was formulated in the following proposition which the Congress adopted:—“To guarantee the interests of society and of the accused in all medico-legal investigations, at least two experts shall be employed. These shall be appointed by the judge.” It is to be hoped, in the interests of justice, that the pressure of public opinion will hasten the adoption of this reasonable and moderate reform in criminal procedure.

Our courts of justice are still pervaded by the barbaric notion of the duel. We arrange a brilliant tournament, and are interested not so much in the investigation of truth as in the question of who will “win.” We cannot hope for any immediate radical change in this method, but it is our duty to do all that we can to strengthen those elements in our courts which are concerned, not with the gaining of a cause, but with the investigation of truth. This and all other reforms in our methods of dealing with the criminal, as I have already pointed out, and would again insist, cannot be attained by a mere administrative fiat; nor is it desirable that they should be. Before any reform can be safely embodied in the law it must first be embodied in the popular consciousness. We need here, as in so many other fields of our social life, a strong body of intelligent and educated opinion. This must accompany that revival, under the inspiration of the methods of natural science, of that science of jurisprudence which is at present the most stationary and scholastic of all the sciences.

These problems are every day becoming more pressing. The level of criminality, it is well known, is rising, and has been rising during the whole of the present century, throughout the civilised world. In France, in Germany, in Italy, in Belgium, in Spain, in the United States, the tide of criminality is becoming higher steadily and rapidly. In France it has risen several hundred per cent.; so also for several kinds of serious crime in many parts of Germany; in Spain the number of persons sent to perpetual imprisonment nearly doubled between 1870 and 1883; in the United States the criminal population has increased since the war, relatively to the population, by one-third. There is, no doubt, room for fallacy in many of these statistics; various circumstances serve to modify such figures—a greater or less intolerance of crime, more or less success in capturing criminals, and variations in the methods of dealing with them. On the whole, however, there seems to be a general agreement that the increase is real.Insular Great Britain alone appears to be relatively unsubmerged by the rising tide of criminality; but even here there is a real increase, in proportion to the population, in the more serious kinds of crime. Crimes of passion are rarer among the Anglo-Saxon race in England, Scotland, and America than anywhere else; but crimes of interest are proportionately more common than elsewhere. The decrease is in minor offences, and is due in large measure, no doubt, to reasons connected with the police. The anomaly of the comparative freedom of Great Britain from crime has been explained by foreign observers in several ways—by the former frequency of hanging and of transportation in England, thus eliminating a large number of criminals,[116] and by the firmness with which sentences are executed. It is probable that the great stream of emigration from Great Britain, carrying away much of the finest, but also much of the most turbulent elements (the two are often connected), has had a very marked influence in this respect.

Criminality, like insanity, waits upon civilisation. Among primitive races insanity is rare; criminality, in the true sense, is also rare. Conservatism and the rigid cult of custom form as distinct a barrier against crime as they do against progressive civilisation. As the methods of enlarging and multiplying the uses of our lives increase, so do the abuses of these methods. In an epoch of stress, and of much change and readjustment in the social surroundings and relations of individuals, ill-balanced natures become more frequent, and the anti-social and unlawful instincts are more often called out than in a stagnant society. The criminality of the Irish in England is far greater than that of the Irish at home, and it is a significant fact that while the Americans are more criminal than the English, the criminality of the English-born in the United States is more than double that of the native American whites. Like insanity,[117] criminality flourishes among migrants, and our civilisation is bringing us all more or less into the position of migrants.

But the problem of criminality is not thereby rendered hopeless. Rather it is shown to be largely a social fact, and social facts are precisely the order of facts most under our control. The problem of criminality is not an isolated one that can be dealt with by fixing our attention on that and that alone. It is a problem that on closer view is found to merge itself very largely into all those problems of our social life that are now pressing for solution, and in settling them we shall to a great extent settle it. The rising flood of criminality is not an argument for pessimism or despair. It is merely an additional spur to that great task of social organisation to which during the coming century we are called.

It is useless, or worse than useless, to occupy ourselves with methods for improving the treatment of criminals, so long as the conditions of life render the prison a welcome and desired shelter. So long as we foster the growth of the reckless classes we foster the growth of criminality. So long as there are a large body of women in the East of London, and in other large centres, who are prepared to say: “It’s Jack the Ripper or the bridge with me. What’s the odds?”[118] there will be a still larger number of persons who will willingly accept the risks of prison. “What’s the odds?” Liberty is dear to every man who is fed and clothed and housed, and he will not usually enter a career of crime unless he has carefully calculated the risks of losing his liberty and found them small; but food and shelter are even more precious than liberty, and these may be secured in a prison. As things are, the asylum and the workhouse, against which there is a deep prejudice, ingrained and irrational, would have a greater deterring influence than the prison. There are every morning at Paris 50,000 persons who do not know how they will eat or where they will sleep.[119] It is the same in every great city; for such the prison can be nothing but a home. It is well known that the lot of the convict, miserable as it is, with its dull routine and perpetual surveillance, is yet easier, less laborious, and far more healthy than that to which thousands of honest working men are condemned throughout Great Britain. The fate reserved for a French convict is one that might well be the reward of honesty. He is sent to New Caledonia, to marry, to settle, perhaps to become rich. “I do not know,” an ex-deputy, sent out to report on the condition of the convicts, is said to have declared, “any struggling peasant or small proprietor in France who would not gladly exchange his lot for that of a convict of the first class in New Caledonia.” “The working classes,” as Professor Prins, one of the most able and thoughtful students of this subject, remarks, “badly housed, badly nourished, vegetate at the mercy of economic crises.[120] The worker is always on the borders of vagabondage; the vagabond is always on the borders of crime. The entire working classes are thus exposed in the first line, and whether it is a question of disease or of crime, it is they who succumb first.”[121] Crime would be much commoner than it is if it were not for the communistic practice of mutual helpfulness which rules so largely among the poorest classes, and mitigates the stress of misery. All the more thoughtful students of the criminal, among whom Ferri in this respect stands first, have seen the direct bearing on criminality of what Colajanni has called Social Hygiene. We may neglect the problems of social organisation, but we do so at our peril.

It was at one time thought that the great panacea for the prevention of crime was education. Undoubtedly education has an important bearing on criminality, but we now know that the mere intellectual rudiments of education have very little influence indeed in preventing crime, though they may have a distinct influence in modifying its forms. Such education merely puts a weapon into the hands of the anti-social man. The only education that can avail to prevent crime in any substantial degree must be education in the true sense, an education that is as much physical and moral as intellectual, an education that enables him who has it to play a fair part in social life. The proportion of criminals with some intellectual education is now becoming very large; the proportion of criminals who are acquainted with any trade still remains very small; the proportion of criminals engaged in their trade at the time of the crime is smaller still. We seem to be approaching a point at which it will become obvious that every citizen must be educated to perform some useful social function. In the interests of society he must be enabled to earn his living by that function. If we close the social ranks against him he will enter the anti-social ranks, and the more educated he is the more dangerous he will then become.

All education must include provision for the detection and special treatment of abnormal children. We cannot catch our criminals too young. Taverni has found that criminals in childhood are marked especially by their resistance to educative influences. It is our duty and our interest to detect such refractory and abnormal children at the earliest period, to examine them carefully, and to ensure that each shall have the treatment best adapted to him. It is much easier, and much cheaper, to do that, than to wait until he has brought ruin on himself and shame on his friends. This is beginning to be recognised and acted upon in those countries that are most alive to the meaning of education; in Sweden, for instance, there is a careful medical supervision of schools, by medical officers who are not subordinate to the teachers, although this supervision is confined to the physical condition and capacities of the child. It is indispensable, if we are to deal effectually with the criminal, that we should be able to refer to the record of his physical, mental, and moral dispositions during childhood. In England recently a committee, consisting of the most eminent medical men specially qualified for the task, was appointed to examine into the condition of children in primary schools. This committee, owing chiefly to the enthusiasm and labour of Dr. Francis Warner, accomplished much valuable work, but the London School Board refused to allow any access to its schools. The London School Board consists, one may suppose, of intelligent persons, genuinely interested in education, and representing the sense of the community, yet they refused to consider one of the most serious problems that the educator has to face. So true it is that every society has only the criminals that it deserves.

While a wise modification of the educative influences is here of the greatest importance, we must not forget that to a very large extent the child is moulded before birth. There is no invariable fatalism in the influences that work before birth, but it must always make a very great difference whether a man is well born and starts happily, or whether he is heavily handicapped at the very outset of the race of life; whether a man is born free from vices of nature, or buys freedom, if at all, at a great price. There is evidence to show how much of the welfare of the child depends on the general physical and emotional health of the parents, and that the child’s fate may be determined by some physical weakness, some emotional trouble at conception or during pregnancy. No legislation can step in here, save at the most very indirectly. We can, however, quicken the social and individual conscience. The making of children is the highest of all human functions, and that which carries the most widespread and incalculable consequences. It is well to remember that every falling away from health, every new strain and stress, in man or woman, may lay an additional burden on a man or woman yet unborn, and perhaps wreck a life or a succession of lives.

This is not the place to develop these various consequences which flow from our consideration of the nature and treatment of the criminal. It seemed well, however, to indicate them, if only to show how large a problem is this of criminality. Perhaps every social problem, when we begin to look into it and to turn it round and to analyse it, will be found not to stand alone, but to be made up of fibres that extend to every part of our social life.